Respondents Brief — United States v. California Canneries

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INDEX.

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SUBJECT MATTER:

ernest ae

(duestion presented Le er ee ee eer ee 3

Appeal was within jurisdiction of Court of Ap-

OC EE eae ara i all 3

The respondent was not a party to the anti-trust

suit wherein the United States is complain.

EP EST Te eT ore er Cee pesskeeees: Ge

The final decree appealable to this Court under the

plaitiant ees -etheaeee ‘ee aeace 20

Oe ne ee eee 26

CITATIONS:

Arnold v. United States, 263 U.S. 497............ 21

BAG KOR ('o. v. Interstate Commerce (Commis

sion, 215 U. 8. 216 ... : rete ey he eee ae

Bayard v. Lombard, 9 How. S30... 000 0 16

California Cooperative Canneries v. United

States, 55 App DCL 36.0... ; oe 2

Continental Insurance Co. v. United States, 259

U.S. 156 : cneee + iy ah ae

Corpus Juris, Vol. 3, 477-478 aan a ee ro

District of Columbia Rode, Ber. 226 ............. 3

ba parte Crockeroft, 104 US. 578 |. \aeeeeene> ae

Ba parte Jordan, 94 UL S. 248 000000000008. 1s

Ragenditing Act of Feb 11,1908 ..0...... 0. 6,7

Gilbert \. Endowment Association, 10 App. DO.

S16 ieee ee eee tee ee? ee ee ee Jae ae alee 4

a

ii Index Continued.

Page

Gilbert vo Washington Beneficial Endowment As-

ROGURCIOU, BUG Gi. Tk PE e obkae wha imens sedbeos 4

Ciilbert v. Endowment Association, 15 App. D.C.

66a) ah Cee he OK OS RES Oe Tt ee eee esa 4

Harmon v. Bashvdt, 20 Neb, 625 2... seine ad

Henry v. Travelers Ins. Co. 16 Cole, 179.002... 13

lrodiana Seuthern ROR. Co. and Witham H. Guion

vo Laverpool, London & Globe Insurance Co.,

we US. 16s uk oe ka as Make ake ies 17

In re Leaf Tobacco Board of Trade, 222 U.S. 578

18, 24

In re Michigan Central Railroad Company, 124

Ped. 727 .. pA Pgs ag eae ne. eh BE Is

Keatley v. Furey, 226 U. S. 390 .............. 2 DBD

EN FR SS ee ee 14

People v. Pfeiffer, 59 Cal. sy bees 12

Radelph ». Potemac Blectric Power Co, 24 bed

(2d) S82 ; , ce

Southern Pac. Terminal Co. v. Interstate Com

meree Commission, 166 Fed, 194 .......... 21

Stich v. Diekineon, 38 Cal. GOB... . 5... ccc eee 11

Swift & Co v. United States, 276 US. 31) 1, &

Tl nited States vo Swift & Co, et ab, 276 UL S311. 01, 25

Voorhees +. Indianapolis Car and Manufactur-

mg Co, 140 Tad 220; 39 NE 738. ive .

Williams v. Morgan, 111 UL S., GSH .0.0000...... 8

In the

Supreme Court of the United States

OOTrOBER T) KM, 1928

Usirep Srares ov America, Petitioner,

f

(AtiroRNia Coorrnarive CaN NERIES

ON WRIT OF CETIORARI TO THE COURT OF

APPEALS OF THE DISTRICT OF COLUMBIA

BRIEF FOR RESPONDENT

STATEMENT OF CASE

This is a writ of certiorari to the Court of Appeals

of the District of Columbia to review an order (R321)

of that Court of May 18, 1928. denying motion

(Ro 317) of the United States of April 24, 1928,

asking that Court to vacate its decree (R 315) of June

~. P24, and mandate (Ro 315-317) of June 20, 1924,

reversing an order (Ro S04) of the Supreme Court of

the Distret of Columbia of Man 8 3923. denving the

meetioty CRO P40) of the Cabhfornia Cooperative Can

nernes for leave to intervene in the suit of the United

States «. Swift & Company, and others, Equity No.

37623 (wee 276 US. 377).

The Government's motion to vacate was not filed

until about four years after the Court of Appeals had

finally disposed of the Canneries appeal, and was

based solely upon a suggestion of want of jurisdiction

over that appeal No appeal was taken from the de-

eree of reversal. The opinion of the Court of Appeals

appears in Oo App. DC. 36, and in WH Ped. G14. It

also appears in this record (R. 308-314).

February 27, 1020) the United States, as complain

ant, in the Supreme Court of the District of Columbia,

files! a suit im equity Ne 37025, under the anti-trust

laws, against Swift & Company, Armour & Company,

Morns & Company, Wilson & Company, Cudahy Pack

ing Commpagy, amd offers, alleging Violation of such

laws, amd praying for tnjyunetion (RO 117). On the

sate date, by comeent, a final decree (RB. 1T1S-]29) was

entered amaitist the «cle fetuants, Peserviliy jurisdiction

of the cause (R. 129, a oe After Various Uunsuceess

fal efforts on the part of the Calfornia Cooperative

(annerics te get the Government to ask the court to

Vacate or themdifs the dewree, the Canneries, on April

1M, 12, fled ite motion (RO 147) for leave to inter

vene By onder (RSM) of May 8, 1925, this motion

was denial, and the Canneries appealed to the Court

of Appeals of the Inetrict of Columbia. The appeal

was heard by that Court without any suggestion on the

parr? f hie CeesVerty ine f or mus «fhe pparllow “as ta

want of yuriediction, and on June 2, 124, that Court

revere? the ender appealet (ROS) and the man

dat: (HR SISA went down on June att, 7924

3

QUESTION PRESENTED

The sole question presented to this Court is whether

the Court of Appeals of the District of Columbia had

Jurisdiction to entertain an appeal from an order of

the Supreme Court of the District of Columbia deny-

ing the motion of the California Cooperative Canner-

ies for leave to intervene in a suit in equity filed by the

United States under the anti-trust laws,

APPEAL WAS WITHIN JURISDICTION OF

COURT OF APPEALS

The jurisdiction of the Court of Appeals is defined

by Section 226 of the Code of Law for the District of

Columbia, which reads as follows:

Any party aggrieved by auy final order, judg

ment, or decree of the Supreme Court of the Dis

triet of Columbia, or of any justice thereof, in

clading any final order or judgment in ANY Cause

heard on appeal from a Justice of the peace, may

appeal therefrom to the said eourt of appeals;

and upon such appeal the Court of Appeals shall

review sueh order, judgment, or decree, and af

firm, reverse, or modify the same as shall be just,

except as provided in the following sections Ap

peals shall also be allowed to said court of appeals

from all interlocutory orders of the Supreme

Court of the istriet of Columbia, or by any jus

tiee thereof, wher by the possession of preperty os

changed or affected, such as orders for the ap

pPomtment af receivers, granting iInjunetions, dis

solving writs of attachment, and. the bke; and

aise from any other imflerto: ufory order, in the

disetefion of the said court of apyrals, whenever

Hos made to appear to said court Upon petition

that it will be in the interest of Justice to allow

kuch appeal,

AO EMEP LL LEGION ILE LD SLO LE NEE A IIE

4

The Court of Appeals therefore has jurisdiction

over (1) any final order, judgment, or decree, (2) all

interlocutors orders whereby the possession of prop-

erty is changed or affected, and (2) any other tnter

loeutery order, in the court's discretion, when it will

be in the interest of justice to allow such appeal.

(In practice, such appeal (S) is called a special ap-

peal Criminal cases are now excluded.)

