Ex parte Lincoln Gas & Electric Light Co.

• Citation: 256 U.S. 512,65 L.Ed. 1066,41 S.Ct. 558
• Decision Date: 01 June 1921
• Docket Number: No. 29,29
• Parties: Ex parte LINCOLN GAS & ELECTRIC LIGHT CO. *
• Court: U.S. Supreme Court

256 U.S. 512

41 S.Ct. 558

65 L.Ed. 1066

Ex parte LINCOLN GAS & ELECTRIC LIGHT CO.^*

No. 29.

June 1, 1921.

Decided June 1, 1921.

Mr. Robert A. Brown, of St. Joseph, Mo., for petitioner.

Mr. C. Petrus Peterson, of Lincoln, Neb., for respondent.

Mr. Justice PITNEY delivered the opinion of the Court.

Following our decision in Lincoln Gas & Electric Light Co. v. City of Lincoln et al. (June 2, 1919) 250 U. S. 256, 39 Sup. Ct. 454, 63 L. Ed. 968, 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.'

Upon the filing of this mandate, the District Court, on January 6, 1920, entered an order modifying its decree of September 23, 1915, as particularly required, and, at the same time, made an order retaining jurisdiction for the purpose of requiring the company to make refund and restitution to consumers of gas for all amounts collected over and above the legal rate pending the litigation, with interest, in accordance with the terms of a bond that the company had filed in the cause in order to obtain a supersedeas, with a continuance of injunction, pending its appeal from the decree of September 23, 1915. An appeal from the order retaining jurisdiction, taken by the company to this court, was dismissed because the order lacked finality. 253 U. S. 477, 40 Sup. Ct. 585, 65 L. Ed. 1022. The mandate upon the dismissal again commanded the District Court:

'That such 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.'

This having gone down, the court appointed a master, with direction to examine the books and accounts of the company and prepare 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 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 is sued, 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, 32 Sup. Ct. 271, 56 L. Ed. 466), under a bond conditioned to account for overcharges if the rate ordinance should be sustained. After this first appeal, the litigation was continued until September 23, 1915, when the District Court made a final decree sustaining the rate ordinance and dismissing the bill. An application for allowance of an appeal to this court, with a supersedeas to keep the injunction in effect, was granted November 22, 1915, upon approval of a supersedeas bond tendered by the company for the purpose, in the penal sum of $575,000, to be paid to the clerk of the District Court for the benefit of all gas consumers who had purchased gas from the company during the pendency of the action from its commencement, and all consumers who should purchase gas thereafter until the final determination of the suit, with a condition reciting the decree of September 23, 1915, and the temporary injunction theretofore granted to restrain the putting into effect of the rate ordinance, and providing that if the company should prosecute its appeal to effect, or failing to make its appeal good should answer all costs and damages and refund all overcharges collected from gas consumers above the price fixed by said ordinance, and should pay to the clerk of the District Court or his successor in office, for the benefit of all whom it might concern and in particular for the benefit of all consumers entitled to refunds, all overcharges collected since the granting of the original injunction, together with interest thereon, when the several parties lawfully entitled and the amount of refund due to each should have been ascertained in the action in such manner as the court should direct, the determination to be binding upon all parties to the bond, then the...