Mr. Edward G. Griffin argued the cause, and, with Mr. Charles D. Newton, Attorney General of New York, filed a brief for petitioners. For contentions of counsel, see their brief as reported in Re New York, ante, 1057. Mr. Irving W. Cole argued the cause, and, with Mr. Thomas P. Haley, filed a brief for respondent: This application does not involve a question of jurisdiction, and, even if it does, the case is not one for interference by prohibition or mandamus. Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212; The Lake Monroe (Re United States) 250 U. S. 246, 63 L. ed. 962, 39 Sup. Ct. Rep. 460; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 64 L. ed. 834, 11 A.L.R. 1145, 40 Sup. Ct. Rep. 438; Southern P. Co. v. Jensen, 244 U. S. 205, 61 L. ed. 1086, L.R.A.1918C, 451, 37 Sup. Ct. Rep. 525, Ann. Cas. 1917E, 900, 14 N. C. C. A. 596; Union Fish Co. v. Erickson, 248 U. S. 308, 63 L. ed. 261, 39 Sup. Ct. Rep. 112; Clarke v. New Jersey Steam Nav. Co. 1 Story, 531, Fed. Cas. No. 2,859; The John G. Stevens, 170 U. S. 113, 42 L. ed. 969, 18 Sup. Ct. Rep. 544; The Siren, 7 Wall. 152, 19 L. ed. 129; The Lottawanna (Rodd v. Heartt) 21 Wall. 558, 22 L. ed. 654; Ex parte Easton, 95 U. S. 68, 24 L. ed. 373; The Jerusalem, 2 Gall. 191, Fed. Cas. No. 7,293; De Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 3,776; Clarke v. New Jersey Steam Nav. Co. 1 Story, 531, Fed. Cas. No. 2,859; Waring v. Clarke, 5 How. 441, 473, 12 L. ed. 226, 241. Mr. Justice Pitney delivered the opinion of the court: The Moses Taylor, 4 Wall. 411, 18 L. ed. 397; The Hine v. Trevor, 4 Wall. 555, 18 L. ed. 451; American S. B. Co. v. Chase, 16 Wall. 522, 529, 21 L. ed. 369, 371; The Jefferson, 215 U. S. 130, 54 L. ed. 125, 30 Sup. Ct. Rep. 54, 17 Ann. Cas. 907; The Ira M. Hedges, 218 U. S. 264, 54 L. ed. 1039, 31 Sup. Ct. Rep. 17, 20 Ann. Cas. 1235; Illinois C. R. Co. v. Adams, 180 U. S. 28, 45 L. ed. 410, 21 Sup. Ct. Rep. 251; Ex parte Gordon, 104 U. S. 515, 26 L. ed. 814; Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212; The Lake Monroe (Re United States) 250 U. S. 246, 63 L. In October, 1920, Martin J. Meed. 962, 39 Sup. Ct. Rep. 460; Re Rice, Gahan and another, as administra155 U. S. 396, 39 L. ed. 198, 15 Sup. Ct. tors of Evelyn McGahan, deceased, Rep. 149; Re New York & P. R. S. S. filed a libel in admiralty in the Co. 155 U. S. 523, 39 L. ed. 246, 15 Sup. district court of the United States Ct. Rep. 183; Re Cooper, 143 U. S. 472, for the western district of New York, 36 L. ed. 232, 12 Sup. Ct. Rep. 457; Ex against the steam tug Queen City, her parte Detroit River Ferry Co. 104 U. S. tackle, apparel, and furniture, to recov519, 26 L. ed. 815; Commissioner of er damages alieged to have been susPatents v. Whiteley, 4 Wall. 522, 18 Ltained through the death of deceased by ed. 335; South Carolina v. Wesley, 155 drowning, due to the negligent operaU. S. 542, 39 L. ed. 254, 15 Sup. Ct. Rep. tion of the Queen City upon the Erie 230; Ex parte Pennsylvania, 109 U. S. canal, in said district. The attorney 174, 27 L. ed. 894, 3 Sup. Ct. Rep. 84; general of the state of New York apEx parte Hagar, 104 U. S. 520, 26 L. ed. peared specially for the purpose of ques816; Re Engles, 146 U. S. 357, 36 L. ed. 1003, 13 Sup. Ct. Rep. 281; Re Morrison, and filed a verified suggestion of the tioning the jurisdiction of the court, 147 U. S. 14, 37 L. ed. 60, 13 Sup. Ct. want of such jurisdiction over the Queen Rep. 246; Re Huguley Mfg. Co. 184 U. City, for the reason that at all times S. 297, 46 L. ed. 549, 22 Sup. Ct. Rep. mentioned in the libel and at present she 455; Alexander v. Crollott, 199 U. S. 589, 50 L. ed. 317, 26 Sup. Ct. Rep. 161; of New York, in its possession and conwas the absolute property of the state Consolidated Rubber Tire Co. v. Fergu- trol, and employed in the public service son, 106 C. C. A. 330, 183 Fed. 756; Re of the state for governmental uses and Fassett, 142 U. S. 479, 35 L. ed. 1087, 12 the libel, was authorized by law to be purposes, and, at the times mentioned in employed only for the public and governmental uses and purposes of the state of New York, such purposes being the repair and maintenance of the improved Erie canal, a public work owned and operated by the state, and particularly the towing of dredges, the carrying of material and workmen, Sup. Ct. Rep. 295; Smith v. Whitney, 116 U. S. 167, 29 L. ed. 601, 6 Sup. Ct. Rep. 570; Ex parte Easton, 95 U. S 68, 24 L. ed. 373; Scully v. Bird, 209 U. S. 481, 52 L. ed. 899, 28 Sup. Ct. Rep. 597. The objections here presented by the state, founded on its sovereign attributes, cannot, on the merits or otherwise, prevail. 