We contend that the order appealed, denying leave

to the Canneries to intervene, was final only as to its

right to intervene in the suit in equity ‘‘wherein the

United States is complainant,”’ and Swift & Co. and

others are defendants; and an appeal from such order

was within the jurisdiction of the Court of Appeals of

the District of Columbia under See. 226 of the Code,

supra.

In Gilbert v. Budowmen! Assoctation, 10 App. De.

316, the Court of Appeals entertarned an appeal from

a decree of the Supreme Court of the Distmet of Co-

lumbia that was theught ta bs final Subsequently,

however, this Court held that the decree was not final

ifseddhert vo Waskhengton BReacfisal Rndowmernt Asso

maiven, VTS UL S. FOL. 40 L Bal 1985), and when the

Inandate of this Court was recesved by the Court of

Appeals, a motion was made to vacate its decree, but

was overruled in Golhert vo Radowment Assocation,

1S App. DOC 40, in whieh that Court said (41-42);

The appellate jurisdiction of this court has mot

the same limitations as that of the Supreme Court

of the United States The rmeht of review of ths

latter is limited to the final pudements and de

erees of the subordinate trbuanale: the purisdiec

tien of the Court of Appeals of the District of Co

lumina with reference te the Supreme Court of

5

this District is very much broader; for it extends

to Various interlocutory orders and decrees specif-

ically, and to any and all interlocutory orders

from which this court upon petition might allow

an appeal, Whether the decree of the Supreme

Court of the Distriet in this cause from which the

appeal to this Court was taken is contained in

the classes of interlocutory orders specifically

enumerated, it is unnecessary to determine; since

we are of the opinion that, even if the decree ap-

pealed from was merely interlocutory and not

final, the hearing of the cause by this court: as

upon a final decree was the equivalent of the al-

lowance of an appeal upon the theory that the de-

cree Was only of an interlocutory character.

It is therefore plain that the Court of Appeals

had jurisdiction of the Canneries appeal from the

order of the lower court denying the motion for leave

to intervene, unless its jurisdiction had perished under

some other law in foree when that Court entertained

the appeal

APPEAL WAS NOT FROM FINAL DECREE IN

SUIT IN WHICH UNITED STATES WAS COM.

PLAINANT, BUT FROM AN ORDER DENY.

ING LEAVE TO A THIRD PARTY TO INTER.

VENE IN A SUIT IN WHICH UNITED

STATES WAS COMPLAINANT

The Government contends that an appeal from an

order denying leave to a third party (a stranger to

the record) to intervene and become a party to an

antitrust case, in which the United States is complain.

ant, is appealable only to the Supreme Court under

the Expediting Act; that therefore the Court of Ap-

b

peals of the District of Columbia had no jurisdiction

of the Cannerics appeal and its mandate is void.

The Expediting Act of February 11, 1903 (S32 St. L.

S25), as amended by the Act of June 29, 1910 (36 St. L.

S54), provides:

That in any suit in equity pending or here

after brought im any cireu:t court of the United

States under the Act entitled ‘An Act to protect

trade and commerce against unlawful restraints

and monopolies,’ approved July second, eighteen

hundred and mionetv, "An Net te regulate com

Ineree,” approved February fourth, eighteen hun

dred and eighty seven, or anv other Acts having

a tke purpose that hereafter may be enacted,

wherein the United States is complainant, the

ttorney General may file with the clerk of

suell court a certifieate that, it: his Gputiioan, the

ase is of general pubhe umportance, a copy of

whieh shall be omumediately furnished by such

elerk te each of the crrenit: pudges of the cireuit

whieh the ease oe pemdiing Thereupon such

, bus wave! proceds nee over others and in

overs War « Lpan! tert, aryed ten aesigtiod for hearing

Alo othe eariest practica He dav, before not less

than three of the cirenit gudiees of said court,

f there be three or more; and aif there be not

} iif } aby -, then lerfoore them

f seh «chetret pidge as thev mav select, of,

leeurt shall not at any tine be tnade

op te regeon of the poeessary oabeence or dis-

talifieatien of one or mere of the sam cireut

podges, the pustioe of the Sapreme Court assigtied

to that ecrenit or the other cireunt judge or judges

tiny designate a «hatrict 3 uige or judges within

the errenit who shall be competent to stom said

urt at tt! hearing of smicd want In the event

the jyreives setting in such ease shall be equally

hivialed ett as th the deeasion of impos

7

tion of said cause, or in the event that a majority

of said judges shall be unable to agree upon the

judgment, order, or decree finally disposing of

said case in said court which should be entered

i said cause, then they shall immediately certify

that fact to the Chief Justice of the United States,

Who shall at once designate and appoint some

cireuit judge to sit with said Judges and to assist

in determining said cause. Such order of the Chief

Justice shall be immediately transmitted to the

clerk of the distriet court in which said cause is

pending, and shall be entered upon the minutes of

said court. Thereupon said cause shall at once

be set down for reargument and the parties

‘thereto notified in writing by the clerk of said

court of the action of the court and the date fixed

for the reargument thereof * * ©.

Section 2 of the Act reads as follows:

“Sec. 2. That in every suit in equity pending

or hereafter brought in any circuit court of the

United States under any of said Acts, wherein the

United States is complainant, including cases sub-

mitted but net yet decided, an appeal from the

final decree of the cireuit court will lie only to the

Supreme Court, and must be taken within sixty

davs from the entry thereof: Provided, That in

any case where an appeal may have been taken

from the final decree of a circuit court to the cir

euit court of appeals before this Act takes effect,

the case shall proceed to a final decree therein,

and an appeal may be taken from such decree to

the Supreme Court in the manner now provided

hy law.'"

The Expediting Act therefore requires that the de.

eree, fo support a direct appeal to this court, (1) must

bee in suit under the ant: trust laws, (2) must be in a

Ss

suit in which the United States is the complainant,

and (3) must be final.

Section Loft the Net speaks of ‘tthe judgment, order,

or deeree finally disposing of the case, and Section

2 defines such decree as ‘the tinal decree’’ of the Cir.

cuit, now District Court. The Government, accord.

ingly, must establish that the order of the Supreme

Court of the District of Columbia, denving the Can.

heries” metion for leave to intervene, met all of

these requirements of the bx pediting Act. We do net

think that the order met anv of them.

The Government's contention is based upon a mis.

coneeption of what the Canneries appeal involved. It

Was net an appeal from the consent deeree in the suit

of the United States 0. Swift Company. Had it

teen se, it would have been dismissed by the Court,

because the Canneries Was not a party to that suit or

that decree. The appeal was from the order denying

ite etion for leave to intervene in that suit, wherein

the United States was the complainant and Swift &

Company and others were the defendants. For the

peur paene of the appeal, the order Was sufficiently final

as to the Cannerios to seistaim the appeal to the Court

of Appeals ander Seetion 226 of the Conde, supra, but

het to sustan a direct appeal te this Court under the

bingesiiting Act

In boorheers ©. Indianapolis Car and Manufacturing

Co, 140 Ind. 220; 30 N_ BL 738, the Court said:

The errors assigned here are (2) that the su

peroer court on general term, erred in overruling

tise thoeetieet: foo chysenppmm fhe appoal to the general

terin, (lf) in everraling the application and mo

tien of she permitted to mtroduce evi

chee Gn support of his plea ain the nature of a

plea puis darress continuance, and in declining ta

hear evidenee in suppert of said plea, and refus

,

stpepeeiiaar

M]

ing to rule upon said plea; and (3) in reversing

the order and judement of the court In special

term.

In support of the first specification, it is con.

tended that the order appealed from was neither

a final judgment nor such ay interlocutory order

as that an appeal is authorized therefrom. The

only interlocutory orders from which an appeal

is authorized by the statute generally are: First,

for the payment of money to compel the execution

of any instrument of writing, or the delivery or

assignment of any securities, evidences of debt,

documents, or things in action: second, for the

delivery of the possession of real property or the

sale thereof; third, granting or dissolving, or

overruling motions to dissolve, an injunetion in

term, and granting an injunction in vacation : and,

fourth, orders and Judgments upon writs of

habeas corpus made in term or vacation. Burns’

Rev. St. 1894, See. 658 (Rev. St. 1881, See, 646.)

