Northern Union Gas Co. v. Mayer

• Decision Date: 19 October 1909
• Docket Number: 172.
• Citation: 174 F. 817
• Parties: NORTHERN UNION GAS CO. v. MAYER, Atty. Gen., et al.
• Court: U.S. Court of Appeals — Second Circuit

174 F. 817

NORTHERN UNION GAS CO. v. MAYER, Atty. Gen., et al.

No. 172.

United States Court of Appeals, Second Circuit.

October 19, 1909

Cortland Betts (John A. Garver, of counsel), for appellant Northern Union Gas Co.

William D. Marks, for appellant City of New York.

Before COXE and WARD, Circuit Judges, and HOLT, District Judge.

COXE Circuit Judge.

A preliminary injunction was granted in this case restraining the defendants from enforcing the law of the state of New York requiring gas companies to supply the city with gas at 75 cents and the public at 80 cents per 1000 cubic feet. The order provided that the complainant might continue to render bills as it had theretofore done, provided it deposit a sum equal to the excess over the rate fixed by law to the credit of a special master appointed to distribute the same in accordance with the final disposition of the cause. Thereafter the complainant billed its ordinary consumers as theretofore at the rate of $1.00. They were not parties to the cause and were of course at liberty to pay or to pay under protest or to refuse to pay, as they might be advised. The order was intended to secure their right to recover in case the complainant were ultimately defeated even if their payments were voluntary. In other words, to require the complainant to give satisfactory security that it would then repay the sums which it had collected under a claim of right.

A decree of the Circuit Court in favor of the Consolidated Gas Company involving the same questions, having been reversed by the Supreme Court of the United States, the special master has paid over the fund so deposited in this suit to the consumers or their assignees except to the extent of some $18,000, as to which no claims have been presented and it has been impossible to find the original consumers. The court has ordered the special master to pay this sum to the complainant upon its giving a bond conditioned to repay the consumers at any time hereafter or their assignees at any time within the period fixed by the statute of limitations of the state of New York.

The complainant and the defendant, the city of New York, have appealed from this order. The complainant appeals on the ground that no bond should have been required and that the statute of limitations should apply to the claims of original consumers as well as to their assignees.

The city of New York appeals on the ground that the fund should not be disturbed at all and that so much of it as shall remain unclaimed after ten years from the time of deposit should be transferred to a designated depositary to the credit of the United States.

Considering first...