On October 9, 1893, Oliver Ames, 2d, and Samuel Carr, executors of Frederick L. Ames, deceased, and Peter B. Wyckoff and Edwin F. Atkins, filed in the circuit court of the United States for the eighth circuit a bill of complaint against the Union Pacifie Railway Company and a number of other companies in which the Union Pacific Railway Company had interests, praying for the appointment of receivers, the enforcement of certain alleged liens, and the administration of the properties of the Union Pacific Railway Company. On October 13, 1893, S. H. H. Clark, Oliver W. Mink, Ellery Anderson were appointed receivers, and on November 13, 1893, upon petition of the Attorney General of the United States, John W. Doane and Frederick R. Coudert were appointed additional receivers.
On January 21, 1895, a bill of complaint was filed in the said circuit court by F. Gordon Dexter and Oliver Ames, 2d, as trustees of the first mortgage of the Union Pacific Railway Company, to foreclose that mortgage. [177 U.S. 311, 312] At the May term, 1897, the United States filed, in a circuit court of the United States for the eighth judicial circuit, a bill of complaint against the Union Pacific Railway Company, and against S. H. H. Clark, Oliver W. Mink, Ellery Anderson, John W. Doane, and Frederick R. Coudert, who had theretofore, on October 13, 1893, in the suit brought in said court by Oliver Ames, Samuel Carr, and others against the said Union Pacific Railway Company, been appointed receivers therefor, and against F. Gordon Dexter and Oliver Ames, as trustees, the Union Trust Company of New York, as trustee, J. Pierpont Morgan and Edwin F. Atkins, trustees, the Central Trust Company of New York, as trustee. The object of this bill was to secure a decree of foreclosure of the subsidy lien of the United States upon the property of the Union Pacific Railway Company between Council Bluffs, Iowa, and a point 5 miles west of Ogden, Utah.
On April 28, 1897, the Credits Commutation Company, a corporation of the state of Iowa, filed a petition in each of said three cases, praying for leave to intervene therein as a party, and to be heard to assert certain alleged rights and interests. On May 22, 1897, the Combination Bridge Company, a corporation of the state of Iowa, also filed petitions in said cases for leave to intervene therein for the same reasons set forth at length in the petitions of the Credits Commutation Company. On May 24, 1897, after hearing the counsel of the respective parties, an order was entered by the circuit denying the prayers for leave to intervene, and on the same day an appeal was allowed to the circuit court of appeals for the eighth circuit. On December 7, 1898, motions by the appellees to dismiss said appeals were sustained, and said appeals were accordingly dismissed; and thereupon the appellants in open court prayed an appeal to this court, which was allowed. Credits Commutation Co. v. Ames, 62 U. S. App. 728, 91 Fed. Rep. 570, 34 C. C. A. 12. Motion to dismiss or affirm was submitted.
Messrs. Henry J. Taylor and J. C. Coombs for appellants in Nos. 233, 234, and 235.
Attorney General Griggs, Solicitor General Richards, and Messrs. J. C. Cowin, Winslow S. Pierce, Wm. R. Kelly, G. M. Lambertson, and Lawrence Greer for appellees i
Messrs. Winslow S. Pierce, John F. Dillon, Wm. R. Kelly, and G. M. Lambertson for appellees in No. 235.
Mr. Justice Shiras delivered the opinion of the court:
The Credits Commutation Company and the Combination [177 U.S. 311, 313] Bridge Company, corporations of the state of Iowa, filed petitions for leave to intervene in three suits against the Union Pacific Railway Company. The object of those suits was to enforce by foreclosure the payment of bonds secured by mortgage and of a debt due to the United States created by certain subsidy bonds, and, pending such proceedings, the appointment of receivers to prevent the disintegration of properties of the reilway company.
The Combination Bridge Company is the owner of a bridge across the Missouri river at Sioux City. The Credits Commutation Company is the owner of the stock of the bridge company, and also of interests in the capital stock of certain railroads connected by the said bridge. The petition alleges that the Credits Commutation Company was organized for the purpose of connecting said bridge and railroads with the Union Pacific Railway.
