While this appeal was pending in this court, the Transit Company made application to the recently reconstituted transit authority asking for a rate increase to 250 for tokens as well as cash fares. This development, apart from all other factors, suggests there is no need to remand the present case. Whether this development renders the instant appeal *203moot in the strict legal sense, is beside the point. For practical purposes the entire matter of transit rates is now once again under review.
As I see it, the only genuine issue is the treatment of the track removal cost. The majority rests its remand on the Commission’s failure to give proper weight to “the probability that economies [from cooperative plans with the District’s new highway programs] would reduce the cost [removal] called for.” In using the term “probability” the majority assumes as a fact something on which this court has not enough information to hazard even a vague guess. The majority thus reaches a firm conclusion on a subject which the Commission said was too speculative and uncertain to act on. In short, at the time of the rate order, which affected cash fares only, the experts did not know and could not estimate what economies might develop by cooperation between the Transit Company’s program for track removal and the District’s highway program. The needless character of the remand is further emphasized by the fact that, as has mow been discovered, track removal may turn out to be either not feasible or not necessary; all this can be fully explored in the new rate case now pending.
The other points relied on by the majority seem to ignore the inherent nature of rate making. Rate making is predicated on estimates of future factors, often described as “educated guesses.” That some of the hypotheses do not develop as assumed does not undermine a rate order. The regulatory authority is always in control and adjustments can be made. We were not ordained to engage in rate making or to “second guess” rate makers on factual and technical matters, and we have neither the competence nor the facilities to do so. All that is needed now to do substantial justice — which is all any rate making can ever do — is to take notice judicially that the entire matter of future rates is now before the recently reconstituted rate authority where all these problems can be re-examined. The burdens attending the challenged increase of 5$ in cash fares poses problems, remedial and procedural in nature, which are not warranted by the amounts involved. I find it difficult to see how the cash fare rate payers who paid the increased 5$ during the brief period of the order will regard themselves as benefited if the bulk of the “savings” is consumed by litigation expenses, as it very likely will be.
Supplemental Opinion
PER CURIAM.In compliance with the request set forth in the opinion of the court of January 31,1963, the parties have submitted their views as to the judgment appropriate to carry out the opinion.
Our judgment will direct the District Court to set aside Order No. 4631 issued by the Commission March 2, 1960, insofar as it granted an increase in the cash fare to be charged its customers by D. C. Transit System, Inc., from 20 cents to 25 cents. Said order was superseded by Commission Order No. 4735 of January 18, 1961. The latter order has not been reviewed by this court, although proceedings with respect to it are now pending in the United States District Court for the District of Columbia. Since our present decision extends only to Order No. 4631, our judgment, in addition to ordering that order to be set aside, will be limited to a disposition of the problem created by its invalidation, namely, the disposition of the amount received by Transit due to the charge of the additional 5 cents in cash fare during the period between March 6, 1960 (the effective date of the increase in fare) and January 18, 1961.
It is not feasible to require refunds to be made to individuals who paid the increase. Nevertheless, the amount realized by Transit from the increase must be utilized for the benefit of the class who paid it, that is, those who use Transit. To accomplish this Transit will be required to establish a fund in an amount equal to the 5 cent increase collected during the specified period, in other words, *204%s or 20 per cent of the total cash fares collected. Since the actual amount received may have been utilized by Transit and hence is not presently available in cash, the District Court on our remand may require the establishment, to the extent the cash is not available, of a special account or reserve on the books of Transit, with appropriate offsetting adjustments in other Transit accounts if deemed desirable. The utilization and disposition of the fund, or the special account or reserve, as the case may be, shall be left to the discretion of the Commission having regulatory authority with respect to Transit, provided such discretion is exercised consistently with the purpose of benefiting Transit users in any rate proceedings pending or hereafter instituted. For example, the fund might be used to cover costs which otherwise might lead to an increase in fares, or might be used to aid in determining whether fares should be reduced now or hereafter.
Since, notwithstanding our decision holding the Commission Order invalid insofar as it increases the cash bus fare from 20 cents to 25 cents, Transit continues to charge the 25 cent cash fare under Commission Order No. 4735, this court, under its supervisory jurisdiction and, also, to determine whether further action is necessary or desirable to make the review jurisdiction of the courts effective in light of a superseding order or superseding orders of the Commission, will entertain a motion to require Commission Order No. 4735 to be stayed insofar as it authorizes the collection of a 25 cent cash fare.
It is also our view that reasonable attorneys’ fees for appellants and others who have been counsel for the class benefited, reasonable expert witness fees, and appropriate litigation expenses, should be paid by Transit and charged to the fund or reserve, though taxable costs are not to be so charged. Such payments of fees and expenses accord with established equitable principles obtaining in such cases. See Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) ; Washington Gas Light Co. v. Baker, 90 U.S.App.D.C. 98, 195 F.2d 29 (1951).
Our judgment is without prejudice to the right of the Washington Metropolitan Transit Commission to exercise consistently with our opinions and judgment in this cause any powers it may have.
The judgment of the District Court is reversed and the proceedings are remanded to that court with directions to enter judgment in accordance with the foregoing and to take such further action as may be consistent therewith.
It is so ordered.
WILBUR K. MILLER, and DANA-HER and BASTIAN, Circuit Judges, dissent.
BURGER, Circuit Judge, dissents for the reasons stated in his opinion of January 31, 1963.