(dissenting).
For a number of years prior to this proceeding, Central Louisiana Telephone Co., Inc., operated a telephone business office at Glenmora, Rapides Parish. Without filing an application or seeking authority from the Public Service Commission, Central closed its office at Glenmora, discontinued this *841specific service to its customers in the area and notified the Commission of its action.
The Commission gave notice and held a public hearing at which time Central was given an opportunity to show cause why it should not be required to reopen its Glenmora business office. After the hearing, the Commission rendered its order on February 12, 1972, requiring that Central reopen the Glenmora office.
Central then filed a petition in the Nineteenth Judicial District Court attacking the validity of the Commission’s order. The petition also sought a preliminary injunction restraining the enforcement of the Commission’s order and enjoining the imposition of penalties for noncompliance with the order until such time as the validity of the order was finally adjudged. The trial court refused to issue the preliminary injunction prayed for, and upon application to this Court by Central, writs to review the trial court action were granted under our supervisory jurisdiction.
The Commission does not contest Central’s petition seeking a review of the validity of its order. To the contrary, it stipulates its willingness to expedite review of the order’s validity under the summary process provided by law. The Commission objects, however, to the attempt to enjoin the effect of its order while these proceedings for review are in progress. It must be kept in mind that the order in contest here does not involve rates, fares, tolls or charges.
The process established by law for review of Commission orders is principally contained in Article VI, Section 5 of the Constitution and Sections 1191 and 1192 of Title 45 of the Revised Statutes.
The Constitution provides:
Public service commission; orders; effective date; injunction; review; enforcement ; appeals.
Section 5. The orders of the Commission fixing or establishing any rate, fare, toll or charge for any commodity furnished, service rendered, or to be rendered, by any common carrier or public utility named herein, or hereafter placed under the control of said Commission, shall go into effect at such time as may be fixed by the Commission, and shall remain in effect and be complied with, unless and until set aside by the Commission, or by a final judgment of a court of competent jurisdiction, in a suit setting aside and annulling the same; provided, however, that if an interlocutory injunction is applied for, and if of opinion that irreparable loss or damage would result to plaintiff unless a temporary restraining order is granted, the judge of the district court having jurisdiction may grant a temporary restraining order, to remain in force only until the hearing and determination of the application for an inter-
*843locutory injunction; provided, that no injunction shall issue until after five days notice has been given the Commission. .
The orders of the Commission shall be .enforced by the imposition of penalties as hereinafter provided, and any party in interest may appeal from orders and decrees of the Commission to the courts by filing suit, within ninety days from the date of the Commission’s order, and not thereafter, against the Commission .at its domicile. All cases contesting orders of the Commission, both in the trial and appellate courts, shall be tried summarily and by preference over all cases, and may be tried either in chambers, or at term time. Appeals from decisions of the trial court shall be direct to the Supreme Court, and shall be returned within ten days after the granting of the appeal. When the Commission appeals no bond shall be required. (La.Const. Art. 6, § 5).
In addition to the foregoing explicit declaration in the Constitution that orders fixing or establishing rates, fares, tolls or charges “shall go into effect at such time as may be fixed by the Commission, and shall remain in effect and be complied with, unless and until set aside by the Commission, or by a final judgment of a court of competent jurisdiction”, the legislature has ordained a like effectiveness with respect to orders of the Commission generally:
All orders of the commission, made and entered upon its records, respecting rates, charges, rules, regulations and classification, affecting any railroad, express, telephone, telegraph, steamboat, or other water craft, or sleeping car company, or other person, under its jurisdiction or control, or requiring the performance of any act by any such person, shall be operative and in full force and effect from the time fixed for them to become effective by the commission unless such orders are thereafter changed, altered, modified, or set aside by a court. (La. R.S. 45:1191).
When read together these two provisions make it clear that all orders of the Commission are effective when made so by the Commission until “changed, altered, modified, or set aside by a court.” However, Article VI, Section 5 of the Constitution creates an exception with respect to Commission orders involving rates, fares, tolls or charges. As to these latter orders the Constitution permits an interlocutory injunction to issue, when “irreparable loss or damage” will result. In this latter case an order restraining enforcement may be entered “only until the hearing and determination of the application for an interlocutory injunction.”
