cause for petitioners and plaintiffs in error. | by inserting his name therein, as it has the Messrs. Wallace Heckman and James G. Els- power to do. don were on the brief: In mandamus suits parties interested in, or to be affected by, the judgment, may be allowed to intervene and become parties for the purpose of resisting the issuance of the writ. Knickerbocker L. Ins. Co. v. Pendleton, 115 U. S. 339, 29 L. ed. 432, 6 Sup. Ct. Rep. 74; Walton v. Marietta Chair Co. 157 U. S. 342, 39 L. ed. 725, 15 Sup. Ct. Rep. 626. The modified order first entered in the district court, which the mandamus writ State ex rel. Southern Bank v. Pilsbury, sought to change, was in effect the decree 31 La. Ann. 1; State ex rel. Graber v. of this court, and the circuit court of apMatley, 17 Neb. 564, 24 N. W. 200; Wat-peals was without jurisdiction to change it. kins v. Kirchain, 10 Tex. 375; Beecher v. Stewart v. Salamon, 97 U. S. 361, 24 L. Anderson, 45 Mich. 543, 8 N. W. 539; ed. 1045; Kimberly v. Arms, 40 Fed. 549; Bohnet v. New York, 150 N. Y. 279, 44 N. Southard v. Russell, 16 How. 547, 569, 14 E. 949; Sage v. Central R. Co. 93 U. S. 412, L. ed. 1052, 1062; Re Potts, 166 U. S. 263, 23 L. ed. 933; Williams v. Morgan, 111 U. 41 L. ed. 994, 17 Sup. Ct. Rep. 520; Skillern S. 696, 28 L. ed. 564, 4 Sup. Ct. Rep. 638; v. May, 6 Cranch, 267, 3 L. ed. 220; LivingEx parte Jordan, 94 U. S. 248, 24 L. ed. ston v. Story, 12 Pet. 339, 9 L. ed. 1108; 123; Ex parte Cutting, 94 U. S. 14, 24 United States v. Knight (United States v. L. ed. 49; Credits Commutation Co. v. Moorehead) 1 Black, 488, 17 L. ed. 80. United States, 177 U. S. 311, 44 L. ed. 782, 20 Sup. Ct. Rep. 636. The district judge appearing by counsel and declining to sue out or join in such writ of error, the court ordered that these plaintiffs in error be allowed to sue out a writ of error. This was a sufficient summons and severance to make the appearance of the district judge as plaintiff in error unnecessary. Masterson v. Herndon (Masterson v. How ard) 10 Wall. 416, 19 L. ed. 953; Hardee v. Wilson, 146 U. S. 179, 36 L. ed. 933, 13 Sup. Ct. Rep. 39. The district judge has no personal interest in the case. He is a party only in his representative capacity. The record sufficiently discloses that he is not interested on the side of defendants in error, nor in sustaining the order sought to be reviewed. He is, therefore, not within the rule which requires that all the parties to the record who appear to have any interest in the order or ruling challenged must be given an opportunity to be heard on such appeal. Davis v. Mercantile Trust Co. 152 U. S. 590, 593, 38 L. ed. 563, 564, 14 Sup. Ct. Rep. 693. At best, he was, after severance, only a nominal party, and as such was properly omitted. Amadeo v. Northern Assur. Co. 201 U. S. 194, 201, 50 L. ed. 722, 726, 26 Sup. Ct. Rep. 507; Germain v. Mason, 12 Wall. 259, 20 L. ed. 392; Basket v. Hassell, 107 U. S. 602, 610, 27 L. ed. 500, 502, 2 Sup. Ct. Rep. 415. But, if this were otherwise, the objection is not a substantial one, because, while he is not named in the writ of error, he accepted service of the citation. Under these circumstances, this court should, if necessary, allow the writ of error to be amended' The power to construe and enforce a decision of this court by mandamus is exclusively in this court. Rosenbaum v. Bauer, 120 U. S. 459, 30 L. ed. 747, 7 Sup. Ct. Rep. 633; Bath County v. Amy, 13 Wall. 244, 20 L. ed. 539; Smith v. Bourbon County, 127 U. S. 105, 112, 32 L. ed. 73, 77, 8 Sup. Ct. Rep. 1043; Davenport v. Dodge County, 105 U. S. 242, 26 L. ed. 1020; United States ex rel. Iron County v. Severens, 18 C. C. A. 314, 37 U. S. App. 622, 71 Fed. 768; United States ex rel. Mudsill Min. Co. v. Swan, 13 C. C. A. 77, 31 U. S. App. 112, 65 Fed. 647; Re Sanford Fork & Tool Co. 160 U. S. 247, 256, 40 L. ed. 414, 416, 16 Sup. Ct. Rep. 291. Messrs. Newton Wyeth and Joseph E. Paden submitted the cause for respondents and defendants in error: There are cases wherein the judgment or decree is against several parties, in which there may be a severance and appeal or writ of error by a part, the others appearing and refusing to join. Hardee v. Wilson, 146 U. S. 181, 36 L. ed. 933, 13 Sup. Ct. Rep. 39; Beardsley v. Arkansas & L. R. Co. 158 U. S. 127, 39 L. ed. 919, 15 Sup. Ct. Rep. 786. But there can be severance only where the person severed is a party. McGuire v. Hurst, 23 Ky. L. Rep. 846, 64 S. W. 435; Osborne v. Kammer, 96 Va. 228, 31 S. E. 19. Here, the plaintiffs were not parties, and they had only an academic interest, and no interest in law in the mandamus proceeding. The only question involved was, Had the judge of the district court conformed, or not, with the directions of the court of appeals? and whether, any property rights would be affected. The judge represented