The opinion
GRONER, District Judge
(concurring). I concur in the result, though not upon the ground that the petition for intervention is hot 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 ease, 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 patriae 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 ease would be premature. If, and when, *211 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.