The order in question was not an interlocutory

one, Within the meaning of these provisions: and,

if it was an interlocutory order at all, we know

ef no other provision of law authorizing an ap

peal from it. An interlocutory order appointing,

or refusing to appoint, a receiver, may be ap

pealed from within 10 davs thereafter. 1 Borns’

Rev, St. 1894, See. 1245 (Rev, St. ISS], See, 1231).

But this is not such an order. In all other eases

an appeal lies generally only from a final judg

ment. Burns’ Rev. St. 1844, See, 644 (Rev. St.

ISS8T, See. 632). A final judgment, within the

meaning of this section, is defined to be such a

judgment or order as makes a final disposition

of the case. Corey v. Neff, 68 Ind. 299. Mall v.

Shannon, 68 Ind. 470: Matter rv. Campbell, 71 Ind,

512; Reese v. Beck, 9 Ind. 238: Daris e. Davis, 36

Ind. 160: Northeutt ve. Buckle s, 6O Tnd. D777: Tau

lor v, Roard, 120 Ind. 121, 22 N. KB. 108: Champ tv.

Kenenck, 130 Ind. 545, 30 No EL, 635; Thomas rv.

10

Radway Co. (Ind. Sup.) 30 N. E. 44, and authori.

ties cited; Elliott, App. Proc., Sections 83-85, and

authorities cited.

It is objected to the right of appeal from the

order denying the petition that such petitioner,

the rolling mill, was net a party to the action of

Voorhees and the appointment of the receiver, be

cause the court had refused to make it such in

the denial of the petition, and hence, being a

stranger to the record, it could not appeal. But

this contention is based on a misconception of

what it is that the Rolling Mill was appealing

from. The record clearly shows that it was not

appealing or trying to appeal from Voorhees’

judgment against the car company. If it had so

appealed, or tried so to appeal, its effort should

have been properly met by a dismissal of such

appeal or attempted appeal It also clearly ap

pears that the Rolling Mill was not appealing, or

attempting to appeal, from the order appomting

the receiver, Such an appeal would have been

equally unavailing. But the Rolling Mill was ap

pealing from the action of the special term on its

petition asking to be allowed to intervene in the

proceedings resulting in the appointment of the

receiver for the alleged purpose of better pro

tecting the interests of itself, a creditor of the

Car Company, together with all other general

ereditors of the insolvent Car Company. It can

hardly be said that the Car Company was not a

party to its own petition of intervention, or that

it was not a party to the order of the special term

denying its petition. It was a party to the peti

tion and order thereon, within the meaning of the

law requiring, as a prerequisite to the right of

appeal, that the party inveking «uch right must

be a party to the order or judgment appealed

from.

The order or judgment appealed from was one

that made a final disposition of the case made by

11

the petition. It ¢ sposed of all the rights therein

sought to be assereed and enforced, not tempo-

rarily, but for all time to come. It made an end

of those rights. That brings the ease within the

authorities as to what is such a final judgment as

that an appeal may be had therefrom.

On page 9 of its brief, the Government maintains

that ‘ta decree denying an application for leave to

intervene is final,’ and in support of this contention

seven State cases are cited, but no reference is made

to any of the federal cases on the subject. The State

cases cited by the Government go no further than

to hold that a decree denying an application for leave

to intervene is final, for the purpose of appeal, only

as to the would-be intervenor but nobody else.

An examination of the Government's brief, and

the State cases therein cited, shows that the Govern

ment is laboring under the same misapprehension as

to the Canneries appeal as was the appellee in the

Voorhees case, The Government does net quote from

the State cases cited, but assumes that the order de-

nying the Canneries motion for leave to ‘ntervene was

a final decree in the suit in which the United States

was complainant. The cases cited by the Government

do not show that the order denying leave to intervene

was a final deeree in the original suit by the Govern.

ment against the Packers, but, on the contrary, they

do show that it was final as to the Canneries, and that

the Canneries could appeal therefrom; and they fur-

ther show that the appeal must be from the order

denying intervention, and not from the final decree

in the original suit,

In Stich vo Dickinson, 38 Cal, GOS, GOO-10 (cited by

the Government), the Court says:

+ avy

reread

13

The plaintiff, Stich, claims to be the owner

of a note and mortgage made by the defendant,

Dickinson, to one Jordan, since deceased, and

prays for a judgment of foreclosure and sale.

The defendant, in his answer, denies that the

plaintiff is the owner of the note and mortgage,

or that he has any interest therein, and sets up

| other defenses. Goldner filed an intervention, as

| administrator of Jordon, in which he denies that

Stich has or ever had any tithe to or interest in

the note and mortgage, which he avers belonged

| to Jordon at the time of his death, and to which

| the intervenor is entitled as his administrator;

| and he prays for a foreclosure of the mortgage

and a sale of the property for the benefit of Jor

don’s estate. The defendants demurred to the in.

tervention on the ground, among others, that it

does not state facts which entitle the intervenor

to intervene, inasmuch as it does not show that the

intervenor has any interest in the matter in liti

gation, in the suceess of either of the parties, or

against both or all of them. The demurrer was

sustained and a judgment was therenpon entered

against the intervenor, from which judgment he

prosecutes this appeal.

The respondents claim that the appeal is pre

mature, there having been no final judgment in

the action as between the original parties to it.

But this position is not tenable. There has been

a final judgment against the intervenor, and no

judgment can hereafter be entered as to him. So

far as he is concerned, the judgment is final, and

ended the htigatien in that Court.

In People vo Phaffer, 59 Cal. 89, 90 ‘cited by the

Government), the Court says:

Neither the appellant nor his intestate was a

party to the proceedings for the condemnation

13

of the lands and springs of water thereon, which

were commenced for the benefit of the University

of California, etc., under an Act of the Legislature

entitled * * *. The only relation which either

of them had to the proceedings was this: Several

weeks after the Commissioner appointed by the

Court had appraised the value of the springs and

lands deseribed in the complaint and had _ filed

their report, the appellants, ax administrators of

the estate of Jose Domingo Peralta, deceased,

made application for leave te intervene in the

proceedings. The court made an ex parte order

permitting him to present and file a complaint in

intervention, but subsequently, after filing the

complaint, set aside the order, refused to allow

him to intervene, and dismissed his complaint.

From the judgment of dismissal the appellant

took no appeal, as he might have done (Stich v.

Goldner, 38 Cal. 610); but after the Court had

confirmed the report of the valuation by the Com.

missioners, and entered a judgment of condemna-

tion between the parties to the proceedings, pur.

suant to the prevision of the statute, he prose

cuted this appeal from that judgment.

A proceeding to condemn land for a publie

purpose is a special proceeding, from the final

Judgment in which an appeal may be taken by any

party aggrieved. But a party agvrieved means

a party to the action or one prejudiced by the

judgment. The appellant was not a party to the

action in the Court below, because his suit to be

made a party was rejected, nor was he injured

by the judgment. And what he claims to have

been a final judgment was not a judgment against

him. He was neither a party nor privity to it.

It did not affect his rights: and he was in no way

prejudiced by it.

In Henry vo Travelers Ins. Co.. 16 Colo. 179, 184

(cited by the Government), the Court says:

14

It is insisted that there is no final judgment

in this case to which a writ of error will lie This

objection is not tenable. Upon the entry of the

judgment or order denying Henry's application

to intervene, the cause was finally determined as

to him; and unless he be entitled to a writ of error

from this court, he is precluded from any review

of such judgment.

