100 N.Y.S. 81 | N.Y. App. Div. | 1906
Lead Opinion
The defendant is a corporation organized and existing under the laws of the State of New York, and is engaged in the business of manufacturing gas and conducting and supjilying the same through mains and lateral pipes to consumers in the city of New York, for hire. The plaintiff conducts a coffee and lunch room in the building known as No. 484 Sixth avenue in said city, and for the successful conduct of his business requires light, heat and fuel. The defendant has a main in the avenue which is connected with the premises occupied by the plaintiff, and it has for a long period of time supplied him with gas, which he has used for light, heat and fuel, and he is wholly dependent upon the defendant therefor. " Prior to the 1st day of May, 1906, the maximum price which the defendant was authorized to charge its consumers, excepting the city of New York, for gas supplied to them was fixed at one dollar per 1,000 cubic feet by chapter 385 of the Laws of 1897, which provided that that rate should take effect on and after the expiration of the year 1900, the rate prior thereto having been higher, but having been gradually reduced pursuant to the provisions of said statute.
The Legislature, at its annual session in 1905, through a committee, investigated the quality of gas furnished by the defendant to its consumers and the reasonableness of the price charged therefor, and as a result of such legislative investigation and after the failure of an attempt to enact a bill reducing the maximum price to be charged for gas, it enacted chapter 737 of the laws of that year, which created a State Commission of Gas and Electricity and authorized such Commission, among other things, upon complaint being made as to the price of gas as therein provided* to investigate the same by public hearings and to fix the maximum price to be charged, for gas within the limits prescribed by law for the term of three years next ensuing. The act provided, among other things, that the
Notwithstanding the action of the State Commission of Gas and Electricity and of the Legislature in reducing the price of gas tu eighty cents per 1,000 cubic feet on and after the 1st day of May, 1906, the defendant has rendered a bill to the plaintiff for gas supplied after May 1, 1906, and has expressly charged him therein at the rate of one dollar per 1,000 cubic feet. The defendant has refused to accept payment duly offered in legal tender at the rate of eighty cents per 1,000 cubic feet, and has threatened to discontinue
It is the duty of the defendant, by virtue of the provisions of section 65 of the Transportation Corporations Law, to supply gas to the plaintiff, provided it is not justified in exacting one dollar per 1,000 cubic feet for gas furnished after May 1, 1906./The defendant is exercising public franchises conferred by the People of the State through their Legislature, and is enjoying special privileges of using the public streets to serve the public, but for private gain. In thus exercising public franchises and special privileges it owes a duty to the public to furnish gas to its consumers at reasonable rates, which the Legislature may regulate and the courts may enforce. It is competent for the Legislature to regulate the price that the defendant may charge consumers, provided it does not require.it to supply gas at a rate that will not admit of a reasonable profit to the stockholders upon the actual value of the plant and property of the company.^/ (San Diego Land & Town Co. v. Jasper, 189 U. S. 442.) The corporation may at any time have recourse to the State or Federal courts to test the validity of any enactment of the Legislature prescribing br regulating the rate to be charged for gas, upon the ground that it .is so low that it will deprive the stockholders of the right to such reasonable profit, and if after a judicial investigation the complaint should be sustained, it would be the duty of the court to declare the law unconstitutional and void as impairing the right of contract and taking property without due process of law, in violation of subdivision 1 of section 10 of article 1 of the Federal Constitution and section 1 of the 14th amendment thereto. This is one of the few cases in which the courts may examine facts dehors the record and annul the action of the Legislature upon a finding that the rate .prescribed impairs the constitutional right of the stockholders of the corporation to earn a
