People's Gaslight & Coke Co. v. City of Chicago

• Decision Date: 04 December 1911
• Docket Number: 30,584.
• Citation: 192 F. 398
• Court: U.S. District Court — Northern District of Illinois
• Parties: PEOPLE'S GASLIGHT & COKE CO. v. CITY OF CHICAGO.

192 F. 398

PEOPLE'S GASLIGHT & COKE CO. v. CITY OF CHICAGO.

No. 30,584.

United States Circuit Court, N.D. Illinois, Eastern Division.

December 4, 1911

Sears Meagher & Whitney (Nathaniel C. Sears and James F. Meagher of counsel), for complainant.

William H. Sexton, Corp. Counsel (Maclay Hoyne, Bryan Y. Craig, and Joseph F. Grossman, Asst. Corp. Counsels, of counsel), for defendant.

KOHLSAAT Circuit Judge.

Complainant a corporation of the state of Illinois, files its duly verified bill asking that the ordinance passed by the city council of the city of Chicago on July 17, 1911, which ordinance reads as follows, viz.:

'Be it ordained by the city council of the city of Chicago:

'Section 1. That article iii of chapter xxxii of The Chicago Code of 1911 be and the same is hereby amended by striking out section 1040 thereof (which said section 1040 is in substance a re-enactment of section 1 of the ordinance passed February 14, 1906, regulating the maximum prices of gas to be charged to consumers and to the city of Chicago), and substituting therefor a new section to be designated as section 1040, which new section shall read as follows: 'No person, firm or corporation, manufacturing, selling, supplying or distributing gas in the City of Chicago, for illuminating, fuel or power purposes, shall charge, exact, demand or collect from any consumer thereof for the next five (5) years after this ordinance goes into effect more than the rates or charges hereby fixed and prescribed. For each one thousand (1,000) cubic feet of gas consumed or used for fuel, illuminating or power purposes, the maximum sum which may be charged, exacted, demanded or collected from each consumer shall be as follows: During the first year of said five year period seventy-five cents for each one thousand (1,000) cubic feet of gas consumed or used; during the second or third years of said five year period, seventy cents for each one thousand (1,000) cubic feet of gas consumed or used; during the last two years of said five year period, the sum of sixty-eight cents for each one thousand (1,000) cubic feet of gas consumed or used. Provided that persons, firms or corporations manufacturing, selling or distributing gas in the city of Chicago, may charge, exact, demand and collect an additional price of five cents (5c) for each one thousand (1,000) cubic feet of gas consumed or used for fuel, illuminating or power purposes if the consumer fails to pay for gas consumed or used within ten (10) days after the delivery or presentation to him of his bill for gas so consumed or used; but no penalty and no other addition shall be charged, exacted, demanded or collected from any consumer over and above the maximum charges and rates herein enumerated or any of them.'

'Sec. 2. That article iii of chapter xxxii of said Chicago Code of 1911 be and the same is hereby further amended by striking therefrom section 1042 (which said section 1042 is in substance a re-enactment of section 3 of said ordinance, passed February 14, 1906, regulating the maximum prices of gas to be charged to consumers and to the city of Chicago), and substituting therefor a new section to be designated as section 1042, which said new section shall read as follows: 'Any person, firm or corporation who shall charge, exact, demand or collect from any consumer of gas in said City of Chicago a sum in excess of the maximum rates specified in section 1040 during said five year period, shall be fined not less than twenty-five dollars ($25.00) nor more than two hundred dollars ($200.00) for each and every offense.'

'Sec. 3. That this ordinance shall first be published in the manner provided by law and ten (10) days after such publication has been made this ordinance shall take effect.'

-- be declared and decreed to be inoperative, invalid, illegal, null, and void, and of no force and effect as against the People's Gaslight & Coke Company, and in violation of the rights of complainant as secured to it by the Constitution of the United States of America and amendments thereto, and of the contract rights of complainant as contained in its charter; and further praying that the act of the Legislature of Illinois approved May 18, 1905 (Laws 1905, p. 110), entitled 'An act to confer upon the city of Chicago the power and authority to sell surplus electricity and to fix the rates and charges for the supply of gas, etc.,' be adjudged and decreed to be unconstitutional and void, and for other relief.

