Page:United States Reports, Volume 257.djvu/88

Rh 6. Mr. Robert A. Brown, Mr. Maxwell V. Beghtol, Mr. Charles A. Frueauff and Mr. Wade H. Ellis, in support of the petition.

delivered the opinion of the court.  Petitioner asks a rehearing of this matter and a reconsideration of our decision of June 1, 1921, 256 U. S. 512, by which we refused to award a mandamus requiring the Judge of the District Court to refrain from exercising jurisdiction in the cause of Lincoln Gas & Electric Light Co. v. City of Lincoln, et al., after our disposal of the final decree on appeal, for the purpose of requiring restitution to gas consumers of amounts exacted by petitioner pending the suit in excess of the maximum rates permitted by the ordinance that was under attack therein.

We have permitted the petition for rehearing to be filed and shall state briefly why it cannot be granted.

In our opinion in the principal case delivered June 2, 1919 (250 U. S. 256), while sustaining generally the decree of the District Court dated September 23, 1915, which dismissed the bill of complaint, we nevertheless said (p. 268) that the decree should be modified "so as to permit complainant to make another application to the courts for relief against the operation of the ordinance hereafter, if it can show, as a result of its practical test of the dollar rate since May 1, 1915, or upon evidence respecting values, costs of operation, and the current rates of return upon capital as they stand at the time of bringing suit and are likely to continue thereafter, that the rate ordinance is confiscatory in its effect under the new conditions." To that end we modified the decree so that the dismissal of the bill as to the rate ordinance should be "without prejudice to the commencement of a new action to restrain the enforcement of said ordinance hereafter," and affirmed it as thus modified.