The defendant challenges the validity of the statute of 1905 creating the Commission of Gas and Electricity, the action of that Commission in prescribing the eighty-cent rate, and chapter 125 of the Laws of 1906 prescribing a like rate,.upon the ground that they violate the provisions of the Federal Constitution cited, in that the rate prescribed does not permit the stockholders of the company to earn a reasonable profit on the value of the property employed by the company in the business of manufacturing, conducting and supplying gas to consumers. Both the Legislature and the State Commission of Gas and Electricity appear to have acted with due deliberation and after careful investigation of the essential facts. The gas company shows that the actual’cost to the company of supplying gas to its consumers during the present year will be about sixty-seven cents per 1,000 cubic feet, and that it is essential for it to reserve at least three cents per 1,000 cubic feet for maintenance of its plant, making a total cost to the company of seventy cents per 1,000 cubic feet, and leaving ten cents per 1,000 cubic feet, at the eighty-cent rate, as profits, which will make a probable profit for the year of $1,330,000; which, however, upon its theory of the case, will only admit of a profit of one and a half per cent to its stockholders. The Commission of Gas and Electricity reached the conclusion, as shown by their order, that the eighty-cent rate would admit of a profit to the stockholders of the defendant of eight per cent. These controverted questions of fact apparently arise from a difference of view with respect to the law concerning the items that are to be taken into account in ascertaining the actual value of the property of the company upon which its stockholders are entitled to a reasonable profit. It is manifest, however, that this question of fact, upon which the validity of the law depends, can only be determined upon a bearing on the merits, and that in the meantiine'there
The plaintiff, however, invokes the aid of the court of general jurisdiction in his own State to protect him in the enjoyment of rights conferred upon him by the statutes of bf.ew York, and to
According to the opinion of the learned judge who heard the motion at Special Term, the injunction was denied on account of the prior pendency of a bill in equity filed in the Circuit Court of the United States for the Southern District of Hew York by the defendant herein as complainant against the members of the State Commission • of Gas and Electricity, the Attorney-General of the State, the district attorney of the county of Hew York, and the city of Hew York; and upon this appeal the learned counsel for the gas company contend and urge with forceful arguments that the Federal court has taken unto itself jurisdiction of the subject-matter of the action, and that the courts of this State are without
It is to be observed that no consumer of gas, excepting the city of Hew York, was made a party to the suit in the Federal court. Of course, the city of Hew York does not represent the private consumers of gas, and it cannot appear for them in the litigation in the Federal court. Consequently, an adjudication against the city will not be res adjudieata as against the private consumers who are not parties to the bill; nor will it even be stare decisis. The city was made a party to the bill with a view to having said chapter 736 of the Laws of 1905, which limits the charge to be made by the defendant for supplying the city with gas to severity-five cents per 1,000 cubic feet, declared null and void, upon the same theory that it does not admit of a reasonable profit to the stockholders. It is manifest that a rate of seventy-five cents per 1,000 cubic feet may be void upon that ground, and that a rate of eighty cents "per 1,000, which is the rate prescribed for private consumers, may be valid. The members of the Commission of Gas and Electricity were made parties with a view to having the statute creating the Commission and their' order fixing the eighty-cent rate declared null and void. It may well be, as contended by the learned counsel for the respondent, that for the purpose of testing the validity of the action of the Commissioners in fixing the eighty-cent rate and the enforcement of the samé, it was sufficient to make the Commissioners parties, and that they upon those questions represent the consumers, who are to be benefited by their acts. (San Diego Land & Town Co. v. Jasper, 189 U. S. 439.) It is evident, lioxvever, that it is immaterial to the rights of the plaintiff whether the statute creating the Commission of
Section 3 of chapter 125 of the Laws of 1906 provides in effect, among other things, that, except as in the act provided, any corporation which charges or receives in the city of Hew York for gas a higher rate than that prescribed in the act shall forfeit to the Feople of the State the sum of $1,000 for each offense.^ Section 1962 of the Code of Civil Procedure makes it the duty o'f the Attorney-General and of the district attorney to bring actions to collect penalties forfeited to the People of the State for violations of statutes. The district attorney and the Attorney-General were made parties to the bill in equity in the Circuit Court of the United States with a view to restraining them from bringing actions against the defendant to recover the penalties prescribed by the statute in the event of its charging or receiving more than eighty cents per 1,000 cubic feet for gas supplied to private customers in the borough of Manhattan.
