The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 243

                                
CONSOLIDATED GAS CO V. NEWTON

tion or proceeding is pending may also make such order upon the application
of any party thereto, and the court shall make such order in any such action
or proceeding upon motion of the Attorney General. When such order has
been made in any manner herein mentioned it shall be the duty of the At-
torney General to appear in such action or proceeding in support of the
constitutionality of such statute."
Of course, the courts referred to in section 68 are necessarily the
state courts, but, in view of this important state, statute, the United
States courts might very well regard the Attorney General as having
a legal interest in a case in which the constitutionality of a state statute
was involved, even though he were not charged with some specific
duty under the statute. Indeed, the safeguards with which Congress
has surrounded cases involving the constitutionality of state statutes, is
illustrated by section 266 of the Judicial Code (Act March 3, 1911, c.
231, 36 Stat. 1162 [Comp. St.  1243]) by which it is provided, inter
alia, that no interlocutory injunction suspending or restraining the en-
forcement of a -state statute shall be issued or granted unless due no-
tice has been given to the Governor and the Attorney General of the
state and unless a majority of three judges, of whom at least one shall
be a justice of the Supreme Court or a Circuit Judge, shall concur in
granting such application. The result is that in the case now pending
here, while the effect of the statute in controversy is purely local, and
the Attorney General may well look to the Public Service Commission
for the fullest aid and co-operation, yet the responsibility rests upon
the Attorney General of being one of those public officers who must
defend the constitutionality of this act. This responsibility is fully ap-
preciated both by the Attorney General and by the Public Service Com-
mission, First District, and they each intend vigorously to defend the
enactment.
What active part the district attorney is called upon to take is for
him to determine, but there can be no question that he also will prop-
erly discharge such duty as is cast upon him.
The attitude of the Attorney General, the district attorney, and the
Public Service Commission, First District, upon this motion, is that,
while each, of course, is earnest in the performance of and the inten-
tion to perform his or its respective duties, they have no objection to
the intervention of the city of New York as a party defendant and
necessarily leave the matter to the decision of the court to be disposed
of as the law may require.
From the foregoing, it is apparent that every officer or public body,
who or which is charged by law with a duty in respect of the defense
of the 80-cent gas statute and of this lawsuit, has been made a party
defendant. The question, then, for the court to determine, is whether,
as matter of law, over the objection of plaintiff, the court can order
that the city of New York be made a party defendant.
Preliminarily,, it may be pointed out that the Supreme Court of the
United States has held that-
"The only mode' of judicial relief against unreasonable rate is by suit
against the'governmental authority which established them or id charged with
the duty of enforcing them." Re Engelhard & Sons Co., 231 U. M. 646, 34 Sup.
Ct. 258, 58 L. Ed. 416.

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