his own ministerial interest and official relation to the order of November 1, 1905, involved in the mandamus. If it could properly be done in a case of this character, | there was no order of court substituting the plaintiffs in error for the district judge, or allowing them to represent him. They had no interest or power either to restrain him in complying with the directions of the judgment or to prosecute the defense further. Davis v. Mercantile Trust Co. 152 U. S. 593, 38 L. ed. 564, 24 Sup. Ct. Rep. 693. The parties against whom the writ of error was sued out did not include the district judge, nor was any citation issued against him. Under these circumstances it would appear that the writ of error has no standing. Mason v. United States, 136 U. S. 581, 34 L. ed. 545, 10 Sup. Ct. Rep. 1062. The judgment has been executed and satisfied; the peremptory writ was voluntarily and promptly complied with by the district judge. The respondent in the mandamus proceedings, if entitled to prosecute the writ of error, declined to sue out a writ of error, and so stated by his counsel, and instead thereof chose to comply with the writ. The interveners neither prosecuted the writ in the name of the district judge, nor was the writ of error made a supersedeas. No controversy remains between the parties entitled to litigate, and review would be immaterial and ineffectual. Mills v. Green, 159 U. S. 651, 40 L. ed. 293, 16 Sup. Ct. Rep. 132; Tennessee v. Condon, 189 U. S. 64, 47 L. ed. 709, 23 Sup. Ct. Rep. 579; Jones v. Montague, 194 U. S. 147, 48 L. ed. 913, 24 Sup. Ct. Rep. 611; Security Mut. L. Ins. Co. v. Prewitt, 202 U. S. 246, 50 L. ed. 1013, 26 Sup. Ct. Rep. 619; San Diego School Dist. v. San Diego County, 97 Cal. 438, 32 Pac. 517; Jacksonville School Dist. v. Crowell, 33 Or. 11, 52 Pac. 693. cuit court of appeals had no jurisdiction of the appeal, and that the district court, having found that the receiver and trustee was not in possession of the fund, had no jurisdiction to proceed further. It thereupon rendered a judgment and issued a mandate reversing the decree of the circuit court of appeals, and directing that court to dismiss the appeal and to remand the case to the district court for further proceedings in conformity with the opinion upon which the mandate was based. The circuit court of appeals thereupon dismissed the appeal and remanded the cause for further proceedings as directed. The opinion to which the proceedings of the district court were to conform concluded with these words: "In our *view the district [65] court should have declined upon its findings to retain jurisdiction, and in that event the decrees for the return of the money should have been without prejudice to the right of respondents to litigate in a proper court, which modification we direct to be made." The district court made a decree "without prejudice to the rights of the Chicago Title & Trust Company, the trustee herein, if this court shall so authorize, to litigate in any proper court the question of the right of said trustee to recover said funds as a part of the bankrupt's general estate." The trustee complained of the form of this decree, especially because of the insertion of the words "if this court shall so authorize," and moved in this court for leave to file a petition for mandamus requiring the district judge to modify it, but leave was denied. 200 U. S. 613, 50 L. ed. 620, 26 Sup. Ct. Rep. 753. The trustee next made a similar application to the circuit court of appeals, whereupon that court granted it and issued a peremptory writ requiring modifications to be Mr. Justice Holmes delivered the opin- made. 77 C. C. A. 408, 146 Fed. 742. The ion of the court: petitioners and plaintiffs in error, claiming an interest in the fund, then applied for leave to intervene for the purpose of prosecuting a writ of error; their application was allowed, and leave was granted them to sue out the writ, the order reciting that the district judge was present by counsel, but declined to sue out or join in the same. On the same day the circuit court of appeals refused to make the writ act as a supersedeas, and on the next day the district judge en These cases arise out of the proceedings subsequent to the decision of this court in First Nat. Bank v. Chicago Title & T. Co. 198 U. S. 280, 49 L. ed. 1051, 25 Sup. Ct. Rep. 693. In that case the trust company, as receiver, subsequently trustee in bankruptcy, filed a petition in the district court, alleging possession of certain property and asking for directions in respect of a sale. The district court found that a storage company had the possession and right of postered a decree conforming to the mandate of session, but nevertheless retained jurisdiction, and, a sale having been had by consent, made a summary order for transfer to