On Petition for Rehearing.
PER CURIAM.The interlocutory decrees appealed from were reversed, and dismissal ordered, upon the sole ground that, in our opin*391ion, the bill presented no federal question, and did not, therefore, state a case within the District Court’s jurisdiction.
[7] Although we have expressed our opinion upon certain questions which were fully argued by the parties before us, not directly involving the point decided as above, no rehearing upon those questions would alter the result if, as we hold, no federal question was presented. This disposes of' the first two grounds for rehearing set forth in the present petition.
[8] The third ground set forth is that on June 7, 1917, a certificate holder said to be “of Nashua, in the state of New Hampshire,” has “come into the District Court and asked to intervene.” If said certificate holder is a New Hampshire citizen, and could therefore, if admitted as a party plaintiff, assert the existence of jurisdiction ba,sed on diverse citizenship, as the plaintiff in the bill as it stands cannot, the fact constitutes no.ground for rehearing of the appeal we have already heard and decided, but shows, at most, only that a different case may at some time be presented in the 'District Court. If said application for leave to intervene was filed in that court on June 7th, it was filed after argument and submission of the appeal here on May 16th, but before June 15th, when our decision thereon was handed down. If said application was to be brought to our attention for any purpose, this should have been done before the latter date. No suggestion to us regarding it, however, was ever made until the present-petition for rehearing was filed on July 12th.
[9] As to the fourth ground for rehearing alleged in the petition, the plaintiff has, at our request, submitted authorities which have been duly considered. He denies jurisdiction in this court to determine, as it did, the question whether or not the bill stated a case within the District Court’s jurisdiction.
In appeals from final decrees, under sections 128 and 238 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1133, 1157 [Comp. St. 1916, §§ 1120, 1215]), where the jurisdiction of the District Court as set out in the bill is based solely on a constitutional question, the appeal lies to the Supreme Court, and cannot be taken to a Court of Appeals, as the authorities relied on undoubtedly show. But in appeals like this, under section 129 of the Code, not from final, but from interlocutory, decrees below, the questions to be passed upon by the Court of Appeals are not limited as above. In such appeals the Court of Appeals is authorized—
“to review the whole of the interlocutory decree, not merely the part granting the injunction, and also to .(¡ei ermine whether there was any insuperable objection, in point of jurisdiction or merits, to the maintenance of the suit, and if there was, to direct a final decree dismissing the bill.”
See U. S. Fidelity Co. v. Bray, 225 U. S. 205, 214, 32 Sup. Ct. 620, 56 L. Ed. 1055, and the prior decisions of the Supreme Court there cited. See, also, Seattle, etc., Co. v. Seattle, etc., Co., 185 Fed. 365, 368, 107 C. C. A. 421.
It is true that these decisions were before the Judicial Code became effective, and deal, not with section 129' in its present form, but with section 7 of the Court of Appeals Act as amended in 1906. We find *392no difference, however, material for the present purpose, between the legislation therein considered and section 129 which incorporates it in the Code, whatever the changes thereby effected in respects not here material.
The petition for rehearing is therefore denied.