Plaintiff sues in equity, seeking to restrain the enforcement of an order of the Railroad Commission, issued on November 13, 1933, directing plaintiff to reduce its gas rates applicable to its natural gas service. The rates, fixed by the commission upon proceedings instituted upon its motion, are assailed as confiscatory.

Upon its bill of complaint and affidavits, plaintiff moves for an interlocutory injunction. Defendants, in opposition thereto, file a verified answer and affidavits.

In its decision, the commission found, as stated in its brief, “that the fair rate base applicable to the plaintiff’s gas properties for the purpose of testing the rates for the future was $105,000,000. A net return of $7,000,000 (approximately 6% per cent) on said rate base was found to be a reasonable return.” And it further states in its brief that “the order reduced the gross revenues of the company by $2,100,000, and its net revenues by $1,648,238; that the net revenue available under the new rates would be $7,-096,643 or 6.76 per cent return on the $105,-000,000 rate base. This projected net return under the new rates is before making any allowance for increased revenues resulting from the stimulation of sales under the reduced rates. Revenues will unquestionably increase under the lower rates. * * * But for the reduction of rates the return to the company under the old level of rates would have been $8,744,881, or 8.33 per cent on the said rate base.”

Plaintiff alleges that the fair value of its properties is in excess of $114,000,000; that the historical value is in excess of $117,000,-000.

Plaintiff contends that the rates prescribed by the commission are “insufficient to yield a fair or reasonable return upon the fair value of plaintiff’s properties used and useful in furnishing gas to the public, and therefore said order deprives the plaintiff of its property without due process of law and takes plaintiff’s property for public use without just compensation in violation of the Fourteenth Amendment to the Constitution of the United States.” And, in its complaint, plaintiff alleges that “said decision and order is without evidence to support it in that the Commission failed and refused to give due or any weight or effect to the reproduction cost of the property of plaintiff used and useful in the service of furnishing gas to the public and failed and refused to give due or any weight or effect to competent evidence of such reproduction cost; and that, in fixing the rate base, the Commission gave weight and effect solely to the historical cost of plaintiff’s said property.”

The commission rejected the reproduction cost estimates of the plaintiff, did not have any detailed estimates of reproduction cost before it, and did not determine the reproduction cost of plaintiff’s property. In that regard, the commission, in its decision, stated as follows:

The plaintiff further contends that the commission refused to include the going concern value of its properties in the rate base, and made no allowance for a return thereon; that the commission’s order will provide a return which will not exceed 4.21 per cent, upon the fair value of its properties, whereas a return of less than 8 per cent, will be confiscatory.

The commission made no direct allowance for going concern value. In that regard the commission in its decision stated:

It is essential that going concern value be included in the estimate of the fair value of the property upon which rates are to be fixed.

In its decision,’ under the subheading, “Value, Rate Base and Return,” the commission says: “During its entire history in establishing reasonable rates for utilities similar to this Company, to determine a proper rate base this Commission has used the actual or estimated historical costs of the properties undepreciated, with land at the present market value. Consistent with this, it has *880 used the sinking fund method to determine the allowance for depreciation to be included in operating expenses.”

This theory, which was followed by the commission in determining a rate base, has been repudiated by the Supreme Court. See Bluefield Water Works, etc., Co. v. Public Service Commission, 262 U. S. 679 , 43 S. Ct. 675 , 67 L. Ed. 1176 ; Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Commission, 262 U. S. 276 , 43 S. Ct. 544 , 67 L. Ed. 981 , 31 A. L. R. 807; McCardle v. Indianapolis Water Co., 272 U. S. 400 , 47 S. Ct. 144 , 71 L. Ed. 316 ; Denver v. Denver Union Water Co., 246 U. S. 178 , 38 S. Ct. 278 , 62 L. Ed. 649 ; Los Angeles Gas & Electric Corp. v. Railroad Commission, 289 U. S. 287 , 53 S. Ct. 637 , 77 L. Ed. 1180 ; Wichita Gas Co. v. Public Service Commission (D. C.) 3 F. Supp. 722 ; United Railways & Electric Co. v. West, 280 U. S. 234 , 50 S. Ct. 123 , 74 L. Ed. 390 .

It appears from the affidavits that the plaintiff claims an annual depreciation of $4,865,608. The commission allowed $1,769,-110 for annual depreciation. In order to present in part the issue in that regard, we quote from the affidavit of the president of the plaintiff corporation as follows:

Another issue is as to the fair return that should be allowed upon the fair value of plaintiff’s property. The company claims that returns should not be less than 8 per cent, on the fair value of the property. The commission allowed 6% per cent., while the rate allowed to the Los Angeles Gas & Electric Co. in the ease considered by the Supreme Court in Los Angeles Gas & Electric Corp. v. Railroad Commission, 289 U. S. 287 , 53 S. Ct. 637 , 77 L. Ed. 1180 , supra, was 7.7 per cent, on the historical cost, and 7 per cent, on the fair value. There is no evidence offered on the hearing of the motion for an interlocutory injunction of such a change in conditions as would make it clear that a lower rate of interest was justified. While we refrain from expressing an opinion at this time as to the proper rate of return upon the fair value of plaintiff’s property, it is clearly doubtful whether or not the rate of 6% per cent, is sufficient to produce a fair return upon the fair value of plaintiff’s property.

*881 It is unnecessary to further analyze or to enter upon a detailed discussion of the figures comprising the rate base presented in the record and the contradictory affidavits filed at this hearing. Suffice it to say that upon consideration of the entire matter we are in grave doubt as to whether or not the evidence supports the commission’s order. And, as the commission has departed from the rules laid down by the Supreme Court for the determination of a proper rate base, a hearing of the ease de novo is inescapable. In such a situation, it becomes our duty to grant the motion for an interlocutory injunction. Such course is approved in Ohio Oil Co. v. Conway, 279 U. S. 813, 815 , 49 S. Ct. 256 , 73 L. Ed. 972 , in which ease the Supreme Court said: “Where the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable, if the application be denied and the final decree be in his favor, while if the injunction he granted the injury to the opposing party, even if the final decree be in his favor, will be inconsiderable, or may be adequately indemnified by a bond, the injunction usually will be granted. Love v. Atchison, Topeka & Santa Fe R. Co. (C. C. A.) 185 F. 321, 331, 332 .” See, also, Prendergast v. New York Tel. Co., 262 U. S. 43 , 43 S. Ct. 466 , 67 L. Ed. 853 ; City of Amarillo v. Southwestern Tel. & Teleg. Co. (C. C. A.) 253 P. 638 ; Monroe Gaslight & Fuel Co. v. Michigan Public Utilities Commission (D. C.) 292 F. 139, 143 .

We therefore conclude that the interlocutory injunction should issue, and it is so ordered.