(dissenting):
On occasions we hear the aphorism, “To call a lamb’s tail a leg does not make it one.” In my view, the main opinion, and the opinion concurring in the result, fail to give credence to that apodictical pearl. By pronouncing an arm of the legislature (the Public Service Commission), performing a strictly legislative act (regulation and establishment of public utility rates), is somehow then performing in a judicial capacity; demonstrates the mendacious nature of the pearl. In truth, the tail is transformed into a leg, by calling it so.
For the following reasons, I dissent. The clear and unequivocal legislative command as expressed in chapter 4, Title 52, is that the deliberations of an administrative body shall be conducted openly in public. There is no statutory exemption provided for the deliberations of the Public Service Commission in the regulation and establishment of rates for a public utility. The implied exemption engrafted upon the act by the majority opinion, in my view, constitutes judicial legislation.
Section 3 provides:
Every meeting is open to the public unless closed pursuant to sections 52-4^ and 52-4-5. [Emphasis supplied.]
Significantly a conjunction is used in section 3, thus a meeting must be open unless there is compliance with the requirements of both sections 4 and 5. In construing section 4, the majority omits from its references to this section, the most important clause. It provides:
No closed meeting is allowed except as to matters exempted under section 52-4-5; .
The parties have stipulated the statutory exemptions of 52-4-5 are not in issue in this action. Thus, the only manner by which the public may be foreclosed from attending the deliberations of the Public Service Commission is by the creation of a judicial exemption, contrary to the expressed legislative intent.
In enacting this chapter, the legislature finds and declares that the state, its agencies and political subdivisions, exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. [Emphasis supplied.] Sec. 52-4-1.
The rationale for the exemption enacted by the majority opinion is predicated on the concept that the Commission performs duties which are quasi-judicial or judicial in nature. There is no reason to believe that the legislature is not equally cognizant of the diverse duties of the Commission, viz., that it exercises both delegated legislative powers and quasi-judicial functions. The argument of the majority is irrelevant for the act applies to a “public body,” regardless of the functions it performs. Section 52-4-2(2) provides:
*1317“Public body” means any administrative, advisory, executive or legislative body of the state . . . which is vested with the authority to make decisions regarding the public’s business. . [Emphasis supplied.]
The definition of “public body” is all inclusive except for the exclusion of those who would properly be included in the judicial department as that term is used in Article V, Sec. 1, Constitution of Utah. The Public Service Commission is not part of the judicial department; it is an administrative body and falls within the express definition of public body in Sec. 2(2). The functions performed by the Commission do not change it from an administrative body and remove it from the act.
The majority opinion expresses the view that when the Commission reaches the “decision making” phase of the proceedings, it should be free to deliberate in private. The reasons expressed for this view are sound, but it is contrary to the expressed legislative intent of section 1 that the “deliberations be conducted openly.” Furthermore, this Court usually is not concerned with questions of policy or with the wisdom of legislation.1 If there be verity to the fears expressed in the majority opinion, it is the exclusive prerogative of the legislature to amend the law.
Although it is the contention of this opinion that the functions performed by an administrative body .in a determination of whether it falls within the act are irrelevant, it should be emphasized this Court has ruled in a line of decisions extending over a period of sixty years that the regulation and establishment of public utility rates is strictly a legislative power, and the Commission acts in these matters as an arm of the legislature.2
. it is of the utmost importance that we keep in mind that the Commission, in fixing and promulgating rates or charges for services rendered by the public utilities of this state acts merely as an arm of the Legislature and that in discharging its duties the Commission cannot, and does not, exercise judicial functions. Its acts are therefore reviewable by this court only in the manner and to the extent stated in the statute. . .3
. all we can review in cases of this kind is whether there is any evidence to sustain the findings of the commission, whether it has exercised its authority according to law, and whether any constitutional rights of the complaining party have been invaded or disregarded. In view that the commission is merely an arm of the Legislature through whom that body acts in matters of this kind, but a moment’s reflection convinces any one that this court may not interfere except for the reasons stated. If interference were extended beyond those limits, it would, in effect, be an interference by this court with the law-making power of this state. .
The power conferred upon the Legislature is supreme respecting the regulation and establishing of rates. We may not interfere with or review any legislative act unless some judicial question is presented for review. . . .4
. This court may not interfere with or review a legislative act unless some judicial question is presented for review. Unless a rate established by the Commission is clearly oppressive or confiscatory, no judicial question is presented. Whether there is any substantial evidence to support a finding of fact made by the Commission is a judicial question and may be determined by this court. Thus all this court can review in this case is whether there is any evidence to sustain the findings of the Commission, *1318whether it has exercised its authority according to law, and whether any of plaintiff’s constitutional rights have been invaded or disregarded.5
The duties exercised by the Commission in rate making are legislative in nature, and the power of review by this Court is limited to a standard similarly applied to legislative enactments.
Although the manner in which the Commission conducts hearings resembles the procedures utilized by courts, it does not mean the Commission is performing a judicial function. The procedures provided by the legislature are merely a means to assure proper standards so there can be no allegation of an improper delegation of legislative power.
As observed in Lloyd A.Fry Company v. Utah Air Conservation Committee6 the law of delegation would be strengthened by emphasizing procedural safeguards. A statutory standard is not a very good protection against arbitrariness. Effective protections are hearings with procedural safeguards, legislative supervision and judicial review.
Finally, I think it well to examine the source of the court’s jurisdiction. Section 52 — 4-9(2) provides:
A person denied any right under this chapter may commence suit in a court of competent jurisdiction to compel compliance with or enjoin violations of this chapter or to determine its applicability to discussions or decisions of a public body. .
Plaintiffs herein sought to determine the applicability of this chapter to the discussions or decisions of the Public Service Commission. Section 9(2) specifically grants the district court subject matter jurisdiction to make such determination. The parties stipulated plaintiffs would be denied their request to attend the deliberative sessions of the Commission, wherein the members determine the setting of rates. The stipulation of such a fact is sufficient to establish plaintiffs have been denied a right under this chapter. To require a public body first to establish a “rule” providing for a closed meeting, prior to the district court acquiring subject matter jurisdiction, would not only violate the specific procedure provided in Sec. 52-4 — 4 which sets forth the manner in which a public body may close a meeting; but it would also establish a means to subvert the clear legislative intent expressed in Section 1 of the act. A public body could merely fail to establish a formal “rule” and thus avert any potential legal challenge to compel compliance with the act.
. Bateman v. Board of Examiners, 7 Utah 2d 221, 234, 322 P.2d 381 (1958).
. Terra Utilities, Inc. v. Public Service Commission, Utah, 575 P.2d 1029, 1032 (1978); Jeremy Fuel & Grain Co. v. Public Utilities Comm., 63 Utah 392, 397-398, 226 P. 456, 458 (1924); Salt Lake City v. Utah Light & Traction Company, 52 Utah 210, 227-228, 173 P. 556, 563 (1918).
. Jeremy Fuel & Grain Co. v. Public Utilities Comm., note 2, supra.
. Salt Lake City v. Utah Light & Traction Co., note 2, supra.
. Terra Utilities, Inc. v. Public Service Comm., note 2, supra.
. Utah, 545 P.2d 495, 501 (1975).