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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 adjudicata 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, p. 2091, of the Laws of 1905, which limits the charge to be made by the defendant for supplying the city with gas to 75 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 75 cents per 1,000 feet may be void upon that ground, and that a rate of 80 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 80 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 80 cent rate and the enforcement of the same 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 Co. v. Jasper, 189 U. S. 439, 23 Sup. Ct. 571, 47 L. Ed. 892. It is evident, however, that it is immaterial to the rights of the plaintiff whether the statute creating the commission of gas and electricity, or the order made by that commission, be valid or invalid. The action of the commission is superseded by the statute subsequently enacted by the Legislature, which, since it contains no reference to the action of the commissioners, cannot be presumed to be based thereon. On the question of the validity of chapter 125 of the Laws of 1906, therefore, it follows that the members of the state gas commission cannot represent the private consumers.

Section 3 of chapter 125 of the Laws of 1906 provides in effect, among other things, that any corporation which charges or receives in the city of New York for gas a higher rate than that therein prescribed shall forfeit to the people of the state the sum of $1,000 for each offense. Section 1962 of the Code of Civil Procedure makes it the duty of 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 80 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 guarantied 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 would suffer irreparable injury unless injunctive relief against the enforcement of the penalties were 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 80 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 employés, and each and every person acting under and by virtue of the authority of the acts and order referred to in the bill of complaint, or any of them, be and they hereby are enjoined and restrained from in any way enforcing or attempting to enforce the said acts and order, or any of the provisions thereof, against the complainant."

And with a view to preserving the right of the said complainant to collect the extra 20 cents per 1,000 cubic feet of gas, in the event that the 80 cent rate should be annulled, made provision in the order by which the gas company was permitted to present bills to its consumers at the old rate, and securing those paying such bills in the return of the excess in the event that the legislation complained of should be sustained by a provision requiring the company to pay into court a sufficient sum, and the extra 20 cents per 1,000 cubic feet, to be thus impounded until the final decision.

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 the 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 changes 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, 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 respect unconstitutional and void. It did not undertake to abrogate or nullify that provision of the statute. As between the consumer and the manufacturer, it left the question as to what the former should pay to the latter precisely where it stood before. Any consumer who might be asked to pay the old rate was left by the order entirely free to decline to pay it, and to make a tender at the new rate for the gas he had consumed. Naturally so, because, except for the city of New York, whose situation is exceptional, the individual customer was not a party to the suit, and had not been served with process. In the case of a customer who upon demand chose to pay the old rate, the order provided that the company should not cover the twenty cents difference into its treasury, but should leave it im pounded under the direction of the court, so as fully to insure its return

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to the person paying the same in the event of the company's failing to suc ceed in its litigation. In the case of a consumer who chose to make tender at the new rate, and to stand upon whatever rights were secured to him by the action of the gas commission in fixing that rate, and by the action of the Legislature in establishing the same rate, the order left him entirely free and untrammeled to apply for such relief as the law afforded him in the event of the company's seeking to compel payment of the difference. It was not perceived when the order was made, nor is it perceived now, upon what theory this court could by any injunction restrain any individual who was not a defendant, and had never been served with process, from himself applying to an appropriate court, if he should conceive himself to be aggrieved. What relief he might obtain when he so applied would be for that court to determine when it heard his application. The order did, however, provide that the gas company might charge or demand payment at the old rate, and might collect at that rate from such as chose to pay; and it enjoined the defendants, who are public officers, and, as such, the proper persons to institute and prosecute the actions to enforce and recover certain statutory penalties, from in any way enforcing or attempting to enforce two acts of the Legislature and an order of the gas commission, or any of the provisions thereof, against the complainant, until it should have its day in court, upon such a case as it might be able to make, to question the constitutionality of that order and of those acts."

We agree with the contention of the learned counsel for the respondent that the bill in equity filed in the federal court and the issue of process thereon, and not the opinion or order of the court, determines the extent of the jurisdiction acquired. The rule, however, appears to be the same in the federal courts as in our own jurisdiction, that a person not a party to a bill in equity is at liberty to apply to any court of competent jurisdiction for the enforcement of his private rights, even if they be the same as those involved in the suit first brought in the federal court. Andrews et al. v. Smith et al. (C. C.) 5 Fed. 833; Liggett v. Glenn, 51 Fed. 381, 2 C. C. A. 286; Watson v. Jones, 13 Wall. (U. S.) 679, 20 L. Ed. 666.

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 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 the court-as, for instance, cases where a person has proceeded in disregard of an injunction order by aiding and abetting others in violating it, but claiming no right in the premises, or an employé of a party enjoined, or where a decision has been made or an injunction issued against a public official in his official capacity, and his successor in office was proceeding in defiance thereof, or where a party derived his right or title through a party against whom the decision has been made or the injunction issued with knowledge of the pendency of the action, and the like.

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 defendant to recover it back, upon the theory that it had been paid under duress, the extra 20 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 obtained 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, 20 Sup. Ct. 564, 44 L. Ed. 667, 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. The defendants could not defeat jurisdiction thus acquired, and supplant the case, by bringing suit in another court, and procuring an ex parte injunction to restrain the service of process already issued. As, then, the bill of foreclosure had been filed in the Circuit Court of the United States, and the jurisdiction of that court has 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 co-ordinate jurisdiction from exercising a like power. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between

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courts whose jurisdiction embraces the same subjects and persons. Nor 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 has been declared to be of especial importance in its application to federal and state courts. Peck v. Jenness, 7 How. (U. S.) 612, 12 L. Ed. 841; Freeman v. Howe, 24 How. (U. S.) 450, 16 L. Ed. 749; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981; Central Bank v. Stevens, 169 U. S. 432, 18 Sup. Ct. 403, 42 L. Ed. 807; Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399."

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. Heiman, 111 U. S. 176, 4 Sup. Ct. 355, 28 L. Ed. 390.

In Buck v. Colbath, 3 Wall. (U. S.) 334, 18 L. Ed. 257, 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 court, the state court may entertain jurisdiction of an action brought against the marshal for trespass in taking property of a person not a party to the suit, the process of the court running against the party only; and this notwithstanding the fact that the party whose property was taken might have had relief by an ancillary application to the federal court. The court say:

"It is not true that a court, having obtained jurisdiction of the subjectmatter of the suit and of the parties before it, thereby excludes all other courts from the right to adjudicate upon other matters having a very close connection with those before the court, and in some instances requiring a decision of the same questions exactly."

This rule, however, has no application to a mere controversy even between the same parties. It is well settled that an ordinary action in the state court is no bar to an action for the same relief subsequently brought in the federal court, even where the parties are the same. Stanton v. Embrey, Adm'r, 93 U. S. 554, 23 L. Ed. 983.

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 (C. C.) 41 Fed. 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.