concurring.
I agree that the assignments of error are without merit, that the Chancellor’s decree should be affirmed and this cause remanded to the Commission for setting just and reasonable rates.
I also agree that if the Commission had given proper consideration to uncontrovert-ed evidence, it is probable that some increase would have been approved in the Commission’s order of December 30, 1977, and such increase would have been reflected in income and earnings during the entire calendar year 1978. I also agree that it is probable the Company has irretrievably lost the benefit of some rate increase for the entire year 1978.
In the present procedural posture and under the confined facts of this case, I agree that this Court, as a court considering an appeal from an order of the Commission, has the power to permit the Company to place all or any part of the rates into effect under bond (see T.C.A. § 65-520(b)), and I am of the opinion, under these confined facts, we have a duty to authorize such a temporary rate increase.
However, I am compelled to point out that the Chancellor, in his order of September 26, 1978, authorized the Company to place into effect as of October 6, 1978, proposed rates and required the Company to give bond for a refund of any increase not ultimately approved with 8.7 per cent interest.
We superseded and suspended that part of the Chancellor’s order allowing the implementation of proposed rates and, as such, have denied the Company an increase since October 6, 1978. We now say that at least a part of that rate increase is, under the record before us, justified.
If the Company is ultimately successful, as it was in the Chancery Court and as it has been in this Court, it will have been caused to suffer great and irretrievable losses. It has no remedy to recoup these losses. If the Commission finally fixes compensatory rates, it has no authority to make them retroactive.
If the Company had been allowed to put the rates into effect, under bond, pursuant to the Chancellor’s order, and ultimately the increase had not been allowed, there would have been no loss to the utility’s users. They would have received a full refund with 8.7 per cent interest.
The Chancellor’s order came to us with a presumption of correctness. The burden of overturning this presumption was upon the Commission. I was of the opinion in my Dissent from the Majority Opinion, upon Petition for Supersedeas filed October 24, 1978, that the Commission had not carried its burden. I am, at this time, of the opinion that the Commission has still failed to carry its burden.
While I reluctantly concur with the holding authorizing the Company to implement a temporary rate increase not exceeding ten (10) per cent of existing rates, I would have reinstated the Chancellor’s order of September 26, 1978, allowing the Company “proposed rates, except pay phone rates and charges for directory assistance”, because I am of the opinion that T.C.A. § 65-520, the facts of this case and the equities require reinstatement.
As Judge Todd so aptly states, it is “. . . probable that the Company has already irretrievably lost the benefit of some rate increase for the entire year, 1978.” By our approval of only a temporary rate increase, not exceeding ten (10) per cent, and if ultimately, as could very well be under the record, the Company is granted compensatory rates in excess of ten (10) per cent by the Commission, we have compounded the irretrievable loss.
On the other hand, if the Company is allowed to put into effect its proposed rates and they are ultimately denied, the Company’s users do not suffer irretrievable losses. They will receive a full refund, with interest.