256 U. S. the towing of barges and vessels con- its ownership and character came not taining material, and the setting, re- through official channels, but from priplacing, and removing of buoys and vate counsel appearing as amici curiæ, safety devices. He prayed that the who, on being challenged to submit proof vessel be declared immune from process in support of the allegations in the sugand free from seizure and attachment, gestion, refused to do so. Of course, and [509] that the libel and all pro- there were other and more fundamental ceedings thereunder be dismissed for differences, but it is the one mentioned want of jurisdiction. that especially concerns us upon the The district court overruled the sug-question of practice. gestion and awarded process in rem, under which the Queen City was arrested. Thereupon the attorney general, in behalf of the state, filed in this court, under leave granted, a petition for a writ of prohibition to require the district court to desist from further exercise of jurisdiction, and for a mandamus to require the entry of an order declaring the Queen City to be immune from arrest. An order to show cause was issued, to which the district judge made return, embodying by reference the admiralty proceedings; and the matter was argued together with No. 25, Original, Ex parte New York, just deided [256 U. S. 490, ante, 1057, 41 Sup. Ct. Rep. 588]. Accepting, as we do, the facts stated in the suggestion of the attorney general, the record-aside from whether a suit in admiralty brought by private parties through process in rem against property owned by a state is not in effect a suit against the state, barred by the general principle applied in Ex parte New York, No. 25, Original-presents the question whether the proceeding can be based upon the seizure of property owned by a state, and used and employed solely for its governmental uses and purposes. By the law of nations, a vessel of war owned by a friendly power and employed in its service will not be subjected to admiralty process; and this upon general grounds of comity and policy. The Exchange v. M'Faddon, 7 Cranch, 116, 144-147, 3 L. ed. 287, 296, 297. In a case before Judge Francis Hopkinson in the admiralty court of Pennsylvania in 1781, on a plea to the jurisdiction, it was adjudged that marines enlisting on board a ship of war or vessel belonging to a sovereign independent state could not libel the ship for their wages. Moitez v. The South Carolina, Bee, 422, Fed. Cas. No. 9697. The question whether, by international law, the rule of the Exchange is to be applied to other kinds of public vessels owned or controlled by friendly powers (see The Parlement Belge [1880] L. R. To the suggestion that the Queen City is the property of the state of New York, in its possession and control, and employed in its public governmental service, it is objected at the outset that the record and proceedings in the suit in admiralty do not disclose the identity of the owner of the vessel, or that she was employed in the governmental service of the state. We deem it clear, however, that the verified suggestion presented by the attorney general of that state, in his official capacity as representative of the state and the people thereof, amounts to an official certificate concerning a public matter presumably within his official knowledge, and that it ought to be accepted as sufficient evi-5 Prob. Div. 197, 42 L. T. N. S. 273, 28 dence of the fact; at least, in the absence of special challenge. The suggestion was overruled and denied, with costs, and process thereupon ordered to issue against the vessel, without any intimation that there was doubt about the facts stated in the suggestion, or opportunity given to verify them further. It would be an unwarranted aspersion upon the honor of a great state to treat facts thus solemnly certified by its chief law officer, and accepted as true when passed upon by the district court, as now requiring [510] verification. Re Muir, decided January 17, 