The Union Pacific Railway Company is a consolidated company, composed of the Union Pacific Railroad Company and the Kansas Pacific Railway Company, and Congress, by the act of July 1, 1862, in order to 'secure to the government the use of the same,' conferred upon said companies grants of large and valuable tracts of the public lands, and further subsidized said companies by an advance to them of the public credit in the form of bonds of the United States. The 15th section of the said act of July 1, 1862, was in the following terms:
The petition alleges that the Credits Commutation Company was organized in the latter part of 1894, but admits that said company has abstained from making any application to the President of the United States to fix the place at which and the [177 U.S. 311, 314] just and equitable terms upon which said company should build a railroad to connect with the road of the Union Pacific Railway Company, because the latter company had been embarrassed and all its property was in the hands of receivers, and bills to foreclose in behalf of the holders of mortgage bonds and to enforce the creditor rights of the United States had been filed. It seems to be the theory of the petitioners that, under the provisions of the act of Congress, they have a right to connect their railroads, now or to be constructed, with the railroad of the Union Pacific Railway Company, and that they have, therefore, a right to intervene in the foreclosure proceedings, in order to protect their right to so connect and to protect the right of the public in such railroad connections.
As heretofore stated, the circuit court denied the petitions for leave to the intervene, and upon appeal to the circuit court of appeals that court dismissed the appeals. The view of the circuit court of appeals was that the order of the circuit court refusing leave to intervene was not a final judgment or decree from which an appeal could be taken, and that, at any rate, the action of the lower court in refusing leave to intervene was not reviewable on appeal, inasmuch as it rested in the sound discretion of the chancellor to admit or reject the intervention. 62 U. S. App. 728, 731, 91 Fed. Rep. 570, 571, 34 C. C. A. 12, 13.
To show that the circuit court, in denying the petition for leave to intervene, was not exercising the usual discretion of a chancellor in passing upon a petition of an outside party for leave to intervene, but adjudicated the petitioners' rights asserted in the petitions, as if upon demurrer thereto, we are pointed to the language used: 'Ordered, that the prayers of the petitioners for leave to intervene herein be and the same are hereby denied, not as matter of discretion, but because said petitions do not state facts sufficient to show that the petitioners, or either of them, have a legal right to intervene.'
It is urged that the circuit court declined to treat the subject as of one of discretion, and elected to determine the legal rights of the petitioners, so as to preclude them from resorting thereafter to some other tribunal, and that, therefore, its judgment was a final one and properly reviewable on appeal. [177 U.S. 311, 315] We cannot accept this view of the meaning and effect of the order in question. What was sought in the petitions was leave to intervene in a pending and undetermined cause, and that right alone was determined. The very terms used by the court, that the facts stated were 'not sufficient to show that the petitioners, or either of them, have a legal right to intervene,' shows that what was considered was the right to intervene. That right refused, the petitioners were left free to assert such other rights as they might possess in any other tribunal. That this was the view of Judge Sanborn himself is seen in the following language of his opinion:
The question was well considered by the circuit court of appeals, and we quote and adopt its statement, as follows:
In Connor v. Peugh, 18 How. 394, 15 L. ed. 432, it was said by Mr. Justice Grier, giving the opinion of the court:
In Ex parte Cutting, 94 U.S. 14 , 24 L. ed. 49, it was held that an appeal does not lie from an order of the court below denying a motion in a pending suit to permit a person to intervene and become a party thereto. Guion v. Liverpool, L. & G. Ins. Co. 109 U.S. 173 , 27 L. ed. 895, 3 Sup. Ct. Rep. 108, is to the same effect.
Whether the contention of the petitioners that, under the legislation of Congress, they and railroad companies similarly situated had a right to connect with the road of the Union Pacific Railway Company, or shall have such a right with respect to that road in the hands of purchasers under the decree of foreclosure, at such places and upon such just and equitable terms as the President of the United States may prescribe, were not questions that, under the pleadings and evidence, were before the circuit court for its determination; and as its action in denying the petitions to intervene was an exercise of purely discretionary power, and not final in its character as respects such alleged right to connect, we think the Circuit Court of Appeals was right in holding that the appeals could not be entertained by that court, and its decree, dismissing the same, is accordingly affirmed.
Mr. Justice McKenna took no part in the decision of the cases.