Opinion
No. 2700.
January 14, 1929.
Appeal from the District Court of the United States for the Western District of North Carolina; John J. Parker and Edwin Y. Webb, Judges.
Suit by the Southern Railway Company against the Atlantic Yadkin Railway Company, for the appointment of a receiver, in which the State of North Carolina, through Dennis G. Brummitt, its Attorney General, intervened. From a decree denying intervention, and dismissing the intervener's petitions, intervener appeals. Affirmed.
This is an appeal from a decree of the District Court for the Western District of North Carolina, dismissing bills of intervention filed by appellant, the state of North Carolina, in a suit brought by the Southern Railway Company in that court to have appointed a receiver to take charge of and operate the Atlantic Yadkin Railway Company.
The original bill of complaint of the Southern Railway Company, filed March 7, 1924, set forth, among other things, that the Atlantic Yadkin Railway Company owned and operated a common carrier railroad from Mt. Airy, N.C., to Sanford, N.C., a distance of 130.95 miles, also certain branches and spurs from Mt. Airy, N.C., to Woodruffe, N.C., a distance of 2.02 miles, from Climax, N.C., to Ramseur, N.C., a distance of 18.74 miles; from Stokesdale, N.C., to Madison, N.C., a distance of 11.39 miles, or a total mileage of 163.10 miles, together with certain yard tracks, sidings, and appurtenances to said railroad; that it had issued capital stock to the amount of $1,000,000, which was still outstanding, and was owned, except for directors' qualifying shares, by the Southern Railway; that in 1899 the Atlantic Yadkin Railway Company had issued a first mortgage on all of its properties to secure an issue of $1,500,000 4 per cent. bonds, due April 1, 1949, which bonds were outstanding in the hands of the public; that the Atlantic Yadkin was indebted to the Southern for $770,849.07, which sum represented moneys advanced to the Atlantic Yadkin with which to pay interest on its mortgage indebtedness, to meet taxes, and to pay current liabilities, including traffic balances due by it to other railroads, and also represented money due the Southern from the Atlantic Yadkin for coal and other supplies, rent of equipment, repair of equipment, and other similar indebtedness, all of which were long past due and unsecured, and, though demanded, remained unpaid; that the Southern was advised and believed that the Atlantic Yadkin was indebted to others, and had pending against it suits and claims for varying sums for personal injuries, property damage, freight claims, traffic balances to other roads, and vouchers on hand unpaid, which the Atlantic Yadkin was equally unable to pay, and that it was hopelessly insolvent; that the Atlantic Yadkin had never been a profitable railroad, and during only a few years at the outset of its operations had it made any net income, and then only a small sum. The bill prayed that a receiver be appointed to take possession of the properties of the Atlantic Yadkin Railway Company and to operate them, and collect and receive the tolls, earnings, and profits, and apply the same under the order and decree of the court.
On March 17, 1924, the Atlantic Yadkin filed its answer, admitting all the allegations made in the bill of complaint, and on that day, also, which was the return day, the court appointed receivers, who took charge of the railroad and commenced operating it; also on the same day, James S. Manning, Attorney General of the state of North Carolina, filed a petition in the cause, asking that he be allowed to intervene, and file a bill of intervention on behalf of that state, which was allowed, as was subsequently the filing of a supplemental bill of intervention by Manning's successor in office, Dennis G. Brummitt. The said bills of intervention so filed sought to set up in the pending cause, among other things, that the Atlantic Yadkin was the corporate successor of the Cape Fear Yadkin Valley Railroad, which in 1898 was sold in foreclosure proceedings at the instance of mortgage bondholders; that the sale of the Cape Fear Yadkin Valley Railroad in sections, instead of as one system, was earnestly insisted upon by the representatives of the Southern Railway and the Wilmington Weldon Railroad Company, which roads were bondholders of the Cape Fear Yadkin Valley Railroad interested in said sale, but that the United States Circuit Court for the Eastern District of North Carolina declined to allow the sale to be made in that manner, and decreed that the road be sold as an entirety (Farmers' Loan Trust Co. v. Cape Fear Y.V. Ry. Co. et al., 82 F. 344); that, upon an appeal being taken from such ruling, the Circuit Court of Appeals for the Fourth Circuit affirmed the decree of the lower court (Low et al. v. Blackford et al., 87 F. 392); that the road was sold after due advertisement on December 29, 1898, and was bought in as an entirety at the price of $3,110,000 by the president of one of the two railroad companies interested; that the road was in reality purchased on joint account of the Southern and the Wilmington Weldon Railroad; that on January 31, 1899, at the instance of the purchaser, a deed to the entire property of the Atlantic Yadkin Valley Railroad was executed, by commissioners appointed by the court, to the newly organized Atlantic Yadkin Railway Company, which was incorporated by an act of the North Carolina Legislature in 1899 (Priv. Laws 1899, c. 98); the president and other officials of the Wilmington Weldon Railroad, who had bought in the properties of the Cape Fear Yadkin Valley road, being named as incorporators.
