says: "The true rule would seem to be to take each of them as they go into the furniture." The plush, and not the fiber of which it was made, would be the component material. So, here, the varnish, and not the linseed oil, and the copal separately, would seem to be the component material found in the articles. In this view the articles are not of cotton or silk chief value, and should not be assessed as such, but should be under section 6, as nonenumerated manufactured articles. Decision reversed, and assessment ordered accordingly. UNITED STATES v. LUEDER. (Circuit Court, S. D. New York. February 22, 1906.) No. 3,339. CUSTOMS DUTIES-EVIDENCE-TREASURY REGULATIONS. The Board of General Appraisers, in deciding as to the polariscopic test of certain sugar drainings, based its findings on evidence of tests other than the government tests made according to the treasury regulations. Held, that the Board was not restricted to evidence of the government tests alone. On Application for Review of a Decision of the Board of United States General Appraisers. The decision in question reversed the assessment of duty by the collector of customs at the port of New York on an importation by A. Lueder. Charles Duane Baker, Asst. U. S. Atty. The WHEELER, District Judge. This importation is of sugar drainings which, by paragraph 209 of the act of July 24, 1897 (chapter 11, § 1, Schedule E, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1647]), is subject to a duty of, when testing by the polariscope, "above forty degrees and not above fifty-six degrees, three cents per gallon; testing fifty-six degrees and above, six cents per gallon." collector assessed it at six cents against a protest that it would be but three as "testing above 40° and not above 56° polariscope." The majority of the Board of General Appraisers appears to have found from reports of the government chemists and evidence of other tests that a true test would be not above 56 degrees. The evidence to sustain this finding seems to be ample, unless it should have been confined to the government tests made according to the treasury regulations. The law makes no such restriction, and the regulations are made for the guidance of the customs officials in the assessment and collection of duties when no protest is made, and not as a judicial rule on appeal. Decision affirmed. CONSOLIDATED GAS CO. v. MAYER et al. (Circuit Court, S. D. New York. June 8, 1906.) 1. CONSTITUTIONAL LAW-DENIAL OF EQUAL PROTECTION OF LAWS-STATUTE FIXING GAS RATES. The New York Gas Commission Act, Laws 1905, p. 2100, c. 737, § 21, provides that, if it shall be established in any action to collect a charge for gas that a price has been demanded in excess of that fixed by the commission or by statute, no recovery shall be had therein, but the fact of such excessive charge shall be a complete defense. Laws 1906, c. 125, limits the price which may be charged for gas in the borough of Manhattan to 80 cents per 1,000 feet, and provides that any corporation or person violating the act shall forfeit the sum of $1,000 for each offense. Held that, in view of the right of a gas company affected thereby to invoke the decision of the courts as to the constitutionality of the rates fixed by the statute or commission, the other provisions which would in the meantime subject it to ruinous penalties were a practical denial of the equal protection of the laws, and that in a suit in a federal court to test the constitutionality of the rates complainant was entitled to a temporary injunction restraining the officers charged with that duty from enforcing or attempting to enforce such provisions until the final determination of the suit; all charges collected, however, in excess of those fixed by the statute or commission, to be impounded, to abide the event of the suit. [Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 691.] 2. INJUNCTION-PRELIMINARY ORDER-SCOPE. The rate fixed by the state, however, being in the exercise of its unquestioned powers, and presumed to be just and proper unless the contrary is shown on final hearing, the terms of such an injunction should not be enlarged so as to undertake to restrain the actions of individual consumers, who are not parties to the suit. In Equity. On motion to continue temporary injunction. James F. Beck, Charles F. Mathewson, John A. Garver, and John F. Leillon, for the motion. Charles E. Hughes, and William P. Burr, opposed. LACOMBE, Circuit Judge. The parties to this suit are all citizens of the state of New York, but the main contention-practically, the sole contention-of the complainant is that certain statutes of this state and an order of the gas commission are obnoxious to various provisions of the Constitution of the United States, and for that reason void. This court, therefore, from which appeal lies direct, without review by any intermediate tribunal, to the Supreme Court of the United States, not only has jurisdiction, but is the appropriate forum, because through a suit brought here a final decision by the ultimate interpreter of that Constitution can be most quickly obtained. This is a motion by the complainant for a continuance of the temporary injunction, which was issued as the condition of an adjournment asked for by defendants, and also for an enlargement of the terms