A bill in equity by a gas corporation to restrain a state gas commission and the attorney general of the state from enforcing an order of that commission as to rates, is an appropriate method for testing the validity of such order, in order that a multiplicity of suits may be avoided and the corporation may suffer no irreparable injury.— Haverhill Gaslight Co. v. Barker, 109 Fed. 694.

In a court proceeding as to the reasonableness of rates fixed by the North Dakota Commission, a showing that if the schedule as proposed had been in operation during the past four years, the business of the roads would have been done at an actual loss, and nothing left for a return on the investment and property used, demands that the enforcement of the rates be restrained as unreasonably low.-Northern Pac. R. C. v. Keyes, 91 Fed. 47.

That a decision of a state railroad commission was induced by the governor, who was not a member thereof, is no reason for interfering with the enforcement of such order.- Wilmington & W. R. Co. v. R. R. Comrs., 90 Fed. 33.

Bondholders seeking relief, by injunction, against the enforcement of an ordinance fixing rates of fare on a street railroad, have a sufficient interest in the matter to give them a standing in court, if they show a well-grounded apprehension of loss by the enforcement of the ordinance. Old Colony T. Co. v. City of Atlanta, 83 Fed. 39; affd. 88 Fed. 859. That a member of a state railroad commission, before appointment and as a condition of such appointment, had pledged himself to make the changes in rates complained of, is immaterial in determining their validity, since the only question is that of their reasonableness.— Southern Pac. Co. v. Board of R. R. Comrs., 78 Fed. 236.

It is not a defense to a proceeding to restrain the enforcement of an unreasonable rate that the reduced rate may increase the volume of business and hence make it more profitable than at present, as the courts must decide in the light of existing, not hypothetical and speculative, conditions.- Chicago & N. W. R. Co. v. Dey, 35 Fed. 866, 1 L. R. A. 744n.

The right to regulate is not unlimited, and if the schedule be made so low that its adoption will operate as a confiscation of the property without due process of law, the courts will interfere to prevent its enforcement.- Cedar Rapids W. Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081.

Allegations that a state board of transportation is proceeding to interfere with plaintiff's rights in a manner for which there is no adequate remedy at law, or which may cause multiplicity of suits, and

which alleges that the law under which the board is proceeding is unconstitutional, make out a case for equitable restraint of further action. -Pacific Exp. Co. v. Cornell, 59 Neb. 364, 81 N. W. 377.

[12]

When temporary restraining order will be granted. Where the New York Gas and Electricity Commission has ordered a reduction in the price of gas, which reduction is resisted on the ground that it would deprive the gas company of property without due process, a preliminary injunction will be granted restraining a municipality, which is a consumer of the gas, from enforcing the order pending an action to test the constitutionality of the same, the difference between the old and new rate to be impounded in court awaiting the outcome of the suit, it appearing that irreparable injury will result from the enforcement of the order during the pendency of the suit.Buffalo Gas Co. v. City of Buffalo, 156 Fed. 370.

The granting of a temporary restraining order, under U. S. Rev. Stat. § 718 (U. S. Comp. Stat. 1901, p. 580), against a rate fixed by a state commission, is within the sound judicial discretion of the court. -Central of Ga. R. Co. v. McLendon, 155 Fed. 974.

It is the duty of a court of equity to restrain pendente lite the enforcement of a rate regulation act which is alleged to be unconstitutional, when it is shown by the proof that the complainant will, pending a final hearing, suffer irreparable injury.- Southern R. Co. v. McNeill, 155 Fed. 756.

