Concurring in the opinion of Mr. Justice McDONOUGH: Quite against my inclinations I am compelled to concur in the opinion of Mr. Justice McDONOUGH. From a standpoint of justice I do not like the result but I see no escape from the analysis of the statute and conclusions arrived at by Mr. Justice McDONOUGH. The legislature has spoken by language which leads to the conclusion that when we set aside an order of the Commission we do sustain, within the meaning of Sec. 76-6-17, U.C.A. 1943, the charges made by the utility pending appeal. We, of course, do not put ourapproval on such rates. Only the Commission could do that. Certainly if we affirmed the Commission the excess rates charged pending appeal would not be sustained. Where we set aside the order of the Commission stating in the opinion that there is no competent evidence to support the rate fixed by that order we neither sustain nor fail to sustain (not sustain) the rate charged *Page 515 by the utility during period of appeal in the sense that we disapprove or approve it. We never, by affirmance or vacation of the Commission's order, approve or disapprove of a rate order. We only determine whether it has been arrived at by a regular pursuit of the Commission's authority and whether there is evidence to sustain it. Thus the word "sustain" when used in reference to a rate fixed by the Commission must, in order to accord with the only action which the legislature has permitted to us in case we uphold the Commission, be equivalent to our permitted action of affirmance. And the words "not sustained" used in connection with the old rate still charged by the utility during pending of appeal are also equivalent to our affirming. If the rate fixed by the Commission's order is not affirmed then the old rate of the utility charged during the pending of the appeal is, so far as any action which we may take, "sustained." There is no middle ground. We cannot modify. We cannot remand with directions to fix a certain rate. We "set aside" which leaves the Commission free properly to find the rate level which it did not do before. In our opinion in the case ofMountain States Telephone Telegraph Co. v. Public ServiceCommission, 105 Utah 230, 142 P.2d 873, rehearing denied,105 Utah 266, 145 P.2d 790, we did not hold that the rates of Mountain States were, when considered by themselves, unjust or unreasonable. Nor did we hold that such rates would necessarily be reduced. The holding was that the existing differences between Mountain States' intrastate rates and the Long Lines interstate rates were, on the evidence adduced, unreasonable and unjustified. The question was expressly left open to whether it would finally be determined that the intrastate rates should be reduced, and if reduced, the extent of the reduction. On new evidence it is possible that the difference between intrastate rates and the Long Lines interstate rates will be found to be a reasonable difference, although the probabilities are certainly the other way. The possibility of such a finding was not foreclosed *Page 516 by our holding. The fact that there is a great likelihood (in view of our conclusion that there was justification for the Commission's finding that there was unjust discrimination between the intrastate long distance rate and the long line rates), that the upper rate will be reduced to a level somewhere between the two rates, does not mean that we did or did not sustain the utility in its charges during the stay period. It only presents a likelihood that such rates will ultimately be different. They are meanwhile lawful and valid in the sense that there is no valid order fixing a new rate level.
What rather shocks our sense of justice is the result which may emerge when we follow the law as thus laid down. Because the fund cannot be retained until the commission finally determines what were the just and reasonable rates during the period of appeal, a strange result may ensue. Take for example the instant case: The utility has petitioned for a stay on the ground that the rates fixed by the Commission are less than the just, reasonable and sufficient rates and that if it must abide by the new rates pending appeal it will suffer losses which it can never recapture from the consumer if the Commission's order is set aside. On such showing a stay was granted and the utility paid the required amounts into the fund. It prevailed in the appeal because the Commission failed to fix the correct level of rates. The entire fund is now to be turned over to the utility. Later if the Commission fixes rates higher than Long Line rates but lower than the present rates being charged which are acceptable to the utility as just, reasonable and sufficient, or if appealed are affirmed by this court because supported by substantial evidence, and such rates so ultimately arrived at were the just and reasonable rates during the period pending the appeal, the utility has, because it obtained the privilege of a stay, emerged from the controversy not only without a loss but with a windfall by obtaining from the consumers a rate during the appeal period higher than what was *Page 517 during said period a just and reasonable rate. The rule ought to be —
"Render unto the utility what belongs to the utility and unto the consumer what belongs to the consumer."
I had thought that we could avoid this result by holding the fund intact until the Commission found what should have been the just and reasonable rates during the period of appeal on the theory that a fund having come into being as a condition of our granting a stay, its distribution should be governed by the application of equitable principles as was done on the case ofUnited States v. Morgan, 307 U.S. 183, 59 S. Ct. 795,83 L. Ed. 1211. But my difficulty with this is that here the fund has been created by reason of a mandate of the legislature (although we could have required as part of our ordinary equitable power in case of appeal as a condition of granting the certiorari had no such mandate been prescribed by the legislature that such payments be made by the utility) and there are strict directions from the legislature as to how the fund is to be distributed in case we affirm and again in case we set aside the order of the Commission. We cannot disobey such instructions. The remedy lies with the legislature. It is easy for us where our inclinations and sense of social progress or justice accord with the mandates of the legislature to refrain from interfering, under the guise of interpretation, with legislative directions. It is more difficult to stay in the circle of our own province when we think that the results of following legislative directions are socially untoward or reach what appears to us to be an unjust result. True, if there were room for differences of interpretation, we should then follow that interpretation which accords with what appears to us to be the practical, sensible or socially just result. As appears in the case of Johanson v. Cudahy PackingCompany, 107 Utah 114, 152 P.2d 98, there are cases where reasonable minds may differ as to the point where interpretation stops and judicial legislation begins. In those cases where a judge may conscientiously conclude *Page 518 that he is exercising his function of interpretation his opinion will attempt to reach, through interpretation, that result which accords with workability, practicality, commons sense and justice. But where he does not think that reasonable minds could differ, as on the question of whether what we are asked to do is really legislation, it is his duty to stay within the province of the judiciary and restrain from invading the province of the legislature despite his personal longings for a different result. In this case, as in the case of the Peerless Sales Company etal. v. Industrial Com'n of Utah et al., 107 Utah 419,154 P.2d 644, I am constrained by the principles herein above announced to hold contrary to a result I would like to reach. In other cases from time to time I have denounced what I considered a judicial invasion on our part into jury, legislative or administrative agency fields because I thought the majority were unwittingly permitting their social views or mind conditioning or a desire for what seemed a better or correct result, to lead them into fields of decision reserved by the constitution or the laws to other agencies of social control. I am now simply taking a dose of the medicine which I have heretofore prescribed for others.