In that situation, the rule is well established that when the appellate court remands the case for further proceedings not inconsistent with its opinion or in conformity therewith, it expresses the intention that its decree should not be final and the pleadings should be open for amendment at the discretion of the trial court. This is expressly decided in Re Sanford Fork Tool Co., 160 U.S. 247, 255, 259, 16 S. Ct. 291, 40 L. Ed. 414; Smith v. Adams, 130 U.S. 167, 177, 9 S. Ct. 566, 32 L. Ed. 895; Mutual Life Insurance Co. v. Hill, 193 U.S. 551, 553, 24 S. Ct. 538, 48 L. Ed. 788; In re Louisville, 231 U.S. 639, 645, 34 S. Ct. 255, 58 L. Ed. 413; Louisville v. Cumberland Telephone Co., 231 U.S. 652, 34 S. Ct. 260, 58 L. Ed. 419; Arkadelphia Co. v. St. Louis S.W. Ry. Co., 249 U.S. 134, 143, 39 S. Ct. 237, 63 L. Ed. 517; Wells Fargo Co. v. Taylor, 254 U.S. 175, 181, 41 S. Ct. 93, 65 L. Ed. 205. Applying the reasoning in the Wells Fargo Case, had the District Court in the first instance held that it was necessary for the trustee to allege and prove insolvency, there can be no doubt it would have had the power to allow amendment and proof on that issue. That being so, the District Court could take the same course after the case is remanded for further proceedings.
The order should be made effective, that the companies may try out the rates and report results to the Commission, thus to establish the facts upon which the rights of the parties shall ultimately depend. Knoxville v. Knoxville Water Co., 212 U.S. 1; Willcox v. Consolidated Gas Co., 212 U.S. 19; Northern Pacific Ry. Co. v. North Dakota, 216 U.S. 579; Missouri Rate Cases, 230 U.S. 474; In re Louisville, 231 U.S. 639; Minnesota Rate Cases, 230 U.S. 352; Des Moines Gas Co. v. Des Moines, 238 U.S. 153; Stanislaus County v. San Joaquin Co., 192 U.S. 201. The exemption of certain carriers is not arbitrary. Wilson v. New, 243 U.S. 332; Stafford v. Wallace, 258 U.S. 495.
But at that time our attention was not called to the fact that the mandates contained a provision authorizing further proceedings; a provision that removes all question of the power of the district court. In re Louisville, 231 U.S. 639, 645; Louisville v. Cumberland Telephone Co., 231 U.S. 652. In support of the contention that the final decrees had the effect of discharging the complainants and their sureties from liability upon the bonds by reason of previous overcharges, it is pointed out that this part of the decrees was not appealed from nor was error assigned to the court's action in vacating the bonds and releasing the sureties.
Although the injunctions enjoined all shippers and travellers, and therefore him, from instituting suits on account of alleged overcharges, Gallup did not in fact become a party to the suit in the District Court; and he could not, after the mandate directed dismissal of the bill, be compelled to submit to that court the adjudication of his claim. In In re Louisville, 231 U.S. 639, 645, and Louisville v. Cumberland Telephone Telegraph Co., 231 U.S. 652, where it was held that the District Court had discretion to authorize further proceedings, the mandate ordered that the decree be "reversed with costs, without prejudice," and remanded "for further proceedings not inconsistent with the opinion of this court"; while in the instant case the mandate ordered that the decree be "reversed with costs" and remanded "with directions to dismiss the bill." See also St. Louis San Francisco Railroad v. Barker, 210 F. 902; Ex parte Dubuque Pacific Railroad, 1 Wall. 69; Durant v. Essex Co., 101 U.S. 555; Mackall v. Richards, 116 U.S. 45, 47; In re Washington Georgetown R. Co., 140 U.S. 91, 97; In re Potts, 166 U.S. 263; Evens Howard Fire Brick Co. v. United States, 236 U.S. 210.
So far as the appellant is concerned if it is not entitled to a decree in its favor upon the merits, it is entitled to an opportunity to try the rates and to definitely establish the facts upon which the rights of the parties depend. Stanislaus County v. San Joaquin, 192 U.S. 201; Knoxville v. Water Co., 212 U.S. 1; Willcox v. Gas Co., 212 U.S. 19; Gas Co. v. Cedar Rapids, 223 U.S. 655; Minnesota Rate Cases, 230 U.S. 352; Missouri Rate Cases, 230 U.S. 474; In re Louisville, 231 U.S. 639; Louisville v. Cumberland Tel. Co., 231 U.S. 652; Nor. Pac. Ry. v. North Dakota, 216 U.S. 579. Mr. H.W. Byers, with whom Mr. R.O. Brennan and Mr. Eskil C. Carlson were on the brief, for appellee.
