dissenting in eases Nos. 77-919, 77-943 and 77-954. The commission’s entry of December 15, 1976, declaring an emergency and temporarily approving the rates of its November 23, 1976, entry is an aberrant and highly pernicious procedure. The issue whether the commission must hold a hearing prior to determining whether an emergency exists is not as simplistic as the majority’s discussion suggests. In most of the previous cases a hearing was held. Akron v. Pub. Util. Comm. (1933), 126 Ohio St. 333; Ohio Manufacturers’ Assn. v. Pub. Util. Comm. (1976), 45 Ohio St. 2d 86; Coalition of Concerned Utility Users v. Pub. Util. Comm. (1976), 45 Ohio St. 2d 151. Furthermore, in Akron v. Pub. Util. Comm., supra, this court stated, at page 336:
“* * * It will be conceded that the Public Utilities Commission ordinarily has the power, on proper hearmg, to increase or reduce a rate in ease of emergency * * (Emphasis added.)
*381The prior interpretation of E. C. 4909.16 is clearly contrary .to the present finding of the majority. The wording of E. C. 4909.16 is also supportive of this prior interpretation. E. C. 4909.16 reads, in pertinent part:
“When the public utilities commission deems it necessary to prevent injury to the business or interests of the public or any public utility of this state in case of any emergency to be judged by the commission * * (Emphasis added.)
This section implies the finding of injury to the public or public utility. Moreover, the statute states “any emergency to be. judged,” not “declared.” Upon what can an emergency be judged if there was no hearing to present evidence? It is apparent in the instant cause that the commission simply declared an emergency.
A perusal of the facts in the instant cause is revealing. The November 23 entry was the adoption of a stipulation entered into by the parties present at the hearing which authorized 94 percent of the increase originally requested by UTC. This stipulation was not joined in by the city of Lima. Indeed, the commission had erroneously failed to serve the staff report upon the mayors of all the municipalities in UTC’s service area, as required by E. C. 4909.19. In its December 15 entry, the commission acknowledged its error, ordered service of the report on mayors not previously served, set the new hearing for . February 1, 1977, and then allegedly exercised its emergency powers to temporarily- approve the rates set - in its November 23 entry. The commission thus knowingly placed into effect a rate based upon a- stipulation to which the city, of Lima was not a party. The emergency was not based upon evidence, but mere supposition that a'delay in gránting-the .rate increase would be detrimental. This was an attempt by the commission to correct its mistake by declaring an emergency. I seriously doubt that the General Assembly intended E. C. 4909.16 to be used by the commission to whitewash its own errors. There is no evidence of any injury to the public or to the utility upon which an emergency could *382be judged to exist. Accordingly, I view the emergency order temporarily approving the rate increase as void ab initio.
This consolidated cause raises the additional issue of whether the commission erred in failing to separately state the percentage and amount of each of the various classes of depreciation in accordance with R. C. 4909.05(E). I acknowledge that this court, in Ohio Edison Co. v. Pub. Util. Comm. (1962), 173 Ohio St. 478, found that the commission has discretion and is not required to state separately the percentage and amount of each class of depreciation as long as it properly determines an amount for depreciation from the new reproduction costs as of a date certain. Appellant Duff forcefully argues that obsolescence of UTC’s plant and equipment, which would affect its rate base, cannot be determined when a specific breakdown is not furnished. Appellant contends that UTC has continued to purchase equipment of an old design and that modern technology has made this equipment obsolete. Thus, if depreciation included all the technological obsolescence, the rate base would have been smaller and the actual rate of return would be higher than that approved by the commission. It not being possible to determine the extent technical obsolescence was considered, absent a specific breakdown, the commission could not properly determine an amount for depreciation. This court’s statement, in Ohio Edison Co. v. Pub. Util. Comm., supra, thus requires the commission to state separately the percentage and amount of each class of depreciation.
For the preceding reasons, I respectfully dissent.
CeIíEbrezze, J., concurs in the foregoing dissenting opinion.