The bills of intervention further alleged that in May, 1899, the board of directors of the Atlantic Yadkin Railway Company met in Wilmington, N.C., and in effect dismembered the road, contrary to the spirit and provisions of its charter, and in violation of the decree of sale; that the said railroad, acting through its board of directors aforesaid, executed a deed conveying that portion of its system from Sanford to Wilmington, and from Fayetteville to Bennettsville, S.C., to the Wilmington Weldon Railroad, upon which a mortgage of $1,800,000 was immediately placed; that a mortgage bond issue of $1,500,000 was also at once placed upon the other portion of the road, from Sanford to Mt. Airy, the two bond issues totaling $3,300,000; that the rolling stock of the Atlantic Yadkin was divided between the Wilmington Weldon and the Southern Railway, and the Atlantic Yadkin thereupon issued $1,000,000 of capital stock, which was turned over to the Southern Railway, without the Southern paying anything therefor, and the bond issues were sold to, and are still held by, the public; that the Southern then took charge of and operated the Atlantic Yadkin Railroad as an independent corporation, but under the management of officers of the Southern, until the appointment of receivers in this cause, and, in this connection, intervener charges that the Atlantic Yadkin has been so operated by the Southern as to destroy its value as a money-making enterprise and as a convenience to the public, and in such an improvident manner as to place the road heavily in debt.
The trial court allowed the Southern Railway time to plead to the bills of intervention or to move to dismiss them. Within the time allowed the Southern moved to dismiss the bills of intervention, for the reason that they did not come within federal Equity Rule No. 37, governing the intervention of parties, in that they were not in subordination to, or in recognition of, the propriety of the main proceedings, and for the further reason that the matters sought to be set up by intervention were already in litigation between the same parties in a suit pending in the state court; that the bills of intervention failed to disclose that the Attorney General of North Carolina had any such legal interest as would entitle him to intervene in the cause; that the bills failed to show an interest of such direct and immediate character that the intervener would gain or lose by the relief sought in the cause, and by the appointment of receivers; that to permit the filing of the bills of intervention would involve new issues and the bringing in of additional parties to the litigation, not contemplated by, and wholly independent of, the issues properly arising on the original bill; that the intervener had not reduced any supposed interest or claim in favor of the state of North Carolina to judgment; and that the state of North Carolina was barred by laches and lapse of time from setting up and litigating afresh in these proceedings the matters sought to be reopened by the bills of intervention. The right of intervention was further challenged by the Southern Railway, because the relief asked could only be afforded through the Interstate Commerce Commission, and for the further reason that a violation of the anti-trust laws of the United States was charged by intervener, and that relief for such violation could not be afforded as prayed for in this cause.
The suit brought in the state court sought to cancel the deed executed in 1899, dismembering the Cape Fear Yadkin Railroad, and to annul the charter of the Atlantic Yadkin Railway for alleged nonuser and misuser of its charter powers, and was based on many of the facts set out in the bills of intervention sought to be filed by the state of North Carolina in this cause. That proceeding was in February, 1924, decided adversely to the state of North Carolina, and was pending on appeal in the Supreme Court of that state when the original bill in this cause was filed in the United States District Court by the Southern Railway Company in which receivers were appointed, and it was particularly decreed that the action thus taken in the federal court should not be construed as interfering with or affecting the litigation in the state court, and that, if desired, the receivers might be made parties to the proceeding in the state court.
