In my opinion, the Market Street Railway Company is entitled to retain the accumulated fund representing excess fares paid by its patrons. It is said that, because of the provisions of the stay order, the carrier may not successfully maintain a claim of legal ownership of *374the money now in its possession. But by such an order, this court could not confiscate for the public property which the railroad might thereafter lawfully acquire, nor prevent passengers from abandoning to the corporation amounts paid in excess of the reduced rate during the time the order of the railroad commission was held in abeyance.
The Public Utilities Act specifies, in great detail, the procedure to be followed and the conditions which must be found by this court to exist as a prerequisite to the stay of an order or decision of the commission. (Stats. 1933, p. 1158; 2 Deering’s Gen. Laws, Act 6386.) By the terms of section 68 of that statute, no stay order shall be made except upon five days’ notice and after a hearing; the order suspending a decision of the commission “shall contain a specific finding based upon evidence submitted to the court, and identified by reference thereto, that great or irreparable damage would otherwise result to petitioner and specifying the nature of the damage. ’’ (Subd. (b).) The court is given the power to grant a temporary stay before a hearing under specified circumstances and only for a limited time. The statute enumerates the conditions of such an order, provides for hearing at the earliest possible time, and requires the court to dissolve the temporary bar to enforcement if the petitioning party does not proceed with the application for a stay. (Subd. (c).)
The statute also declares that the order of the court is not to become effective “until a suspending bond shall have first been executed and filed with and approved by the court . . . sufficient in amount and security to insure the prompt payment by the party petitioning for the review, of all damages caused by the delay in the enforcement of the order or decision of the commission and of all moneys which any person or corporation may be compelled to pay pending the review of the proceedings ... in case said order or decision is sustained.” If a public utility challenges a decision lowering rates, it may be directed, “to pay into court from time to time, there to be impounded until the final decision of the ease, or into some bank or trust company paying interest on deposits, under such conditions as the court may prescribe,” all sums collected in excess of the rate fixed by the commission. (Subd. (d).)
Accounts showing the excess charges received by it during such period are to be kept by the utility. If the commission’s order is upheld, all moneys which may have been collected at *375a rate higher than that authorized by the order subjected to review, together with reasonable interest, shall be promptly paid to the corporations or persons entitled thereto in such manner, and through such methods of distribution, as may be specified. (Subd. (e).)
Although this court has power under the Constitution to issue a writ of supersedeas whenever it is necessary to protect the rights of the parties to an appeal and it cannot be deprived of that power by legislative enactment, there is no constitutional right to an appeal. That procedure is entirely statutory. The Legislature has complete authority to specify the requirement for a stay of execution pending an appeal. (Trede v. Superior Court, 21 Cal.2d 630, 634 [134 P.2d 745]; United States v. Berg, 202 Cal. 10, 13 [258 P. 942]; see Ex parte Queirolo, 119 Cal. 635 [51 P. 956]; Foster v. Superior Court, 115 Cal. 279 [47 P. 58]; Phillips v. Patterson, 34 Cal.App.2d 481 [93 P.2d 807].) In the absence of statutory regulation, ancillary terms, such as those specified in United States v. Morgan, 307 U.S. 183 [59 S.Ct 795, 83 L.Ed. 1211]; Inland Steel Co. v. United States, 306 U.S. 153 [59 S.Ct. 415, 83 L.Ed. 557], and similar eases, may be exacted as a prerequisite to the issuance of a stay order. But where, as here, the Legislature-has conditioned the issuance of the writ “in the manner hereafter provided,” the court may not go beyond the clearly prescribed legislative requirements and impose other conditions taking from a public utility property which it otherwise would own, or to which it might later acquire title. And, certainly, the provision allowing this court “in its discretion” to order the impounding or deposit of money collected in excess of the rates fixed by the commission “under such conditions as the court may prescribe” does not authorize the disposition of the accumulated fund without regard to legal ownership. It is obvious from a reading of the statute that the conditions which may be prescribed are those having to do with the place and form of the deposit, the time and manner of withdrawal, and other details of that kind.
A condition which exceeds these limitations violates the rule of law that a public utility is the owner of money collected by it in violation of a regulatory statute or order, subject to the right of the court to require the corporation to restore the excess charges to the rate payer. The repayment of such amounts may be ordered by the court in connection with its review of the commission’s order and a consumer has *376a cause of action for damages to recover excess charges paid by him. (See California Adjustment Co. v. Atchison etc. Ry. Co., 179 Cal. 140 [175 P. 682, 13 A.L.R. 274]; Southern Pacific Co. v. Superior Court, 27 Cal.App. 240 [150 P. 397, 404]; Central States Elec. Co. v. City of Muscatine, 324 U.S. 138 [65 S.Ct. 565, 89 L.Ed. 801]; United States v. Morgan, supra; Inland Steel Co. v. United States, supra; Spiller v. Atchison T. & S. F. R. Co., 253 U.S. 117 [40 S.Ct. 466, 64 L.Ed. 810] ; Erwin v. United States, 97 U.S. 392 [24 L.Ed. 1065]; Natural Gas Pipeline Co. v. Federal Power Com., 141 F.2d 27; Natural Gas Pipeline Co. v. Federal Power Com., 128 F.2d 481; Illinois Bell Telephone Co. v. Slattery, 102 F.2d 58; Bell v. United States, 49 F.Supp. 505; 13 A.L.R. 289.)