It thus appears that the plaintiff is not a party to the bill in equity filed in the Federal court, and that no party thereto is authorized to represent him. The jurisdiction of the Circuit Court was invoked for the protection of rights guaranteed to the complainant therein (the defendant herein) by the Federal Constitution, and the aid of the court of equity was sought upon the theory that a multiplicity of actions to enforce the penalties would be brought, and that it Avould suffer irreparable injury unless injunctive relief against the enforcement of the penalties Avere granted pending the decision of the question upon the merits as to the validity of the provisions of -the statute imposing the penalties and prescribing the eighty-cent rate. The learned Circuit judge issued a temporary restraining order containing the following provisions: “That, until the entry of an order upon the said motion, the defendants, and each of them, their officers, agents, servants and employees, and each and every
It is contended that the general language of the restraining order quoted operates upon the private consumers, who were not parties to the bill. I am of opinion that the order should not be so construed. It must be construed in the light of the fact that these private consumers were not parties to the bill and that the court could not adjudicate their rights without their presence, and, therefore, an attempt to adjudicate rights of parties without giving them their day in court should not be imputed to the court. Moreover, the general language of the order is susceptible of the construction that it was intended to provide for chapges in the personnel of the officials who are made parties to the bill and who are by statute charged with the duty of enforcing the provisions of the acts. Furthermore, it appears very clearly by the opinion of the learned Circuit judge, which, although it may not limit the order of the court, may very properly be considered upon the construction to be given to the order, that there was no intention to enjoin the private consumers from taking such steps with respect to the protection of their rights as they might be advised. Upon this point Judge Lacombe, in his opinion in Consolidated Gas Co. v. Mayer (supra), says: “ In entering that order the court did not find, nor did it express, ■nor even intimate an opinion that the action of the Gas Commission in fixing the price to be charged for gas at 80 cents per 1,000 cubic feet was confiscatory, nor that the Act of the Legislature establishing the same price (Chapter 125 of 1906) was in that
I think the cases cited by the respondent as authority for the proposition that the decision of the Federal court on a bill in equity which has been filed by the defendant therein will be controlling upon the private consumers who are not parties thereto, are not analogous to the case at bar. Here a right personally asserted by the plaintiff and contested by the defendant has given rise to an immediate controversy which the plaintiff must have a right to apply to some tribunal to adjudicate. He is not a party to the suit in the Federal court; he could not have maintained this action in the Federal court for the reason that there is no diversity of citizenship, and upon his theory of the case, proceeding as he is upon the assumption that the legislation is constitutional, no Federal question arises. He, as well as the defendant, is entitled to his day in court, and I know of no theory upon which he could, without the consent of the complainant in the action in the Federal court, become a party thereto, and it is doubtful whether the rights here asserted could be adjudicated upon his affirmative application in that action, even if he did become a party defendant. Perhaps the complainant could have filed a bill against him, or might yet by a supplemental bill make him a party defendant. But this has not been done, and our Supreme Court of Hew York has obtained jurisdiction over the parties and over the subject-matter of the controversy.
The cases relied upon by the respondent were cases in which the person held to be bound by an adjudication or injunction order, although not a party to the suit, either had no right or interest of his own upon which he could have applied for an adjudication by
Another theory advanced by the learned counsel for the respondent is that the suit in the Federal court is in the nature of an action in rem, and that the difference between the new and the old rate of charges is part of the res / and, therefore, that the Federal court has acquired exclusive jurisdiction over it. I think that theory is not tenable. Quite likely, if the plaintiff voluntarily paid the bill at the old rate and the excess was impounded by the Federal court pursuant to the order to which reference has been made, and the plaintiff brought an action against the defendants to recover it back upon the theory that it had been j>aid under duress, the extra twenty per cent would be held to be the res, the disposition of which was within the exclusive jurisdiction of the Federal court.. But in the case at bar the plaintiff has not paid the excess rate demanded, and there is no fund or property in which he is interested in the possession of the Federal court, or which he seeks to recover in this action. . •
I am unable to discern any theory upon which either the decisions or orders of the State and Federal courts in the bill in equity filed by the defendant and in this action will conflict. The rule that a court first obtaining jurisdiction over property may retain the possession of the property and exercise exclusive jurisdiction over it for the purposes of the suit to the exclusion of all other courts is founded upon necessity and to prevent an unseemly clash of jurisdictions. The rule is well stated in Farmers' Loan, etc., Co. v. Lake Street R. R. Co. (177 U. S. 51) as follows: “As between the immediate parties, in a proceeding in rem, jurisdiction must be regarded as attaching when the- bill is filed and process has issued, and where, as was the case here, the process is subsequently duly served, in accordance with the rules of practice of the court.