The cause is now before the court upon a motion for the granting of a temporary injunction restraining the city from enforcing or attempting to enforce said ordinance until the further order of the court. From the bill it appears that on July 31, 1911, complainant herein filed in the circuit court of Cook county, Ill., in which county defendant is situated, its petition to review and determine rates for gas prescribed by said ordinance of July 17, 1911, in pursuance of the provisions of the act aforesaid, upon which said ordinance was based. Such action was had upon said petition that the court, by injunction in limine, ordered petitioner therein, the complainant herein, to charge and collect not to exceed the sum of 80 cents per 1,000 cubic feet of gas, with certain exceptions named, until such time as the court should take final action in said cause, and enjoining the city of Chicago and its agents from enforcing or attempting to enforce said ordinance of July 17, 1911, and providing for a refund in case the rates prescribed in said ordinance should finally be adjudged just and reasonable.

While said order of the circuit court was in force and unmodified, and before said cause came to a hearing, and on October 31, 1911, the city of Chicago, defendant herein, filed its plenary suit on the equity side of said circuit court of Cook county, Ill., on behalf of itself as a gas consumer and all others similarly situated, wherein the gas company, complainant herein, was made defendant, praying that the gas company, its officers, etc., be temporarily enjoined, until the further order of the court, from demanding or receiving more than 80 cents for each 1,000 cubic feet of gas used by the city of Chicago or any other consumer of gas supplied by the gas company in the city of Chicago, and that, upon final hearing, the gas company be enjoined from charging or receiving more than the rate therefor fixed by said ordinance of July 17, 1911.

Thereafter, by leave of court entered on November 13, 1911, said bill was amended by adding, among other matters, a further prayer that the gas company, its officers, etc., until the further order of the court, pay to and turn over to the clerk of that court, or some other person to be named by the court, all moneys that might from time to time be collected by said Gas Company from the city and all other consumers of said gas in Chicago, in excess of the maximum rates named in said ordinance, to be held subject to the further order of the court.

This bill recited the proceedings had upon said motion to review, etc., filed in said state circuit court on July 3, 1911, and set out the grounds upon which the same was alleged to be inefficacious. The Gas Company was duly served with process and filed its demurrer to the said bill of the city, whereupon the city applied for leave to and did amend its bill as above stated, and the demurrer was ordered to stand to the bill as amended. Upon the hearing on said demurrer, it was overruled, whereby said circuit court held that the pendency of proceedings in the same court based upon the petition to review, etc., constituted no bar to the institution of the said suit by the city. Immediately following this ruling of said circuit court, the Gas Company filed the present bill in this court, setting up, as above stated, among other matters, that the passage of said ordinance of July 17, 1911, was and will be a violation of the rights of the Gas Company as guaranteed to it by the fourteenth amendment to the Constitution the United States providing that no state shall deprive any person of life, liberty, or property without due process of law, and also of the Constitution of Illinois, section 2 of article 2, and fully setting out the facts upon which said allegations are based.

For the purposes of resisting the motion for a preliminary injunction as above stated, the city of Chicago files a special and limited appearance.

For the city it is contended that, as between courts having concurrent jurisdiction, the state court, having first acquired jurisdiction of the cause of action and of the subject-matter, has the exclusive right to proceed to a final determination thereof, under the provisions of section 720 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 581).

It will be noted that the parties to the suit of the city in the circuit court and those now before this court have changed places; that no attempt in terms is here made to restrain proceedings in the former case; and that the relief sought, though closely allied, is yet not strictly entirely identical with that asked for in the state court.

The pendency of another suit for the same cause of action in a state court is not per se ground for abatement of the suit here. McClellan v. Carland, 217 U.S. 268, 30 Sup.Ct 501, 54 L.Ed. 762; Hunt v. N.Y. Cotton Ex., 205 U.S. 322-338, 27 Sup.Ct. 529, 51 L.Ed. 821; Bunker Hill, etc., Co. v. Shoshone Mining Co., 109 F. 504, 47 C.C.A. 200; Wadleigh v. Veazie, Fed....