(dissenting).
The court has now. reaffirmed its jurisdiction to modify the terms of its stay order of December 7, 1942, and asserted its power to reimburse Panhandle out of the undistributed and undistributable residue of the impounded fund for the expenses imposed on Panhandle by that order. At the same time the court holds that the stay order did not explicitly or by implication provide that Panhandle should not be reimbursed ■ from the undistributed residue of the impounded fund. The court then concludes that Panhandle is equitably entitled to reimbursement to the extent of approximately one-half of the expenses incurred by it in obedience to the court’s order. The apparent reason for this conclusion is that Panhandle agreed to an order, which the court says “turned out to be valid,” placing on Panhandle the expenses from which it now seeks relief.
The stay order of December 7, 1942, insofar as it provided for a distribution to ultimate consumers acquired whatever validity it ever had from the consent of the distributors who purchased ga® from Panhandle. The action of the court subsequent to the making of the order, requiring these *904distributors to show cause why the fund should not be paid over to their consumers instead of to them, and its order paying over to distributors such portion of the fund as they refused to surrender show that the stay order “turned out to be valid” only when and to the extent that the distributors later consented to it. It is accurate to say that the expense from which Panhandle now seeks relief was placed upon it by the action of the distributors rather than by any power in this court when the order was made.
But the validity of the original stay order is of no importance on the question now 'before the court. When that order was made the court and Panhandle assumed that the fund would be distributed in its entirety to those entitled to receive it. The order made no provision concerning a residue of the impounded fund remaining in the hands of the court for want of consumers to whom it could be distributed. Reference to the order now in deciding what should be done with such a residue of the impounded fund leads only to confusion. For all practical purposes the distribution contemplated by the stay order has now been completed. To the extent of the expense of distribution, no distributor and no consumer faas any interest in or claim upon the undistributed residue now in the hands of the court. That residue is very appropriately described as “dead money.” No legally enforceable claim exists against it.
The only question before the court now is whether the court should, as a court of equity having plenary power over the fund in its hands, reimburse Panhandle for expenses incurred by it in accomplishing what the stay order contemplated, a complete distribution of the impounded fund to those entitled to receive it. When the equities in favor of Panhandle are recognized, I can find no sound reason for awarding it less than all of the expenses incurred. In such a situation to award it less than all is to impose upon Panhandle a penalty for having resorted to the courts for, the final determination bf the validity of the order of the Federal Power Commission which was questionable at the time it was made; and this when the rights of all who claimed or became entitled to a share in the fund have been fully satisfied free of expense or charge to any of them.
Perhaps Panhandle has no equitable right to reimbursement for the expense of impounding and managing the fund as distinguished from the expense of distribution. But at least it should be allowed reimbursement for its full expense of distribution to the ultimate consumers, whose right to share in the fund, whatever its source, has been carefully and completely satisfied.