In December, 1924, the Supreme Court of North Carolina (Manning, Attorney General, etc., v. Atlantic Yadkin Railway Co. et al., 188 N.C. 648, 125 S.E. 555) affirmed the judgment of the lower state court. This decision of the Supreme Court of the state of North Carolina was a sweeping and comprehensive one, to which special reference is made as giving a full and valuable history of the railroad properties involved here, which originally formed the systems and properties affected by this litigation. The state Supreme Court held, among other things, that the Atlantic Yadkin Railroad Company, a corporation chartered by the state of North Carolina for the purpose of holding the property acquired by the purchasers of the Cape Fear Yadkin Valley Railroad, decreed by the federal court to be sold as a whole, and so sold, had the right to thus acquire the property as an entirety, and subsequently to sell and dispose of the eastern portion of the system, namely, from Sanford, through Fayetteville, to Wilmington, and from Fayetteville to Bennettsville, S.C., to the Wilmington Weldon Railroad, and to retain the western part, namely, from Mt. Airy to Sanford, which, with certain spur tracks and branches, aggregated 163.10 miles of trackage, upon which western line was executed a mortgage for $1,500,000, payment of which, in part, along with other indebtedness, is sought to be enforced in the creditor's bill filed in this cause, to which end it is prayed that the property may be taken possession of and controlled, managed, and disposed of under and by direction of the court.
While the motion to dismiss the bills of intervention was pending, and after the decision of the state Supreme Court, supra, the Attorney General of the state of North Carolina filed an independent bill in equity in the same federal District Court from which this appeal is taken, against the Southern Railway Company and the receivers of the Atlantic Yadkin Railway Company, seeking similar relief to that prayed for in the bills of intervention sought to be filed in this cause. The parties defendant in that cause filed a motion to dismiss the bill, and the District Court delivered an opinion holding that the suit could not be maintained, for the reason, among others, that it prayed relief similar to that being sought in this cause, and the bill was accordingly dismissed. No appeal was taken from the decree of the District Court dismissing that suit.
Upon this state of the record, this cause came on for final hearing, and on October 17, 1927, on the motion of the Southern Railway Company, plaintiff in the court below, and of the Atlantic Yadkin Railway Company, defendant below, the District Court entered its decree dismissing both bills of intervention on the following grounds:
"(1) That neither the bill of intervention nor the supplemental bill of intervention are in subordination to or recognition of the propriety of the main proceedings, and therefore violate Equity Rule No. 37; (2) that neither the bill of intervention nor the supplemental bill of intervention can be entertained by the court under general rules of equity procedure and practice, since they seek to litigate questions outside of the issues made by the original pleadings and seek to bring in new parties and are not within the scope of the original suit, the intervener not having made it appear by proper allegation that the state has any direct and immediate interest in the original suit; (3) that neither the bill of intervention nor the supplemental bill of intervention show any such legal interest as entitles the state to intervene herein; (4) that the cases of James S. Manning, Attorney General of North Carolina, v. Southern Railway Company, Atlantic Yadkin Railway Company and Atlantic Coast Line Railroad Company, referred to in the bill of intervention and found in 188 N.C. 648, 125 S.E. 555, and State of North Carolina, on relation of Dennis G. Brummitt, Attorney General, v. Southern Railroad Company, et al., in this federal court, referred to and set up in the supplemental bill of intervention, are severally res adjudicata of this case; (5) that the bill of intervention and supplemental bill of intervention show on their face such gross laches on the part of the state as to, and do, forever estop the intervener from maintaining its bill of intervention; (6) that the intervener has no right to bring his action for a violation of or under the Sherman Anti-Trust Act [ 15 USCA §§ 1- 7, 15], and does not show any such special damage as would entitle the state to sue under the Clayton Act [ 38 Stat. 730]; (7) that this court has no jurisdiction under the averments of the bill of intervention and supplemental bill of intervention to consider the issue of Southern Railway Company, acquiring or consolidating with the Atlantic Yadkin Railroad, the jurisdiction of that question being by the Transportation Act of 1920 [49 USCA § 71 et seq.] confided primarily to the Interstate Commerce Commission."