“ As, then, the hill of foreclosure had been filed in the Circuit Court óf the United States, and the jurisdiction of that court had thus attached before the commencement of the suit in the State court, it follows upon principle and authority that it was not competent for the State court to interfere by injunction or otherwise with the proceedings in .the Federal court.
“ The possession of the res vests the court which has first acquired jurisdiction with the power to hear and determine all controversies relating thereto, and for the time being disables other courts of coordinate jurisdiction from exercising a like power. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons.
“ FTor is this rule restricted in its application to cases where property has been actually seized under judicial process before a second suit is instituted in another court, but it often applies as well where suits are brought to enforce liens against specific property, to marshal assets, administer trusts to liquidate insolvent estates, and in suits of a similar nature where, in the progress of the litigation, the court' may be compelled to assume the possession and control of the property to be affected. The rule lias been declared to be of especial importance in its application to Federal and State courts. (Peck v. Jenness, 7 How. 612 ;
In all such cases, however, the rule is -well settled that any party aggrieved, whether sued or not, may obtain relief by an application to the court which has taken possession of the res. (Covell v. Heyman, 111 U. S. 176.)
In Buck v. Colbath (3 Wall. 334) this rule is well illustrated. It was there held that while a State court could not interfere with the possession' of property by a marshal under process of the Federal
The distinction depending upon whether there is a res involved in the suit which has been or in the course of the litigation may be taken possession of by the court first acquiring jurisdiction is well stated in Ball v. Tompkins (41 Fed. Rep. 486), cited by the learned counsel for the appellant, and from which we quote : “ And this brings us to the pivotal question in the present inquiry : What is the nature and character of the possession of the State or Federal Court which excludes the exercise of authority over the subject or thing by the other ? From the authorities on this subject (which in the circuit courts are not altogether harmonious), and from the reasons for the rule, I apprehend it to be, substantially, that the possession contemplated as sufficient to make it exclusive is that which the Court by its process, or some equivalent mode, has, either for the direct purpose of the proceeding, or for some other purpose ancillary to the main object, drawn into its dominion and custody some thing. That thing may be corporeal or incorporeal — a substance or a mere right. But a controversy, a question, an inquiry, is not such a thing. These may be the subject-matter of jurisdiction in a pending cause, which often proceeds, from the beginning to the judgment, without the Court’s having taken actual dominion of anything. But there is no exclusive jurisdiction over such a matter. The result may be a judgment which will establish a right, but
The defendant in its suit in equity in the Federal court prays for relief among other things, as follows : “ Your orator further prays that if, at any time hereafter and prior to.the final hearing hereof, any consumers of gas or other customer of your orator, or any other person, association or corporation in the City of New York shall attempt to enforce the provisions of the said acts and order or otherwise act or proceed thereunder, such persons, or some of them on behalf of all, be made parties defendant hereto and each of them be enjoined and restrained as heretofore prayed; and that your orator have such other and further or different relief as to the court may seem meet and the nature of the case may require.”
It may be that under this prayer for relief the Federal court may by supplemental bill make private consumers of gas parties to the suit, but this court having first obtained jurisdiction of the controversy, so far as it relates to the rights of the plaintiff, it will not be competent for the Federal court to take jurisdiction over the plaintiff in such manner as to interfere with any order or decision that may be made by this court. (Pitt v. Rodgers, 104 Fed. Rep. 381.) It is true that the principal questions presented for decision
The decisions of the respective courts will be binding only upon the parties to the respective suits. They will be stare decisis on the question of law involved as to third parties, but not res adgudieata. If our court and the Circuit Court of the United States should not take the same view of the law, the Supreme Court of the United States, if appealed to, will ultimately reconcile the decisions.
The importance of the interesting questions presented by this appeal and very ably argued at the bar, and learnedly discussed on the points, merits more extended consideration, but it is deemed advisable, especially since the views of all the members of the court are not in harmony, to render an immediate decision, to the end that the respondent may, if so advised, obtain a review by the Court of Appeals before the summer vacation.
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the injunction order granted, with ten dollars costs.
CVBbien, P. J., and Patteeson, J., concurred; McLaughlin and Houghton, JJ., dissented.
7 How. [IT. S.] 612.— [Ref.
24 How. [U. S.l 450.—[Rep.
Heidritter v. Elizabeth Oil Cloth Co.— [Rep.
