Argument for Petitioner.

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judges to permit your petitioner to intervene in said cause, and to be joined as a party thereto, with the right to appeal from said decree or otherwise proceed in said cause as such party.

5. That pending the hearing and decision of said petition and of the return thereto, all proceedings by the defendants or any of them looking to the execution of the plan of dissolution described in said decree, be stayed.

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 Massachusetts, 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 interSee Virginia v. Rives, 100 U. S. 313, 323.

vene.

The decree is repugnant to the mandate, and perpetu

ates 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.

PER CURIAM: 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.

OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY v. INTERSTATE COMMERCE COMMISSION.

APPEAL FROM THE COMMERCE COURT.

No. 846. Motion for order to maintain the status quo pending appeal. Submitted October 30, 1911.-Decided November 6, 1911.

Where this court considers it proper the status quo will be maintained pending an appeal from the judgment of the Commerce Court sustaining an order of the Interstate Commerce Commission; and the enforcement of the order in question will be suspended pending the appeal, on the appellant giving a bond for the amount and in the form prescribed by this court.

THE facts are stated in the opinion.

Mr. John Lee Webster for the appellants in support of the motion.

The Attorney General, Mr. Blackburn Esterline and Mr. Charles W. Needham for the appellees in opposition:

The final decree dismissing the bill dissolved the preliminary injunction. 22 Cyc. 981; 1 Joyce on Injunctions, §§ 330b, 330c; 10 Ency. Pl. and Pr. 1029; Hovey v. MacDonald, 109 U. S. 150, 158, 161; Sweeney v. Handley, 126 Fed. Rep. 97, 99.

When the preliminary injunction has thus been dissolved it cannot be revived except by a new exercise of judicial power, and the appeal from the final decree dismissing the bill does not affect the dissolution of the injunction. Knox County v. Harshman, 132 U. S. 14; Leonard v. Ozark Land Co., 115 U. S. 465; Hovey v. MacDonald, 109 U. S. 150, 161.

A supersedeas cannot be granted in view of § 2 of the act creating the Commerce Court, of June 18, 1910, 36 Stat. 542.

The order of the Interstate Commerce Commission will

expire in less than three months. If this court further suspends the order of the Commission, the order will expire before any final judgment can possibly be entered by this court on the merits, and the appellees will have avoided complying with the same while it lasted.

The giving of a bond would avail nothing. The Interstate Commerce Commission and the United States are the appellees. If the appellees are named as the obligees of the bond, such a bond would be ineffective as to the passengers traveling between Council Bluffs and Omaha. As the nickels pass into the possession of the company, it is at once beyond the power of the passengers ever to prove the payments and recover them back.

PER CURIAM: Upon the authority of Revised Statutes, § 716; Ex parte Milwaukee Railroad Co., 5 Wall. 188; Leonard v. Ozark Co., 115 U. S. 465, 468; In re Classen, 140 U. S. 200, 207; In re McKenzie, 180 U. S. 536, 549; United States v. Shipp, 203 U. S. 563, 573; and upon full consideration of the facts bearing upon the propriety of the appellants' motion for an order to maintain the status quo pending this appeal, it is ordered that the enforcement of the order of the Interstate Commerce Commission entered November 27, 1909, and drawn in question in this case, be, and it is, suspended and enjoined during the pendency of this appeal, upon condition that within 10 days herefrom the appellants execute unto the Interstate Commerce Commission and file in this cause a good and sufficient bond in the sum of $10,000, with sureties to be approved by the clerk of this court, and conditioned that the appellants will promptly pay any and all damages which may be suffered by their several passengers and intended passengers by reason of the granting or continuance of this order if it is adjudged ultimately that the order of the Interstate Commerce Commission, drawn in question in this case, is a valid one.

Opinions Per Curiam, Etc.

222 U.S.

All other per curiam opinions, decisions on petitions for writs of certiorari, and orders disposing of cases in vacation between the end of October Term, 1910, and April 1, 1912, will appear in Volume 223, United States Reports.

The Rules of the Supreme Court of the United States as revised and promulgated December 22, 1911, are contained in an Appendix to this volume, following page 668, post.