of such injunction. It is in no sense a hearing upon the merits of all the issues presented. The fundamental propositions in dispute involve many controverted questions of fact, and it is the practice of this court not to resolve such questions upon affidavits, but to reserve them for final hearing, where every sworn statement comes to the court, not ex parte, but after the test of a cross-examination. The matters to be passed upon here and now can be most tersely and quickly presented by an analysis of the injunction order already made. 1. In entering that order the court did not find, nor did it express nor even intimate an opinion, that the action of the gas commission in fixing the price to be charged for gas at 80 cents per 1,000 cubic feet was confiscatory, nor that the act of the Legislature establishing the same price (chapter 125 of 1906) was in that respect unconstitutional and void. It did not undertake to abrogate or nullify that provision of the statute. As between the consumer and the manufacturer, it left the question as to what the former should pay to the latter precisely where it stood before. Any consumer who might be asked to pay the old rate was left by the order entirely free to decline to pay it, and to make a tender at the new rate for the gas he had consumed. Naturally so, because, except for the city of New York, whose situation is exceptional, the individual consumer was not a party to the suit, and had not been served with process. In the case of a consumer, who upon demand chose to pay the old rate, the order provided that the company should not cover the 20 cents difference into its treasury, but should leave it impounded under direction of the court, so as fully to insure its return to the person paying the same in the event of the company's failing to succeed in its litigation. In the case of a consumer who chose to make tender at the new rate, and to stand upon whatever rights were secured to him by the action of the gas commission in fixing that rate, and by the action of the Legislature in establishing the same rate, the order left him entirely free and untrammeled to apply for such relief as the law afforded him in the event of the company's seeking to compel payment of the difference. It was not perceived when the order was made, nor is it perceived now, upon what theory this court could by an injunction restrain any individual who was not a defendant, and had never been served with process, from himself applying to an appropriate court if he should conceive himself to be aggrieved. What relief he might obtain when he so applied would be for that court to determine when it heard his application. The order did, however, provide that the gas company might charge or demand payment at the old rate, and might collect at that rate from such as chose to pay, and it enjoined the defendants (who are public officers, and, as such, the proper persons to institute and prosecute actions, to enforce and recover certain statutory penalties) from in any way enforcing, or attempting to enforce, two acts of the Legislature and an order of the gas commission, or any of the provisions thereof, against the complainant, until it should have its day in court, upon such a case as it might be able to make, to question the constitutionality of that order and of those acts. The reason why it was thought that a court of equity, irrespective of any question of the merits of the controversy as to the propriety of the new rate, should upon mere inspection of the statutes themselves grant such temporary relief will be apparent upon the statement of a few elementary propositions of law, and an analysis of certain provisions of those statutes. A corporation which undertakes, for its own emolument, to supply gas to the inhabitants of a municipality, under charters and franchises from the state which allow it to embark in such industry, and invite its stockholders to invest their money therein, is engaged in what is called a "public service" or a "public utility," and therefore is under the supervision, inquisition, and regulation of the state as to the manner in which it conducts its business. If, untrammeled by competition, it charges a price far above all reasonable cost to the helpless consumer, who must pay that price or go without, while it receives an exorbitant return on such of its property as is invested in the enterprise, the state may step in and reduce that price to such sum as will, taking everything into consideration, be a reasoanble return upon what has been adventured in the enterprise on the faith of the state's franchises. No one disputes this proposition. But in fixing such price the state should itself be fair and reasonable-should certainly stop short of confiscation. If it were established by uncontroverted proof that, in materials, labor, and wear and tear of plant at the lowest conceivable valuation, the actual cost of producing gas of a proper standard in the holders was 50 cents per 1,000 cubic feet, it would be confiscation for the state to require the manufacturer to deliver such gas to all consumers at 5 cents per 1,000 cubic feet. Such an act of the Legislature would be obnoxious to the Constitution of the state, to the Constitution of the United States, and to common right and justice. There may be persons who dispute this proposition, but it may safely be assumed that it is accepted by every community which lives under law and not under anarchy. These are the two extremes, and somewhere between them there lies a dividing line. Who is to determine where that dividing line lies? Under our system of government that question has always been left to the decision of the courts. Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819. Every individual who feels himself aggrieved either by the action of some other individual or of the state or the nation is secured the right to bring his grievance before some court. It may be a court of law or of equity, a court established by a statute or by a Constitution, a state court or a federal court, but somewhere or other there is provided for him a forum to which he can present his case, can support it by proof, and have his hearing. That is "due process of law," a heritage from long centuries of struggle, which this nation and its constituent states have deposited in the corner stones of their written Constitutions. Every one is entitled, sometime, somewhere, to his "day in court." The most swollen aggregation of capital, crystallized into an individual by the act of the state or national government which has made it a corporation, is as much entitled to have free access to the courts as is the humblest toiler by night to whom every additional cent, disbursed for the light he works by, means a shrinkage of his food supplies. There are two statutes dealing with the matter now in controversy. Neither of them, in express terms, undertakes to deny the complainant access to any court to test the merit of the contention it makes, viz., that the new rate is confiscatory, and that, therefore, the old rate should be paid. But there are two sections in those acts which challenge consideration. In the gas commission act (chapter 737, p. 2100, of the Laws of 1905) we find: "Sec. 21. Defense in cases of excessive charges. If it be alleged and established in any action brought in any court for the collection of any charge for gas or electricity, that a price has been demanded in excess of that fixed by the commission or by statute in the municipality wherein the action arose, no recovery shall be had therein, but the fact that such excessive charges have been made shall be a complete defense to such action." In the act which provides that companies furnishing gas in the borough of Manhattan "shall not charge or receive for gas manufactured, furnished or sold * * a sum per 1,000 cubic feet in * 80 cents," we find the following: excess of * * * "Sec. 3. Any corporation, association, copartnership or person violating any provision of this act shall forfeit the sum of $1,000 for such offense to the people of the state." The drastic character of these provisions will be perceived when their results are considered. If the gas company, pending the final determination of a suit such as this to determine whether the Legislature has fixed a just and proper price, should charge its consumers the lower rate, and receive the same without protest or demand of payment at the higher rate, it could never recover the difference, even should it be decided by the court of last resort that it was entitled to demand such higher rate. Having delivered its product for the particular month, and received the amount it asked for such product, that transaction would be finally closed. Both parties having agreed upon the price, without any reservation, it would be the contract price for that month's delivery, which the seller could not thereafter dispute. If it should take two or three years to get a final decision on the merits, the 20 cents difference of rate, all claim to which during the interim the company had thus abandoned, would concededly amount to several millions of dollars. Should the company ultimately prevail in the test suit, this would be an enormous fine to pay for the privilege of having its day in court. It could escape that fine only by demanding, on presentation of each monthly bill, payment at the higher rate, preserving its claim to the difference, whenever the lower rate was paid and received, by a protest, which would reiterate the demand. The statute (chapter 737, p. 2092, Laws 1905) undertakes effectually to close up that avenue of escape. Ordinarily, when there is a dispute between seller and buyer as to the rate to be paid for anything, the question is settled by the seller bringing suit for the price of what he has sold calculated at the higher rate. The statute, however, practically undertakes to debar the company from bringing any such suits against its customers. The twentyfirst section (quoted, supra) provides that if in any action brought to collect any charge for gas it shall appear that a price has been demanded in excess of the rate fixed by the gas commission or by statute, that fact shall be a complete defense to the action-to the whole action-not only to so much of it as seeks to collect the excess, but also to so much of it as seeks to collect the amount concededly due. Now, whenever the seller of anything verifies a complaint to be used in an action at law, which asserts that he is entitled to receive and asks to recover a sum of money, he may fairly be said to be preparing to make a de |