Rio Grande R. R. Co. v. Gomila.— [Rep.
Concurrence Opinion
Upon the argument it was made clear that neither side desired that the main question should be obscured by any subsidiary or incidental one relating to the form in which the question itself was presented. In other words, the defendant has forcefully and ably-contended through its counsel that this court should not take jurisdiction of the action or make any order therein because, as claimed, the Federal court, by the filing of a bill of complaint by the company, had acquired exclusive jurisdiction over the subject-matter. We think the question, therefore, should be considered upon its merits, and that, if the contention of the company is right, we should proceed no further; but that if, on the other hand, it should not be
As I summarize the views of my associates, we are all agreed that the Supreme Court has jurisdiction to entertain the present action, notwithstanding the pendency of another suit brought by this defendant against different parties in the Federal court. It is suggested, however, that apart from the question of jurisdiction, and assuming that the Supreme Court has it, under the rule of comity it should not be exercised. This involves a consideration of the rule of comity and the reasons upon which it is based ; and in view of the very able discussion of this- subject in Ball v. Tompkins (41 Fed. Rep. 486), quoted from in the opinion of Mr. Justice Laughlin, any extended discussion of the rule or the reason for it is unnecessary. As therein said, whether this rule of comity will be applied or not depends upon whether the court first taking jurisdiction of the subject-matter has, by its process or some equivalent mode, “ drawn into its dominion and custody some thing; ” and, “a controversy, a question, an inquiry, is not such a thing. These may be the subject-matter of jurisdiction in a pending cause
Mr. Justice McLaughlin puts much stress upon the terms of the order of Judge Lacombk; and standing alone, there would be much force in the contention that not only was it intended to permit the company without being subject to the penalties to proceed with the litigation, but also that it gave the company the right to collect from consumers at the old rate. I take it, however, to be the well-settled rule that it is the right of every court to determine the meaning of the language used and to construe the terms of its own order; and the meaning or construction thus given (and for this purpose resort may be had to the opinion) by the court making the order is conclusive on any other tribunal. We have the order construed by Judge Lacombk himself, he stating that it was not intended to do more than permit those who voluntarily made payment at the old rate to do so and be protected in their right, if the contention of the gas company were not sustained, to obtain a return of the excess of payment. Under the construction, therefore, of Judge Lacombe’s order as given by him, the controversy as between the consumer and the company was left to be determined in such forum as that question might arise; and under these circumstances, I fail to find anything in the rule or the reason for the rule of comity which should prevent our court from exercising jurisdiction in a proper case. If, as pointed out by Mr. Justice Laugiilin, instead of taking advantage of the terms of the order of the Federal court, which will fully protect any one who voluntarily
Laughlin, J., concurred.
Dissenting Opinion
In the main I do not disagree with Mr. Justice Laughlin as to the principles of law stated in his opinion, but I do not agree with him as to their application to the question here presented.
The defendant has, and on the twenty-fifth of May last when it presented its bill to the plaintiff had, nearly 400,000 consumers of gas in the city of Mew York, to whom it was its custom to render bills every month. In pursuance of this custom it rendered a bill to the plaintiff on the twenty-fifth of May for.gas furnished to him between the first and nineteenth of that month, charging him at the rate of one dollar for every 1,000 cubic feet of gas consumed, which amounted to twenty-three dollars and twenty cents. He refused to pay the bill upon the ground that the defendant, under chapter 125 of the Laws of 1906 of the State of Mew York, could only charge him eighty cents per 1,000 cubic feet of gas consumed, which amounted to eighteen dollars and fifty-six cents, which sum he offered to pay and defendant refused to accept. Defendant then sought to enforce collection by threatening to cut off the further supply of gas. (Trans. Corp. Law [Laws of 1890, chap. 566], § 68.) Thereupon the plaintiff brought this action to procure a judgment restraining the defendant from cutting off his supply of gas and from interfering with or removing from his premises the gas meter or other appliances for the supply of gas upon the ground that it could only x legally charge him, under the act above referred to, eighty cents for each 1,000 cubic feet. Upon the summdns and complaint the plaintiff obtained a temporary injunction, pending the return of an order to show cause why the same should not be continued during the continuance of the action, restraining the defendant from cutting' off or in any way interfering with the plaintiff’s supply of gas. Upon the return of this order defendant presented proof, which was not contradicted, which tended to establish that eighty cents
