(dissenting).
I agree that the Board of Public Utilities of the City of Springfield, Missouri,1 is not a natural gas company engaged in the transportation or sale at wholesale of natural gas in interstate commerce, and that the instant case is not distinguishable from Central States Electric Co. v. Muscatine, 324 U.S. 138, 65 S.Ct. 565, 89 L.Ed. 801, on that ground. I, also, recognize that the Supreme Court in Federal Power Commission v. Interstate Natural Gas Co., 336 U.S. 577, at page 580, 69 S.Ct. 775, pointed out that such case was unlike Central States Electric Co. v. Muscatine, in that the distributing companies seeking return of the refund in the Interstate Natural Gas Company case were subject to the jurisdiction of the Federal Power Commission, since they were natural gas companies engaged in the transportation or sale at wholesale of natural gas in interstate commerce. Nevertheless, I think it is the duty of this court to distribute the fund now in its custody to the ultimate consumers of gas in the City of Springfield during the period the stay order was in effect.
In engaging in the business of supplying its inhabitants with gas, the City of Springfield acts, not in its public or governmental capacity, but in a private or proprietary capacity.2 The rates charged by a municipal corporation operating a gas utility for gas supplied to its inhabitants are subject to regulation by the state, if the state elects to exercise that power, and must be reasonable and nondiscriminatory, and their reasonableness is subject to judicial review.3 Therefore, I see no distinction between the rights of the ultimate consumers who took gas from the Springfield Gas & Electric Company, a private utility, and those who took gas from the Board of Public Utilities during the period the stay order was in effect.
The aim of the Natural Gas Act, 52 Stat. 821, 15 U.S.C.A. § 717, was to “protect ultimate consumers of natural gas from excessive charges,” and “they were the intended beneficiaries of rate reductions ordered by the federal commission, though state machinery might have to be invoked to obtain lower rates at the consumer level.”4 The Board of Public Utilities has neither averred nor shown that the rates charged by the Springfield Gas & Electric Company and by it, during the period the stay order was in force, were so low as to be unreasonable, and no such presumption attends rates fixed pursuant to rate orders of a public regulatory body, or even by a utility itself without the compulsion of a rate order.5 And the Board of Public Utilities does not contend that the rates charged by the *554Springfield Gas & Electric Company and by it, during the period the stay order was in force, were so low that it is entitled to the refunds as a matter of law. Neither has the Public Utilities Commission averred nor shown that either it or the Springfield Gas & Electric Company passed on to the consumers in the. City of Springfield rate reductions from the date of the order of the Federal Power Commission.
In the distribution of the impounded funds, which are now.in the custody of this court except in so far as they have been distributed under orders of this court to consumers in other localities, it is the duty and responsibility of this court to correct the harm caused by its stay order and to protect the interests of all adversely affected by its injunction.6 It may not discharge that duty by payment of the fund to one who has shown no loss by reason of this court's action.7 The obligation of this court is to ma,ke disposition of the impounded funds in accordance with equitable principles.8
If it is the intent and purpose of the Natural Gas Act to protect ultimate consumers of natural gas from excessive charges, and to give such consumers the benefit of rate reductions ordered by the Federal Power Commission, then, it seems to me, the ultimate consumers are entitled to that protection and to the benefits of rate reductions ordered by the Federal Power Commission as a matter of Federal law. If that be true, then, in making distribution of the impounded funds, in correcting the harm done by its stay order, and in protecting the interests of those adversely affected by its injunction, it is the duty of this court, in so far as it is possible, to see that the purposes and policy,of the Natural Gas Act are given effect. We will not discharge that responsibility and duty by delegating to a state court the determination of whether the Board of Public Utilities or the ultimate consumers of gas in the City of Springfield, during the period of the stay order, are entitled to the refund here in controversy.
In allowing the claim of the City of Springfield by our order of August 19, 1947, we did not intend to adjudicate and, I understand the parties concede we did not adjudicate as between the Board of Public Utilties and the ultimate consumers of gas in that City, during the period our stay order was in effect, that such ultimate consumers were not entitled to receive, either directly from the master of this court or through the Board of Public Utilities, the funds here in controversy.
For the reasons indicated, it is my conclusion that the petition to intervene should be granted.
Hereinafter called tlie Board of Public Utilities.
Springfield Gas & Electric Co. v. City of Springfield, 292 Ill. 236, 126 N.E. 739, 745, 18 A.L.R. 929; City of Winona v. Botzet, 8 Cir., 169 F. 321, 332, 333, 23 L.R.A.,N.S., 204; City of Logansport v. Public Service Commission, 202 Ind. 523, 177 N.E. 249, 252, 76 A.L.R. 838; Western Saving Fund Society of Philadelphia v. City of Philadelphia, 31 Pa. 175, 183, 22 Am.Dec. 730; Wood v. City of Auburn, 87 Me. 287, 32 A. 906, 907, 29 L.R.A. 376; Twohy Bros. v. Ochoco Irr. Dist., 108 Or. 1, 210 P. 873, 216 P. 189, 190; Wagner v. City of Rock Island, 146 Ill. 139, 34 N.E. 545, 548, 549, 21 L.R.A. 519.
Springfield Gas & Electric Co. v. City of Springfield, 292 Ill. 236, 126 N.E. 739, 746; Simons v. City Council of Charleston, 181 S.Car. 353, 187 S.E. 545, 547; Bankhead v. Town of Sulligent, 229 Ala. 45, 155 So. 869, 870, 96 A.L.R. 1381; City of Logansport v. Public Service Commission, 202 Ind. 523, 177 N.E. 249, 253-257, 76 A.L.R. 838.
Federal Power Commission v. Interstate Natural Gas Co., 336 U.S. 577, 581, 69 S.Ct. 775.
Id., 336 U.S. page 581, 69 S.Ct. page 778.
Id., 336 U.S. page 582, 69 S.Ct. pages 778, 779.
Id.
Id., 336 U.S. page 583, 69 S.Ct. page 779.