Upon the going down of the mandate the District Court on January 6, 1920, entered an order modifying its decree of September 23, 1915, as required, and retaining jurisdiction for the purpose of requiring the petitioner to make refund and restitution to consumers of gas for amounts collected over and above the legal rate pending the litigation; and against this order relief was sought through mandamus.
In the opinion refusing a mandamus, in response to the contention that the jurisdiction of the District Court to require restitution did not extend to overcharges subsequent to September 23, 1915, we stated that the decree of that date was conclusive evidence that petitioner had failed in the attempt to prove the ordinance rate noncompensatory, and hence that it not only was lawful and binding, but would so continue unless and until the petitioner, under the leave reserved, should begin a new suit and maintain its contention that the rate, through changed conditions, had become noncompensatory. It is now urged that this was based upon the assumption that no suit had been instituted attacking the rate since our decision of the appeal in the main case; and petitioner sets up, as the principal ground for asking a rehearing, that on January 6, 1920, a new suit was brought by it in the same court against the city and its officials for the purpose, as stated, of taking advantage of the permission granted in the mandate following our decision of June 2, 1919.
Petitioner exhibits a copy of its petition in the new suit, which is in the nature of a bill in equity; also a copy of a restraining order granted by the District Court thereon.
In our opinion refusing the mandamus we did not mention the new suit, for the very good reason that it had not been brought to our attention; not being mentioned either in the petition for mandamus, in the return of the
