This petition seeks review of Federal Power Commission Opinions Nos. 501 and 501-A which require the petitioner and other independent producers, all of whom were parties to the consolidated proceedings styled Amerada Petroleum Corporation, et al., Docket Nos. C162 etc., to make refunds of amounts collected under unconditioned temporary certificates in excess of the price established in Opinion No. 422.
Opinion No. 501 was entered while proceedings were pending before us for the review of Opinion No. 422. We disposed of the latter opinion and its accompanying orders in Nos. 7781 etc., Sunray DX Oil Company, et al. v. Federal Power Commission, 10 Cir., 370 F.2d 181.
In that Sunray DX decision we pointed out that the threat of refund orders inherent in Opinion No. 422 had been followed by the action taken in Opinion No. 501; that the refund question was ripe for judicial determination; and that “proper judicial administration requires that it be deferred no longer.” We held that, absent considerations not there present, refunds may be ordered under § 7 only when a producer contractually undertakes to make such refunds by the acceptance of a temporary certificate containing an express refund condition.
Our decision on the refund issue was reaffirmed in Nos. 7912 etc., Pan American Petroleum Corporation, et al., v. Federal Power Commission, 10 Cir., 376 F.2d 161.
The petition for review now before us attacks Opinions Nos. 501 and 501-A on the grounds that the Commission lacked the power to order the refunds and that the power, if existing, was not properly exercised. The Commission, without waiving its opposition to our disposition of the refund issue has moved for the severance of the issue of power from the issue of exercise of that power and for the summary disposition of the power issue. The petitioner has moved that the court “enter its Per Curiam Decision vacating and setting aside, on the basis of Opinion issued December 9, 1966, [the Sunray DX decision] * * *, Respondent’s Opinion Nos. 501 and 501-A and related Orders.” The Commission filed a response to the petitioner’s motion and, although reasserting its position on the merits, said that “it agrees to the proposed procedure for decision.”
*580Petitions for certiorari to review our Sunray DX decision are now pending in the United States Supreme Court. See 35 LW 3323.
We have before us 10 other petitions to review Opinions Nos. 501 and 501-A. They are:
No. 9227 — Sunray DX Oil Company
No. 9287 — Patchin-Wilmoth Industries, Inc.
No. 9308 — Sohio Petroleum Company No. 9310 — Texaco, Inc.
No. 9311 — Sun Oil Company
No. 9315 — Edwin L. Cox
No. 9316 — Humble Oil & Refining Company
No. 9317 — Lamar Hunt
No. 9318 — George H. Coates
No. 9319 — Clark Fuel Producing Company
By petitions in intervention heretofore granted, Texaco, Sunray DX, Humble, Hunt, Sohio, and Sun oppose both the motion of the Commission for a severance and the motion of Standard Oil Company of Texas for summary disposition. These intervenors assert that the grant of such motions would result in the improper fragmentation of appeals and would have the effect of depriving them of the right to be heard on the individual inequities arising from the manner in which the Commission has ordered refunds.
We are committed to the principle that the Commission has no power to order refunds when the temporary certificate contains no express refund provisions. Because we believe that the Commission lacks such power, we are not concerned with the exercise of the power. No good purpose would be served by granting the severance which the Commission proposes. The exercise of the power depends on the existence of the power. With commendable frankness the Commission says that we are wrong in the Sunray DX decision on refunds and that it expects the error to be rectified in the certiorari proceedings which it has brought. When and if this occurs, the time will have arrived for us to consider the individual equities.
In the ten other petitions for review of Opinions Nos. 501 and 501-A we have no motion for summary disposition like that presented here by Standard Oil Company of Texas. All petitions should receive the same treatment. Accordingly, on our own motion, we are today deciding all ten of them on the basis of this decision.
The motion of the respondent for severance is denied. The motion of the' petitioner for summary disposition is granted. On the authority of Sunray DX Oil Company v. Federal Power Commission, 10 Cir., 370 F.2d 181, and Pan American Petroleum Corporation v. Federal Power Commission, 10 Cir., 376 F.2d 161, Opinions Nos. 501 and 501-A of the Federal Power Commission, and accompanying orders, are set aside and held for naught.