damage would result to the complainant unless a temporary restraining order is granted, any justice of the Supreme Court, or any circuit or district judge, may grant such temporary restraining order at any time before such hearing and determination of the application for an interlocutory injunction, but such temporary restraining order shall remain in force only until the hearing and determination of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an interlocutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case." It is further provided, That if before the final hearing of such application a suit shall have been brought in a court of the State having jurisdiction thereof under the laws of such State to enforce such statute or order, accomplished by a stay in such State court, of proceedings under such statute or order pending the determination. of such suit by such State court, all proceedings in any court of the United States to restrain the execution of such statute or order shall be stayed pending the final determination of such suit in the courts of the State. Such stay may be vacated upon proof made after hearing and notice of ten days served upon the attorney general of the State that the suit in the State courts. is not being prosecuted with diligence and good faith."' 2 The words "or in the enforcement or execution of an order made by an administrative Board or Commission acting under and pursuant to the statutes of such State" were inserted by amendment; because of decisions of the Circuit Courts which held that a city ordinance and the order of a State Railroad $ 105d. 1 § 266, 36 St. at L. 1087. As amd. by Act of March 4, 1913, P. L. No. 445. R. v. Niles, 218 Fed. 944; Equitable Trust Co. v. Western Pac. Ry. Co., 233 Fed. 334; Jackson v. Cravens, V. 235 Fed. 212. 2 Sperry & Hutchinson Co. City of Tacoma, 190 Fed. 682; Birmingham Waterworks Co. V. City of Birmingham, 211 Fed. 497; Calhoun et al. v. City of Seattle, 215 Fed. 226; Boston & M. R. 3 Cumberland Tel. & Tel. Co. v. City of Memphis, 198 Fed. 955; Palermo Land & Water Co. v. Railroad Commission of California, 227 Fed. 708. 4 Commission were not State Statutes within the meaning of this law although these courts took jurisdiction to set them aside on the ground that they were laws of the respective States. The statute applies to a suit against a State Railroad Commission 5 or Public Safety Commission. It does not apply to injunctions against officers, boards or commissions of Porto Rico. It applies when the order is attacked as an infringement of the Federal Constitution although the validity of the statute under which the board or commission acts is not questioned. It does not apply when the validity of the statute is questioned solely because it is an infringement of the State Constitution or where the validity of an order of a State Board is questioned because it is a violation of a State Statute.10 It has been said that no such injunctions should be granted except in clear cases where intervention is essential to protect rights effectually against injuries otherwise irremediable,11 and that the complainant assumes the burden of showing with reasonable certainty that rates for a public service charged by a State Commission are unconstitutional.12 But it has been held by the lower courts that where the penalties for disobedience are great an injunction may be granted against their enforcement until the complainant has a reasonable time to comply with the order of the State officer or board.13 That excessive and accumulative penalties may be enjoined until the final hearing of the suit.14 Upon an application for a temporary injunction restraining 4 Chicago, B. & Q. R. Co. v. Oglesby, 198 Fed. 153; Lykin v. Chesapeake & O. Ry. Co., C. C. A., 209 Fed. 573. 5 Louisville & N. R. Co. v. R. R. Commission of Alabama, 208 Fed. 35; Seaboard Airline Ry. Co. v. Railroad Commission of Georgia, C. C. A., 213 Fed. 27; Eastern Texas R. Co. v. Railroad Commission of Texas, 242 Fed. 300. 6 Cook v. Burnquist, 242 Fed. 321. 7 Benedicto V. West Indian & Panama Tel. Co., C. C. A., 256 Fed. 417. 8 Louisville & N. R. Co. v. Railroad Commission, 208 Fed. 35. But see Lykins v. Chesapeake & O. Ry. Co., C. C. A., 209 Fed. 573. 9 McDougal v. Mudge, 233 Fed. 234. 10 Lykin v. Chesapeake & O. Ry. Co., C. C. A., 209 Fed. 573. 11 Cavanaugh v. Looney, 248 U. S. 453, 456. 12 Manufacturers Light & Heat Co. v. Ott, 215 Fed. 940. 13 Phoenix Ry. Co. of Arizona v. Geary, 209 Fed. 694. 14 Kern Trading & Oil Co. v. Associated Pipe Line Co., 217 Fed. 273. See Eastern Texas R. Co. v. Railroad Commission of Texas, 242 Fed. 300. a State Railroad Commission and others from suing to enforce rates prescribed by the State Commission which were charged to be in conflict with an order of the Interstate Commerce Commission it was held to be unnecessary for the court to decide upon the merits of the case but the court finding that the bill presented a case for equitable relief and that proceedings affecting some of the rates were still pending before the Federal Commission, the injunction was granted.15 In the same case it was held, that an order of the Interstate Commerce Commission could not be thus attacked collaterally.16 It has been held that the statute forbids a single judge from denying a motion for such an injunction, and even from vacating such a restraining order previously issued by himself,17 and that the Supreme Court may issue a mandamus to set aside. such second order when made by him.18 It has been held that mandamus will not issue to compel a court of first instance to dismiss a case, in which it is claimed that a State is a party, when such court has held that the State is not an indispensable party to the suit,19 and that where the Supreme Court takes cognizance of a case dismissed as against a State for want of jurisdiction, it cannot determine whether the bill should have been dismissed because not presenting a case for equitable relief.20 The Supreme Court of the United States has held that no such injunction should be granted against the enforcement of an order of the State was until such appeals therefrom as are authorized by the State statute have been exhausted.21 It has been held that where a supersedeas upon such an appeal to a State court is denied, the injunction may be granted,22 and where the court was of the opinion that the statutory power 15 Eastern Texas R. Co. v. Railroad Commission of Texas, 242 Fed. 300. 