concurring in syllabus and judgment. I do not now quarrel with the first paragraph of the syllabus, although I have doubts that it is necessary to a resolution of this cause. I view the second paragraph of the syllabus as a presently needed declaration of the legal principle suggested by the practical effect of Keco Industries v. Cincinnati & Suburban Bell Tel. Co. (1957), 166 Ohio St. 254. As noted below, this principle was not carried into the Keco syllabus.
Keco arose because, on May 28,1953, the utility in that *120case was awarded a rate increase by the commission and the city appealed to this court. (Cincinnati v. Pub. Util. Comm. [1954], 161 Ohio St. 395.) Finding the increase to be unreasonable and unlawful, the court reversed the order setting new rates and, on May 25, 1954, the cause was remanded to the commission for further proceedings. On June 4, 1954, .the commission ordered the rates reduced. Subsequent thereto, Keco Industries sued the utility, alleging that the latter had been unjustly enriched by the amount of the rate increase charged between May 28, 1953, and June 4, 1954.
Paragraph two of the Keco syllabus states:
“Where' the' charges collected by a public utility are based upon rates which have been established by an order of the Public Utilities Commission of Ohio, the fact that such order is subsequently found to be unreasonable or unlawful on appeal to the Supreme Court of Ohio, in the absence of a statute providing therefor, affords no right of action for restitution of the increase in charges collected during the pendency of the appeal.”
It is clear to me that the above words, “pendency of the appeal,” refer to the preceding phrase, “appeal to the Supreme Court of Ohio.” Throughout the opinion, Judge Matthias leaves no doubt of his intention in this regard. At page 258, the opinion states:
“In the present case we have rates which were established by the proper designated authority after a hearing and consideration in full compliance with the law, and, until such time■ as they were set aside by the Supreme Court, they were, in the absence of a stay, the lawful rates and the only ones which could be collected by the utility.” (Emphasis added in part.)
And, again, at page 259:
“From the above consideration it is our conclusion that the rates of a public utility in Ohio are subject to a general statutory plan of regulation and collection; that any rates set by the Public Utilities Commission are the lawful rates until such time as they are set aside as being *121unreasonable and unlawful by the Supreme Court * * (Emphasis added.)
' • It would '.seem logical that) an. appeal to - this court is concluded when' an entry of judgment is entered' here, or, with more certainty, when an order of remand is issued and the mandate of the court is officially entered upon the record. However, as described in Keco, this court issued its mandate on May 25, 1954, and the commission’s responding order was not entered until June 4..
If the appeal to this court was no longer pending after May 25, logic would dictate that the increase in rates charged during the above ten-day period would have fallen outside both the syllabus and the opinion- in the ease. However, the court’s final judgment' denied restitution for the entire period sought. c
When this court decided Gene Slagle, Inc., v. Pub. Util. Comm. (1975), 41 Ohio St. 2d 44, Keco was the only Ohio precedent from which guidance was available.9 A reading of both the opinion and syllabus of Keco left open the question of the status of a PUCO order which has been reversed by this court as unlawful and unreasonable, and which has not been supplanted with a' subsequent order from that agency. As a pure legal issue, Slagle filled that void in a manner which seemed as natural as night following day—when a PUCO order is finally reversed, it simply has no further effect in law; and the relative positions of parties which had been altered by the order reverted, from the time of reversal to the time of a new order, to that which existed in the absence of the order. At the time Keco was announced, such a conclusion was not only logical, it was also practical.
Unfortunately, the same does not obtain today. The logic of the premise remains, but its practicality has dissolved under a mountain of delay, occassioned by a deluge *122of filings in an agency which must do its best to cope with the 70’s while statutorily geared for the 40’s.
In Keco, as heretofore noted, only ten days elapsed between this court’s mandate and the responding PUCO order. Eighteen years later, as illustrated in Slagle, the period of time between this court’s mandate and the agency order had ballooned to 85 days.
As I now view it, our error in Slagle was not in announcing an invalid principle of law, it was in our understandable unwillingness to accept, as inevitable, the inordinate delays now associated with important PUCO decisions. Hence, the instant syllabus and judgment represent the acceptance of, and a necessary response to, reality.
As a regulated monopoly, appellant’s production and marketing of its product rests mainly in the hands of the legislative branch of our state government. This is so with all public utilities in Ohio. Equally entrusted to the General Assembly is an obligation to protect the interests of the consumer of the utility’s product. It has long been recognized that balancing these often competing and always vital concerns is a serious and demanding responsibility, the totally satisfactory execution of which has been elusive to some of the best minds of bur times.
As stated by the trial judge in Keco, “* * * the Legislature has attempted to'keep the equities between the-utility and the consumer in balance but has not found it possible to do absolute equity in1 every conceivable situation.” Apparently, the viability of that observation has not diminished with time. Hopefully, however, the search com tinues for a permissible result which will put- it to permanent rest.
As heretofore stated, the- somewhat paradoxical conclusion that a reversed PUCO .order - remains efficacious in the absence of a concomitant stay of its execution results, in my opinion, from a recognition of extant exigency. At the .heart of this determinátion, however, would seem to be the thought that R. C. 4903.13 withholds from this court the power to remand a cause to the PUCO, for its further *123-consideration, in the absence-of an accompanying reversal, vacation or modification.-.-.Were.it not- so,- the outcome in. General Telephone Co. v. Pub. Util. Comm. (1972), 30 Ohio St. 2d 271, Slagle, and the instant cause below' could have been different, and the litigatory thrashings about which have- ensued, as-a-result of those- cases could have easily been avoided.
My suggestion in this regard should- not be interpreted as an advocacy of advisory opinion writing, as I doubt that such a drastic alteration of the traditional posture of the Ohio Judiciary would, or could, necessarily follow from a utilization- b£ the above ..procedure; As a matter of fact, this court has already employed- the method in at least two cases, both of which concerned an area of the law involving the same basic derivative jurisdiction as does the causé" at.bar. See B. F. Keith Columbus Co. v. Bd. of Revision (1947), 148 Ohio St. 253, 74 N. E. 2d 359; T. F. Scholes, Inc., v. Bowers (1956), 166 Ohio St. 67, 139 N. E. 2d 7; R. C. 5717-04; R. C. 4903.13; Section 2 of Article IY of the Constitution of Ohio (as amended November 7, -1944) ; Section 2 (B) (2) (c) of Article IY of the Constitution of Ohio (as amended May 7,'1968). It has yet to be suggested that the court’s disposition of those two appeals, under their facts, was anything but permissible, appropriate and efficient.
In the field of public utility law, there exists a constitutionally recognized need for broad cooperation between this court and the agency whose heavy burden it is to execute its statutory function as expeditiously-as possible. The presence- of authority in this court to remand without reversal may now be worthy of serious consideration. Perhaps it would constitute a worthwhile contribution to the efficiency so sorely needed and diligently pursued--by many in state government today.
I remain convinced that Cincinnati & Suburban Bell Tel. Co. v. Pub. Util. Comm. (1923), 107 Ohio St. 370, could not reasonably have provided a precedent for deciding the issue involved in Slagle, nor is it of value to us in the instant cause.