This order is about to he reversed and the injunction granted, notwithstanding numerous decisions of this court to the effect that the granting of an in j unction pendente lite rests in the discretion of the Special Term, whose order will not he reversed unless the discretion has been abused (City of Gloversville v. J., G. & K. H. R. R. Co., 49 N. Y. St. Repr. 315 ; Pratt v. N. Y. C. & H. R. R. R. Co., 90 Hun, 83), and that a preliminary injunction is not granted “ except in very clear eases ” (McLoughlin v. Singer, 33 App. Div. 185); also that it will always be refused if to grant it will do greater damage to defendant than to plaintiff to refuse it (People v. Canal Board, 55 N. Y. 390; Morgan v. City of Binghamton, 102 id. 500; Brower v. Williams, 44 App. Div. 337; St. Regis Paper Co. v. Santa Clara Co., 55 id. 225); and where serious injury would be done defendant and only slight relief afforded plaintiff. (Riedeman v. Mount Morris Electric Light Co., 56 App. Div. 23.) The discretion exercised by the Special Term in refusing to continue the injunction cannot, in view of our own decisions, when the facts are considered, be said to have been abused.
The defendant, as already indicated, has nearly 400,000 different consumers of gas, and when chapter 125 of the Laws of 1906 became a law (which prohibited it from charging more than eighty cents for each 1,000 cubic feet of gas furnished, and imposed a penalty of $1,000 for each and every violation of the act), it was confronted with a very serious situation. If, as it contends, this was less than the cost, or such charge did not afford an adequate return on the capital invested in its business, then the act in effect amounted to a confiscation of its property in a manner prohibited by subdivision 1 of section 10 of article 1 of the Federal Constitution and section 1 of the 14th amendment thereof; and yet, if it undertook to collect a sum in excess of the amount specified in the statute, by monthly bills — the method theretofore employed by it—it would incur
Taking into consideration the situation which w'as presented and the tremendous consequences which would follow if it treated the act. of 1906 of the Legislature of the State as invalid, it did, as it seems to me, the only reasonable and proper thing to do — brought a suit in the United States Circuit Court for the purpose of determining the validity of such act. It had a right to file its bill in that court for the purpose of having the validity of the act of the Legislature determined. (Chicago, etc., R. Co. v. Minnesota, 134 U. S. 418.) That court, as indicated in the opinion of Judge Lacombe in Consolidated Gas Co. v. Mayer (146 Fed. Rep. 150), which was referred to in the opinion of Mr. Justice Laugheix, was the “ appropriate forum,” because through a suit brought there a final and ultimate decision could be determined by the United States Supreme Court quicker than in any other way. It is important that the question should be finally settled by the court of last resort, and from the judgment or decree rendered in the Circuit Court an appeal can be taken direct to the Supreme Court of the United States, whereas in this action an appeal must he taken from the judgment rendered therein first to the Appellate Division of the Supreme Court of the State of Mew York, then to our Court of Appeals, and from its determination to the Supreme Court of the United States, and obviously a •determination could not he reached in this way as speedily as it could in the other. In the bill filed in the Federal court appropriate facts are set out which will raise every question which can be determined in this action. In that shit an order has been entered which permits the gas company to “ make the same charge for gas furnished since April 30,1906, to its consumers, other than the defendant, the City of Mew York, as that which it has heretofore made, namely, $1 per thousand cubic feet,” notwithstanding the provisions of chapter 125 of the Laws of 1906, but a provision is inserted in it to the effect that as condition of the gas company’s charging this rate it must forthwith pay to a bank designated a sum estimated to represent twenty cents per 1,000 cubic feet for all gas furnished during the month of May, 1906, such estimated sum to be twenty per cent of the amount received for the gas furnished by defendant to its
On the merits the injunction ought not to be granted. As indicated, every question which can be determined in this action will necessarily have to be determined in the suit brought in the Federal court. It is a general rule of comity that where two courts have concurrent jurisdiction the one first acquiring the same shall retain it to the exclusion of the other. (Peck v. Jenness, 7 How. [U. S.] 612; Johnstown Mining Co. v. Butte & Boston Co., 60 App. Div. 344.) The Federal court acquired jurisdiction by the tiling of the bill. (Heidritter v. Elizabeth Oil Cloth Co., 112 U. S. 294.) The decision there made, if ultimately affirmed by the Supreme Court of the United States, will be binding upon the courts of this State, and, therefore, will determine the rights of this plaintiff.