The ordinance was intended to limit the gas rate for the benefit of the consumers; suit was brought against the municipality and its officers as the public representatives of the interests of the consumers; the restraining order and temporary injunction were intended for the very purpose of enabling the company to exact, pending the suit, rates in excess of those limited by the ordinance; the equitable duty to refund excess charges if the suit should fail was a duty owing to the consumers; and the form of the supersedeas bond recognized all this, and was particularly designed for their protection." See also Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 249 U.S. 134, 39 S.Ct. 237, 63 L.Ed. 517; In re City of Louisville, 231 U.S. 639, 34 S. Ct. 255, 58 L.Ed. 413. In Ford Motor Company v. National Labor Relations Board, 305 U.S. 364, 59 S.Ct. 301, 307, 83 L.Ed. 221, the Supreme Court said: "The jurisdiction to review the orders of the Labor Relations Board is vested in a court with equity powers, and while the court must act within the bounds of the statute and without intruding upon the administrative province, it may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action.
It often happens that the appeal to the Supreme Court does not involve all the issues pending in the inferior court; or that the decision and mandate of the Supreme Court leave some question open for the determination of the inferior court; or that in further proceedings in which the appeal occurs new issues may arise and new parties may join or be joined in the litigation. In all such cases the decision of the lower court upon such matter may be reviewed by the proper court. Ex parte The Union Steamboat Company, 178 U.S. 317, 319, 20 S.Ct. 904, 44 L.Ed. 1084; In re City of Louisville, 231 U.S. 639, 645, 34 S.Ct. 255, 58 L.Ed. 413; Mason v. Pewabic Mining Co., 153 U.S. 361, 14 S.Ct. 847, 38 L.Ed. 745; Illinois Bell Telephone Co. v. Slattery, 7 Cir., 98 F.2d 930; Id., 7 Cir., 102 F.2d 58. On remand the inferior courts are free as to all issues not within the compass of the mandate. Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184.
The question of our power to remand this case was not decided. Liberty National Bank v. Bear (C.C.A.) 4 F.2d 240, 242, certiorari denied 268 U.S. 693, 45 S. Ct. 512, 69 L. Ed. 1160; In re Sanford Fork Tool Co., 160 U.S. 247, 256, 16 S. Ct. 291, 40 L. Ed. 414; In re Louisville, 231 U.S. 639, 645, 34 S. Ct. 255, 58 L. Ed. 413; Arkadelphia Milling Co. v. St. Louis Southwestern R. Co., 249 U.S. 134, 143, 39 S. Ct. 237, 63 L. Ed. 517. We therefore have power to deal with that question just as we could have done when the case was here before.
We have no doubt of the jurisdiction of this court to compel the enforcement of its decrees and mandates by mandamus. In re Louisville, 231 U.S. 639, 34 S. Ct. 255, 58 L. Ed. 413; In re Sanford Fork Tool Co., 160 U.S. 247, 255, 16 S. Ct. 291, 40 L. Ed. 414. We do not question our power to issue the writ in the present proceedings.
, 60 Kan. 172, 56 P. 880; Colburn v. Yantis, 176 Mo. 670; Brown v. Detroit Trust Co., 193 F. 626; Hall v. Emmons, 11 Abb. Prac. (N.S.) 435; Fleming v. Reddick's Exr., 5 Grattan, 272, 50 Am. Dec. 119; Horton v. State, 63 Neb. 34, 88 N.W. 146; In re Walter, 89 Ala. 237, 7 So. 400; Keck v. Allender, 42 W. Va. 420, 26 S.E. 437; Coker v. Richey, 217 P. 639; Trustees v. Leary, 34 N.W. Supp. 1002; Grant v. Oliver, 91 Cal. 158, 27 P. 861; Dodson v. Butler, 101 Ark. 416, 142 S.W. 503; Peticolas v. Carpenter, 53 Tex. 23; Reynolds v. Harris, 14 Cal. 667; Northwestern Fuel Co. v. Brock, 139 U.S. 216; Railroad Co. v. Spiller, 274 U.S. 309; Love v. North Am. Co., 229 F. 103; Tift v. So. Ry. Co., 138 F. 753; Tift v. Railroad, 159 F. 557; Gott v. Powell, 41 Mo. 416; Railroad Co. v. Brown, 43 Mo. 294; Bank v. Bank of Washington, 6 Pet. 8, 8 L.Ed. 299; Hess v. Deppen, 125 Ky. 424; 15 Am. Eng. Ann. Cas. 670; Thompson v. Reasoner, 122 Ind. 454; 18 Ency. of Pl. Pr. 871; Carter v. Mitchell, 142 So. 522; In re Louisville, 231 U.S. 639; Arkadelphia Milling Co. v. Ry. Co., 249 U.S. 134, 39 Sup. Ct. 237; Haynie, Parks Westfall v. Camden Gas Corp., 56 S.W.2d 419; Golde Clothes Shop, Inc., v. Loew's Buffalo Theaters, Inc., 236 N.Y. 465, 141 N.E. 917, (2) Upon the motion for restitution being filed in the circuit court, the insurance companies took leave to plead; they then filed an answer and return; a trial was had and a judgment rendered against them. The court had jurisdiction of that class of cases and of the person, and it is now too late to question such jurisdiction.