In Harmon vo Bashydt, 200 Neb. 625 (cited by the

Government), suit was brought to foreclose a mort

gage. Harmon filed an application to intervene claim.

ing to be the holder of two of the notes secured by the

mortgage. The Court says (p. 630):

On the 30th of April, ISS86, the court overruled

the application of Harmon to intervene, to which

he excepted, and now brings the cause into this

court by petition in error, The attorneys for

Bashydt claim that as there is no final order and

that a judgment has not been rendered in the

action, this proceeding in error is premature. An

order in the progress of an action, to be final,

must be such as determines the action and pre

vents a judgment. An order affecting a substan

tial right, made in a special proceeding, is a final

order, © ° °* Soin the case at bar, Harmon

had some interest in the goods in question and

some right to the possession apparently. The ex

tent of that right is a question for the jury; but

sufficient was shown prima facie to entitle him to

intervene.

The foregoing citations by the Government appear

in a comprehensive note in 123 A. S. Ro 280-314, on

the subject of intervention, reading in part as follows

(313-314):

If the application for leave to intervene is

15

denied, the order of denial does not terminate

the action or proceeding, and in that sense is not

final, and it has been hence held not to be subject

to appeal under statutes allowing appeals from

final Judgments only: Fawrthorne v. Wigginton, 11

B. Mon. 368; Bennett v. Whitcomb, 25 Minn. 148

Greenwalt v. Natrona 1. Co. (Wyo.), 92 Pac. 1008;

Lewts v. Baltimore & L. R. Co., 62 Fed. 218, 10

C. C. A. 446. The refusal of leave to file a com-

plaint of intervention or the striking it out, or

sustaining a demurrer to it after it is filed, though

it does not terminate the action or proceeding or

dispose of it as between the original parties,

does effectually terminate it as to the intervenor

or appheant, and, as to him, it is a final judg-

ment or order. He may, therefore, appeal and

prosecute a writ of error without waiting for any

further disposition of the case; Stitch vo Dickin

son, SS Cal. GOS: People v. Pfe ier, D9 Cal, SO:

Mensa sv. Travelers’ Ins. Co., 16 Col, 179, 26 Pac.

SIS; Schlieder vo Martinez, 38 La. Aun. 847; Har

man. Bash vdt, 30 Neh, 236, 46 N. W. 480; Rollins

Vv. Rollins, T0N.C. 264; Loven v. Parson, 127 N.C,

SOL, 37S. E271; Bass vo Fontlerou, 11 Tex. 698,

ante, VIL In trath, it would appear that he must

appeal from that order or he cannot appeal at all,

for after he has been excluded from the case by

the final action of the court on his application or

petition, he is not a party to the action and can

not appeal from a final judgment entered between

thease whe are parties: People vo Pfeiffer, 59 Cal,

80: Lorber v. Connor, 82 lowa, 739, 47 N. W. 1006,

The cases cited point out the distinction between

noorder denying leave to a third party to intervene

nh axnit, and a final decree in the suit between the

riginal parties thereto; they also show that such an

rder is final only as to the potential intervenor and

16

nobody else; that therefore the order denying leave

to the Canneries to intervene (R. 304) is not a final

decree in the suit against the Packers, ‘‘wherein the

United States is complainant ;"’ and is not appealable

directly to this Court under the Expediting Act. In

the proceeding by which the Canneries moved for

leave to intervene, the Canneries was the complainant,

and not the United States, as we have already stated,

and though the order denying the motion is sufficiently

final to support an appeal by the Canneries, it is not

final as to anybody else, and, particularly, it is not a

final order, judgment, or decree, disposing of the whole

anti-trust suit, as required by the Expediting Act.

THE RESPONDENT WAS NOT A PARTY TO THE

ANTI.TRUST SUIT WHEREIN THE UNITED

STATES IS COMPLAINANT

The Government's contention amounts to this: That

Respondent ‘s appeal from the order denying leave to

become a party was from a final decree in the suit in

equity to which Respondent was not a party. This

amounts to the claim that one not a complainant or

defendant in a suit can appeal from a final decree in

the suit. The error in this position is pointed out in

Voorkecs Vv. ladianapelis Car & Mfg. Co, supra.

It is certainly good law that one who is a stranger

and not s party to a suit, cannot appeal from a final

decree in such suit. In Bayard ©. Lombard, 9 How.

530, thie Court said (551):

Tt is a well settled maxim of the law, that ‘tno

person can bring a writ of error to reverse a judg

ment who is not a party or privy to the record.”

The judgment or order of the court on

17

a summary motion, or a collateral question arising

like the present on the suggestion of a third party,

is not re-examinable on a writ of error issued on

the judgment with which it may happen to be

connected,

In Indiana Southern Railroad Company and Will.

am WH. Guion v. Liverpool, London & Globe Insurance

Company, 109 U.S. 168, the Court said (173):

The petition of Guion was for leave to appeal

from a decree in a suit to which he was not a

party. We decided in Br parte Cutting, 94 US.

14, that such an appeal could not be taken. He

had applied for leave to become a party, but this

leave was not given. So he is not a party to the

decree from which he appeals. * * *

In Ba parte Cockeroft, 104 U.S. S78, the petitioner

asked this Court for a writ of mandamus requiring a

Cireuit Court to allow an appeal by him from an order

of the court confirming the sale of a railroad. The

petitioner was not a party to the suit, nor did it appear

that he ever asked to be made a party. He was not the

holder of any of the bonds which, by the decree under

which the sale was made, were entitled to a distribu.

tive share of the proceeds. He was evidently heard as

a matter of favor, and not because he had any right to

intervene. In denying his petition, this Court. said

(579);

Inasmuch, therefore, as the petitioner was not

n party to the suit, either by an express order of

the court to that effect, or being trented as such.

his appheation for an appeal was properly denied

RRO er

Is

This case cannot be distinguished in principle

from that of Ry parte Cutting, 94 UL S. 14.

In the case of Jn re Leaf Tebacco Board uf Trade,

222 US. O78, the petitioner asked for a writ of man

damus to compel the court below to permit him to

witervene and appeal. In denying his petition, this

Court said (S80)

One whe is not a party to a record and judg

ment is not entitled to appeal therefrom.

It is equally well settled that after one has been per

mitted to intervene, he becomes a party to the suit,

and can appeal from the final decree. Eur parte Jor-

dan, MUS. 248; Williams ©. Morgan, 111 U.S. 6S4:

Continental lusurance Company oo Umited States, 259

U.S 156 ‘cited by the Government on pore are 1] of its

brief: Im Re Michigan Central Raidroad Company,

124 Ped. 727 («C. CL A ). In the case lust eited, the

Court said (730):

The appeal mn this case shonld hiave leven

allowed Tt may be that the Michigan Central

Railroad Company was not originally a party to

the foreclosure suit of the Farmers’ Loan & Trust

Company against the Detroit & Bay City Railroad

Company. That it subsequently became a party

bs intervention for the PUL prowe of obtaining relief

in respect of a part of the purchase price of the

railroad sold under the decree in that cause is

undeniable Under that intervention the peti

troner made the bond and gave the collateral «e

eurity out of which has grown the clerk's claim for

the com pensation adjudged by the deere. com

plained of. The proceeding thus grafted upon the

old foreclosure suit constituted a properly related

aneillary suit, the parties to which were the pet)

19

tioner and the Farmers’ Loan & Trust Company.

