concurring in part and dissenting in part.
In the principal opinion Judge Todd sets forth in chronological order the proceedings before the Public Service Commission and in the courts concerning this rate case, hence, in this opinion I will confine my review to the Chancellor’s decision and the steps taken to have that decision reviewed in this Court and the Supreme Court.
On September 30, 1978, a Petition on behalf of the Public Service Commission was filed in this Court seeking to supersede and suspend the decree of the Chancellor entered September 29, 1978, wherein it was ordered that the proposed rates of the Telephone Company become effective immediately. So as to preserve the status of the matters in dispute until requisite notice to opposing counsel could be given and a hearing had, I, as Presiding Judge, entered an order providing in pertinent part
“Upon application of counsel for the Public Service Commission of Tennessee, it is hereby ORDERED, ADJUDGED AND DECREED:
1. That the effectiveness of the aforementioned Decree entered by Chancellor Ben Cantrell in this cause on September 29, 1978 be and the same is hereby suspended pending a hearing of the Petition for Supersedeas, which is set for hearing and consideration on Thursday, October 5, 1978, at 2:00 P.M. in the chambers of this Court.
2. That all other matters herein are reserved.
This 30th day of September, 1978.
/s/ Thos. A. Shriver Presiding Judge, Court of Appeals”
At the conclusion of the hearing on October 5 an order was entered continuing in effect the Stay Order of September 30, “pending a decision and decree disposing of said Petition for Supersedeas.”
On October 11, we filed an Opinion and Decree wherein, inter alia, we observed that the Commission had filed “Notice of Appeal” from the Chancellor’s decree pursuant to T.C.A. § 4-524 and we mistakenly assumed that we might, therefore, allow the ease to be presented on the merits. We considered that the previous stay order was continued in effect and proceeded to hold that the Chancellor’s decree was final in substance and therefore subject to appeal as a matter of right.
Upon application to the Supreme Court for a writ of Supersedeas to Nullify and set aside the Court of Appeals’ decree of October 11, wherein Judge Lewis had filed a dissent, an Opinion and Order by Mr. Justice Harbison, concurred in by Justices Cooper and Brock, was filed holding that the Chancellor’s decree was final and appeala-ble arid saying that the issue regarding the Chancellor’s decree placing into effect the proposed rates “is now pending before the Court of Appeals as a result of the filing before it of a Petition for Supersedeas by the Public Service Commission on September 29, 1978.” [Emphasis supplied]
Chief Justice Henry filed a separate Opinion concurring in part and dissenting in part stating, “I respectfully dissent from so much of the majority opinion as holds that the decree of the Chancellor is final.” After discussing the purpose and function of supersedeas and insisting it is not a proper method of procedure in this case his opinion says, “We first treat the decree of the Chancellor as being final for purposes of this discussion. A simple appeal would obliterate the Chancellor’s decree. For reasons heretofore pointed out, the decree has not been so nullified.” (Emphasis supplied).
By addendum it was pointed out that, while this matter was not before the appellate courts on appeal, “ — [it] is appealable at this time” but that no appellate court had up to that time considered the correctness of the Chancellor’s action in placing the rates in effect under bond.
Mr. Justice Fones in his partial dissent agreed with the Chief Justice that the Chancellor’s decree of September 29, 1978, was not a final decree but he reached a different result in applying the principles governing supersedeas in this case. He states, “Unquestionably the Writ of Super-sedeas has as its sole purpose the preservation of the status quo.”
*443On October 18, 1978, following the filing of the foregoing Opinion and Order of the Supreme Court, and the separate partial dissents as above noted, our Court filed an Opinion and Order, Lewis dissenting, noting that the Supreme Court order stated, “The effect of our ruling today is to return this case to that court” (Court of Appeals) “for disposition of that issue” (placing the rates in effect under bond by the Chancellor) “and any other issues which may bear upon the resolution of the Petition for Supersede-as.”
Our Order stated:
“It is thus seen that the petition filed by the Telephone Company seeking to have the cause removed from this Court and to stay and superseded the Orders of this Court in this cause was denied and the cause left pending in the Court of Appeals on Petition for Supersedeas..."
“Thus, it would seem that the decree entered October 2, 1978 suspending the effectiveness of the Chancellor’s decree of September 28, 1978 pending a hearing and consideration of the Petition of the Commission for Supersedeas, and especially this Court’s Stay Order entered October 5, 1978 is still in effect.”
We then took note of the fact that on that date, October 18, 1978, the Chancellor, pursuant to Motion of the Telephone Company, entered a decree amending his decree of September 29, 1978, by enjoining the Commission, its agents and representatives from attempting to enforce its order of December 30, 1977, or from interfering with the putting into effect the proposed rates. The said decree also granted the Commission an appeal to the Court of Appeals.
