By the decision about to be made, an injunction is to be granted during the pendency of this action, upon the plaintiff’s complaint alone, to which are opposed numerous affidavits of persons familiar with the cost of producing and distributing gas, who testify that under the conditions existing in the city of Hew York, gas cannot be made and sold to consumers at eighty cents per 1,000 cubic feet and yield a fair return on the capital necessarily invested.
All parties to this litigation concede that the Legislature has no power to fix a price which shall be paid for gas at less than cost and a fair return upon the investment, and that if a price less than such cost and fair return should be so fixed such action would be a confiscation of private property and unconstitutional.
The cost of production and distribution is a question of fact to be determined by evidence. Conceding that presumptively the price fixed by the Legislature is a proper one, and that the presumption is that the statute passed by it is constitutional, still these presumptions can be overthrown by evidence showing that the price fixed is below cost and a fair return upon the money invested. If the defendant can prove satisfactorily in the present action that eighty *241cents per 1,000 cubic feet is below such cost, the plaintiff’s complaint must be dismissed, because it will follow as a legal conclusion that the act of the Legislature fixing that price was unconstitutional.
The defendant, by the affidavits submitted by it on the motion to continue the injunction during the pendency of the action, made prima facie proof that the price of eighty cents was below cost and a fair return upon the investment. These affidavits stand absolutely uncontradicted. In order that an injunction may be granted to the plaintiff, the presumption that the Legislature fixed a proper price and that its act was constitutional must be permitted to outweigh the positive proof which appears in the record. The presumption that the action of the Legislature was proper and constitutional is not a conclusive one, because it is subject to be overthrown by proof, and there is no rule of law which permits a presumption which is not conclusive to stand against positive evidence which overthrows it.
Injunctions are frequently granted pendente lite for the purpose of continuing the subject-matter of the litigation, ^or the relations of the parties, in the same situation until the controversy shall be finally determined upon the merits. Even under such circumstances, I know of no case where an injunction has been granted continuing the situation when the proof was all one way that it ought not to be so continued. In the present case the injunction changes the relations of the parties and compels the defendant to accept eighty cents instead of one dollar per 1,000 cubic feet for its gas, when the only proof is that such change ought not to be made.
Irrespective, therefore, of the question of the Federal court having first acquired jurisdiction of the matter in controversy, I think the order denying the injunction should be affirmed, and I dissent from its reversal and the making of an order granting an injunction.
Conceding, which I think is the law, that the action in the Federal court does not oust our State courts of jurisdiction, still, as matter of discretion, I think no extraordinary remedy in the form of a temporary injunction should be granted. The effect of the Federal decision is to hold all parties in the position in which they now are *242until it can be determined on the merits what, in fact, is the cost of producing and distributing gas in the city of New York. The difference between the new price and the old remains in the custody of the court. If it shall be finally determined that eighty cents is a fair price, the excess which .each individual has paid will be returned to him. If it shall be determined that one dollar is the proper price, the individual has lost nothing and the company has been saved from great loss and damage. While the Federal court decision will not be absolutely binding on each customer, a determination by the Supreme Court of the United States that the action of the Legislature was constitutional or unconstitutional would be wholly effectual. It would be stare deeisis if not res adjudieata. Neither the company nor any consumer would be foolish enough to indulge in the hope that the State courts would not follow that decision. The broad question of the constitutionality of the act is squarely involved in the Federal action and cannot escape decision. Litigation in the State courts while that action is pending should not be encouraged. Much less should the court exercise its discretion in granting the special remedy of injunctions during the pendency of actions brought by the consumers or by the companies.
I can see no ground which calls for or justifies a reversal of the order refusing the injunction.
Order reversed, with ten dollars costs and disbursements, and injunction order granted, with ten dollars costs. Settle order on notice.