In the course of the execution of the orders and

decrees made in that intervention the clerk of the

court claimed to have been entitled to certain costs

and commissions, which he asserted by his own

subintervention, and to which he made the peti-

tioner a party. It is therefore not the case of an

effort to appeal from a decree by a stranger whose

auppleation to intervene had been denied, as in Eu

parte Cutting, 94 UL S. 14, 24 L. Ed. 49, but the

case of one who had become a party for the pur-

pose of the intervention, and who had been treated

as such for more than 20 years. In respect of any

matter within the scope of the intervention the

petitioner had thereby become an actor, with lib-

erty to present its contention and obtain an ad-

Judication, and a consequent right to have what-

ever Was done reviewed by this court if) the

hatter Was one in its nature appealable. Eu parte

Jordan, 94: U.S. 248, 24 L. Ed. 123: Hamlin v.

Toledo, etc., R. Co., 78 Fed. 664, 24 CL CLA 271,

S61. R.A 826; Williams v. Morgan, 111 U.S. 684,

699, 4 Sup. Ct. 638, 28 L. Ed. 559,

We repeat that the Canneries was a stranger to the

suit of the Government against. the Packers, and

remained such, in that its motion for leave to intervene

Was denied and not granted. Its case was separate

from that of the United States against the Packers,

This the Government recognizes by entitling this cer

tiorari: proceeding, The United States of America.

Petitioner, vs. California Cooperative Cannerics.

There are no parties to it except the United States and

the Canneries. It involves nothing but the complaint

of the Canneries against the order denying its motion

for leave to intervene. Only one party to the anti

trust suit is a party to this proceeding, namely, the

United States.

.

a)

With respect to Continental Insurance Company v.

United States, 239 U.S. 156, which the Government

cites in support of its contention that a direct appeal!

to this Court would lie, under the Expediting Act, from

the order denying the Canneries motion for leave to

intervene, the Government fails to note that in that

ease the interventions were granted, that the inter

Venors thereby became parties to and actors in the suit

with the same right of appeal as any other party

thereto, and that the merits of their claims were ad

jucheated by the final decree of the court. Here, how

ever, the Canneries motion for leave to intervene was

denied, it never became a party to the suit, and the

merits of its claims were not adjudicated. The ease of

Continental Insurance Company co. United States is

therefore the exact contrary of the Canneries case. If,

in that case, the motions for leave to intervene had

been denied, and the potential intervenors had taken

direct appeals to this Court, under the Expediting Act,

from the orders denving leave to intervene, a totally

different question would have been presented.

THE FINAL DECREE APPEALABLE TO THIS

COURT UNDER THE EXPEDITING ACT

MUST DISPOSE OF THE MERITS OF THE

CASE WHEREIN THE UNITED STATES I8S

COMPLAINANT

A direct appeal! to this court, under the bixpesditing

Act, us governed by a statute radically different in its

provisions from that controlling appeals from the Su

preme Court of the District of Columbia to the Court

of Appeals of the District of Columbia. A final order,

judgment, or decree, to be covered by the Expediting

eh

ep

oes oe okie

2

Act, must be such as is defined in Arnold v. United

States, 263 U.S. 427, 434, as follows:

It is well settled that a case may not be

brought here by writ of error or appeal in frag-

ments; that to be reviewable a judgment or de-

cree must be not only final, but complete, that is,

final not only as to the parties, but as to the

Whole subject-matter and as to all the causes of

action involved; and that if the judgment or de

cree be not thus final and complete, the writ of

error or appeal must be dismissed for want of

yurisdietion, TMohorst vo Packet Co, 148 UL 8,

262, 264; Collins vo Miller, 252 UL S. 364, 370;

Chine ida Nay ration Corporation \. Joh, phe Pe Uy. Ss

O21, O22: and enses therein cited

It is and has been the policy of Congress to relieve

this Court as much as possible, by restricting its ap

pellate jurisdiction, and atuis therefore inconceivable

that the Expediting Aet was intended to give direct

appeals as matter of right from every order or decree

The Expediting Aet means exactly what it says, when

it expressly confines its scope to the deerees finally

disposing of the suits. As said by the three Judges

in Seuthern Pacific Terminal Companu v. Interstate

Commerce Commissioon, 166 Fed. 184, 185-186, the Ex

pediting Aet, fairly construed, permits the ease to

proceed in the usual way (exeept it is to be given

precedence and expedited) until final hearing, when it

is to be set down before three Cirenit Judges, and after

the final deeree, it may be earried within sixty days

by appeal to the Supreme Court by either party, and

that ‘‘te apply it te all proceedings in the ease is, in

the nature of things, to defeat the very object of the

Act, and change it from an expediting act into a hin-

dering and delaying act."’

Re re

“bo

~~

In Baltimore & Ohio RR. Co. v. Interstate Com.

merce Commisston, 215 US. 216, this Court held that

the pros isions of the Expediting Act do not authorize

the trial Court to send up the whole case to this Court,

and further held that this Court will not consider a

case “in which no final judgment or decree or order

determinative of the merits was rendered.’ Cer-

tainly, the order of the Supreme Court of the District

of Columbia, denying the Canneries leave to inter-

Vene, Was hot only not determinative of the merits of

the case of the Government against the Packers, but

in no way affeeted the final decree.

The Government cites no case in which an unsuc-

cessful applicant for leave to intervene took a direct

appeal te this Court under the Expediting Act, and

we have not been able to find any such ease in which

this Court sustained the right to maintain such a

direct appeal. Owing to the vast and complicated

interests involved in anti-trust suits, and the many

parties concerned therein, applications for leave to

intervene are numerous, Some have been granted

and some have been denied. If a direct appeal les

as of right to this Court from every order denying

leave to intervene, it is strange that we can find no

case in the books in which this Court sustained the

right to take and maintain such an appeal.

The Expediting Act itself afford« a conclusive an-

awer to the Government's contentions without consid.

ering the decisions showing the nature of the final

decrees whieh have been reviewed on direct appeals un

der the Expediting Act. The question of statutory

construction can best be adduced by reference to the

provisions of the Expediting Act itself (Rudolph v.

Potomac Electrw Power Company, 24 Fed. (2d)

882).

pad

23

The Expediting Act applies only to final decrees

on the merits of the whole case, and to such final

supplemental or subsequent decrees that directly af-

fect the merits of the original final decrees. The

statute contemplates only final decrees on the merits

in the strict technical sense of the term. An order

denying leave to intervene decides nothing either on

the merits of the case or on the merits of the pe-

tition for intervention, but merely shute or opens

the doors of the Court to a hearing on the merits

as set up in the intervening petition. Until allowed

to intervene, the applicant is a mere stranger to the

suit, and for this reason the Canneries could not have

taken a direct appeal to this Court from the order

denying intervention, and such an appeal, if taken,

would have been dismissed for want of jurisdiction.

There could not be any final decree on the merits of

the intervening petition, unless and until the Can

neries was allowed to intervene, and until such a

final decree on the merits was entered, it could not

be determined whether it was within or without the

Expediting Act. Only parties to anti-trust suits, and

net strangers, can take direet appeals to this Court

under the Expediting Aet. Until a stranger secures a

standing, he cannot be heard on the question of ju

risdiction or any other matter (see Neatley vo Pure u,

226 U.S. 399, 403).

Reeurring to the ease of Continental Insurance

Company v. United States, 259 U.S. 156: That was

A suit instituted by the Government under the anti-

trust acts. In the District Court, certain minority

stockholders were permitted to intervene. The final

decree entered in that ease adjudicated the rights of

the interveners, and it was not appealed by the Gov-

ernment or by the defendants, but was appealed by

the interveners. The final decree which was entered

in the District Court, and from which the interveners

prosecuted their appeal, was entered upon a prior

mandate of this Court. Upon the appeal thus prose

cuted by the interveners, and which, we repeat, in

volved the merits of the final decree in an anti-trust

suit, this (‘ourt, in the case cited, reviewed the decree

In ve Leaf Tobacco Board of Trade, 222 U.S. 578

the petitioner asked a writ of mandamus to compel the

court below to permit him to intervene in the anti

trust suit of (ometed States vo Amenwan Tobacco (o.,

221 US. 106. In denying his petition, this Court said

(580);