To the decree of the District Court thus entered, Dennis G. Brummitt, Attorney General of the state of North Carolina, appellant herein, excepted, and makes sundry assignments of error upon which he relies as the basis of this appeal from the said decree of October 17, 1927. The assignments are in substance as follows:
(1) That the United States District Court for the Western District of North Carolina erred in dismissing and striking from the record the petition and supplemental petition of respondent; (2) that the court, being in exclusive possession and control of the Atlantic Yadkin Railway Company and the operation of the same, declined and refused to recognize the interest of the respondent, a sovereign state, in the operation and future disposition of the said railway; (3) because the court failed to allow the respondent to prosecute intervening petitions and to show the court the truth of the several allegations made in his petitions, and particularly that the state of North Carolina, having granted a charter to the Atlantic Yadkin Railway Company, which charter was a contract between the railway company and the state, the state, as a contracting party thereto, had the right to insist upon, in that court, the faithful performance of all the obligations and duties assumed and undertaken in said charter and imposed by law upon the said railway company on account of the enjoyment of said charter contract; (4) because the trial court failed to recognize the fact that the Southern Railway acquired the property now in receivership in violation of the decrees of the United States Circuit Court for the Eastern District of North Carolina and the Circuit Court of Appeals for this circuit, and has continuously, since the acquisition of the same, through stock ownership and otherwise, abused and misused its charter and perverted the purposes for which the respondent chartered it to engage in and operate its business; (5) because the court failed to recognize and hold that the action of the Southern Railway Company, as alleged in the intervening petition, was a continuous violation of the charter contract between the Atlantic Yadkin Railway Company and the respondent, a violation of the Constitution and anti-trust laws of the state of North Carolina, and in violation of the Sherman Anti-Trust Law and the Clayton Act amendatory thereof, and that such violation was a continuing offense; (6) because the court declined to hold that the respondent was entitled to have the facts alleged established before a master, to take testimony in order that upon the facts alleged and so found the respondent would be entitled to the relief prayed for in the petitions; and assignment 6 also makes seven specific assignments, in subdivisions A, B, C, D, E, F, and G, all of which will be considered in connection with assignment 6.
Dennis G. Brummitt, Atty. Gen., of North Carolina, and Aubrey L. Brooks, of Greensboro, N.C. (Frank Nash, Asst. Atty. Gen. of North Carolina, Edward S. Parker, Jr., Julius C. Smith, C.R. Wharton, and Edwin J. Martenet, all of Greensboro, N.C., on the brief), for appellant.
S.R. Prince, of Washington, D.C. (G.H. Hastings, of Winston-Salem, N.C., and L.E. Jeffries, of Washington, D.C., on the brief), for appellees.
Before WADDILL and NORTHCOTT, Circuit Judges, and GRONER, District Judge.
The first and second assignments of error will be considered together, inasmuch as they both involve the question of the correctness of the ruling of the trial court in refusing to allow the Attorney General of North Carolina to intervene in behalf of that state in this cause, and to set up herein the several causes for intervention set forth in the bills praying relief in that respect, and in dismissing such bills of intervention upon the final hearing. The court's reasons for not allowing intervention are succinctly set forth in its decree, and the assignments present for our consideration the propriety of its rulings. At the threshold, we have to determine when those in the position of the appellant may intervene and be afforded relief under circumstances such as exist here.
This is a suit in equity, to which petitioner, appellant, sought to be made a party, and the terms and conditions upon which admission may be had are prescribed by the rules governing practice in federal courts of equity. Federal Equity Rule No. 37 prescribes in general terms the conditions under which interveners may be admitted as parties to an equity cause in a federal court. The part of the rule having special application here is as follows:
"Any one claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding."
This portion of the rule is not of very ancient origin, having been suggested by the bar committee of the Circuit Court of Appeals of the Eighth Circuit, and subsequently adopted in the language quoted as a part of the federal Equity Rules. Hopkins, New Federal Equity Rules, rule 37, p. 212; Consolidated Gas Co. v. Newton (D.C.) 256 F. 238, 244. The rule, however, is of far-reaching importance, as bearing upon the rights of those not parties to the litigation who seek to be admitted therein, with the view of having adjudicated rights alleged by them to be properly assertable in the litigation.
