BOISE CITY, IDAHO, v. BOISE ARTESIAN HOT & COLD WATER CO., Limited, 208 F. 546

ROSS, Circuit Judge. The plaintiff in error was plaintiff in the court below in an action against the defendant in error, a municipal corporation of the state of Idaho, to recover certain license fees imposed by an ordinance of the city adopted June 7, 1906, for the privilege granted by a prior ordinance to the predecessors in interest of the plaintiff in error to lay and maintain water pipes in the streets and alleys of the city for the furnishing of water to the inhabitants thereof.

This court sustained the validity of the ordinance imposing the license fees by its judgment rendered and entered here February 6, 1911. 186 Fed. 705, 108 C. C. A. 523.

The mandate was duly stayed, and during such stay a petition for a writ of error from the Supreme Court to review the judgment of this court was allowed May 4, 1911, being a day of the same term of the court, and a supersedeas bond was duly approved and filed. • In February, 1912, in an action in the District Court of the United States for the District of Idaho, the constitutionality of the same ordinance of Boise City in respect to the imposition of license fees was made an issue, and the District Court, following the aforesaid decision of this court, held it valid, from which judgment a writ of error was sued out from the Supreme Court, and the question thus taken there.

In that court the two cases mentioned were consolidated and finally disposed of by tbe Supreme Court June 16, 1913 (230 U. S. 84, 33 Sup. Ct. 997, 57 L. Ed. 1400), resulting in the holding of the ordinance in question unconstitutional and void, in the consequent reversal of the judgment of the District Court of Idaho, and in the dismissal of the writ of errqr issued to this court. The dismissal of that writ left the judgment of this court rendered and entered February 6, 1911, in force, and this court in control of it, since no mandate has ever been issued, and the writ of error was seasonably taken.

The jurisdiction of this court continuing, it is manifest that a grave wrong would be done to permit a mandate to be sent to the District Court giving effect to the judgment of this court sustaining the validity of an ordinance which was, in a companion suit, adjudged by the Supreme Court to be unconstitutional and void.

We conceive it to be our duty- to yield to the judgment of that tribunal, to so change our judgment entered herein February 6, 1911, as to affirm the judgment of the District Court in this cause, on the authority of the decision of the Supreme Court, which is hereby done, upon which amended judgment the mandate of this court will be forthwith issued. In this way injustice is avoided- and justice done — well within our power, since we still retain our original jurisdiction and control of our judgment. .The motion before us is, in this respect, granted.