On Petition for Rehearing and Various Motions.
Appellee has filed a petition for rehearing, a “motion for special findings of law and fact,” and a motion to modify the opinion. Appellants have filed a motion to modify the opinion.
Appellee objects strenuously to the statement in the opinion: “The parties agree that, under the laws of Arkansas, rates of this character can be established in either of two ways.” Counsel for appellee, contend that they did not intentionally so agree and have always contended to the contrary and that the above statement that they so “agree” will prejudice the rights of their client in this litigation. At the conclusion of the argument before us, it was the understanding of all of the judges that there was no difference between counsel as to this matter, and were such agreement important to the result reached on the opinion we would be constrained to rely upon that impression. However, no such vitality exists. It is immaterial whether these or other ways existed to establish lawful .rales. The real considerations are that, a certain method was pursued and resulted in the rates protected by the injunction order involved here; that those rates were overthrown by a referendum vote; that such overthrow necessarily left the old rates as the only lawful rates; and that this injunction order puts into effect the rejected rates without any prior attempt to gain administrative relief from the old lawful rates by any method proper for such purpose. Solely because we deem the matter of agreement of no importance and because we would not embarrass counsel or appellee in the conduct of this litigation through a possible misunderstanding of their attitude by this court, the statement as to agreement is withdrawn.
The motion of appellants to modify the opinion arises from the situation that their answer included a plea for the affirmative relief of refunds of the overcharges. This court made no determination of this matter as it deemed it best that the trial court should first act thereon and the view of the ti ial court on the issue of the injunction prevented any consideration by it of the issue of refund as such. Appellants are apprehensive that an expres*946sion in the opinion may be construed as bearing upon the issue as to refund. That expression is, “The rates therein provided ceased to be lawful.” Their contention is that the rates were suspended by the referendum proceeding and, therefore, never were lawful, and that the use of the expression “ceased to be lawful,” in the above quotation, might be construed as a determination by this court to the contrary. As this court intended no ruling at all as to the refunds and to destroy any possibility of such construction of the above language, the qiioted sentence is withdrawn. In line with this action, the concluding sentence of the opinion will be extended by adding thereto “without prejudice to appellants to pursue any proper remedy, in this action or otherwise, in connection with the matter of refunds raised in the answer.”
Except as above set forth, the petition for rehearing and all motions filed by either of the parties are denied.