(concurring in part and dissenting in part respecting the opinion on rehearing).
It seems to me that the first question resolved is wholly legislative and that the court’s majority has read into the statute a condition the lawmakers left out. That part of the opinion dealing with interest rests upon the word “damages” found in the sentence relating to refunds. Justification for construction of damages is implied from the context of subdivision (b), § 18, Act 324 of 1935, Ark. Stats., § 73-217, reinforced by the views entertained by editors of Corpus Juris Secendum, v. 47, p. 13. But the Corpus Juris summation is that “Interest, being a creature of statute, the law allows it only on the ground of a contract for its payment, or as damages for the detention of money, or for the breach of some contract, or the violation of some duty, or where it is provided for by statute; but in courts of equity interest is allowed or disallowed in the exercise of a sound discretion. ’ ’
Subsection (d) requires the Public Service Commission to bring suit against any utility that fails to make restitution within 30 days from the effective date of any order reducing increases that had been collected under authority of the bond, and in this order the Commission fixes the amount or amounts returnable to the customer. The suit is to be prosecuted in the name of the State by the attorney member of the Commission.
Interest is first mentioned in subsection (d), and by express language the demand shall be “for the amount of all refunds due, together with interest at the rate of 6% per annum, and all court costs.”
This mandate must be read in the light of pertinent matter preceding it — particularly the expressions disclosing a legislative design to have the Commission determine the amount to be refunded. It is noteworthy that subsection (c) does not confer upon the Commission the right to include interest on refunds. Unless by implication there is interpolated into the Act something the general assembly left out of it, the only condition under which interest is chargeable is when suit becomes necessary. Such a suite would be predicated upon violation of the Commission’s order, and the “effective date of such order” is the decisive factor. It is noteworthy that the subsection prohibits the maintenance of such suit unless instituted within two years “after such final determination.” Here, again, the Commission’s order is made the date from which violation begins.
If it should be argued that interest automatically attaches when money is withheld, the answer is that the legislature saw fit to apply its own treatment, rendering common law remedies inapplicable. The general rule is that interest accrues only where there is a liquidated demand. In the utility field the right to increased rates is ordinarily debatable and it is subject to investigation by machinery the state has established for that purpose, hence it cannot be said that the legislative scheme visualized a purpose to penalize the utility it compelled to proceed by a particular method, but allowed it on condition that bond be given to put the proposed rate into effect at once.
A practical thought that might with good reason be assigned for the legislative failure to give specific directions is this: The amount returnable to each affected patron as interest will necessarily be small. It must be computed on a month-to-month basis, entailing a tremendous clerical outlay. For example, if A paid a service charge of $11.93 for the first month collections were made following inauguration of the rates covered by the bond, the difference between what was actually paid and the amount this court has authorized for certification by the Commission would be refunded, with interest at 6% for the period the over-payment was in Southwestern’s possession. The time element for the second month, and the third, and all succeeding months, would be progressively less. This is true because interest would be payable under the majority opinion only for the actual time the customer had been deprived of the excess payment.
But this is not all. The schedule Southwestern filed with the Commission applied to intrastate long distance calls. Thus, refunds must be made for that proportion held to be excessive, and each customer’.s bill must be examined to ascertain what the refundable difference is. On this excess amount so collected Southwestern paid the Arkansas 2% sales tax, and on all calls where the charge was 25 cents or more it paid a federal tax of 25 Jo. Unless these differentials are to be regarded as de minimis (a determination Southwestern cannot arbitrarily make, and an authority we do not assume the individual subscriber will voluntarily confer), interest must be computed with these factors in view, and each over-payment must yield a 6% return for the number of months involved. Certainly the Federal government will not pay interest on these over-charges, so the utility sustains what at first glance appears to be a net loss. But is it?
The bookkeeping and clerical effort involved in these comparatively trivial transactions will very probably cost more than the aggregate of all the interest found to be due. It becomes a part of the cost of administration and is an allowable item in fixing rates. We know that Southwestern has indicated a purpose to apply for further increases based upon operational costs now greater than they were when the case before us was decided. Therefore the Commission, under fair inferences flowing from this court’s opinion on rehearing, would allow the clerical and other administrative costs incidental to the tedious task of computing interest on the basis of diminishing time factors; and, furthermore, this means that the subscriber who did not patronize the intrastate long distance service will be penalized for the benefit of the one who did.
Perhaps in failing to provide for the payment of interest the legislature took these matters into consideration.
I agree with that part of the opinion which refuses to authorize the payment of attorney fees.
Southwestern contends that mathematical errors easily demonstrable were made by Commissioner Wood who wrote a dissenting opinion. Essential findings by Judge Wood were incorporated in this court’s opinion and were the bases for our decision. It is now insisted that Commissioner Wood, if permitted to do so, would recognize these errors and no doubt would modify to some extent the conclusions arrived at. The opinion on rehearing disposes of the suggestion that Judge Wood be permitted to say whether the mistakes alleged activated his dissent and justified the result he reached. This disposal is achieved by calling attention to Southwestern’s failure to raise the question in the appeal. A statement in the opinion is that <£A second reason for rejecting Southwestern’s present insistence regarding the $3,177,000 figure is the fact that there is evidence in the record to support a lower figure than $3,177,000.”
Would it not be a better rule (in circumstances where the Commission’s majority made one determination and the third Commissioner reached a different conclusion) to remand the cause to circuit court with directions to immediately send it to the Commission for a determination of findings that came to us from divided authority? This would in no way impair oiir acquiescence in the minority view, but it would permit the Commissioner whose findings we followed to say whether he erroneously omitted certain essentials or mistakenly included others. The entire proceeding could and should by our order be terminated within less than thirty days.
There is one other matter it is appropriate to call attention to. From my own point of view there was nothing in the original opinion to which attorneys for Southwestern could from an impartial standpoint believe to be a criticism of their.trial tactics, involving omission or commission; but their briefs on rehearing indicate a feeling that the court impliedly disapproved of the zeal they displayed in an obviously sincere purpose to represent their client to the full extent of the very great ability and meticulously correct ethical conduct they have always shown in advocacy before this court.
We all know that a corporation such as Southwestern, with far-flung interests and millions of dollars available and at stake, selects the ablest of counsel and then provides these representatives with technical, scientific, and run-of-the-day information that is seldom available to small public groups concerned with problems common to the average citizen. The very able group of counsel arrayed against specialists for the telephone company was necessarily at an initial disadvantage in procuring information and in presenting it to the Commission. But the Commission is the impartial arbiter for the utilities and for the public, and appellate courts must rely largely upon what the Commission’s findings are after it has had the benefit of professional aid given by lawyers such as those who served the disputants. It was not the court’s intent to detract from the high standing of any of these attorneys, or the Commissioners, by any word, or by sentence from which such an inference could be drawn; nor was there an unexpressed thought in this respect.