The action of the court below in re fusing te per

mit the movers ta become puirtios te the record os

thet susceptible of being reviewed bey this court on

appeal, or indirectly, under the cireumstanees

here disclosed, hs the writ of matcdameus, |

parte Cutting, M4, US. 15, U4 Le Ke $'0: sated sere

Credits Commutation Coo United States, Via

UoOS.S11, 44L. Bel Ts2, fo Sup Ot Ren. ane

In 5 ‘a7 t7s, tis sand:

In the absence of special statutory provision

an interloenutors or «liscretionars order or decrees

perreeitisnse or reftsine te peertnit mntervention im

the Cause is tet apeyee alabl Sue h otders, dior

ever, are mepepreras liable im some states tioder statutes

allowing appeals from interlocutory orders of

deerees invels mg the merits of the wetion or some

peart thereat, or other special provistens of the

statute covering such cases And of a6 veneralls

held that the fina! denial or ove rruling of a pret

tion or application to intervene is a final judgment

or order so far as the petitioner or applicant is

concerned, and therefore subject to appeal or writ

of error by him, unless it is within the diseretion

of the court, so as to come within the rule pre-

cluding an appeal or writ of error to review a dis-

cretionary order or decree.

In Aeatlhey v. Furey, 226 U.S. 399, an intervening

petition Was dismissed on its merits, and the petitioner

appealed direetly to this Court. In dismissing the ap-

peal, this Court said (404):

Right or wrong, that was the decision of the

circuit court, and it is obvious that a dismissal of

the petition on that ground does not warrant a

direet appeal, whether the court had jurisdiction

or not. The court had jurisdiction over the in-

tervention and decided against it on the merits.

That question logically and chronologically pre-

ceded any question of Jurisdiction in the principal

case, The question of jurisdiction in the principal

case Was not yet open, as there had been no final

decree therein, and as, by virtue of the decision

that the intervener had no standing, the question

could not be raised by him. * * °

The recent decision of this Court (Swift & Company

v. United States, 276 U.S. 311) on the Packers appeal

from the order of the Supreme Court of the District

of Columbia denying their motions to vacate the final

consent decree of February 27, 1920, is not in point

here. Those motions were made by original parties

to and in the anti-trust suit, and sought to put an end

to the final decree and the whole case. This Court

held that such motions came within the clause of the

decree (R. 129) retaining jurisdiction to entertain any

applications by the parties in respect to the decree.

°6

The sole question presented to this Court is the jur-

isdiction of the Court of Appeals of the District of

Columbia over the Canneries appeal. In its brief, the

Government refers to certain orders entered by the

Supreme Court of the Distmet of Columbia subse

quent to the mandate (R. 315-317) of the Court of Ap

peals, but as An questions concerning such orders are

net properly before this Court, we do not discuss them

in this brief.

CONCLUSION

We therefore respectfully submit, (1) that the

(Court of Appeals of the Distriet of Columbia had

Urisdietion of the Canneries” appeal from the order of

May 8, 1823; (2) that the Court of Appeals wax right

in denving the Government's motion to vacate; (3)

that the wrt of certroran should be dismissed as im

providently granted; or (4) that the order of the Court

of Appeals denving the Government's motion to vacate

shoukd be affirmed

Fuank J. Howaw,

Counsel for Respondent

Washington, D.C,

February 25, 1929.

RELI ERS,. be

-

4, +

eee, Vette

Ber at

In the

Supreme Court of the United States

Ocronen Tram, 1028

Uniree Staves oF Amenica, Petitioner,

.

C'argpomNnia Cooperative CaNnNERIES

RESPONDENTS MEMORANDUM REPLY TO

BRIEF OF NATIONAL WHOLESALE

GROCERS' ASSOCIATION.

In se far as the Grocers’ bref ties to the single

Question presented in this proceeding, it Is pertinent,

but in so far as it strays from the record, and seeks to

Incorporate, by quotations, matters extraneous, it ts

het helpful

The Grocers sav that two Questions are presented,

namely, (1) technieal, and (2) practieal, But one

question is presented, and that is the technical ques

tron of law There is ne practical question before thi

=

Court. The only question for decision relates to the

jurisdiction of the Court of Appeals of the District

of Columbia over the Canneries appeal from the order

of the trial court denying leave to intervene. The

(irowers are at pains to inject into this record the so

called suspending order, by quoting it in their brief,

and by reference to the record in another case which

Was before this Court, Phe so-called suspending order

does not appearin this record, and was properly omit

ted. That order was not entered until about one vear

after the Court of Appeals had finally disposed of the

Cannertes appeal The order was that of the trial

court, and notoof the Court of Appeals.

The jurisdiction of the Court of Appeals certainls

cannot be tested by some order puissedl ben the trial

court long after the Court of Appeals had disposed

of the matter. The so called suspending order is hot,

therefore, before this Court for any proper Purpose

Whatsoever,

The Grocers assertion that the Canneries is) the

only party interested in the so-called suspending erder,

‘ niirely overlooks the numerous defendants to the bel!

in the main cause, all of whom were and are very

vitally coneerned in and affeeted by it,

Contimental Insurance Company v. United States,

259 US. 156, cited by the Grocers, is sufficiently con

sidered on pages TS, 20, and 24 of our brief,

Terminal Raslroad Association ©. United States, 200

US. 17, also cited by the Grocers, is not in pomt. That

Case invelved a direct question as to the seope of a

final decree in an antitrust suit. It presented a final

adjudication in contempt. The Distret Court held

that the acts of the alleged contemptors violated the

decree aa construed hes that Court, but this Court ean

3

strued the decree otherwise, and reversed the contempt

adjudication. Such adjudication was final. Cogen tv.

United States, 278 ULS, 221,

The Grocers also cite lnterstate Commerce Commis

sion «. Baird, 194 U.S. 25, but their quotation from

that opinion clearly shows that it is not in point on the

single question involved in this proceeding.

The suggestion of the Grocers and the Government

that the Canneries’ contract expired January 1, 1929,

is immaterial, The contract was in foree when the

Court of Appeals entertained the appeal of the Can

neries, and the question Ix to be considered as of that

tume and not of this. The only parties to this proceed

ing are the United States and the Canneries. If we

piss beyond the single question involved. then all of

the defendants to the main suit are entitled to be heard.

In addition, the jurisdiction of the Court of Appeats

does not depend upon the existence or non-existence

of a private contract. The question presented is one

of jurisdiction and net of power,

Respectfully submitted,

Bean J. Hoan,

Nevson T. Hanrson,

Counsel for it sponde nf.

Washington, D.C.

April 1a, baa.

MAR 5 19

IN THE

Supreme Court of the United States

Ocroser Trem, 1928,

No. 375.

UNITED STATES OF AMERICA,

Petitioner.

against

CALIFORNIA COOPERATIVE CANNERIES.

Ox Warr or Cenrionant ro tux Court or APPEALS OF THE

Districr oy Conumpta,

BRIEF IN BEHALF OF NATIONAL WHOLESALE

GROCERS’ ASSOCIATION OF THE UNITED

STATES, INTERVENER.

BREEP, ABBOTT & MORGAN,

Attorneys for National Wholesale Grocers’

desoriation of the United States,

15 Broad Street,

Rorough of Manhattan,

New York City.

WILLIAM ©. BREED,

SUMNER FORD,

EDWARD A CRAIGHILIL JR,

tif Counsel

PEELS LLIN

ornarredemirnniemmens

INDEX.

