On October 20, 1949, the decree of the circuit court of Montgomery County, in equity, was affirmed.
Application for rehearing was granted on February 2, 1950. The judgment entered at that time is in pertinent part as follows:
"It is ordered on motion of the appellant that a rehearing be granted in this cause and that the decree of this Court rendered *Page 157 on the 20th day of October, 1949, affirming the decree of the Circuit Court of Montgomery County, Alabama, In Equity, be set aside and vacated, Whereupon
"Come the parties by attorneys, and the record and matters therein assigned for errors, being argued and submitted and duly examined and understood by the Court,
"It is considered, ordered, adjudged and decreed by this Court that the judgment and decree of the Circuit Court of Montgomery County, Alabama, In Equity, be vacated and the cause remanded to the Alabama Public Service Commission for further proceedings and for taking additional testimony as provided for by Section 82, Title 48, Code of 1940."
Thereafter, on February 17, 1950, the Alabama Public Service Commission, the appellee, filed its application for rehearing. This application was denied on March 30, 1950. The judgment of this court under date of February 2, 1950, remained in effect.
Although the Commission's application for rehearing was overruled, the opinion of this court was extended so as to include the following language:
"It is our opinion that the legal effect of the order of this Court vacating the judgment of the circuit court and remanding the cause 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."
The rule is well established that during the term of this court in which a judgment is entered, we have the right to order a case placed on our rehearing docket for further consideration. Kinney et al. v. Pollak et al., 225 Ala. 229,142 So. 390. After careful consideration, we think that the ends of justice would be served in so doing in this case, and it is now ordered. And upon such rehearing and further consideration, we are of the opinion that we should eliminate from our former opinion on second application for rehearing that feature of it which undertakes to give expression to the effect of our order remanding the cause to the Commission, and to say how that, in our opinion, the remandment ordered by authority of § 82, Title 48, Code 1940, is what it purports to be under the terms of that statute. That is to say, it becomes the duty of the Commission and it is directed to set the cause down for further proceedings and the taking of evidence as is available to the utility, and that the Commission, on the basis of such proceedings and evidence as shall be submitted, in connection with that previously taken, shall make a redetermination of the issues there made and determine whether the proposed rate, or what new rate, if any, shall be approved by the Commission, subject to further appeal as may be provided by law. Until such an order is made and the cause finally determined, or otherwise finally disposed of, it remains infieri. Until that time the supersedeas order first made and the bond given in accordance with it remain in effect. This court and the circuit court having exercised the power and jurisdiction conferred by § 82, Title 48, supra, can make no further orders and decrees in the cause until it shall come up again by appeal as authorized by law.
Our former opinion is modified, as above indicated, and, as so modified, the rehearing is overruled.
LIVINGSTON and SIMPSON, JJ., concur in the conclusion that if the purported remand can be made under authority of said § 82, Title 48, Code, as the majority has so ruled, then the order of the Public Service Commission remains in fieri and the supersedeas bond remains in full force and effect (quoting the statute) "until final disposition of said cause", § 82; and the Public Service Commission should now proceed in line with the views of Justices FOSTER, LAWSON and STAKELY, hereinabove set out.
They do, however, reiterate their dissent to the view expressed in the majority opinion that there is a field here for the operation of said § 82. See original dissent, supra.
BROWN, J., does not agree with the foregoing for reasons stated specially by him in case ante, p. 123, 47 So.2d 449. *Page 158