1921 [254 U. S. 522, ante, 383, 41 Sup. Ct. Rep. 185], differs widely, for there the suggestion that the vessel was exempt because of Week. Rep. 642, 4 Asp. Mar. L. Cas. 234), was stirred in Re Muir, supra, but found unnecessary to be decided. It does not now press for solution; for, aside from the obligations of international [511] law, though upon principles somewhat akin, it is uniformly held in this country that even in the case of municipal corporations, which are not endowed with prerogatives of sovereignty to the same extent as the states by which they are created, yet, because they exercise the powers of government for local purposes, their property and revenue necessary for the exercise of those powers are to be considered as part of the machinery of government, exempt from seizure and sale under process against the city. As Mr. Chief Justice of the overcharges if the ordinance should Waite said, speaking for this court in be held valid, extends to overcharges after Klein v. New Orleans, 99 U. S. 149, 150, the date of the decree, and precludes a fur25 L. ed. 430, 431: "To permit a cred-ther hearing in the case as to whether the itor to seize and sell them to collect his tory since the decree, because of changed rates may not have become noncompensadebt would be to permit him in some de- conditions, since the ordinance, being pregree to destroy the government itself." sumptively valid, is of continuing force unThe rule was applied in the admiralty til set aside by judicial decree as the result by the same learned Chief Justice, sit- of an investigation in which the burden of ting on appeal at the circuit, in The Fi- proof is upon the company, although the delity, 16 Blatchf. 569, Fed. Cas. No. decree, having been made "without preju4,758, upon a well-considered opinion. [For other cases, see Judgment, III. 1, 4, în dice," permits a new suit for that purpose. To the same effect, The Seneca (1876) 8 Ben. 509, Fed. Cas. No. 12,668; Long v. The Tampico (1883) 16 Fed. 491, 494; The Protector (1884) 20 Fed. 207; The F. C. Latrobe (1886) 28 Fed. 377, 378; The John McCraken, 145 Fed. 705, 706. The principle so uniformly held to exempt the property of municipal corporations employed for public and governmental purposes from seizure by admiralty process in rem applies with even greater force to exempt public property of a state, used and employed for pub-modifications, but without prejudice, a delic and governmental purposes. Upon the facts shown, the Queen City is exempt, and the prohibition should be issued. Rule absolute for a writ of prohibition. Digest Sup. Ct. 1908.] Appeal judgment subsequent pro 3. To retain jurisdiction of a suit attacking as confiscatory gas rates fixed by restitution of excess charges be made to municipal ordinance, for the purpose that consumers, according to the terms of the gas company's supersedeas bond to keep the injunction in effect, was and is a necessary part of the duty of the Federal district court under the mandates of the Federal Supreme Court, which, having affirmed with cree of such district court dismissing the execution and proceedings be had in said gas company's bill, commanded that "such cause as, according to right and justice and the laws of the United States, ought to be had, the said appeal notwithstanding," and which, upon dismissing a second appeal for want of final judgment below, inserted the same clause in its mandate. Such jurisdiction does not fail because the consumers were not parties to the record nor in privity with the parties, and the company prayed no relief against them, nor is it limited to overcharges prior to the date of the original decree, the bond itself having been given subsequent to the decree apAppeal liability under supersedeas pealed from in terms for the benefit, not bond restitution of excessive only of gas consumers who theretofore had charges parties and privies. purchased gas from the company, but of 1. Jurisdiction to grant restitution by those who should purchase thereafter at a gas company to consumers for rates col-any time before the final determination of lected from them in excess of the limit fixed by an ordinance, pending its suspension by injunction in a suit attacking them as confiscatory, under a bond to secure repayment if the ordinance is upheld, cannot be denied