Upon the argument it was made clear that neither side desired that the main question should be obscured by any subsidiary or incidental one relating to the form in which the question itself was presented. In other words, the defendant has forcefully and ably-contended through its counsel that this court should not take jurisdiction of the action or make any order therein because, as claimed, the Federal court, by the filing of a bill of complaint by the company, had acquired exclusive jurisdiction over the subject-matter. We think the question, therefore, should be considered upon its merits, and that, if the contention of the company is right, we should proceed no further; but that if, on the other hand, it should not be *234sustained, then the relief which the plaintiff seeks by way of injunction should be granted. In passing, it should be noted with reference to the exercise of discretion, upon' which much stress is placed by Mr. Justice McLaughlin, that the discretion is not that of a single judge, but is the discretion to be exercised by the Supreme Court, of which this Appellate Division is an integral part. So too with respect to the amount of proof required to sustain the right to an injunction, there was no serious contention that the plaintiff’s papers were insufficient to present the claim that gas should be charged for at the new rate, reliance being placed, and properly, upon the fact that this was the legal rate. And the effort of the defendant by affidavits to show that it was an unjust and confiscatory rate ivas proper, in view of the burden ¡haced upon it in attacking the validity of the act and with a view to overcoming the presumption which arises from the act itself that the price fixed by the statute is a proper one, which presumption continues until upon the trial it is overcome. Eliminating these considerations, which have no important bearing upon the main question, which relates to the jurisdiction of the court to entertain the action, but a few words need be added to what has been said by Mr. Justice Laughlin in his opinion, in which I concur.
As I summarize the views of my associates, we are all agreed that the Supreme Court has jurisdiction to entertain the present action, notwithstanding the pendency of another suit brought by this defendant against different parties in the Federal court. It is suggested, however, that apart from the question of jurisdiction, and assuming that the Supreme Court has it, under the rule of comity it should not be exercised. This involves a consideration of the rule of comity and the reasons upon which it is based ; and in view of the very able discussion of this- subject in Ball v. Tompkins (41 Fed. Rep. 486), quoted from in the opinion of Mr. Justice Laughlin, any extended discussion of the rule or the reason for it is unnecessary. As therein said, whether this rule of comity will be applied or not depends upon whether the court first taking jurisdiction of the subject-matter has, by its process or some equivalent mode, “ drawn into its dominion and custody some thing; ” and, “a controversy, a question, an inquiry, is not such a thing. These may be the subject-matter of jurisdiction in a pending cause *235* * * without the court’s having taken actual dominion of anything. But there is no exclusive jurisdiction over such a matter. The result may he a judgment which will establish a right, but the court has not liad any possession.” Applying this rule, it is evident that in the suit in the Federal court what is there involved is the constitutionality of the Gas Statute, and it is hut confusing the subject to suggest that the money which has been and will he deposited as a condition for granting the injunction is the subject-matter involved in that litigation. This, I think, is made clearer if we assume that, instead of requiring the company, to deposit the money, it had been required, as a condition for the issuance of the injunction, to give a bond, and in that event I do not think it would he seriously contended that the. bond and a recovery upon it would he the subject-matter of the controversy.
Mr. Justice McLaughlin puts much stress upon the terms of the order of Judge Lacombk; and standing alone, there would be much force in the contention that not only was it intended to permit the company without being subject to the penalties to proceed with the litigation, but also that it gave the company the right to collect from consumers at the old rate. I take it, however, to be the well-settled rule that it is the right of every court to determine the meaning of the language used and to construe the terms of its own order; and the meaning or construction thus given (and for this purpose resort may be had to the opinion) by the court making the order is conclusive on any other tribunal. We have the order construed by Judge Lacombk himself, he stating that it was not intended to do more than permit those who voluntarily made payment at the old rate to do so and be protected in their right, if the contention of the gas company were not sustained, to obtain a return of the excess of payment. Under the construction, therefore, of Judge Lacombe’s order as given by him, the controversy as between the consumer and the company was left to be determined in such forum as that question might arise; and under these circumstances, I fail to find anything in the rule or the reason for the rule of comity which should prevent our court from exercising jurisdiction in a proper case. If, as pointed out by Mr. Justice Laugiilin, instead of taking advantage of the terms of the order of the Federal court, which will fully protect any one who voluntarily *236pays at the old rate, a consumer prefers to bring an action in our court, he will be required to give a proper undertaking, which will fully protect the company iu the event that it' should be finally successful- in its contention.
Laughlin, J., concurred.