Intervener’s status = oe ee

Techmical and practical questions presented

Connection of California Cooperative Canneries with

suit

Suspension of consent decree and subsequent pro-

ceedings aa NS ear EK Fae BEES ARS

Points:

I. Under the Expediting Act the appeal of the

Il.

Canneries from the decree denying its motion

for leave to intervene lay ‘‘only to the Su-

preme Court’’, and, as the Court of Appeals of

the District of Columbia had no jurisdiction

of that appeal, its decree therein was null and

void

The decree of the District Court of Appeals

refusing to vacate its previous deeree, by vir-

tue of which the Canneries was enabled to

intervene and secure the suspension of the

consent deeree, should be reversed, and the

previous deeree should be declared void and

of no effect

ta

1]

ii

CITaTIONsS.

PAGE

CASES:

Continental Co, rv. United States, 259 U.S. 157,

164 oe a 9

Corrigan v. Buckley, 271 U.S. 323 apeteniaiaes 5

Hodgson ¢. Vroom, 266 Fed. 267 ew 5 NSOR 5

luterstate Commerce Commission co. Baird, 194

U.8.3 = 10

Swift & Co. 7. United States, 276 U.S. 311 — a—e

Terminal R. Ro Assoc. rv. United States, 266 U.S.

17 eer oN 9

Sratutes, ETc. :

Act of February mW, 108 (UL S. Code, title 49,

48-45) 10

Hearings on Meat Packer Legislation, Series D.,

Part I, p. 105 3

Packers Consent Deeree Hearings before Sub-

committee of the Committee on Agriculture-and

Forestry, U.S. Senate, 67th Congress, March

23 and April 21, 122 eee 3

PORNO + a8 SOL LE APSE Dy,

Supreme Court of the United States

Ocroper Term, 1928,

No. 375.

Unitep States or AMERICA,

Petitioner,

against

CaLiIvonnia Co-oPpERATIVE CANNERIES.

BRIEF IN BEHALF OF NATIONAL WHOLESALE

GROCERS’ ASSOCIATION OF THE UNITED

STATES, INTERVENER.

Intervener’s Status.

By an order of the Supreme Court of the Distriet of

Columbia dated November 5, 1921, National Wholesale

Grocers’ Association of the United States was granted

leave to intervene in this suit for the purpose of being

‘heard in opposition to any proposed change in the con-

sent decree which would deprive the interveners of the

protection now secured by said decree’? (R. 145). Since

that time this intervener has actively cooperated in the

Government's efforts to sustain said decree and to restore

it to effective operation.

to

Technical and Practical Questions Presented.

On March 19, 1928, this court decided that the Packers’

Consent Decree was valid and binding, and that the Court

of Appeals of the District of Columbia had no jurisdiction

of an appeal from a decree of the District Supreme Court

denying a motion by the Armour and Swift defendants to

vacate said consent decree (Nuwiff d& Co. vo United States,

276 UL S. 311).

The technical question now before the Court is: Did

the Court of Appeals of the District of Columbia have

jurisdiction of an appeal from a decree of the District

Supreme Court, entered in the same suit, denying the ap

pheation of California Cooperative Canneries, a stranger

to the suit, for leave to intervene for the purpose of moving

to Vacate said consent decree!

The practical question is how most expeditiously to re

store operative effect to the consent decree, which this court

has held to be valid, and which stands out as the one real

accomplishment of the Government in its forty years of

effort to compel the Packers to comply with the Anti-Trust

Law.

Connection of California Co-operative Canneries

With Suit.

The only party openly resisting the attempt of the Gov

ernment to reanimate the consent decree is the intervener,

California (Co-operative Canneries (hereinafter called the

Canneries), whose only interest in the suit arose from a

contract with Armour & Company which, by its terms, ez

pired om January 1, 1929 (R152).

3

In its intervening petition (R. 146-218) the Canneries

set out said contract (R. 148-152) which contained the fol-

lowing provision (R. 151):

**In case governmental action materially inter-

feres with the performance of this contract by seeond

party [Armour & Co.], then and in that case it shall

have the right to cancel and terminate this agree-

meut by giving sixty days’ written notice to first

party of its intention so to do, and shall not be held

liable for any loss resulting therefrom."

The intervening petition alleged that after the entry of

the consent deeree Armour & Company notified the Can-

neries *‘that the said contract must be considered as can-

celled’* (R. 186).

The consent decree was entered on February 27, 1920

(KR. 118) and in the following May the Canneries first ap-

peared on the scene, asking the Congressional Committees

then considering the Packer and Stock Yards Act to nullify

the decree (Hearings on Meat Packer Legislation, Series

D, Part I, p. 105), and then applied to the Attorney General

to move to have the decree vacated or modified. After

public hearings the Attorney General on February 7, 1922,

denied this application (Packers Consent Decree Hearings

before Sub-Committee of the Committee on Agriculture and

Forestry, U.S. Senate, 67th Congress, March 23 and April

21, 1922).

Thereupon, on April 19, 1922 (R. 147) the Canneries

filed its aforesaid petition in the Supreme Court of the Dis-

trict of Columbia asking leave to intervene for the purpose

of moving to vacate the consent decree in its entirety or to

modify it so as to allow the packers either to resume their

4

dealings in the ‘‘unrelated lines’’ or to use their distribu.

tion facilities for moving same (R. 218).

On May 8, 1923, the District Supreme Court entered a

decree denying the application of the Canneries for leave

to intervene (R. S04) and the Canuneries, instead of appeal-

ing direct to this Court under the Expediting Act, took an

appeal to the Distriet Court of Appeals (R. 305). That

court assumed jurisdiction, reversed the deerce appealed

from, and directed that the court below allow the Canneries

to intervene and that *‘such further proceedings thereupon

be had as are necessary to determine the issue raised by

the appellant's petition’? (R. 315),

In its opinion the Court of Appeals said (R. 314):

“When an epurty court, in the exercise of its

Jurisdiction, mmakes a decree w hich, in determining

the myehts of the parties, enjoins one of them from

carrying out a lawful contract with persons not pur

ties to the suit, and gives effect to a cancellation

clause of such contract, itis the duty of the court,

if it retains jurisdiction of the case, as in this in

statice, to permit the intervention of the contracting

party, who is not a party to the original suit and

who ts detrimentally affected by the decree, nnd to

give him an opportunity to be heard. As we have

observed, without intervention appellant would be

left remediless, Valuable contract rights have been

stricken down without notice to appellant or ah op

portunity to be heard. Ttas a fundamental principle

of our jurisprudence that before private rights may

be affewted by judicial decree the party in interest

must have due notice and an opportunity to be heard

U pon the strict observance of this principle rests

the security of the citizen in the enjoyment of life,

Lherty, and property; otherwise these rights could

be divested without due process of law."’

ee

PEARS BES ON

5

The obvious fallacy in that statement lies in the assump-

tion that the consent decree was an adjudication by the

court, Whereas it was merely an agreement of the parties

under the sanction of the court (Hodgson v. Vroom, 266

Fed. 267, 268; C. C. A. 2d Cire.). The ‘due process of law’’

provisions of the Fifth and Fourteenth Amendments are

not applicable to contracts (Corrigan v. Buckley, 271 U. S.

323).

Suspension of Consent Decree and Subsequent

Proceedings.

Pursuant to the mandate of the Court of Appeals, the

District Supreme Court allowed the Canneries to intervene

and thereafter motions to vacate the consent decree were

filed by said intervener and by the Armour and Swift

defendants, Upon the motion papers and without any

hearing of any of the issues raised by the intervening peti-

tion of the Canneries, the court, on May 1, 1925, entered

the following order (Transcript of Record in Swift f€ Co.

