Page:United States Reports, Volume 257.djvu/90

Rh 6. district judge to our order to show cause, or in the briefs or arguments on either side.

It hardly was to be expected that the commencement of a new suit asking for an injunction because of changed conditions would oust the court of its jurisdiction over proceedings ancillary to the suit theretofore terminated and having for their purpose the bringing to a conclusion of rights arising out of it; and it will easily be seen that it can have no such effect.

Instead of addressing itself to the question whether the rate ordinance was confiscatory under the conditions existing at the time of bringing the suit and likely to continue thereafter, it is largely devoted to an attack upon the adequacy of the rate, and consequently upon the validity of the ordinance, from and after September 23, 1915; there being specific and prayers as to the period from that date to the commencement of the new suit, with only inferential reference to the operation of the ordinance rate thereafter.

But the former suit was terminated not upon the making of the District Court's decree of September 23, 1915, nor upon the announcement of our decision affirming it on June 2, 1919, but upon the going down of the mandate, which, for reasons that do not appear, was delayed until January 5, 1920. Until that date the ordinance was established by the decision as the lawful and exclusive measure of the rates chargeable by petitioner for gas served to consumers, and the gauge by which its liability to make refund for overcharges exacted during suit was to be determined. The beginning of the new suit, and the granting of a restraining order therein, can properly have effect only with respect to the then future operation of the ordinance, and cannot affect the measure of recovery to be applied by the District Court in awarding restitution for the period covered by the former suit; much less its