The N. Y. Gas and Electricity Commission Act provided that "if it shall be alleged and established in any action brought in any court for the collection of any charge for gas or electricity, that a price has been demanded in excess of that fixed by commission or by statute in the municipality wherein the action arose, no recovery shall be had therein, but the fact of such excessive charge shall be a complete defense." By L. 1906, ch. 125, the legislature fixed 80 cents per 1,000 feet as the maximum price which might be charged for gas in the Borough of Manhattan, and further provided that any corporation or person charging a larger sum should forfeit $1,000 for each offense, it being made the duty of the defendant public officers to sue for such penalties. - Held, that while the lawfulness of this legislature-made rate is being determined by the courts, these provisions subjecting the gas company to ruinous penalties would amount to a denial of due process and the equal protection of laws, and the court will grant a temporary injunction restraining the officers charged with that duty from attempting to enforce such penalties, etc., until the final decision as to the constitutionality of the act; all sums, however, to be impounded in the custody of some officer of the court to await the outcome of the suit.— Consolidated Gas Co. v. Mayer, 146 Fed. 150.

Upon a prima facie showing that for 19 years it has earned less than the legal interest, and on giving an indemnification bond pendente lite, a railroad is entitled to a preliminary injunction restraining reductions in rates ordered by a state railroad commission.- Louisville & N. R. Co. v. Brown, 123 Fed. 946.

In determining whether a preliminary injunction should be granted to restrain putting into effect rates declared to be confiscatory, the discretion of the judge should be regulated by the balance of inconvenience or injury to one party or the other.- New Memphis Gas Co. v. Memphis, 72 Fed. 952.

Where on the hearing it seems probable that the effect of putting in force a schedule of rates prescribed by a state board of railroad commissioners will be to deprive the complainant of all compensation for the operation of the roads, and the law provides for treble damages, attorneys' fees, etc., to any shipper showing injury by an excessive rate, the restraining order will be continued in a preliminary injunction until the final hearing.- Chicago & N. W. R. Co. v. Dey, 35 Fed. 866, 1 L. R. A. 744n.

[13]

When a temporary restraining order will be denied.

A rate had been fixed by the Railroad Commission of Louisiana and this the company contended was too low.-Held, that it was not proper to grant the company a restraining order to prevent the enforcing of such rate and to allow the higher rate contended for by the company.Cumberland T. & T. Co. v. R. R. Comm., 156 Fed. 834.

The Georgia Railroad Commission fixed a 22 cents per mile maximum rate, to go into effect three months from the making of the order. A bill for an injunction was presented two days before the expiration of that time.-Held, that a temporary restraining order would not be granted. If resort to the court had been made in a reasonable time, there would have been no occasion to ask ex parte for a temporary restraining order.- Central of Ga. R. Co. v. McLendon, 155 Fed. 974.

The U. S. Circuit Court will not suspend or supersede a decree enjoining carriers from violating an order of the Interstate Commerce Commission, made in a suit brought by the Commission under Interst. Com. Act, § 16, during the pendency of a contemplated appeal from such decree, where it has not been made to appear that the damage to the carrier from the enforcement of the decree will be any greater than would be the damage to the shippers from its suspension.— Interst. Com. Commission v. So. Pac. Co., 137 Fed. 606; revd. on other grounds, 200 U. S. 536, 26 Sup. Ct. R. (U. S.) 330.

Where the plaintiff has not shown, in behalf of his motion for a preliminary injunction, that either the stockholders or the railway cor

poration will suffer irreparable injury before a final hearing can be had in the cause, a preliminary injunction will not be granted to restrain the enforcement of a statute regulating fares on street railroads upon the application of a stockholder in the company, although the court confesses a grave doubt as to the constitutionality of the act and the constitutional question has been raised.- Ahern v. Newton & B. St. R. Co., 105 Fed. 702.

A gas company asked that the city be restrained from enforcing an ordinance fixing the price of gas, on the ground of the unreasonableness of such rates. On the application for a temporary injunction, the proof left some doubt what amount was to be regarded as the company's investment, as well as to the actual cost of producing the gas. It did appear, however, that the prices fixed would permit some profit over cost of production; that its actual effect upon income, by increasing consumption and so the net profits, or the reverse, could not be known, except by experience; that a final hearing, upon full proof, could be had without great delay.-Held, that the preliminary injunction should be refused.- Capital City Gas Co. v. City of Des Moines, 72 Fed. 829.