16 Ibid. 17 Ex parte Metropolitan Water Co., 220 U. S. 539, 55 L. ed. 575. 18 Ibid. 19 Ex parte Nebraska, 209 U. S. 436, 52 L. ed. 876. 20 Scully v. Bird, 209 U. S. 481, 52 L. ed. 899. 21 Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 29 Sup. Ct. 67, 53 L. ed. 150. But see City of Kankakee v. Am. Water Supply Co., 199 Fed. 757; Kern Trading & Oil Co. v. Associated Pipe Line Co., 217 Fed. 273. But see Manufacturers Light & Heat Co. v. Ott, 215 Fed. 940. 22 Love v. Atchison, T. & S. F. Ry. Co., C. C. A., 185 Fed. 321; af firming Atchison, T. & S. F. Ry, Co. v. Love, 174 Fed. 59. of review was unauthorized by the State constitution, such an injunction was sustained.23 Where the Federal Court denied the injunction an appeal, a supersedeas and a réstraining order pending such appeal were denied without prejudice to the right of the plaintiff to renew its application in the Supreme Court.24 23 Kankakee v. Am. Water Supply Co., C. C. A., 199 Fed. 757. 24 Louisville & N. R. Co. v. Railroad Commission, 208 Fed. 35, 58, 60. Shelby, J.: "The application now before the court seeks to enjoin or stay the order of the Commission pending an appeal by the plaintiff to the Supreme Court from the order refusing the interlocutory injunetion. The first application was for an injunction pending the suit which stood for trial in the District Court; the second application is for an injunctive order pending the appeal. Relief on either application meant the suspension of the rates fixed by the Commission and the re-establishment of the higher rates fixed by the plaintiff. Both applications are urged by the same arguments and the same offer of bond. I can see no reason for granting the second application that would not have been equally applicable to granting the first. To have granted the first would not have delayed a trial on the merits, while to grant the second may have that effect. The real practical question on both applications is whether the Commission's order shall remain in force or be suspended. It is, of course, just as satisfactory to the plaintiff to en join it on appeal, with bond, as on the first application, with bond. The delay in enforcing the order, if it is finally enjoined, is likely to be greater by the granting of the stay on the second application than if it had been granted on the first. It seems to me utterly useless to have refused the first application, if the second is to be granted. If a case is now presented for the exercise of judicial discretion by revoking, in effect, our former order, we should have granted the interlocutory injunction on the first application. We gave reasons for the refusal of the injunction which seem to me equally controlling on the second motion. Conceding that the statutes allow a supersedeas after denial of the injunction in cases arising under section 266, we have before us practically the same question that we had on the first application -whether or not the Commission's order should be in force pending the litigation. The only difference is that the Commission's order is now fortified by the opinion of this court. Having refused to enjoin it and hav ing put it in force on the merits after full hearing, it seems to me that it would be practically a reversal of our position to suspend it now after our elaborate approval of it. I do not lose sight of the fact that the first application was for an interlocutory injunction only, and that the second is also for appeal. The question of suspending the Commission's order is separate from the claim for appeal. The latter is granted as a matter of course. But as to the suspension of the Commis § 106. Suits against infants. An infant when sued should be provided by the court with a guardian ad litem.1 For an omission to appoint a guardian ad litem, a decree against an infant will be reversed upon appeal. An application for the appointment of a guardian ad litem for an infant should be made by petition, which, if the appointment of a particular person is desired, should state his name and his consent to act as such. The court will usually appoint the infant's general guardian or "the nearest relative not concerned, in point of interest, in the matter in question;" but the choice of the guardian rests in the sound discretion of the court, and only in an extraordinary case would a decree be reversed for an error in this respect. The interests of an infant are guarded jealously by the court, which will not hold him bound by any admission made by him or in his behalf, whether in the pleadings or sion's order pending an appeal, if we have authority to grant it, like the one for the interlocutory injunction, is addressed to the judicial discretion. "It is argued that, because one of the judges dissented from the decision on the first application, such doubt is created that the second application should be granted. If one thing is made clear by the statute, it is that one judge cannot grant the injunction. If, when the injunction is refused by the court, composed of three judges, the dissent of one of the judges was permitted to control a second application and cause an injunction or a continuance of the restraining order, the purpose of the statute would be defeated. One judge could still prevent the enforcement of the rates fixed by a Commission or by a Legis lature. "It is urged that the second application should be granted because the decision of this court may be reversed. If a majority of the court now believe we have decided erroFed. Prac. Vol. I-43 neously in refusing the injunction on the first application, the way to correct it here, if we have authority to do so, is to set aside the order and grant the injunction. That should be done, if at all, directly, and not indirectly." See supra, § 100b. $106. 1 Rule 70; Bank of U. S. v. Ritchie, 8 Pet. 128, 144, 8 L. ed. 890, 897. See Woolridge v. McKenna, 8 Fed. 650, 670. 2 O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840. 3 Rhinelander v. Sanford, 3 Day (U. S. C. C. D. Conn.), 279. 4 Bank of U. S. v. Ritchie, 8 Pet. 128, 144, 8 L. ed. 890, 897; Story's Eq. Pl., $70; Calvert on Parties, 5 Bank of U. S. v. Ritchie, 8 Pet. 128, 144, 8 L. ed. 890, 897. See Kingsbury v. Buckner, 134 U. S. 650, 33 L. ed. 1047. 6 Bank of U. S. v. Ritchie, 8 Pet. 128, 144, 145, 8 L. ed. 890, 897; Walton v. Coulson, 1 McLean, 125; s. C., Coulson v. Walton, 9 Pet. 62, 84, 9 L. ed. 51, 60; Hawkins v. Lus |