ON PETITION FOR REHEARING. This case was elaborately briefed and argued by counsel for the petitioners, counsel for the city and its officers, and counsel for Fairbanks, Morse Co., upon all the questions considered in the opinion, and by counsel amici curiae on the question of remedy. We granted what amici curiae urged, a denial of the writ. Counsel amici curiae, on their behalf and on behalf of their client, not a party to the record, now petition us to grant a rehearing and grant the writ. *Page 345
As is seen by the opinion, we denied the writ, not on the ground, urged by amici curiae, that the remedy by prohibition sought by the petitioners was not the proper or appropriate remedy, that the petitioners had an adequate remedy by injunction, and hence the office of the writ of prohibition could not properly be employed to prohibit or restrain what was sought to be restrained by the petitioners, but on the ground that the threatened alleged commission of the acts of the city and of its officers was not without or in excess of the power or jurisdiction of the city. Hence counsel amici curiae, on their own behalf and on behalf of the Utah Power Light Company, engaged in the manufacture and sale of electrical energy for light, power, and domestic purposes, an alleged taxpayer and for the first time appearing in the case, filed a petition for a rehearing, and also a petition in intervention on behalf of the company, asking that it now be permitted to intervene in the cause. They do not ask to modify or to be further heard on the question of remedy, but to be further heard on the grounds on which the writ was denied. That right is asserted by the company as a taxpayer.
Upon the service of a verified petition of the petitioners, and upon notice to all of the parties, the city, its officers, and to Fairbanks, Morse Co., an application was made for a permanent writ of prohibition. All of the defendants to the cause appeared and filed a general demurrer to the 12 petition. Thereunder it was claimed by all of the defendants that the petitioners had another remedy, and that the acts sought to be restrained were within, and not without or in excess of, the power and jurisdiction of the city and its officers. Elaborate briefs were filed and oral arguments had by the parties on all of such questions. Counsel amici curiae filed a rather elaborate brief as to remedy, and asked that the writ be denied. They had the opportunity and privilege to discuss all other questions raised by the general demurrer, but did not do so. The parties themselves presented and submitted the cause on *Page 346 the general demurrer. None of them desired to further plead, or to further proceed with the cause. All of them submitted to the decision as a final determination of all of the issues presented by the petition. None of them applied for any further hearing, or for any change or modification of the decision. All of the parties to the litigation, both plaintiffs and defendants, object to counsel amici curiae, either on behalf of themselves or on behalf of the power company, to be further heard or to the granting of a rehearing. They in effect urge that, when the decision was rendered and accepted by all of the parties to the cause as final, and none of them desiring to be further heard, counsel as friends of the court, having no control or management of the case, are not entitled to petition for a rehearing or to be further heard. We think the objection is well taken. 2 C.J. 1325. Indeed, it is not seriously disputed by counsel amici curiae. They, however, assert the right to be further heard for reasons presently to be noted.
All of the parties to the cause also object to permitting the power company at this stage of the proceeding to intervene or be heard, either on a petition for a rehearing or for intervention. They urge that under Comp. Laws Utah 1917, § 6518, whatever right, if any, the power company as a taxpayer or otherwise had to intervene was required to be asserted before or at the hearing, or at least before judgment, and that leave to intervene may not now be granted; that since the case has gone to judgment, and all of the parties to the record submitting to it, a mere stranger to the record may not now seek to disturb it by filing a petition for a rehearing to enable him to intervene or otherwise to be heard in the cause. All this, too, is not seriously disputed, and no contention made to the contrary, except for what now will be noticed.