the petitioner of part of the proceeds of the sale. An appeal was taken to the circuit court of appeals, and that court sustained the jurisdiction of the district court. On certiorari this court held that the cir the circuit court of appeals. The present proceedings are brought for the purpose of reversing the action of the circuit court of appeals and of reinstating the former decree of the district court. There is a motion to dismiss the writ of error on the grounds that the judge, who was the only party to the mandate alleged to be erroneous, did not sue out the writ, | necessarily, that the decree was to be withbut that, on the contrary, he has obeyed the out prejudice to whatever right the respondorder, and that the plaintiffs in error are ents might have to litigate in a proper court, not privy to the judgment. We deem it a not that they were entitled to litigate, or [66] sufficient answer to this motion to say that that the authority given by the bankruptcy it appears on the record that the judge de- law, § § 2 (7), 11 c, 47 (2),† to the district clined to join (Masterson v. Herndon [Mas- court to control such litigation, was superterson v. Howard] 10 Wall. 416, 19 L. ed. seded. We are of opinion that the decree 953; Hardee v. Wilson, 146 U. S. 179, 36 L. first entered by the district court complied ed. 933, 13 Sup. Ct. Rep. 39), that he has no with the language of the opinion, and that personal interest in the judgment (Davis v. the subsequent decree, having been entered Mercantile Trust Co. 152 U. S. 590, 593, 38 only in obedience to an unwarranted judgL. ed. 563, 564, 14 Sup. Ct. Rep. 693), ment, should be set aside. Re Potts, 166 and that the plaintiffs have such an interest, U. S. 263, 41 L. ed. 994, 17 Sup. Ct. Rep. and were made parties for the purpose of 520; Ex parte Dubuque & P. R. Co. (Duprotecting their rights. The fact that the buque & P. R. Co. v. Litchfield) 1 Wall. 69, judge obeyed the order in force against him 17 L. ed. 514. cannot prejudice the position of the plaintiffs. They have the same interest in hav-reversed. ing the former decree of the district court Mandamus to go to the District Court to reinstated that they had in having it stand. set aside its decree entered in pursuance of We are of opinion that the order of the said judgment. circuit court of appeals was wrong. The mandate of this court was addressed to it alone, it is true, in point of form. It is customary to issue but a single mandate. But URIAH S. LEE, Frank B. Lee, and Harry the directions as to the further proceedings of the district court were not an order to the circuit court of appeals to issue an order to the district court. They were directions which the circuit court of appeals was simply to communicate to the district court, and which the district court was to follow on the authority of this court, not of the circuit court of appeals. The suggestion of the need of speedy relief seems to have counted for something in the making of the order appealed from, and the denial of a mandamus by this court was treated as an intimation that the final direction to the district court was to be regarded as proceeding from the circuit court of appeals. Such was not the import of the action of this court. The circuit court of appeals had no jurisdiction in the matter, and the denial of a mandamus by this court did not confer or declare jurisdiction to grant what this court denied. It follows that the judgment of the circuit court of appeals must be reversed. As the judgment reversed has been acted upon by the district court it becomes necessary to consider whether the former or the present decree of the district court was the proper one to enter. The present one might be right notwithstanding the want of jurisdiction on the part of the higher court to order it to be made. We need not determine [67] whether the language *quoted from our former opinion was improvidently used. It is enough to say that the opinion did not purport to fix the words of the new decree. It merely gave a general direction which was to be carried out in a form to be settled by the district court. It declared, perhaps un Judgment of the Circuit Court of Appeals Sutton, Plffs. in Err., V. STATE OF NEW JERSEY. (See S. C. Reporter's ed. 67-72.) Error to state court - moot question. 