Opinion of the Court. 257 U.S. "2. May suit in the District Court of the United States properly be brought and maintained against a United States collector of internal revenue for the recovery of the amount of a United States internal revenue tax, unlawfully assessed and collected, but in the collection and disbursement of which such collector had no agency, the entire transaction of such assessment, collection and disbursement having occurred during the incumbency of such office of a predecessor in office of such collector?" As the law stood before later statutes a collector was liable personally for duties mistakenly collected, if the person charged gave notice, at the time, of his intention to sue, and warning not to pay over the amount to the Treasury. Elliott v. Swartwout, 10 Pet. 137. But, after an act of Congress had required collectors to pay over such monies, it was held, against the dissent of Mr. Justice Story, that the personal liability was gone. Cary v. Curtis, 3 How. 236. Later statutes however recognize suits against collectors in such cases, and the plaintiff contends that they should be construed to create a new statutory liability attached to the office and passing to successors, as was held in this case, the formal defendant being saved from harm by the United States. This however is not the language of the statutes and hardly can be reconciled with the decision of this Court in Sage v. United States, 250 U. S. 33, and other cases to which we shall refer. To show that the action still is personal, as laid down in Sage v. United States, 250 U. S. 33, 37, it would seem to be enough to observe that when the suit is begun it cannot be known with certainty that the judgment will be paid out of the Treasury. That depends upon the certificate of the Court in the case. It is not to be supposed that a stranger to an unwarranted transaction is made answerable for it; yet that might be the result of the suit if it could be brought against a successor to the collector 1. Opinion of the Court. ship. A personal execution is denied only when the certificate is given. It is true that in this instance the certificate has been made, but the intended scope of the action must be judged by its possibilities under the statutes that deal with it. The language of the most material enactment, Rev. Stats., § 989, gives no countenance to the plaintiff's argument. It enacts that no execution shall issue against the collector but that the amount of the judgment shall "be provided for and paid out of the proper appropriation from the Treasury," when and only when the Court certifies to either of the facts certified here, and "when a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty." A recovery for acts done by the defendant is the only one contemplated by the words "by him." The same is true of Rev. Stats., § 771, requiring District Attorneys to defend such suits. No different conclusion results from the Act of February 8, 1899, c. 121, 30 Stat. 822. That is a general provision that a suit by or against an "officer of the United States in his official capacity" should not abate by reason of his death, or the expiration of his term of office, &c., but that the Court upon motion within twelve months showing the necessity for the survival of the suit to obtain a settlement of the question involved, may allow the same to be maintained by or against his successor in office. Whether this would apply to a suit of the present kind is at least doubtful. Roberts v. Lowe, 236 Fed. 604, 605. In Patton v. Brady, 184 U. S. 608, a suit against a collector begun after the passage of this statute, it was held that it could be revived against his executrix, which shows again that the action is personal; as also does the fact that the collector may be held liable for interest. Erskine v. Van Arsdale, 15 Wall. 75. Redfield v. Bartels, 139 U. S. 694. But in any event the statute supposes a suit already begun against the officer in his lifetime. We need not consider the remedies against the United States. United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28; Sage v. United States, 250 U. S. 33. It appears to us plain without further discussion that both questions must be answered: No. Answers to Questions 1 and 2: No. MR. JUSTICE MCKENNA and MR. JUSTICE CLARKE dissent. EX PARTE IN THE MATTER OF LINCOLN GAS & ELECTRIC LIGHT COMPANY, PETITIONER. ON PETITION FOR REHEARING OF APPLICATION FOR WRIT OF MANDAMUS. No. 29, Original. October Term, 1920. Decided October 24, 1921. Where a decree of the District Court, upholding as adequate a gas rate fixed by a city ordinance, was affirmed by this court without prejudice to the bringing of a new suit to restrain enforcement if changed conditions should make the rate confiscatory,Held: (1) That, until such new suit was begun, the ordinance was established by the decision as the lawful and exclusive measure of the rates chargeable by the plaintiff gas company. P. 9. (2) That the original suit did not end until the going down of the mandate from this court. P. 9. (3) That a new suit filed at that time, and the granting of a restraining order therein, could affect only the then future operation. of the ordinance, and could not oust the District Court of its jurisdiction, ancillary to the former suit, to award restitution, gauged by the ordinance rate, of overcharges exacted by the plaintiff from its consumers during the period between the original decree of that court and the going down of the mandate. P. 9. (4) That the ancillary jurisdiction was independent of whether the plaintiff's injunction bond, in the former suit, was sufficient to cover the overcharges. P. 10. Rehearing denied. Mr. Robert A. Brown, Mr. Maxwell V. Beghtol, Mr. Charles A. Frueauff and Mr. Wade H. Ellis, in support of the petition. MR. JUSTICE PITNEY delivered the opinion of the court. Petitioner asks a rehearing of this matter and a reconsideration of our decision of June 1, 1921, 256 U. S. 512, by which we refused to award a mandamus requiring the Judge of the District Court to refrain from exercising jurisdiction in the cause of Lincoln Gas & Electric Light Co. v. City of Lincoln, et al., after our disposal of the final decree on appeal, for the purpose of requiring restitution to gas consumers of amounts exacted by petitioner pending the suit in excess of the maximum rates permitted by the ordinance that was under attack therein. We have permitted the petition for rehearing to be filed and shall state briefly why it cannot be granted. In our opinion in the principal case delivered June 2, 1919 (250 U. S. 256), while sustaining generally the decree of the District Court dated September 23, 1915, which dismissed the bill of complaint, we nevertheless said (p. 268) that the decree should be modified "so as to permit complainant to make another application to the courts for relief against the operation of the ordinance hereafter, if it can show, as a result of its practical test of the dollar rate since May 1, 1915, or upon evidence respecting values, costs of operation, and the current rates of return upon capital as they stand at the time of bringing suit and are likely to continue thereafter, that the rate ordinance is confiscatory in its effect under the new conditions." To that end we modified the decree so that the dismissal of the bill as to the rate ordinance should be "without prejudice to the commencement of a new action to restrain the enforcement of said ordinance hereafter," and affirmed it as thus modified. Opinion of the Court. 257 U.S. Upon the going down of the mandate the District Court on January 6, 1920, entered an order modifying its decree of September 23, 1915, as required, and retaining jurisdiction for the purpose of requiring the petitioner to make refund and restitution to consumers of gas for amounts collected over and above the legal rate pending the litigation; and against this order relief was sought through mandamus. In the opinion refusing a mandamus, in response to the contention that the jurisdiction of the District Court to require restitution did not extend to overcharges subsequent to September 23, 1915, we stated that the decree of that date was conclusive evidence that petitioner had failed in the attempt to prove the ordinance rate noncompensatory, and hence that it not only was lawful and binding, but would so continue unless and until the petitioner, under the leave reserved, should begin a new suit and maintain its contention that the rate, through changed conditions, had become noncompensatory. It is now urged that this was based upon the assumption that no suit had been instituted attacking the rate since our decision of the appeal in the main case; and petitioner sets up, as the principal ground for asking a rehearing, that on January 6, 1920, a new suit was brought by it in the same court against the city and its officials for the purpose, as stated, of taking advantage of the permission granted in the mandate following our decision of June 2, 1919. Petitioner exhibits a copy of its petition in the new suit, which is in the nature of a bill in equity; also a copy of a restraining order granted by the District Court thereon. In our opinion refusing the mandamus we did not mention the new suit, for the very good reason that it had not been brought to our attention; not being mentioned either in the petition for mandamus, in the return of the |