(concurring).
I concur in the majority opinion granting relief pursuant to CR 65.07.
The only operative finding of fact made by the trial court was that the movant would suffer loss by reason of being “permanently deprived of revenues from the rates finally allowed, to the extent such rates may exceed the rates prescribed by the Commission because such rates could not be retroactively collected prior to such final determination”.
The dissenting opinion, in order to reach its result, asserts the trial court’s findings are determinations that without this increase the respondent will not collect sufficient income to meet its operating expenses, service its debt, and earn a justifiable profit. Thus, the respondent will not be able to provide proper, competent, and efficient service. The dissent states: “Not only does this constitute an emergency condition, but it demonstrates that the credit of the company and its operations will be materially impaired by a failure to permit the rate to become effective.” Hence, the dissent undertakes to make findings of facts that the trial judge did not make, so far as the arguments in the briefs or oral argument indicate. The Commission granted some of the increase applied for. Its administrative determination should not be preliminarily enjoined without a clear showing of the need to do so.
PALMORE, J., joins in this opinion.