(concurring in part, dissenting in part) :
I am in accord with the conclusion of the main opinion that in purporting to fix priorities of water for the parties the Commission appears to have gone beyond its proper prerogatives in certain particulars. However, I have some apprehension as to what will be the consequence of this court’s decision in simply reversing the Commission’s action without further explanation of its intended effect. It seems quite likely that Interwest would contend that because it prevailed in this court, the Commission is now obliged to grant its petition to enter an order commanding Terra Utilities to supply the requested 19,000 gallons of water per day for the use of the Interwest condominium; and this presumably for the indefinite future. For the Commission to do so would result, in the very evil which the decision seems designed to prevent. I therefore think it should be made as plain as possible that the decision of this court should not be understood as so commanding the Public Service Commission.
It should be kept clearly in mind that this proceeding is at bottom a dispute between defendant Terracor and plaintiff In-tewest, both land developers in the service area which Terra Utilities is certificated and obliged to serve. The issue presented to the Commission was to overrule Terra Utilities’ refusal and to compel it to commit to Interwest the requested 19,000 gal-*384Ions of water per day for the latter’s condominium.
It is true that the Public Service Commission is granted general powers to “supervise and regulate” public utilities.1 But as the main opinion indicates, it can only exercise such powers as are conferred upon it by statute; and moreover, its powers do not extend and should not be so exercised as to unduly intrude into the management of utilities. The matter of management, which necessarily includes both present and future planning, is in the first instance the prerogative and the responsibility of the utility itself; and the Public Service Commission should not interfere with such management unless something is shown which is inimical to the interests of the public, or that there is unfairness, favoritism or discrimination in the treatment of customers. And a fortiori, this court should not compel the Commission to intrude into the affairs of management unless it would be for the purpose of correcting some such impropriety.
It is important to point out that none of the contesting companies, neither Terra Utilities nor Terracor nor Interwest actually owns any water. The water available to them is simply the contingent right to use surplus water of St. George City. This may diminish or abort for various reasons, including growth and development within St. George, and/or climatic conditions, so that the waters in controversy may only be available in lesser quantities, or mayhap not at all. Reflection will indicate what difficulties could then arise if Terra Utilities were under an order of the Commission to supply 19,000 gallons per day to Interwest. The obligation of the utility would be to furnish available water to all customers in the service area on an equal and non-discriminatory basis. If under the circumstances shown here, there was impropriety in permitting Terra Utilities to commit a definite amount of its available water to protect the development of Terracor, there also would be impropriety in the Commission committing a definite amount of water for the indefinite future to protect the development of Inter-west.
This court passed on a somewhat similar problem in the case of McMullin v. Public *385Service Commission.2 It upheld the action of the Commission in refusing to order the utility to furnish water to a proposed subdivision based upon the proposition that, although it was shown that the water company had presently available water, its plans to serve the potential in its already committed service area would suffer if the proposed new service was granted. The court said:
The view here taken by the Commission is quite consistent with its purpose and responsibility of supervising the use of culinary water so that . . . there will be satisfactory, adequate, and.continuous service to the portion of the public the Utility is undertaking to serve.
Other jurisdictions have taken a similar view. In Filger v. Public Water Supply Dist. No. 1 of Clay County,3 the Missouri Court said that a Water District did not have an absolute duty to commit to all the inhabitants of the district with the amount of water requested, but in the exercise of its discretion could refuse to furnish it in the quantity requested so long as such action is not arbitrary or discriminatory.
As indicated at the outset, I agree that with respect to certain aspects of the Commission’s order, the main opinion’s conclusion is correct “that the Commission exercised a power beyond that granted to it by the legislature . . .” However, with respect to the particular part of the order which plaintiff Interwest seeks to have this court overturn and that Terra Utilities be directed to commit a definite amount of 19,000 gallons of water per day, my view is different. In that regard it is to be observed that instead of “exercising a power” the Commission refused to “exercise a power,” and refused to grant that request. For the reasons herein stated, it is my opinion that the Commission was under no obligation to grant that request; and further, that there is no basis upon which we can properly say that the Commission acted capriciously and arbitrarily in refusing to do so.
ELLETT, J., concurs in the views expressed in the opinion of CROCKETT, J.. Sec. 54-4-1, U.C.A.1953, confers upon the Commission power to . . supervise and regulate every public utility in this state . . . ”; Sec. 54r-4-7, U.C.A.1953, provides that “Whenever the Commission shall find . . . that . . . practices ... or service of any public utility, or the methods of distribution . . . are unjust, reasonable . . . the Commission shall determine the just, reasonable . practices . . . service or methods and shall fix the same by its order . . . ”; Further, Sec. 54 — 4-18, U.O.A.1953, provides that “The Commission shall have power ... to ascertain and fix . (the) service to be furnished . . . by all water corpoi'ations.”
. 7 Utah 2d 157, 320 P.2d 1107, 1109 (1958). See also North Salt Lake v. St. Joseph Water & Irr. Co., 118 Utah 600, 223 P.2d 577 (1950).
. 346 S.W.2d 567, 573 (Mo.App.1961).