The filing of the bills of intervention was permitted by the trial court, with the understanding that they would be subsequently dismissed, if it later appeared that intervention was improper. The cause was thus heard and considered by the court, with the result that the bills of intervention were dismissed as having been improvidently filed. The equity rule applicable is plain, and in the nature of things, as it relates to the parties to the litigation, should be strictly construed. The bills of intervention were objected to by the parties plaintiff and defendant in the original suit herein, in which intervention was sought, because it was apparent, as alleged, that the same was not intended to be in subordination to, or in recognition of, the propriety of the main proceeding, and sought relief inconsistent with that prayed for therein. No absolute right of intervention is given by the equity rule in question, and no statutory authority therefor exists, and, in the absence of abuse of the discretion reposed in the chancellor, his action should not be disturbed. The authorities amply sustain this position, and hence, under the plain meaning of the rule, in the light of the interpretation placed thereon, the petitions of intervention, allowed by the court to be conditionally filed, as aforesaid, should have been refused, and the petition was therefore properly dismissed.
The Circuit Court of Appeals of the Eighth Circuit, in In re Veach, 4 F.2d 334, in considering this question, at page 336, said:
"It is our opinion that Veach cannot be permitted to evade the explicit command of Equity Rule 37. He can be admitted as an intervener in the Adler suit only in recognition of and subject to the requirements of that rule. It says that any one who is permitted to intervene in a suit shall do so in subordination to and in recognition of the propriety of the main proceeding. Counsel frankly admits here that his only purpose is to launch an attack against the propriety of all of the proceedings in the Adler suit, and the petition which he tendered to the clerk shows upon its face that that was his sole purpose. If the clerk had accepted and filed his petition in intervention, it would have been the duty of the District Court to immediately dismiss him out of that case, and it would be an idle proceeding and a vain order to require the clerk to accept and file it."
This court, in the comparatively recent cases of Union Trust Co. of Pittsburgh v. Jones, 16 F.2d 236, and Board of Commissioners, etc., v. La Fayette Southside Bank, 27 F.2d 286, considered this question. In the first-named case, in which the complainant therein, Jones, suing on behalf of himself and other creditors, secured the appointment of receivers for the defendant corporation, the Union Trust Company of Pittsburgh, an unsecured creditor for a large amount, sought to intervene, which application was refused, and from which ruling the trust company appealed. This court said, at page 239:
"The position of the appellant, Union Trust Company, that upon intervention of the trustees under the mortgage the proceedings should have been dismissed, and that in what was done to the contrary the court was without jurisdiction, is clearly untenable. In any event, appellant itself, an intervener in the same litigation to assert its unsecured indebtedness, was not in a position to make such claim. It could not intervene in and seek the aid of the court and at the same time attack and dispossess the court of its jurisdiction to proceed with the litigation in an orderly way" — citing Equity Rule 37, 198 F. xxviii; 2 Foster's Fed. Pro. 261; Horn v. Pere Marquette R. Co. (C.C.) 151 F. 626, 633; Cauffiel v. Lawrence (D.C.) 256 F. 714; King v. Barr (C.C.A.) 262 F. 56.
In the second-named case, Board of Commissioners v. La Fayette Southside Bank, 27 F.2d 286, supra, at page 293, this court said:
"Nothing seems better settled than that an application of an intervener seeking to be admitted as a party to a pending cause is addressed to the sound discretion of the court, and where the application is denied, and such intervener left to avail himself of such rights as the law may afford him in other appropriate ways, that the order denying such application is an interlocutory, and not a final decree, and hence one from which no appeal lies. Authorities to support this position might be cited almost without number, but the following cases from the Supreme Court of the United States will be found to be especially applicable and entirely conclusive of the subject: Connor v. Peugh's Lessee, 18 How. 394, 15 L. Ed. 432; Ex parte Cutting, 94 U.S. 14, 24 L. Ed. 49; Guion v. Liverpool, etc., Ins. Co., 109 U.S. 173, 3 S. Ct. 108, 27 L. Ed. 895; Credits Commutation Co. v. U.S., 177 U.S. 311, 316, 317, 20 S. Ct. 636, 44 L. Ed. 782."
The decision of the Supreme Court of the United States in the last-cited case, Credits Commutation Co. v. U.S., 177 U.S. 311, supra, particularly at pages 316 and 317, 20 S. Ct. 636, 44 L. Ed. 782, gives an interesting review of the law covering the subject under consideration, showing when, and when not, interveners, not parties to the litigation, should be admitted, and the effect of denying them relief, from which it is entirely clear that the decree of the lower court appealed from herein is correct, and that no appeal lies therefrom.
