We take it that the appeal to the circuit court was under section 79, Title 48, Code. A supersedeas bond was executed by authority of section 81, Title 48, Code. The circuit court, in equity, heard and determined the cause on July 17, 1948, as authorized by section 82, Title 48, Code, and affirmed the order of the commission. Appeal was taken to this Court by the Birmingham Electric Company under authority of section 90, Title 48, Code. On the appeal to the circuit court, in equity, the cause was heard on the certified record before the commission. On appeal to this Court it is of course heard on the same record. On such hearing we affirmed the decree of the circuit court on October 20, 1949. An application for rehearing was granted by us on the second day of February 1950, and our judgment of affirmance was set aside and the judgment of the circuit court vacated and the cause remanded to the Alabama Public Service Commission for further proceeding and further testimony, as provided in section 82, Title 48, Code. An application for a rehearing by the Alabama Public Service Commission is now under consideration.
It is insisted on this application that section 82, Title 48, Code, does not apply to an appeal to this Court, but only to the proceedings on appeal to the circuit court. In answer to that, we observe that on appeal to this Court we are reviewing the decree of the circuit court. Section 82, supra, is a directive to the circuit court as to the nature and effect of its review. On appeal to us we determine whether the circuit court has properly determined the matters to which its power and duty extended under section 82, supra. So that our review is limited by the same provisions. Our opinion was to the effect in substance that the decree of the circuit court was not erroneous in holding that the Alabama Public Service Commission did not err to the prejudice of the company's substantial rights in its application of the law, or that the order of the public service commission was contrary to the *Page 156 substantial weight of the evidence and, therefore, we affirmed the decree of the circuit court, without then considering the question of whether we should remand it to the commission in order that the deficiencies in the testimony may be supplied.
In its brief on application for a rehearing appellant requested us to remand it to the commission if we were still of the opinion that the judgment should not be reversed and rendered. We came to the conclusion that such a request should be granted and we so ordered. We fail to realize any difficulty or ambiguity in the order which subjects it to a claim that it is "unintelligible." We used the language of section 82, supra, which we verily believe is intelligible.
The effect of the argument for the commission on this application is that we are setting aside the decree of the circuit court without finding error in it. But we think that the error consisted in not itself making the remand to the commission. The decree was reviewable not only for what it did, but also for failing to do what we think it ought to have done. Section 90, Title 48, Code, provides that on appeal to this Court from such a decree the same rules and regulations shall apply as are provided by law for appeals (in other cases) from said court. Section 810, Title 7, Code, provides that on appeals from the circuit court to this Court, this Court may upon reversal of the decree remand the same for further proceedings or render such decree as the court below should have rendered when the record enables it to do so. We think the decree of the circuit court should have remanded the proceeding to the commission and, therefore, it was properly set aside, or reversed, and a decree here rendered such as the circuit court should have rendered, by remanding the cause to the commission.
It is also insisted that there was no assignment of error going to that defect in the decree. True, the assignments of error do not specify that the decree in equity was erroneous in not so remanding; but there is an assignment in general terms that it was erroneous.
The decree was a unit and not severable. If a decree of that sort is erroneous in any respect the error permeates the entire unit and an assignment in general terms is sufficient. Robinson v. Murphy, 69 Ala. 543, 546. This case distinguishes Alexander v. Rea, 50 Ala. 450, where the decree was subject to affirmance in some respect and reversal in others. We are not here dealing with a decree which is erroneous in part and correct in part. It was correct in approving the application of certain legal principles made by the commission and that its finding of facts was supported by the evidence, and there was not sufficient evidence of the sort needed to justify an order by the commission approving the proposed rate. But since we think that under those circumstances the decree in the circuit court should have remanded the proceeding to the commission, we therefore conclude that the decree was as a unit laid in error. So that the assignment of error covered that status.
It is our opinion that the legal effect of the order of this Court vacating the judgment of the circuit court and remanding the case to the commission was to vacate its order from which the appeal was taken to the circuit court and restore the status of the proceeding as it existed previous to the order of the commission.
Application for rehearing overruled.
BROWN, FOSTER, LAWSON and STAKELY, JJ., concur.
LIVINGSTON and SIMPSON, JJ., dissent.
On Further Rehearing.