after it has been sustained, on the ground that the consumers were not parties to the record nor in privity with the parties, since the ordinance was for their benefit, and it was recognized by the bond itself that the municipality and its officers were sued as the public repre [512] EX PARTE: IN THE MATTER OF LINCOLN GAS & ELECTRIC LIGHT COMPANY, Petitioner. (See S. C. Reporter's ed. 512–519.) the suit. [For other cases, see Appeal and Error, IX. 1, in Digest Sup. Ct. 1908.] [No. 29, Original.] Argued March 15 and 16, 1921. Decided N PETITION for a Writ of Mandamus to compel the Judge of the District Court of the United States for the District of Nebraska to revoke certain orders made after the filing of the mandate from the Federal Supreme Court, and to refrain from assuming jurisdietion over the cause. Rule discharged.1 The facts are stated in the opinion. 1 Leave granted on June 6. 1921, to present petition for rehearing herein within sixty days. UNIVERSITY OF MICHIGAN Mr. Robert A. Brown argued the cause, and, with Messrs. Maxwell V. Beghtol and Charles A. Frueauff, filed a brief for petitioner: The mandate involved in this case conferred no jurisdiction on the district court except to affirm its decree of September 23, 1915, dismissing plaintiff's bill after modifying it so as to hold the occupation tax invalid. Gaines v. Rugg, 148 U. S. 228, 37 L. ed. 432, 13 Sup. Ct. Rep. 611; Re Winn, 213 U. S. 458, 53 L. ed. 873, 29 Sup. Ct. Rep. 515; McClellan v. Carland, 217 U. S. 268, 54 L. ed. 762, 30 Sup. Ct. Rep. 501; Re Louisville, 231 U. S. 639, 644, 58 L. ed. 413, 415, 34 Sup. Ct. Rep. 255; Louisville v. Cumberland Teleph. & Teleg. Co. 225 U. S. 430, 56 L. ed. 1151, 32 Sup. Ct. Rep. 741; St. Louis, I. M. & S. R. Co. v. Bellamy, 211 Fed. 172, 136 C. C. A. 442, 220 Fed. 876; St. Louis, I. M. & S. R. Co. v. McKnight, 244 U. S. 368, 61 L. ed. 1200, 37 Sup. Ct. Rep. 611; Arkadelphia Mill. Co. v. St. Louis Southwestern R. Co. 249 U. S. 134, 63 L. ed. 517, P.U.R.1919C, 710, 39 Sup. Ct. Rep. 237. The court had no jurisdiction to enter the orders, because no relief was asked for or prayed against any consumer. Grignon v. Astor, 2 How. 319, 11 L. ed. 283; St. Louis, I. M. & S. R. Co. v. McKnight, 244 U. S. 368, 375, 61 L. ed. 1200, 1205, 37 Sup. Ct. Rep. 611. The court was without jurisdiction to compel your petitioner to make an accounting for alleged overcharges subsequent to September 23, 1915. St. Louis, I. M. & S. R. Co. v. McKnight, 244 U. S. 368, 374, 61 L. ed 1200, 1205, 37 Sup. Ct. Rep. 611. The court was without jurisdiction to enjoin petitioner from settling with con sumers. St. Louis, I. M. & S. R. Co. v. MeKnight, 244 U. S. 368, 375, 61 L. ed. 1200-1205, 37 Sup. Ct. Rep. 611. The court was without jurisdiction to restrain persons not parties to the litigation from proceeding in other courts. Bellamy v. St. Louis, I. M. & S. R. Co. 136 C. C. A. 442, 220 Fed. 876; St. Louis, I. M. & S. R. Co. v. McKnight, 244 U. S. 368, 61 L. ed. 1200, 37 Sup. Ct. Rep. 611. to order restitution. Bank of United States v. Bank of 304; Northwestern Fuel Co. v. Brock, Washington, 6 Pet. 8, 17, 8 L. ed. 299, 139 U. S. 216, 35 L. ed. 151, 11 Sup. Ct. Rep. 523; Arkadelphia Mill. Co. v. St. Louis Southwestern R. Co. 249 U. S. 134, 63 L. ed. 517, P.U.R.1919C, 710, 39 Sup. Ct. Rep. 237. case to obtain payment of overcharges is Teleg. Co. 225 U. S. 430, 56 L. ed. 1151, reversal is had of decrees enjoining 230 U. S. 553, 57 L. ed. 1625, 33 Sup. 241 U. S. 533, 542, 60 L. ed. 1148, 1155, '571, 33 Sup. Ct. Rep. 975; Des Moines The force and effect of a decree dis- The filing of a bond, preparatory to Center, 219 U. S. 527, 55 L. ed. 320, 31 Merrimack River Sav. Bank v. Clay appeal from a final order, can neither enlarge nor restrict the order itself. J. L. Owens Co. v. Officer, 156 C. C. A. 475, 244 Fed. 47. Mr. C. Petrus Peterson argued the cause and filed a brief for respondent: 65 L. ed. Sup. Ct. Rep. 295, Ann. Cas. 1912A, 513. 