The trial court, in its decretal order, specifically dealt with the matters generally covered by the assignments of error other than assignments Nos. 1 and 2, as follows:
"* * * (3) That neither the bill of intervention nor the supplemental bill of intervention show any such legal interest as entitles the state to intervene herein; (4) that the cases of James S. Manning, Attorney General of North Carolina, v. Southern Railway Company, Atlantic Yadkin Railway Company, and Atlantic Coast Line Railroad Company, referred to in the bill of intervention and found in 188 N.C. 648, 125 S.E. 555, and State of North Carolina, on relation of Dennis G. Brummitt, Attorney General, v. Southern Railway Company et al., in this federal court, referred to and set up in the supplemental bill of intervention, are severally res adjudicata of this case; (5) that the bill of intervention and supplemental bill of intervention show on their face such gross laches on the part of the state as to, and do, forever estop the intervener from maintaining its bill of intervention; (6) that the intervener has no right to bring his action for a violation of or under the Sherman Anti-Trust Act [ 15 USCA §§ 1- 7, 15] and does not show any such special damage as would entitle the state to sue under the Clayton Act [ 38 Stat. 730]; (7) that this court has no jurisdiction under the averments of the bill of intervention and supplemental bill of intervention to consider the issue of Southern Railway Company acquiring or consolidating with the Atlantic Yadkin Railroad, the jurisdiction of that question being by the Transportation Act of 1920 [49 USCA § 71 et seq.] confided primarily to the Interstate Commerce Commission."
These rulings of the court below, thus succinctly stated, generally cover the matters raised by the bills of intervention, and as to which it is not our purpose to express an opinion for the reason that, with the intervention denied and the bills filed for that purpose dismissed, it is neither necessary nor desirable that we should do so. What is said in reference to the specific findings of the court and the assignments of error applies to assignment No. 6 and subdivisions A, B, C, D, E, F, and G thereof. As to the matters especially thus embraced, they relate largely to mere details, which would, perhaps, have been of importance, had the court allowed the intervention to be had and granted the relief asked for therein, but which, in the present state of the record, require no consideration.
The decree of the lower court, denying intervention and dismissing the petitions, is plainly right, and is affirmed, at the costs of the appellant.
Affirmed.
I concur in the result, though not upon the ground that the petition for intervention is not in subordination to and in recognition of the main proceeding. I think it is. Nor am I willing, because the right of intervention is ordinarily one of discretion, to rest it alone upon the rule of nonappealability in such cases. In this case, the petitioner is a sovereign state, and as such is entitled, I think, to have the right to intervention considered in this court. In addition to all of this, the questions involved are important and of longstanding, and have been fully and ably discussed in the briefs and in the oral argument. Their final determination is sought by both sides.
The avowed object of appellant in seeking to intervene was to afford the state the opportunity of protecting its claimed interests in the ultimate disposition of the Atlantic Yadkin Railroad, to enable it to place itself in position to oppose confirmation to the Southern Railway if that company should be the high bidder at the sale, which in the orderly course of the proceeding, will presently be directed by the court, and also to have the District Court inquire into the validity of the so-called dismemberment of the Cape Fear Yadkin Valley Railroad which happened more than 25 years ago.
I agree with the District Court that the state has failed to show it has such an interest in the subject-matter as would authorize the granting of its petition. I am also of opinion that, since the decision of the Supreme Court of North Carolina in the case of Manning v. A. Y. Railroad Co., 188 N.C. 648, 125 S.E. 555, every question in relation to the legality of the sale of the railroad of the Cape Fear Yadkin Valley and its physical division between the Atlantic Coast Line and the Southern Railway is foreclosed and determined. I think it clear, also, that whatever interest the state may have as parens patriæ in behalf of its citizens has not been challenged by anything in the proceeding to the present.
Whether, when the decree selling the road has been passed and executed, and the court is called on to accept or reject the offer to buy, a situation may not arise in which it would be entirely proper to allow the state, as a matter of right, to intervene and show cause against confirmation to the particular buyer, because the control and ownership by such buyer would violate the laws of North Carolina, presents an entirely different question, but its determination in the present state of the case would be premature. If, and when, the event occurs which the state of North Carolina anticipates and seeks to avoid, the District Court, I have no doubt, even if convinced that the right to intervene, if prayed, should be again denied, will nevertheless avail itself of the assistance of the state, as the friend of the court, to the end that its decree may not prejudice any right or violate any statute of the state.