It is true our Supreme Court has jurisdiction of the parties and the subject-matter of the action. It is equally true that the judgment or decree in the Federal court will not be res adjudicata as to this plaintiff. But these are insufficient reasons, under the facts here presented, to justify our court in exercising its jurisdiction. It ought to refuse to entertain jurisdiction on the ground of comity and to prevent multiplicity of actions—to say nothing of the little benefit which will be conferred upon the plaintiff and the great loss which the defendant may sustain by our so doing. It ought also to refuse to entertain jurisdiction on the ground that by so
It is a somewhat alarming proposition that when a legislative body has, simply by its own fiat, arbitrarily fixed the price at which the owner of a product must sell it, a court will refuse to the owner of the product the right to sell it at the price at which he had theretofore sold it pending a judicial determination as to the validity of the legislative act, when sufficient money is - paid into court to reimburse a purchaser for the difference in price in case the act is declared invalid.
I, therefore, vote to affirm the order appealed from (1) on the ground that the court did not abuse its discretion iii refusing to continue it, and (2) on the ground that the Federal court having taken jurisdiction of the entire subject-matter of the litigation, our courts ought to refuse to entertain jurisdiction, at least to the extent of granting an injunction during the pendency of an action.
Dissenting Opinion
By the decision about to be made, an injunction is to be granted during the pendency of this action, upon the plaintiff’s complaint alone, to which are opposed numerous affidavits of persons familiar with the cost of producing and distributing gas, who testify that under the conditions existing in the city of Hew York, gas cannot be made and sold to consumers at eighty cents per 1,000 cubic feet and yield a fair return on the capital necessarily invested.
All parties to this litigation concede that the Legislature has no power to fix a price which shall be paid for gas at less than cost and a fair return upon the investment, and that if a price less than such cost and fair return should be so fixed such action would be a confiscation of private property and unconstitutional.
The cost of production and distribution is a question of fact to be determined by evidence. Conceding that presumptively the price fixed by the Legislature is a proper one, and that the presumption is that the statute passed by it is constitutional, still these presumptions can be overthrown by evidence showing that the price fixed is below cost and a fair return upon the money invested. If the defendant can prove satisfactorily in the present action that eighty
The defendant, by the affidavits submitted by it on the motion to continue the injunction during the pendency of the action, made prima facie proof that the price of eighty cents was below cost and a fair return upon the investment. These affidavits stand absolutely uncontradicted. In order that an injunction may be granted to the plaintiff, the presumption that the Legislature fixed a proper price and that its act was constitutional must be permitted to outweigh the positive proof which appears in the record. The presumption that the action of the Legislature was proper and constitutional is not a conclusive one, because it is subject to be overthrown by proof, and there is no rule of law which permits a presumption which is not conclusive to stand against positive evidence which overthrows it.
Injunctions are frequently granted pendente lite for the purpose of continuing the subject-matter of the litigation, ^or the relations of the parties, in the same situation until the controversy shall be finally determined upon the merits. Even under such circumstances, I know of no case where an injunction has been granted continuing the situation when the proof was all one way that it ought not to be so continued. In the present case the injunction changes the relations of the parties and compels the defendant to accept eighty cents instead of one dollar per 1,000 cubic feet for its gas, when the only proof is that such change ought not to be made.
Irrespective, therefore, of the question of the Federal court having first acquired jurisdiction of the matter in controversy, I think the order denying the injunction should be affirmed, and I dissent from its reversal and the making of an order granting an injunction.
Conceding, which I think is the law, that the action in the Federal court does not oust our State courts of jurisdiction, still, as matter of discretion, I think no extraordinary remedy in the form of a temporary injunction should be granted. The effect of the Federal decision is to hold all parties in the position in which they now are
I can see no ground which calls for or justifies a reversal of the order refusing the injunction.
Order reversed, with ten dollars costs and disbursements, and injunction order granted, with ten dollars costs. Settle order on notice.