We were thus confronted with what appeared to be an anomalous situation. The only way this case has been before the Supreme Court up to this time is by Petition of the Telephone Company for Super-sedeas to set aside the orders of the Court of Appeals which had simply issued a stay order to preserve the status quo until the application for supersedeas could be heard and determined. After a third Petition for Supersedeas was filed in the Supreme Court and heard by that Court, another and last order was entered November 8, 1978 Per Curiam (with dissent by the Chief Justice joined in by Justice Fones), which Per Cu-riam Order is as follows:
“ORDER
On October 26,1978, South Central Bell Telephone Company filed in this Court a petition, requesting the Court to supersede an interim order of the Court of Appeals. The appeal of the case is pending on its merits in that Court.
In our opinion, the petition fails to demonstrate a sufficient basis for the extraordinary relief requested, and it is accordingly denied at the cost of the petitioner.
Enter this 8th day of November, 1978.
PER CURIAM”
It thus seems that, although the Supreme Court consistently denied the Petitions for Supersedeas and refused to interfere with the jurisdiction of the Court of Appeals, it, nevertheless, apparently, issued certain instructions to the Court concerning our consideration and decision of the issues involved.
Whether the said pronouncements or instructions be regarded as extra jurisdictional and in the nature of dicta, or otherwise, we respect them and certainly have not intentionally ignored them although we did not interpret them as “Mandates” concerning our procedure and ultimate decision of the issues involved.
ABUSE OF DISCRETION
No reference to the question of abuse of discretion is made in the final Per Curiam Order of the Supreme Court of November 8,1978, wherein it is stated: “The appeal of this case is pending on its merits in that Court.”
One reference was made to that issue in a previous order of the Court denying super-sedeas. However, the Chief Justice in his dissenting opinion of November 8th discusses the question at length and notes that the *444Court of Appeals had not addressed that subject in its previous orders in this case.
Now addressing this question, it was my conception and that of Judge Todd as we considered the Petition of the Commission for Supersedeas, that the final decree of the Chancellor wherein he reversed and set aside the Commission’s order, was based squarely on the facts as he found them and on his conclusions of law, and was, in no sense, a mere matter of exercising his discretion. Our preliminary examination of the record together with the briefs and arguments of counsel led to the conclusion that the stay order previously entered should remain in effect pending a hearing and determination on the merits regardless of whether the question of judicial discretion or abuse thereof was involved.
This was true because, on its face, the complex rate structure proposed by the Company and sought to be put into immediate effect by the Chancellor, appears to be highly discriminatory, preferential and lacking in uniformity. If this is true, it would seem to follow that the Chancellor’s action was erroneous and, if his action was merely the exercise of his judicial discretion, I would have to say that it might reasonably be characterized as an abuse of discretion.
On the other hand, considering the Chancellor’s action in granting the Company’s motion to enter an amendatory decree on October 18, 1978, enjoining the Commission, its agents and representatives from attempting to enforce its order of December 30, 1977, or from interfering with the putting into effect the proposed rates, this action was taken while the case was pending in the Court of Appeals on the Commission’s Petition for Supersedeas and while this Court’s stay order was in effect ordering the preservation of the status of matters involved pending further action.
In these circumstances, it seems that propriety would have impelled the Chancellor to refuse to entertain the motion for injunction and, certainly, if the injunction meant what, on its face it appeared to mean, it was improper and I do not hesitate to hold was an abuse of discretion.
THE MERITS
We begin our deliberations concerning the merits of this case by remembering that rate making of a public utility such as the Telephone Company is a legislative function which has been delegated by the Legislature to the Public Service Commission. Hence, the primary duty of regulating and fixing rates to be charged telephone subscribers by the Company rests with the Commission and not with the courts. When the Commission, pursuant to its statutory power and duty hears evidence and reaches a decision fixing rates to be charged by the utility, that decision is binding on said utility unless, on appeal to the courts the presumption of correctness is overcome by a showing that the decision of the Commission is arbitrary, capricious or illegal and/or that it will result in economic confiscation of the company’s property.
As to the factual grounds of the Commission’s decision, the courts, in applying the statute, T.C.A. §§ 65-501, et seq., if the order is supported by any material, substantial evidence it will not be set aside or disturbed by the reviewing court. Thus, even though the court may not agree with the conclusions reached by the Commission on the facts appearing in the record, it will not substitute its judgment for that of the Commission in the absence of a clear showing of capriciousness or arbitrariness. McCullom v. Southern Bell Tel. Co., 163 Tenn. 277, 43 S.W.2d 390; R. R. Co. v. Pub. Utilities Commission, 38 Tenn.App. 212, 271 S.W.2d 23; Hoover Motor Exp. Co. v. R. R. & Pub. Utilities Com., 195 Tenn. 593, 261 S.W.2d 233.
Section 65^401, T.C.A., defines Public Utilities as including telephone, telegraph or any other like system dedicated to public use.
Section 65 — 404 vests control and regulation in the Public Service Commission.
Section 65-422 prohibits any regulation, practice, or measurement which is unjust, unreasonable, unduly preferential or discriminatory.
*445 Section 65-514 makes preferences to any person or locality unlawful.