The history of section 68 of the Public Utilities Act, supra, clearly shows that the state has changed its originally declared policy in regard to excess unrefunded charges of a public utility. When that statute was enacted, it provided for payment of such amounts to the state. In 1933 the provision was stricken out. (Stats. 1933, p. 1158; Peering’s Gen. Laws, 1933 Supp., Act 6386.) By that action, and the later amendment relating to refunds by a toll bridge corporation (Public Utilities Act, supra, § 68.01; added by Stats. 1939, p. 2871; Peering’s Gen. Laws, 1939 Supp., Act. 6386) the state relinquished the right by escheat to excess charges of public utilities generally. In the absence of an escheat statute, a railroad corporation is entitled to retain unclaimed excess charges either upon the theory of legal ownership or upon the common law doctrine of abandoned property.
Justification for taking from the Market Street Railway Company the accumulated excess fares is placed upon the ground that the stay order of this court was a determination, adverse to the corporation, upon the issue of ownership of the overcharges collected by it during the pendency of the review and not claimed by the passengers. Upon the authority of Inland Steel Co. v. United States, supra, it is said that the carrier “necessarily accepted the conditions of the order by the acceptance of the stay.” However, the facts of that case are quite different from those shown by the record now before this court, and the decision concerned only the conflicting claims of a shipper and the carrier which had been subjected to a regulatory order.
The litigation arose when the steel company sued to set aside an order of the Interstate Commerce Commission re*377straining Indiana Belt Railroad Company from paying allowances for spotting cars. The district court “suspended, stayed and set aside” the commission’s decision pending a hearing of the case. Upon stipulation of counsel for the steel company, the interlocutory injunction provided that, until further order, the railroad company should set up on its hooks of account any and all sums in controversy, the amount claimed by the shipper to be paid to it “or canceled” only upon final determination of the case.
In later proceedings, the court dismissed the suit for want of equity, dissolved the injunction, and ordered the railroad company to retain the accrued allowances. The United States Supreme Court affirmed that determination. Answering the steel company’s claim to the fund, it decided that a court of equity has inherent power to impose terms and conditions upon a litigant who seeks its aid. Otherwise, said the court, rights may be impaired or cut off while a challenged order is stayed. But there was no holding that, by either a stay order or final decree, a fund accumulated pending a determination as to the validity of a rate regulation may be given to the public; indeed, the decision recognized that the money which was set aside under the injunction of the district court belonged either to the shipper, who stood in the position of the passengers of the Market Street Railway Company, or to the carrier. It should also be noted that the district court, in fixing the terms of its interlocutory injunction, was not acting under a statute such as the Public Utilities Act, supra, which specifies the conditions which may be included in a stay order. Of equal importance is the fact that the steel company expressly accepted the terms of the injunction.
The right to impounded funds was also a question at issue in United States v. Morgan, supra, but that decision is not authority for the conclusion reached in the present litigation. Morgan and others, conducting market agencies, sued to set aside a schedule of maximum rates to be charged for stockyard services. The United States Supreme Court held the order invalid for want of due procedure and remanded the case for further proceedings.
By the remand, the secretary of agriculture was left free to take such further proceedings as the statute permitted. Motion to stay proceedings until he should enter a final order was denied by the district court, and an appeal was taken from an order granting a countermotion by appellees to dis*378tribute the fund among them. The only holding as to the money accumulated by the payment during the litigation of the challenged rates was that it should be retained pending a final determination by the secretary of agriculture in the reopened proceedings. (307 U.S. 198.) Neither the right of any particular person to the fund nor the authority of the court to order the payment to the public of charges collected in excess of the regulation under review was presented to or considered by the court.
Abandonment of property occurs when the owner voluntarily relinquishes it without vesting title in any particular person and with the intention of terminating his ownership, possession, and control. (See Moon v. Rollins, 36 Cal. 333 [95 Am.Dec. 181]; Peal v. Gulf Red Cedar Co., 15 Cal.App.2d 196 [59 P.2d 183] ; 1 C.J.S. 4; 1 Am.Jur. 2.) Although a state may by statute claim abandoned or unclaimed property (see Public Utilities Act, supra, §68.01; Code Civ. Proc., § 1268 et seq.; Abandoned Property Act, Code Civ. Proc., § 1274.1 et seq.; Commonwealth v. Dollar Savings Bank, 259 Pa. 138 [102 A. 569, 1 A.L.R. 1048]), in the absence of an appropriate statute of escheat, title is acquired by the first occupant, or by the first finder, who reduces it to possession. Such person thereupon obtains an absolute property therein by virtue of an actual taking with the intent to reduce it to possession. (See 1 Am.Jur. 3; 1 C.J.S. 18.) But abandonment results only when the intention to part with the ownership accompanies the act of relinquishment. (See 1 Am.Jur. 4; 1 C.J.S. 8.) The railway company, therefore, became the legal owner of the excess fares paid by passengers who either refused refund slips or failed to claim the overcharges within the time specified by this court in its order fixing the conditions upon which repayment should be made. And assuming that the accumulated money constitutes an impounded fund in the custody of the court, the possession of it, so far as the doctrine of abandonment is concerned, was and is in the company.
Furthermore, applying the common law rule that the real party in interest is the proper party to maintain an action for the recovery of excessive charges, it has been held that although a shipper, who occupies the same position as a passenger of Market Street Railway Company, may maintain an action to recover overcharges unlawfully exacted from him by a common carrier, the state, and upon principle its subdivisions, including municipalities, have no right to recover *379on behalf of individual shippers the amounts paid by them in excess of established rates. (State v. Chicago & A. R. Co., 265 Mo. 646 [178 S.W. 129, L.R.A. 1916C 309]; 13 A.L.R. 299.) I would, therefore, exonerate the sureties on the bond of the Market Street Railway Company and direct the clerk of this court to deliver to the carrier the securities deposited by it pursuant to the stay order.
Schauer, J., concurred.
Petitioner’s application for a rehearing was denied July 15, 1946.
Edmonds, J., and Schauer, J., voted for a rehearing.