In Ex parte Leaf Tobacco Board of Trade, 222 U.S. 578, 32 S. Ct. 833, 56 L. Ed. 323, after judgment in U.S. v. American Tobacco Co., 221 U.S. 106, 31 S. Ct. 632, 55 L. Ed. 663, petitioners, comprising 75 tobacco concerns, sought to intervene on the ground that they were vitally interested in the determination.Summary of this case from United States v. Houde Engineering Corporation
Original. Motion for leave to file petition. Submitted December 4, 1911. Decided December 11, 1911.
One who is not a party to the record and judgment is not entitled to appeal therefrom. The action of the lower court in refusing to permit the movers to become parties to the record in this case is not susceptible of being reviewed by this court on appeal; or indirectly, under the circumstances of this case, by mandamus. The merely general nature and character of the petitioners' interest in this proceeding is not such as to authorize them to assail the action of the court below. This is the more obvious as the act of the court which is assailed has been accepted by the parties to the record.
Mr. Felix H. Levy and Mr. Benjamin N. Cardozo for petitioner:
If the decree of the Circuit Court fails to give effect to the mandate of this court, the wrong is one that may properly be redressed at the instance of this petitioner. Matter of Eastern Cherokees, 220 U.S. 83.
Where a public duty exists, a citizen has such an interest in its performance as entitles him to the protection of the writ of mandamus. In such cases it matters not that he be not a party to the record. Union Pacific R.R. Co. v. Hall, 91 U.S. 343, 354; 26 Cyc. 401; Attorney-General v. Boston, 123 Mass. 460; Mayor c. of London v. Cox, L.R. 2 H.L. 239, 278; Chambers v. Green, L.R. 20 Eq. Cas. (1875), 552, 554.
If the decree be repugnant to the mandate, mandamus is the appropriate remedy. Matter of Eastern Cherokees, 220 U.S. 83; In re Potts, 166 U.S. 263; In re City Bank, 153 U.S. 246; Stewart v. Salomon, 97 U.S. 361; Tyler v. Magwire, 17 Wall. 253, 282.
In re Sandford Fork Tool Co., 160 U.S. 247, is not applicable here so as to defeat the right to mandamus.
If the writ of mandamus be refused, the petitioner and the public are without a remedy. There can be no appeal, because the petitioner was not a party to the suit, and the Circuit Court denied a motion for leave to intervene. See Virginia v. Rives, 100 U.S. 313, 323.
The decree is repugnant to the mandate, and perpetuates a monopoly which this court declared should be destroyed.
The decisions in the Northern Securities Case and the Standard Oil Case are inapplicable here.
The court has power to impose any terms that it thinks just upon the defendants, as a condition of securing exemption from the appointment of a receiver and the issuance of an injunction against interstate traffic.
If the petitioner is not entitled to the writs prayed for as a matter of right, it is at least entitled as a friend of the court to bring the variance between the decree and the mandate to the court's notice; and the court has power of its own motion to remedy the wrong. Stewart v. Salomon, 97 U.S. 361; Ladd v. Stevenson, 112 N.Y. 325, 332; 23 Cyc. 948.
Leave to file petition denied.
1. One who is not a party to a record and judgment is not entitled to appeal therefrom. Bayard v. Lombard, 9 How. 530; Indiana v. Liverpool, London Globe Ins. Co., 109 U.S. 168; Ex parte Cockroft, 104 U.S. 578.
2. The action of the court below in refusing to permit the movers to become parties to the record is not susceptible of being reviewed by this court on appeal, or indirectly, under the circumstances here disclosed, by the writ of mandamus. In re Cutting, 94 U.S. 15, and see Credits Commutation Co. v. United States, 177 U.S. 311.
3. The merely general nature and character of the interest which the movers allege they have in the papers here filed is not in any event of such a character as to authorize them in this proceeding to assail the action of the court below. This is more obvious in this case since the act of the court which is assailed has been accepted by those who are parties to the record. United States v. Union Pacific R.R. Co., 105 U.S. 262; Elwell v. Fosdick, 134 U.S. 500.