1. A judgment of a state court which does not so enforce a state statute as to deprive the party complaining of rights which are protected by the Federal Constitution will not be reversed in the Supreme Court of the United States because such statute, party complaining does not belong, may when enforced against a class to which the work a deprivation of such constitutional rights. Act July 1, 1898, chap. 541, 30 Stat. at L. 546, 549, 557 (U. S. Comp. Stat. 1901, pp. 3421, 3426, 3438). NOTE. On the necessity of color of merit in Federal question to sustain writ of error to state court-see note to Offield v. New York, N. H. & H. R. Co. 51 L. ed. U. S. 231. On the general subject of writs of error from United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 97; Hamblin v. Western Land Co. ed. U. S. 884; and Kipley v. People, 42 L. ed. U. S. 998. On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513. note to Bradshaw v. Lankford, 11 L.R.A. On the regulation of oyster fisheries-see 583. On shell fisheries, see note to State v. Shaw, 60 L.R.A. 516. Commerce-state regulation of oyster industry. 2. Rights under the commerce clause of the Federal Constitution or under the 14th Amendment are not infringed by the provi sions of N. J. act March 24, 1899, § 20, as amended by the act of March 22, 1901, under which a conviction may be had for using a dredge in tidal waters of the state for the purpose of catching oysters upon leased lands without the consent of the lessees. [No. 16.] The power of the state to regulate the oyster industry, *although the same is car-[70] ried on under tidal waters in the state, is not contested, and could not successfully be. Smith v. Maryland, 18 How. 71, 15 L. ed. 269; McCready v. Virginia, 94 U. S. 391, 24 L. ed. 248; Manchester v. Massachusetts, 139 U. S. 240, 35 L. ed. 159, 11 Sup. Ct. Rep. 559. The objection to the legality of the conviction from the standpoint of rights protected by the Federal Constitution, as urged up. Argued October 16, 1907. Decided October on our attention, rests upon the argument IN 28, 1907. that § 20, amended as above quoted, permits the conviction of a person who shall take an oyster dredge or other instrument used for the purpose of catching oysters, on any oyster bed or grounds within such navigable waters, thereby abridging and interfering with the right of free commerce with for N ERROR to the Court of Errors and Appeals of the State of New Jersey to review a judgment affirming a judgment of the Supreme Court of that state, which affirmed a conviction in the Court of Quarter Sessions of Cumberland County of unlaw-eign nations, and among the several states. fully dredging upon oyster beds. Affirmed. See same case below (N. J.) 59 Atl. 1118. The facts are stated in the opinion. Mr. E. A. Armstrong argued the cause, and, with Mr. William T. Read, filed a brief for plaintiffs in error. Mr. Nelson B. Gaskill argued the cause, and, with Mr. Robert H. McCarter, filed a brief for defendant in error. And it is argued that persons sailing over such waters, having an oyster-dredge aboard a boat, might be convicted of thus taking a dredge over such ground, in violation of the statute. Of this contention it is enough to say that in this case no such construction of the statute was made or enforced against the plaintiffs in error. Nor were they convicted because of any such state of facts; and it is well settled in this court that, be Mr. Justice Day delivered the opinion of cause a state statute, when enforced in a state the court: The plaintiffs in error were convicted in the court of quarter sessions of Cumberland county, New Jersey, at the May term, 1903, of the offense of unlawfully dredging upon certain oyster beds for the purpose of catching oysters, contrary to the statute enacted in that state. This judgment was affirmed in the court of errors and appeals of New Jersey and this writ of error seeks the reversal of that judgment. Section 20 of the act of 1899, amended, Laws of 1901, p. 307, provides: "Any person or persons who shall hereafter dredge upon or throw, take, or cast his oyster dredge, or any other instrument used for the purpose of catching oysters, upon any oyster bed or ground duly marked, buoyed, or staked up within the waters of the Delaware river, Delaware bay, and Maurice River cove, in this state, belonging to any other person, without the permission of the lessee or lessees thereof, shall be guilty of a misdemeanor and of the violation of the provisions of this act." It is the contention of the plaintiffs in error that this statute violates the right of free navigation, and undertakes to regulate interstate commerce in violation of § 8, article 1, of the Federal Constitution, and deprives the plaintiffs in error of rights secured by the 14th Amendment. court against a class to which the party complaining does not belong, may work a deprivation of constitutional rights, that fact does not authorize the reversal of a judgment of a state court not enforcing the statute so as to deprive the party complaining of rights which are protected by the Federal Constitution. New York ex rel. Hatch v. Reardon, 204 U. S. 152-160, 51 L. ed. 415 -422, 27 Sup. Ct. Rep. 188, and cases there cited. An inspection of this record shows that the count of the indictment under which the plaintiffs in error