I concur in the result. But in doing so add some comments.
There is a reasonable basis in the evidence to support the Commission's finding that the plaintiff was not available for work, during a week in which he applied for and accepted compensation, under a representation that he was available for work. According to the standard rules of review, that finding is not subject to reversal by this Court. There is therefore no doubt that the $88 should be refunded.
Concerning the disqualification for 52 weeks, I view the matter somewhat differently. I conceive it to be my duty to recognize that the decisional law of our state is as stated by the majority in our recent case of Diprizio v. Industrial Commission, Utah,572 P.2d 679. Because no majority of this Court is willing to accept what I believe to be the correct view of the law as expressed in the dissent therein, adherence to the law as expressed by the majority impels me to agree that the decision of the Commission conformed thereto in applying the statute.
Nevertheless, I take occasion to point out that this case, wherein because of a four-day diversion from the monotonies of life on an elk hunt, the Commission was under compulsion to apply the 52-week disqualification, is a good example of the unreasonableness and injustice that can result from the holding that the statute is absolute and mandatory. I refer to and reaffirm my views expressed in the Diprizio case, supra: that in those aspects of its statutory responsibilities wherein the Commission is authorized and required to exercise judicial powers, that should necessarily include the judicial prerogative of exercising reason and good conscience in imposing its judgments, to the end that it could adequately discharge its duties and administer justice. *Page 337
It should also be observed that while a legislative change in this particular statute might provide a means for correcting the evil in its unreasoning and mandatory application, that would not provide what I believe to be a sound and necessary foundation for administrative tribunals generally: the authority to exercise judicial discretion in performing responsibilities which are judicial in nature.