Section 65-520, Change of utility rates, fares, schedules — Suspension—Bond—Refunds, inter alia, provides that any increase or change placed in effect pursuant to this subsection (b) under bond may be continued in effect by the utility pending a final determination by the Commission or, if the matter be appealed, by final order of the Appellate Court. In the instant case, there was no increase or change put into effect by the Commission. The statute continues:
“In the event that all or any portion of such rates or charges have not been placed into effect under bond before the commission, the court considering an appeal from an order of the commission shall have the power to permit the utility to place all or any part of said rates or charges into effect, under bond.”
While the Court had the power to permit the utility to place all or any part of the said rates or charges into effect under bond, in my view of the matter there was not a proper exercise of discretion on the part of the Chancellor to order the rates or charges placed in effect if, as is seen in this record, the proposed rates, on their face, appear to be excessive and/or discriminatory.
Section 65-521 prohibits unjust rates, schedules or classifications. It provides:
“65-521. Unjust rate, fare, schedule or classification prohibited. — No public utility shall
Make, impose, or exact any unreasonable, unjustly discriminatory or unduly preferential individual or joint rate, or special rate, toll, fare, charge, or schedule for any product, or service supplied or rendered by it within [the] state.”
In the Brief and Argument filed by counsel for the Commission in support of its Petition for Writ of Supersedeas, it is asserted, “This is the largest utility rate increase ever requested or granted in the State of Tennessee. Examples of the magnitude of this increase for residence one-party lines and business one-party lines, respectively, are: Chattanooga 41% (Residence) '40% (Business); Clarksville 47% (Residence) 49% (Business); Knoxville 41% (Residence) 40% (Business); Lynchburg 69% (Residence) 85% (Business); Memphis 40% (Residence) 39% (Business); Murfreesboro 47% (Residence) 49% (Business); Nashville 41% (Residence) 40% (Business); Springfield 58% (Residence) 65% (Business).”
We have searched this voluminous record for evidence supportive of the above quoted argument and data showing the effect of the proposed rates as applied to the various localities mentioned. Much of the record in the seven or eight volumes of tariffs and other exhibits are well nigh unintelligible to one who is not trained in the rate-making process. However, in the testimony of witnesses and the various exhibits I have found evidence supporting the above quoted statement and figures.
For example we find among the exhibits certain estimated monthly increases per line ranging from $1.85 to $20.40. In Book III, Ex. 5 “Data Supporting Filing T.P.S.C. Docket U 6493 July 1977,” various rate groups are listed showing “Present IFB rates,” also there are schedules showing “Proposed IFB rates” along with proposed revenues as compared with existing revenues and many variations are to be observed in the schedules as they apply to the several groups.
In this volume rate changes in the proposed schedule as compared to the existing schedule of charges are shown as they apply to various cities and towns in Tennessee and these together with other evidence in the record support the above quoted statements made in the Brief and Argument of counsel for appellant.
This being true, it appears to me that the proposed rates, on their face, are unduly preferential and discriminatory. In view of these facts how can it be successfully argued that the proposed rates are just and uniform across the State as is required by the statutes of Tennessee?
For the reasons indicated I conclude that the Chancellor's decree putting the proposed rates into effect should be reversed.
*446Accordingly, I concur in the opinion written by Judge Todd in overruling Assignments 1, 2 and 3 for the reasons given therein.
As to the fourth assignment, I do not fully agree with the Chancellor’s conclusions regarding attrition and the alleged lack of consideration given it by the Commission, hence, I do not fully agree with Judge Todd’s conclusions concerning the assignment. However, I would not reverse the Chancellor on this assignment alone.
I would sustain Assignment No. 5 which charges error in finding that the rate of return found by the Commission is not supported by substantial, material evidence.
I would also sustain Assignment No. 8 which charges error in concluding that the Commission’s Order is illegal and void.
As to Assignment No. 6, it seems to me that if a rate is found to be within the range and zone of reasonableness it is illogical to hold that, nevertheless, it is confiscatory.
In Southern Bell Tel. & Tel. Co. v. Pub. Serv. Com., 202 Tenn. 465, 304 S.W.2d 640, it was held:
“What is a reasonable rate of return for utility is not necessarily any particular figure or decimal point but is one that is in the zone of reasonableness.”
Concerning Assignment No. 7,1 think the Chancellor’s conclusion as to the rate of return to the Company afforded by the rates in effect is not fully supported by the record. However, I do not find it necessary to discuss and pass on these two assignments (6 and 7) in view of my decision as to the other assignments.
MY CONCLUSION
Thus it is that I concur in the results stated in the last two paragraphs of Judge Todd’s Opinion, as follows:
“The order of the Chancellor invalidating the order of the Commission and remanding the cause to the Commission for further consideration is affirmed. The supersedeas heretofore granted in respect to other actions of the Chancellor is now reiterated, and his said other actions (in allowing implementation of the full proposed rate increase and enjoining interference with same) are reversed and set aside.
“Effective upon the finality of the decree implementing this opinion and continuing until the final determination of the present cause by the Commission and/or the courts, the Company is permitted to place into effect that part of its proposed rate increase which does not exceed 10% of the previously approved and charged rate for each service.”