(concurring and dissenting).
I concur in the disposition made in ft 11458 but dissent from the result reached in ft 11481.
At common law a public utility had the power to fix its rates. Southern Bell Tel. & Tel. Co. v. The Tennessee Public Service Commission, 202 Tenn. 465, 304 S.W.2d 640. The cases and authorities cited in the majority opinion uniformly hold that it retains the power until the public body entrusted with rate making authority establishes a different rate. Since the cities had *360not fixed such rate when the utility promulgated its 13% increase, effective May 1, 1974, its action was permissible and effective.
The opinion departs from this rule by holding that the utility, when it initiated the increase in § 11481, had been deprived of the right to fix its rates because at that time the cities' had evidenced an interest in exercising their statutory power to fix rates pursuant to SDCL 9-35-1. In my view this falls short of the establishment of a different rate. Even in those cases where a rate prescribed by a regulatory agency has been set aside, or for other reasons becomes of no effect, it is held that the utility may unilaterally fix its rates. 73 C.J.S. Public Utilities § 15. Because of the indefiniteness inherent in the rule as applied in § 11481, I think it will prove unworkable and troublesome.
Retired Supreme Court Judge acting pursuant to SDCL 16-8-13.