After plaintiff had brought action in the Supreme Court to compel an electrical corporation to restore its wire connections with his house, defendant asked that court to grant an interlocutory order restraining the plaintiff from prosecuting in municipal court an action to recover from the defendant certain statutory penalties for refusing electric light to him.- Held, even if the court has power to stay proceedings in another and inferior tribunal, the power can be justified only in an extreme emergency. Gould v. Edison Elect. Ill. Co., 26 Misc. (N. Y.) 64, 56 N. Y. Supp. 465.

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Premature application.

Under the statutes of Kentucky, the duty of enforcing rates made by the state railroad commission rests on the commission itself, and a railroad is not entitled to an injunction against the commission before the rates are fixed at all, on the ground that unless equity interferes, a multiplicity of suits and irreparable injury will result.- McChord v. L. & N. R. Co., 183 U. S. 483, 22 Sup. Ct. R. (U. S.) 165.

The federal courts will not enjoin a carrier from putting into effect a proposed schedule of rates pending a decision of the Interstate Commerce Commission, in a proceeding theretofore instituted, as to the reasonableness and justice of such rates, since the Commission possesses no power to pass upon the lawfulness of rates merely threatened to be put into effect.-Jewett v. Ch. M. & St. P. R. Co., 156 Fed. 160.

The court will not restrain a railroad commission from putting into effect contemplated rates until the final investigation as to such rates has

been held by the commission, and the rates embodied in a formally uttered order or schedule.- Southern Pac. Co. v. Board of R. R. Comrs., 78 Fed. 236; explained, 183 U. S. 483, 22 Sup. Ct. R. (U. S.) 165.

Where a state board of railroad commissioners has advertised in the state papers that a schedule of rates prescribed by them will take effect on a day specified, the court may, on the application of the carrier, restrain such putting in effect, even before the arrival of the day indicated, on the ground of preventing multiplicity of suits.- Chicago & N. W. R. Co. v. Dey, 35 Fed. 866, 1 L. R. A. 744n.

[15]

Where petitioner is an unlawful monopoly.

A gas company sued to restrain the enforcement of an ordinance fixing rates and a master found the rates confiscatory. The court decided against the company on the single ground that it had been a monopoly unlawful under the laws of Illinois.- Held, that the case should be remanded for a new trial. Peoria Gas Co. v. Peoria, 200 U. S. 48, 26 Sup. Ct. R. (U. S.) 214. Where a state railroad commission has dealt with a corporation opera ting lines of railroad under leases from other corporations, as an existing transportation company, by serving upon it a schedule of rates, etc., it cannot, in a suit by such corporation to restrain the enforcement of such orders, object that the corporation is an unlawful combination.Southern Pac. Co. v. Board of R. R. Comrs., 78 Fed. 236.

Joinder of parties resulting in making an action a suit against a state, see post, note [22].

In an action by a railroad to restrain the enforcement of rates fixed under legislative authority, the better practice is for the court to refer the testimony to some competent master, to make all needed computations and fully find the facts.- Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 20 Sup. Ct. R. (U. S.) 336, revg. s. c. 90 Fed. 363.

A suit to restrain the enforcement of an order of a state railroad commission was brought against the commission, the attorney-general and the attorney for the commission. The attorney-general had no peculiar relations to the commission and provision was made by the act creating the commission for a special attorney for that body.Held, that the attorney-general was not a proper party.- Central of Ga. R. Co. v. McLendon, 157 Fed. 961.

A state railroad commission, the several members thereof, the special attorney to the commission and the secretary of the commission are proper parties in a suit to restrain the putting into effect of an order of the commission as to rates.- Central of Ga. R. Co. v. McLendon, 157 Fed. 961.