Vv. United States, No. S81, Oet. Term, 1927 pp. 313, 318, 322

stm dy ay

O41):

“This cause came on to be further heard at this

term of court on the motions of the Swift and Ar-

mour groups of defendants to vacate and set aside

and declare void the decree of February 27, 1920,

entered herein, and also upon the motion of the

intervener, California Cooperative Canneries, to

Vacate or modify the decree or suspend its opera-

fon; and after argument by counsel for the respec.

five parties in interest and consideration by the

Court it is thereupon, this Ist day of May, 1925,

hereby

Adjudged, ordered and decreed as follows:

6

1. The said motion of the Swift and Armour

groups of defendants are overruled ;

2. The said motion of the California Cooperative

Canneries to suspend the operation of the said de-

cree of February 27, 1920, is granted and the opera-

tion of the said decree as a whole is suspended until

further order of the Court to be made, if at all, after

a full hearing on the merits according to the usual

course of chancery proceedings.

By the Court:

Jexxincs Battery,

Justice."’

Appeals from the part of the order suspending the con-

sent decree were taken to the Distmet Court of Appeals by

the Government and National Wholesale Grocers’ Associ.

ation, but were dismissed on motion of the Canneries on

technical grounds without consideration of the merits. The

Swift and Armour defendants also appealed to that court

from the denial of their motions to vacate the consent de-

eree and all of the defendants, including the Cannenes,

waived citation (Transerpt in No. 181, Oet. Term, 1927, p.

350). One of the errors assigned by the Swift and Armour

appellants was as follows (id., p. 360):

“7. The court erred in entering its order sus

pending the consent decree because it thereby ma

terially modified said consent decree without the con

sent of these defemlants."’

The Distriet Court of Appeals, having first dismissed

the Armour-Swift appeal on the ground that it had no

jurisdiction thereof (ed., p. S72), allowed a reargument and

thereafter certified to this court five questions relating to

its own juriadiction and that of the Distnet Supreme Court

———

7

(id., pp. 881-3). After hearing argument this court ordered

the entire record sent up, but in its final decision did not

pass upon the propriety of that part of the order appealed

from which suspended the consent decree on the motion of

the Canneries.

That decision having left the consent decree in a state

of suspended animation, the Government sought to revive

it by applying to the District Court of Appeals for a vaca-

tion of its former decree allowing the Canneries to inter-

vene, on the ground that, by virtue of the Expediting Act,

that court had no jurisdiction of the appeal on which said

decree was rendered. The denial of that relief is now be-

fore this court for review on certiorari,

The remarkable picture is presented of an intervener,

whose only interest in the suit has ceased to exist, contend-

ing in effect that the consent decree which this court has

declared to be valid must be left suspended, and that, be-

cause of a technical snarl in the District of Columbia courts,

this court is impotent to restore to operative effect one of

the most important decrees ever secured by the Govern-

ment in an Anti-Trust case.

POINTS.

I.

Under the Expediting Act the appeal! of the Canneries

from the decree denying its motion for leave to intervene

iay “only to the Supreme Court”, and, as the Court of

Appeals of the District of Columbia had no jurisdiction of

that appeal, its decree therein was null and void.

In Serft & Co. v. United States, 276 ULS. 311, 822-3, this

eourt said (itahes ours):

“Swift and Armour answer that the motions to

Vacate the consent deeree are not

subject to the pro

visions of the Expediting Act because they are not a

part of the suit fled February 27, 1920, under the

Anti-Trust Act, but constitute a new suit. Compare

Stecurmac Oil & Gas Co. v. Dittman, 245 U.S. 210

The argument is that the original suit ended with the

entry of the consent decree, or at all events, at the

expiration of the term, or at the end of the 60 days

from the entry of the decree allowed by the bx ped t

ing Act for an appeal, We need not inquire whether

an independent suit to set aside a decree entered

under the Anti-Trust Act is subject to the provisions

of the Expediting Act. The consent decree provided

by paragraph Fighteenth for ‘entertamimng at any

time hereafter ANY appleation Which the purties may

make with respect to this decree.” Swift and Armour

made these motions to Vacate in the original suit:

they arose out of the three proceedings for mferven

from Bled after entry of the consent decree: and they

were eniitied in the original cause. The Court of

Appeals of the District was, therefore, without purses

diction fo enmfertan the appeals os

_

9

No reason is perceived why that language does not apply

to the appeal taken by the Canneries from the decree deny-

ing its application for leave to intervene for the purpose of

attacking the consent decree. It is true that the motions in

the one case were made by original parties and in the other

by a would-be intervener. But in Continental Co, v. United

States, 299 U.S. 157, 164, it appears that the appeals direct

from the District Court to this court under the Expediting

Act were taken by iiferceners. There is no great difference

in principle between a denial of a motion to vacate and

a denial of leave to intervene for the purpose of moving

fo vacate,

In Terminal R. R. Assoc. v. United States, 266 uJ. S. 17,

an appeal was taken direct to this court from an order of

a United States District Court adjudging the appellants

guilty of contempt, committed by disobeying a decree which

had been rendered against them and in favor of the United

States in a suit under the Anti-Trust Laws. The contempt

proceeding Was brought, not by the Government, but by cer-

tain of the defendants for the purpose of enforcing rights

granted them by the original decree. The Government did

net Join in the complaint or participate in the hearing in the

District Court, but subsequently appeared and aligned itself

with the appellees. At page 2S this court said:

The Expedition Act gives the right of appeal in

this case, and the appeal was properly allowed by a

justice of this court.”’

Obviously, if there was a ‘tright of appeal”? to this

court given by the act, no other court could have had ap-

pellate jurisdiction, for the act expressly provides that the

appeal ‘will he only to the Supreme Court"’.

10

In Interstate Commerce Commission v. Baird, 194 U.S.

25, an appeal from an order of a Circuit Court, dismissing a

petition of the Interstate Commerce Commission to obtain

orders requiring the testimony of witnesses and the pro-

duction of books and documents, was taken direct to this

court under the act of February 19, 1908 (U.S. Code, title

49, §$43, 44, 45), which provided that the Expediting Act

should ‘‘apply to any case prosecuted under the direction

of the Attorney General in the name of the Interstate Com-

merece Commission’’. This court, holding that the appeal

was properly taken, said at pp. 38.39 (italics ours):

‘The present proceeding is not merely advisory

to the commission, but, as was said in /mterstate

Commerce Commission v. Rriomson, supra [154 U.S.

447}, a judgment rendered will be a final and indis-

putable basis of action as between the commission

and the defendant, and furnish a basis for similar

cases, While it has for its object the obtaining of

testimony in aid of proceedings before the commis.

sion, it is evident that important questions may be

involved touching the power of the commission and

the constitutional rights and privileges of citizens.

Congress deemed it imperative that such cases, af.

fecting the commerce of the country as well as per-

sonal rights, should be promptly determined in a

court of last resort. ° * * We think uf was the pur.

pose of the act to clumenate an appral to the Cirewt

Court of Appeals and to permit the litigation to be

shortened by a direct appeal to this court.’’

The fact that nine years after its entry the Packers

Consent Decree is inoperative, thanks to the untiring efforts

of the Canneries, sufficiently indicates the importance of

disposing promptly of the claims of a stranger who secks

. . maui SPOONS ATL LER AR RAI RRE RE HIN —

suai sate AEGAN PATE EEN OR,

ll

to intervene for the purpose of attacking a consent decree

secured by the Government in an Anti-Trust case.

The decree of the District Court of Appeals refusing to

vacate its previous decree, by virtue of which the Canneries

was enabled to intervene and secure the suspension of the

consent decree, should be reversed, and the previous de-

cree should be declared void and of no effect.

Dated February 15, 1929.

Respectfully submitted,

Wittiam C. Breen,

Scumyek Foxp,

Epwarp A. Craiguitt, Jr.,

Counsel for National Wholesale Grocers’

Association of the United States.