253 US 219 City of New York v. Consolidated Gas Co of New York

253 U.S. 219

40 S.Ct. 511

64 L.Ed. 870


No. 566.

Argued April 22, 1920.

Decided June 1, 1920.

Mr. Vincent Victory, of New York City, for appellant.

Mr. John A. Garver, of New York City, for appellees.

Memorandum opinion by direction of the Court by Mr. Justice DAY.

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The Consolidated Gas Company of New York brought suit to enjoin the enforcement of the New York 80-cent gas law. The jurisdiction was invoked solely upon the ground that the rate was confiscatory and hence violated constitutional rights of the company. The city of New York applied for leave to intervene as a party defendant in the action. The District Judge denied the petition for intervention, stating that the Public Service Commission, the Attorney General, and the district attorney properly represented private consumers; that the city had no interest in the litigation as a consumer, was not the governmental body which had fixed the rate, and was not charged with the duty of enforcing it. From the order (Consolidated Gas Co. of New York v. Newton, 256 Fed. 238) denying the application to intervene, the city of New York prosecuted an appeal to the Circuit Court of Appeals, and the latter court (260 Fed. 1022) affirmed the order of the District Court.


The application was addressed to the discretion of the District Court, and the order appealed from was not of that final character which furnished the basis for appeal. Ex parte Cutting, 94 U. S. 14, 22, 24 L. Ed. 49; Credits Commutation Co. v. United States, 177 U. S. 311, 315, 20 Sup. Ct. 636, 44 L. Ed. 782; Ex parte in the Matter or Leaf Tobacco Board of Trade, 222 U. S. 578, 581, 32 Sup. Ct. 833, 56 L. Ed. 323. As the jurisdiction of the District Court was based upon constitutional grounds only, the case was not appealable to the Circuit Court of Appeals. But, an appeal having been taken and a final order made in the Circuit Court of Appeals, we have jurisdiction to review the question of jurisdiction of that court. Judicial Code, § 241 (Comp. St. § 1218); Union & Planters' Bank v. Memphis, 189 U. S. 71, 73, 23 Sup. Ct. 604, 47 L. Ed. 712.


The proper course is to reverse the judgment of the Circuit Court of Appeals, and remand the case to that court, with directions to dismiss the appeal. Four Hundred and Forty-Three Cans of Egg Product v. United States, 226 U. S. 172, 184, 33 Sup. Ct. 50, 57 L. Ed. 174; Carolina Glass Co. v. South Carolina, 240 U. S. 305, 318, 36 Sup. Ct. 293, 60 L. Ed. 658.


So ordered.