Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Evan A. Evans and James H. Wilkerson, Judges.
Before MAJOR and TREANOR, Circuit Judges, and HOLLY, District Judge.
The sole question herein presented is jurisdictional raised by plaintiff's motion to dismiss the appeal.
A consideration of the question requires a brief resume of the proceedings had before the entry of the decree of February 5, 1938, from which the appeal is taken. In 1923, a specially constituted Court of three judges was assembled in conformity with Section 266 of the Judicial Code, Title 28 U.S.C.A. § 380 to hear and determine a suit instituted by the plaintiff wherein it was alleged that an order of the Illinois Commerce Commission, which reduced rates on coin box service in the City of Chicago, was confiscatory under the Federal Constitution and void. Preliminary, interlocutory and final injunctions were issued by the three-judge Court against the enforcement of the Commission's order. Pursuant to the terms of the interlocutory injunction which was continued in effect throughout the litigation, and the bonds executed by the company as required by the order granting the injunction, plaintiff collected from its subscribers the rates which the Illinois Commerce Commission had ordered to be reduced.
After various proceedings in which the case had on four occasions been in the Supreme Court of the United States (Smith v. Illinois Bell Tel. Co., 269 U.S. 531, 46 S. Ct. 22, 70 L. Ed. 397; affirming interlocutory injunction; 282 U.S. 133, 51 S. Ct. 65, 75 L. Ed. 255, remanding final decree for new findings; 283 U.S. 808, 51 S. Ct. 646, 75 L. Ed. 1427, dismissing appeal of Commission for an order dissolving the interlocutory injunction; and Ex parte Smith, 283 U.S. 794, 51 S. Ct. 482, 75 L. Ed. 1419, denying leave to file motion for mandamus to lower court to dissolve interlocutory injunction); the final decree entered June 28, 1933 by the three-judge court, granting a final injunction upon additional findings was reversed by the Supreme Court on April 30, 1934, in Lindheimer et al. v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S. Ct. 658, 78 L. Ed. 1182.
By mandate issued May 31, 1934, to carry this decision into effect, the Supreme Court remanded the case to the court below, the mandate containing the following directions:
"The decree of the said District Court, in this cause be, and the same is hereby reversed with costs * * * and the same is hereby, remanded to the said District Court with directions to dissolve the interlocutory injunction, to provide for the refunding, in accordance with the terms of that injunction and of the bonds given pursuant thereto, of the amounts charged by the Company in excess of the rates in suit, and to dismiss the bill of complaint."
The court below thereupon entered decrees of June 1, 1934 and June 11, 1934, directing the manner of making the refunds and established June 1, 1937 as the last date for the filing of claims by subscribers. In the latter decree it was provided:
"On and after that date, to-wit: June 1, 1937, plaintiff shall be released as to all refunds which it has not been able to make in compliance herewith except as to those subscribers who during said six months' period (or prior thereto) shall have made claim theretofore to the plaintiff, and except, further, as to those refunds respecting which questions are pending before this Court at that time or where the matter of refund is in dispute between the subscriber and plaintiff."
On June 14, 1937, there being $1,600,000 unclaimed by subscribers, defendants, on behalf of the State of Illinois, presented a petition in the name of the Attorney General, laying claim to the balance of the unrefunded moneys under the doctrine of bona vacantia as the owner of ownerless personal property. On February 5, 1938, the court entered the final decree complained of, wherein it denied defendants' claim and discharged the plaintiff from any further liability.
The court also had before it the petition of Meyer Berman, a subscriber, who sought to intervene on his own behalf and as a representative of a class similarly situated, wherein it was sought to recover 7 1/2% deducted from their refunds and allowed by the court as counsel fees and expenses incurred in the litigation, and in the execution of the Supreme Court mandate. This petition, by the decree of February 5, 1938, was denied, from which denial an appeal was prosecuted to the Supreme Court. Berman v. Illinois Bell Tel. Co., 58 S. Ct. 1049, 82 L. Ed. . Plaintiff there presented a statement opposing jurisdiction and motion to dismiss or affirm. The ground urged against jurisdiction was that denial of intervention is not an appealable order. On the other hand, Berman claimed the court had jurisdiction because the construction of its mandate was involved. The Court, on May 23, 1938, entered the following order: "The motion to affirm is granted" making no statement respecting the basis of its order.
Inasmuch as the terms of the Supreme Court mandate dated May 31, 1934, supra, becomes material, if not controlling, we call attention to the terms of the injunction and of the bond therein referred to. The former recites that the bond shall be "further conditioned so that in the event that this interlocutory injunction shall be hereafter dissolved, the plaintiff shall refund to its several subscribers, either in cash or by credit, upon subsequent bills, any sums paid by them in excess of the sums chargeable to them, pursuant to the provisions of said order of the Illinois Commerce Commission." The bond executed in conformity therewith binds the plaintiff for the benefit of the telephone subscribers in the following language: "And shall also well and truly repay to each or any of its subscribers, or to the persons entitled thereto, with interest, either in cash or by credit on subsequent bills, and in such way and manner as the District Court of the United States may hereafter direct."
It is the contention of the plaintiff that if any right of appeal existed, it was to the Supreme Court, and that therefore, this Court is without jurisdiction. It is obvious that if defendants had a right of appeal to the Supreme Court, none could be maintained here. Plaintiff argues that inasmuch as the question involved has to do with the execution of the Supreme Court mandate of May 31, 1934, that court has the inherent power to determine whether or not such mandate has been correctly executed by the lower court, and that also Title 28 U.S.C.A. § 345, which gives the Supreme Court ...