231 U.S. 652 - City of Louisville v. Cumberland Telephone & Telegraph Company

Appeal from the order of March 10, 1913, referred to in Nos. 11 and 12, Original [231 U. S. 639, 646, 58 L. ed. ——, ——, 34 Sup. Ct. Rep. 255, 258], and which order it was the object of the petition for mandamus, passed on in No. 11, to command the judge of the district court to vacate. The appeal also includes certain other orders which preceded the making of that order. The question, which is fundamental of all, is whether the decision and decree of this court set out in No. 11, Original, and the mandate issued thereon, permitted further proceedings in the suit, or necessarily required its dismissal. This is the general basis of the assignments of error, and, as included in it, special objection is made to the instructions given the master in the orders appealed from, to the refusal of the court to order the Telephone Company to pay into court, for immediate distribution among those entitled thereto, whatever sums the company collected in excess of the ordinance rates, and deciding instead that a bond should be required of the company for the restitution of the amounts if the ordinance rates should ultimately be held not to be confiscatory. These objections are repeated in the usual way of assignments of error.

The discretion vested in the court, we considered in No 11, Original, and repetition would serve no purpose. For the reasons there given the order of the District Court is affirmed.