were convicted charged them with unlawfully dredging, throwing, and casting dredges for the purpose of catching oysters upon certain leased lands, in violation of the statute. The testimony offered on the part of the state tends to show that certain dredges were thus thrown and cast for the purpose of catching oysters upon leased lands belonging to one Allen. *On the part of the defense the witnesses [71] testify that the dredges were not thus cast and used upon the lands in question. There was no pretense in the charge in the indictment, or in the testimony offered by the people, that a conviction could be had for the mere taking of a dredge over the leased lands. The conviction depended, both in the charge and in the testimony, upon establish ing the fact that the plaintiffs in error thus illegally used the dredges. It is contended that the plaintiffs in error might have been convicted for the mere sailing over the lands with a dredge aboard the boat, because of the following language in the court's charge: A conviction was had because of the use of a dredge upon leased lands, in violation of the New Jersey statute for the protection of the oyster industry. Against the statute, as thus enforced, no valid objection can be urged for want of power to pass or enforce it because of rights protected by the Federal Constitution. Judgment of the Court of Errors and Appeals of New Jersey is affirmed. "It then remains to be considered whether or not the defendants on that day dredged or threw, took or cast, a dredge or other instrument used for the purpose of catching oysters upon that ground. If they find that they did, then they should be convicted of illegal dredging, as charged in the first count *SEABOARD AIR LINE RAILWAY, Plff.[73] of the indictment." But this excerpt must be read in connec in Err., V. Business as Seegers Bros. (See S. C. Reporter's ed. 73-79.) Constitutional law-equal protection of the laws-regulation of common carrier. tion with the rest of the charge, and it is A. L. SEEGERS and W. B. Seegers, Doing there can be no award of a penalty under [No. 15.] Common carriers are not denied the equal protection guaranteed by U. S. Const., 14th Amend., by the provisions of S. C. act February 23, 1903, p. 81, § 2 requiring them to "Now, the state produces, bearing upon adjust and pay every claim for loss or damthat question, the owner of the ground, and age to an intrastate shipment within forty days after the filing of a claim, under penhe testifies that on the day named in the in-alty of $50 for each failure or refusal, where dictment he, aboard of the Golden Light, with Captain Hilton, visited his ground; that as they approached it, you will recall just how near they placed themselves, from their testimony,-as they approached it they saw these defendants aboard of a vessel called the Lee. maneuvering up and down this ground, No. 137, section B, of IN ERROR to the Supreme Court of the Captain Allen, and heaving their dredges State of South Carolina to review a thereon. Now, gentlemen, if you believe judgment which reversed a judgment of [72]that *testimony, if you believe that occurred a Circuit Court of that state, reversas these witnesses for the state say it oc- ing a judgment of the Magistrate's Court curred, then, regardless of whether or not in the County of Chesterfield, assessing they got any oysters, if they were throwing their dredges there upon that ground they should be convicted under the first count of this indictment. "Now, considering all of this testimony and any other testimony in the case, you ought to determine whether or not the defendants were there heaving their dredges and dredging upon this ground. And in endeavoring to ascertain the truth from this conflicting testimony it is but the dictate of common sense that you should consider whether any of the witnesses have a motive to testify falsely." Argued October 16, 1907. Decided Novem- I' a penalty against a common carrier for See same case below, 73 S. C. 71, 52 S. The facts are stated in the opinion. Mr. William F. Stevenson argued the cause, and, with Messrs. Edward McIver and Stevenson & Matheson, filed a brief for plaintiff in error: A state has no more power to deny to corporations the equal protection of the law than it has to individual citizens. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. It is therefore apparent that the possible 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255. construction of the statute in such manner as to convict plaintiffs in error of a crime in merely exercising their right to navigate interstate waters was not made essential to the determination of the case. NOTE. On constitutional inequality or discrimination in statutes allowing attorneys' fees-see note to Farmers' & M. Ins. Co. v. Dobney, 47 L. ed. U. S. 821. |