On Petition for Rehearing ,
GIVENS, Justice.The brief in support of the petition for-rehearing, urging that since the Court held the injunction was improvidently issued, the increased rates collected and impounded should immediately be refunded, cites the following cases, which we analyze:
Radermacher v. Eckert, 63 Idaho 531, 123 P.2d 426, First Nat. Bank of Ft. Scott v. Elliott, 60 Kan. 172, 55 P. 880 and State v. Rose, 4 N.D. 319, 58 N.W. 514, 26 L.R.A. 593, did not involve comparable situations and are not in point.
United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 803, 83 L.Ed. 1211, is squarely in point and supports the majority opinion herein. That case involved charges fixed by the Secretary of Agriculture for packers and stockyards. The original order is,*87sued by the Secretary was reversed because of improper procedure, as herein. The action of the trial court herein was reversed .as improvident, not because the facts before him were insufficient to justify the injunction permitting the charging of the increased rates to avoid confiscation, which was not passed on, but because opportunity was not given the State or other interested parties to introduce evidence contrary to the showing made by the plaintiff. In the cited case, upon the reversal of the Secretary’s order, it was urged the charges theretofore collected should immediately be refunded, as herein. The Court said:
“A proceeding is now pending before the Secretary in which, as . we have seen, he is free to determine the reasonableness of the rates. His determination, if supported by evidence and made in a proceeding conducted in conformity with the statute and due process, will afford the appropriate basis for action in the district court in making distribution of the fund in its custody. (Case.) Due regard for the discharge of the court’s own responsibility to the litigants and to the public and the appropriate exercise of its discretion in such manner as to effectuate the policy of the Act and facilitate administration of the system which it has set up, require retention of the fund by the district court until such time as the Secretary, proceeding with due expedition, shall have entered a final order in the proceedings pending before him. [Proceedings now pending before the Public Utilities Commission.] (Cases.) The district court will thus avoid the risk of using its process as an instrument of injustice and, with the full record of the Secretary’s proceedings before it, including findings supported by evidence, the court will have the appropriate basis for its action and will be able to make its order of distribution accordingly.”
Our interpretation of the -above case is Supported by the analysis thereof in Mountain States Tel. & Tel. Co. v. Public Service Comm., 107 Utah 502, 155 P.2d 184 (cited by defendants), in both the majority opinion at page 189 and the concurrence at page 190. The Utah case ordered the refund because of certain statutes which we do not have. The majority opinion therein concedes that if it were not for these statutes, the principle announced in United States v. Morgan, supra, would govern— which supports the majority opinion rendered herein.
Atlantic Coast Line Railroad Co. v. Florida, 295 U.S. 301, 55 S.Ct. 713, 79 L.Ed. 1451, considered restitution where payment had been made without any provision for restitution if the rates involved were ultimately found to be non-confiscatory, i. e., that the lower rates were justified. The Court held that procedural mistakes of the Commission in making the order involved *88were not sufficient to justify restitution. The Court denied restitution, but the case does not decide the point herein and is not in point because here the funds are being impounded under court order authorizing their restitution if the lower rates are found to be non-confiscatory.
Simmons v. Simmons, 91 W.Va. 32, 112 S.E. 189, merely holds that on the ultimate and final disposition of the case, there should be restitution. This litigation, including the pending hearings before the Commission, has not yet been so concluded.
Felton v. Spiro, 6 Cir., 78 F. 576, and Davis v. Davis, 68 App.D.C. 240, 96 F.2d 512, if in point at all, are only to the effect that where the trial judge did not regularly pursue his authority, there should be a correct hearing — which we have already ordered.
The brief in support of the petition for rehearing, therefore, does not cite a single authority which sustains the proposition that distribution of the funds should now be made.
The underlying reason for the issuance of this injunction, i. e., to prevent possible confiscation, still persists and the only pertinent authority cited, United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211, supra, supports the continuation of the injunction as ordered pendente lite.
PORTER, C J., and TAYLOR and KEÉTON, JJ., concur. THOMAS, J., dissents.Rehearing denied.