#### STATE OF NORTH CAROLINA ex Rel. UTILITIES COMMISSION and the ALEXANDER RAILROAD COMPANY et al. v. STATE OF NORTH CAROLINA; THE DEPARTMENT OF AGRICULTURE OF THE STATE OF NORTH CAROLINA; THE NORTH CAROLINA STATE GRANGE; THE FARMERS COOPERATIVE COUNCIL; THE FARMERS COOPERATIVE EXCHANGE, and the NORTH CAROLINA FARM BUREAU FEDERATION.

(Filed 21 March, 1956.)

Utilities Commission § 3—

Decision affirming- an order of the Superior Court reversing an order of the Utilities Commission allowing an increase in rates, on the ground that the Commission failed to follow the standards prescribed by G.S. 62-124, does not estop petitioner from filing another petition reguesting that an order be entered affirming the increase *nunc pro tunc,*if petitioner is so advised, the question of whether the increase is reasonable or unreasonable being an open question for determination by the Commission upon evidence contemplated by the statute.

ON rehearing.

*W. T. Joyner, A. J. Dixon, and H. J. Karison for ■petitioners.*

Barnhill, C. J.

The opinion on the original appeal herein was filed 2 November 1955, *Utilities Commission v. State, ante,*12, to which reference is had for a statement of the facts. The petition to rehear was allowed “for the sole purpose of making an additional statement concerning the precise scope of the decision.” We still adhere to the original decision. The question there decided is not now before us for review.

The Commission found and concluded that it was necessary for the petitioners to raise their intrastate freight rates by nine per cent in order to provide just and reasonable compensation for the service rendered by them. The Superior Court reversed. We affirmed the judgment of the Superior Court for the reason that the Commission, in making its findings and conclusions of fact and entering its order allowing an increase in the freight tariffs theretofore charged by the petitioners, did not follow the standards provided by the pertinent law of this State. Our decision rested exclusively on that conclusion. We did not discuss or decide whether the increase allowed was just or unjust, reasonable or unreasonable. That is still an open question as to the period the Utilities Commission order was in effect.

The former opinion in this case constitutes no estoppel against the petitioners which prevents them from filing a petition at this time requesting that an order be entered affirming the increase *nunc pro tunc.*
      *686However, should the petitioners elect to pursue the matter further, the Commission must determine what increase, if any, was necessary during ■the period its order was in force to afford the petitioners a fair return on their property used and useful in connection with their intrastate business under the standard prescribed by our statute, G.S. Ch. 62, art. 7, as construed by this Court. *Utilities Commission v. Telephone Co.,*239 N.C. 333, 80 S.E. 2d 133. In determining the merits of a petition, due regard must be had in particular for the provisions of G.S. 62-124.

It was stated or “stipulated” by counsel for petitioners during the original hearings that the petitioners did not have available and could not offer evidence under the provisions of G.S. 62-124. We assume counsel meant such evidence was not then available to them. Be that as it may, they are now at liberty to attempt to meet the requirements of that statute if they so desire, unaffected by the original opinion, except as herein noted.

This Court fully realizes that the value of the properties owned by the several petitioners used and useful for their intrastate traffic cannot be determined with mathematical exactitude. But they can no doubt approximate the rateable proportion of their property devoted to intrastate traffic and offer evidence of other facts and circumstances in respect thereto sufficient in probative force to enable the Commission to make findings of fact under our statute, and issue such order as it determines the facts found may warrant. In any event, this Court knows of no statute or rule of law which denies the petitioners the right to attempt to do so if they are now so advised.

Subject to the explanatory comments herein made, the petition to rehear is denied.

Petition denied.