1067 stitution be invoked to cover the period of the appeal in the absence of a bond, certainly an equity court will not deny a recovery under a bond specifically covering that period. The party against whom the issuance of the injunction was effective to render inoperative the legislation may also enforce the obligations owing from the wrongful suspension of the litigation. Missouri v. Chicago, B. & Q. R. Co. 241 U. S. 533, 542, 60 L. ed. 1148, 1155, 36 Sup. Ct. Rep. 715. [513] Mr. Justice Pitney delivered the opinion of the court: Following our decision in Lincoln Gas & E. L. Co. v. Lincoln, June 2, 1919, 250 U. S. 256, 63 L. ed. 968, 39 Sup. Ct. Rep. 454, our mandate went down to the district court of the United States for the district of Nebraska, reciting our determination that its decree of September 23, 1915, should be modified as indicated in the opinion, and, as so modified, should be affirmed with costs; and proceeding as follows: "You, therefore, are hereby commanded that such execution and proceedings be had in said cause as, according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding." an account of the amounts paid by consumers in excess of the ordinance rates during the pendency of any restraining order or injunction in the [514] cause; with other provisions not necessary to be mentioned. The company applied to this court, obtained leave for the purpose, and filed a petition for a writ of mandamus to command the judge of the district court to nullify and revoke the above-mentioned orders, and refrain from assuming jurisdiction over the cause as aforesaid. An order to show cause was issued, proper return thereto made by the judge, and the matter has been argued. From the petition and return the following additional particulars appear: The original suit was commenced December 27, 1906, in the United States circuit (now district) court, by the company against the city and its officials as defendants, seeking (among other things) to enjoin the enforcement of an ordinance regulating the price to be charged for gas. At the outset a restraining order was obtained, and this was followed by a temporary injunction, continued in force until final decree, and afterwards, pending an appeal to this court (223 U. S. 349, 56 L. ed. 466, 32 Sup. Ct. Rep. 271), under a bond Upon the filing of this mandate, the conditioned to account for overcharges district court, on January 6, 1920, en- if the rate ordinance should be sustered an order modifying its decree of tained. After this first appeal, the litiSeptember 23, 1915, as particularly re- gation was continued until September quired, and, at the same time, made an 23, 1915, when the district court made order retaining jurisdiction for the pur- a final decree sustaining the rate ordipose of requiring the company to make nance and dismissing the bill. An aprefund and restitution to consumers of plication for allowance of an appeal to gas for all amounts collected over and this court, with a supersedeas to keep above the legal rate pending the liti- the injunction in effect, was granted gation, with interest, in accordance November 22, 1915, upon approval of a with the terms of a bond that the supersedeas bond tendered by the comcompany had filed in the cause in pany for the purpose, in the penal sum order to obtain a supersedeas, with of $575,000, to be paid to the clerk of a continuance of injunction, pend- the district court for the benefit of all ing its appeal from the decree of gas consumers who had purchased gas September 23, 1915. An appeal from from the company during the pendency the order retaining jurisdiction, taken of the action from its commencement, by the company to this court, was dis and all consumers who should purchase missed because the order lacked finality. gas thereafter until the final determina253 U. S. 477, 64 L. ed. 1022, 40 Sup. Ct. tion of the suit; with a condition recitRep. 585. The mandate upon the dis- ing the decree of September 23, 1915, missal again commanded the district and the temporary injunction theretocourt "that such proceedings be had in fore granted to restrain the putting into said cause as, according to right and effect [515] of the rate ordinance; and justice, and the laws of the United prosecute that, if the company should States, ought to be had, the said appeal prosecute its appeal to effect, or, failing notwithstanding." This having gone to make its appeal good, should answer down, the court appointed a master, with direction to examine the books and accounts of the company, and prepare all costs and damages, and refund all overcharges collected from gas consumers above the price fixed by said ordinance, |
