(after stating the facts as above). If the steps to make the injunctive order effective were taken, then upon the authority of Pac. Tel. & Tel. Co. v. Star Publishing Co., 2 F.(2d) 151, decision just filed, the injunctive order must issue. If, on the other hand, the effective steps were not taken and the rates under the old schedule were effective, then the relief here sought must be denied.
This court is now concerned only with the rate status of the parties from the date that the injunctive order of July 23, 1924, became effective. The order is: “ * * * From attempting to interfere with, or prevent the plaintiff, its directors, officers, agents, and employees, from immediately putting into effect the rates and charges set forth in Schedule F referred to in the bill of complaint and filed therewith.”
*157Section 10376, Rem. C. S. of Wash. 1922, says: “No telephone or telegraph company shall charge, demand, collect or receive different compensation for any service rendered or to be rendered than the charge applicable to such service as specified in its schedule on file and in effect at that time. * * *"
The issue before the three-judge court was the order of the Department of Public Works denying the right to file the schedule for the increased rates. The issue was the administrative and semi judicial acts of the commission. The injunctive order did not promulgate rates, but only enjoined the defendants from interfering with or preventing the plaintiff, its directors, officers, agents, etc., from immediately putting into effect the rates as contended for, and the effective method of so doing was as provided in section 10376, supra. Section 10372, Rem. C. S., provides that: “Every telephone and telegraph company shall file with the commission and shall print and keep open to public inspection at such points as the commission may designate, schedules showing the rates, tolls, rentals. * * * ”
The court, by its injunctive order, did not attempt to suspend the operation of these sections of the statute. It has not the power to do so. In answer to inquiry from the bench as to whether the schedule had been filed, it was stated by counsel that a schedule had been filed to make effective the restraining order issued by Judge Cushman at the inception of the litigation, which order was afterwards set aside by the three-judge court, but that the schedule was withdrawn. It is also stated that the schedule of rates now charged is the same as set forth in the dissenting opinion of one of the members of the Department of Public Works, and that it was among the records of the department. Such would not, in my judgment, satisfy the statute.
The requirement of sections 10372 and 10376, supra, is to file with the commission and keep open to public inspection a schedule of rates, and the right to receive compensation rests upon and must he as specified in its schedule on file, and in effect at the time. In the opinion of Judge Cushman for the three-judge court on May 23, 1923 [reversed by Supreme Court, 265 U. S. 196, 44 S. Ct. 553, 68 L. Ed. 975], it was said: “It was stated upon the argument of the application for a preliminary injunction that, after service of the restraining order, plaintiffs had filed the schedule of rates directed in the order, being those asked pending final determination of the suit. Defendants contend that this constituted an abandonment by plaintiffs of the rate schedules involved in the department’s hearings and findings. The court concludes that such filing was but a step taken by plaintiffs in rendering effective the restraining order, and that its result was not to render the issues involved in these suits merely moot questions.” It was there recognized that filing the schedule of rates was necessary to make effective the injunctive order.
This case is distinguished from the P. T. & T. Co. v. Star Publishing Co. Case, in that this transaction is past and concluded, and establishes an independent relation; it is not ancillary to the rate case; while in the Star Publishing Company Case it is sought to establish conditions and continuances of future relations, and is ancillary to the P. T. & T. Co. v. Department of Public Works (rate) Case, - F.(2d) -,1 This ease being an independent transaction, the ease pending in the state court, Agnew v. P. T. & T. Co., is not removable; jurisdictional facts not appearing. The plaintiff in that case may be the only one who has preserved a cause of action. While no motion to remand that ease has been made, the question of jurisdiction is one which the court is bound to ask and answer for itself, whether suggested or not, and without respect to the relation of the parties. Charroin v. Romort Mfg. Co. (D. C.) 236 F. 1011.
An order may be presented denying the motion for injunction.
Opinion not available, but see Table of Cases in subsequent volumes.