The panel majority in Microsoft II, the consent decree appeal, stated no fewer than four times in its opinion, that it was construing a consent decree and not interpreting a statute.
FOR THE ATTORNEYS GENERAL MR. ROBERTS -- Your Honor, may it please the court, let's begin with the basic question of which test controls, the test articulated by the panel in the consent decree appeal or the test articulated by the Supreme Court in Jefferson Parish and Eastman Kodak.
No person in his natural capacity is brought before the court as defendant.' It was therefore held, in that case, that the state was in fact, though not in form, a party defendant to the suit, and that, consequently, the circuit court had no jurisdiction to pronounce the decree appealed from.
Under these conditions we content ourselves with saying that, if as a consequence of the action of the appellant the proof is not in the record, the means of examining the conclusion of the court in that respect would be wanting and we could not disturb the decree appealed from.
It may be that, during the pendency of these causes in the court below, or since the rendition of the decrees appealed from, the Ca non City and San Juan Railway Company has, under the authority of the Circuit Court, constructed its road-bed and track in the Grand Ca non or in some portion thereof.
From that decree an appeal was taken to the state Supreme Court, which affirmed on the authority of its prior decision.
This was the construction placed upon the treaty by Mr. Secretary Knox in answer to the same objection made to him before he issued his warrant, and also of Judge Rellstab, who dismissed the petition for a writ of habeas corpus, and from whose decree this appeal comes.
From this decree defendants appealed directly to this court, pursuant to section 5 of the circuit court of appeals act (21 C. C. A. v ., allowing such appeal in any case that involves the construction or application of the constitution of the United States.
In the seat ahead of me--one of those special VIP seats with extra legroom--a Navy admiral sits reading the conservative daily Sovietskaya Rossiya, avidly studying the Emergency Committee's decrees and appeal.
From its decree a direct appeal has been taken to this Court.
Several organisations tried to stop the decree and an appeal was lodged with France's Conseil d'Etat, the highest administrative court, but to no avail.
