A city applied to intervene in a suit brought by a gas company
to enjoin state officials from enforcing a rate alleged to be
confiscatory.
Held that the application was addressed to
the discretion of the district court, and that an order denying it
was not final for purpose of appeal. P.
253 U. S. 221.
When the circuit court of appeals erroneously assumes
jurisdiction of a case in which the district court's jurisdiction
is based wholly on constitutional grounds, and makes a final order,
this Court has
Page 253 U. S. 220
jurisdiction to correct the error upon appeal under Jud.Code
§ 241. P.
253 U. S. 221.
The proper course for this Court in such cases is to reverse the
order of the circuit court of appeals with directions to dismiss
the appeal.
Id.
Reversed.
The case is stated in the opinion.
Memorandum opinion by direction of the Court by MR. JUSTICE
DAY.
The Consolidated Gas Company of New York brought suit to enjoin
the enforcement of the New York eighty-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 denying the application to intervene,
the City of New York prosecuted an appeal to the circuit court
of
Page 253 U. S. 221
appeals, and the latter court 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,
94 U. S. 22;
Credits Commutation Co. v. United States, 177 U.
S. 311,
177 U. S. 315;
Ex Parte Leaf Tobacco Board of Trade, 222 U.
S. 578,
222 U. S. 581.
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;
Union & Planters' Bank v.
Memphis, 189 U. S. 71,
189 U. S.
73.
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,
226 U. S. 184;
Carolina Glass Co. v. South Carolina, 240 U.
S. 305,
240 U. S.
318.
So ordered.