Orders affecting rates, fares, tolls or charges are permitted to be enjoined under the exception contained in Article VI, Section 5 of the Constitution for obvious reasons. An order to upgrade or provide service which entails an expenditure by the *845utility leads in the orderly course of things to an opportunity for the utility to request reasonable rates and charges on its expanded investment, if rates or operating ratios should fall below a reasonable level. Thus the utility is compensated for its expenditure. There is no irreparable damage in such a case. Should the utility be allowed to refuse to comply with the Commission order to make the investment or provide the service in the first place, it would have within its power to select those it would serve — at least temporarily. In many instances the service ordered by the Commission will not, in the public interest, permit delays in compliance. In the context of this case, it is not within the power of Central to serve only the good areas of the state (urban) and refuse service to the bad (Glenmora-rural).
On the other hand, where rates are involved, since there is no means provided by law for the Commission to give retroactive rate increases, an order improperly reducing rates or an order denying a warranted increase may effectively take the utility’s property without affording a means for compensation for the talcing. La.Const. Art. 1, § 2; South Central Bell Telephone Co. v. Louisiana Public Service Comm., 256 La. 497, 513, 236 So.2d 813 (1970). For this reason the exception allowing an interlocutory injunction to restrain enforcement of rate orders is permitted by the Constitution.
A detailed summary procedure is outlined in Section 1192 of Title 45 of th'e Revised Statutes for judicial review of the Commission’s orders. This legislation is entirely compatible with the last paragraph of Article VI, Section 5 of the Constitution. Nowhere in this legislation or in the last paragraph of Article VI, Section 5 is restraint of a Commission order authorized.
If any of the persons, mentioned in R.S. 45:1191, or other party in interest, shall be dissatisfied with any order entered by the commission, adopting, fixing, changing, altering, or modifying, any rate, classification, rule, charge, or general regulation, the dissatisfied person may, within three months after the order made by the commission becomes effective, file in a court at the domicile of the commission, a petition setting forth the particular cause of objection to the order or regulation of the commission complained of. All such cases shall be tried in the same manner as civil cases and shall be given precedence over all other civil cases in the court, and shall be heard and determined as speedily as possible. The Court may affirm the order of the commission complained of, or it may change, modify, alter, or set it aside, as justice may require. (La.R.S. 45:1192).
It should be kept in mind that the quoted Sections 1191 and 1192 were the general statements of law enacted by Act 171 of *8471908. By this legislation there were no exceptions to the executory character of Commission orders. It was provided in the constitution of 1898, however, that “whenever any rate, order, charge, rule or regulation of the Commission is contested in court, * * * no fine or penalty for disobedience thereto, or disregard thereof, shall be incurred until after said contestation shall have been finally decided by the courts, and then only for acts subsequently committed.” La.Const. Art. 286 (1898).
A similar provision in the Constitution of 1913 provided generally for the suspension of Commission orders during contestation in court. La.Const. Art. 285 (1913).
Thus the clear and unequivocal purpose of Article VI, Section 5 of the Constitution of 1921 was to abolish the concept of suspension of Commission orders while they were contested in Court. Except, however, that an injunction restraining execution of orders involving rates, fares, tolls and charges, only, was authorized where “irreparable damage or injury” was established. Therefore, except for the recognition that injunctions were allowed in rate cases, the Constitution of 1921 gave full effect and support to the general proposition stated in Sections 1191 and 1192 that orders of the Commission were executory during judicial review.
Moreover, the careful attention taken to limit the exception contained in Article VI, Section 5 to orders affecting rates, fares, tolls and charges compels the application of the maxim “inclusio unius cst exclusio alterius”. Thus by permitting only orders affecting rates and charges to be enjoined, the fundamental law denied the right to enjoin other orders of the Commission.
In the instant case, jurisdiction is not denied by Central and there is no allegation that rank denial of a fundamental or constitutional right is involved. All that is alleged is “irreparable damage”, but, as I have shown, compliance with the Commission’s order will not result in irreparable damage. Furthermore, an allegation of irreparable damage is by explicit constitutional provision a basis for restraint of orders involving rates and charges — none other.
In my view the procedure adopted by Central is an effort to shortcut the procedure prescribed by Article VI, Section 5 of the Constitution and Sections 1191 and 1192 of Title 45 of the Revised Statutes. In permitting Central to avail itself of the injunction procedure in this case, the Court creates a right denied by the Constitution and statutes of this State. In so doing the court effectively reduces the Commission’s power, the result of which may be, in future cases, to permit a utility to seriously impair the public interest pending judicial review of Commission orders.
I respectfully dissent.