Counsel amici curiae, in all of the proceedings in the case up to the time the decision was rendered and filed, appeared only as friends of the court, and in no other capacity. As *Page 347 such they were permitted and had the opportunity to suggest and urge whatever on the record they desired to 13 suggest or urge, not only with respect to remedy, but also as to whether the alleged threatened acts of the city were or were not within its power or jurisdiction, and as to whether the city or its officers ought or ought not be restrained and prohibited. Counsel amici curiae now urge that the reason they in oral argument and in their brief discussed only the question of remedy was that in the course of the oral argument they suggested to the court that, if their position on the question of remedy was held against them, they desired to be further heard, and that they in such event might desire to intervene on behalf of the power company, and that the presiding justice indicated that such leave would be granted. No order respecting the matter was made, nor was asked to be made. When counsel later filed their brief, no suggestion or request was therein made to be further heard or to intervene.
Counsel for the parties, however, while admitting that at the oral argument counsel amici curiae said something respecting an intervention, dispute that counsel said they desired to intervene on behalf of the power company. In reply to that counsel amici curiae stated that all concerned in the proceeding well knew they were also counsel for the power company, and well knew that whatever reference was made to an intervention was for and on behalf of that company. There is no doubt that something concerning the matter was stated by counsel at the oral argument, but just what it was is not clearly remembered by the members of the court present at the argument. Such matters ought not to rest on the mere memory of the court or of counsel. Both must act and speak by the record and concerning what is of record.
Inasmuch, however, as counsel assert they relied on what they claimed was indicated to them with respect to being further heard and to an intervention, and as we do not wish counsel to be misled by whatever might have been said or *Page 348 indicated by the presiding justice, we indicated to counsel that we would entertain a brief on merits in support of their petition to intervene and to be further heard on behalf of the power company. Such a brief was filed, as well as a reply thereto by counsel for all of the parties. Regardless of the question of time within which such an application is required to be made, we think the petition on the merits is groundless.
The chief grounds on which the company desires to intervene and be heard are (1) that Fairbanks, Morse Co., by reason of the contractual relation created by the contract between it and the city, was itself engaged in the business of a public utility, and before the construction of the plant and lines it was required to obtain a certificate or permit of 14 necessity from our Public Utilities Commission; (2) that the city, by entering into the contract, relinquished or delegated to Fairbanks, Morse Co. the right to fix rates for electrical service, which, it is contended, the city had no authority to do; and (3) that, if the contract was valid and within the power of the city to enter into, the city itself was carrying on, or about to carry on, a business of a public utility, and hence, before commencing the construction of the plant or system, or engaging in the business, it was required to obtain a permit or certificate of necessity from the commission.
The first and second points are largely predicated on provisions of the contract referred to in the opinion, whereby it was stipulated that the title to the Deisel engine and accessories to be sold to the city by Fairbanks, Morse Co. was to remain in the company until the purchase price was paid, and whereby the city obligated itself to maintain sufficient rates for service of the plant to raise sufficient revenue to meet the payments provided for by the contract. That, it is contended, made Fairbanks, Morse Co. a public utility, and subject to the control and regulation of our Utilities Commission, and required the company to first obtain a permit or certificate of necessity; and that the city *Page 349 by agreeing to maintain sufficient rates to meet the payments constituted a delegation of rate fixing and charges. We think the claim is untenable and does not require a discussion of it.
The further point is based on the proposition that, inasmuch as the city was not engaged in manufacturing or furnishing electrical energy, either for itself or for its inhabitants, when the act creating our Public Utilities Commission became effective, the city, to now engage in such business, 15 before commencing the construction of such a plant or system, was required to obtain a permit or certificate of necessity from the commission, and that such a question was not involved or decided in the Logan City Case referred to in the opinion. We think that also is without merit. The clear purport of the Logan City decision is that, because of the constitutional provision there referred to, municipalities owning, operating, and conducting electric plants for their own use and for the use of their inhabitants are not subject to the regulation or control of the commission; that the commission has no jurisdiction over such municipally owned and operated plants. We adhere to that.
The recalling of our opinion, or the granting a rehearing, either on the petition of counsel amici curiae, or the petition in intervention on behalf of the power company, is therefore denied.