This case is before us on petition for reargument.
The Charles D. Kaier Company had been in the brewery business for many years before national prohibition came into existence. When the act took effect, the company obtained a permit to manufacture cereal beverages and sescured a permit every year thereafter until 1930 for which a permit was refused by the prohibition administrator. The District Court on review ordered the administrator to issue a permit for that year. On appeal, we reversed the order of the District Court, but we did not pass upon the motion to dismiss the appeal for want of a necessary and indispensable party. Accordingly we granted a reargument.
The suit in the District Court was by Charles D. Kaier Company, Inc. v. James M. Doran, Prohibition Commissioner of the United States and Samuel O. Wynne, Federal Prohibition Administrator for the Eastern District of Pennsylvania. The United States marshal for the District of Columbia served process upon Commissioner Doran, and the marshal for the Eastern District of Pennsylvania served Samuel O. Wynne, who appeared, but Commissioner Doran did not appear, at the hearing. The following decree was entered against both James M. Doran and Samuel O. Wynne:
"And Now, to wit: this twenty-ninth day of December, 1930, this cause came on to be heard at this term and was argued by counsel, and thereupon, upon consideration thereof, it was Ordered, Adjudged and Decreed as follows, viz.:
"1. That the bill of review be sustained, and that the order of the defendants, James M. Doran and Samuel O. Wynne, in refusing complainant, Chas. D. Kaier Company, Inc., a permit to manufacture cereal beverage under the National Prohibition Act be and hreby is reversed.
"2. That the said defendants are herewith directed and ordered to issue to the complainant, Chas. D. Kaier Company, Inc., a permit to manufacture cereal beverage under the National Prohibition Act for the balance of the year 1930 and the calendar year 1931."
Samuel O. Wynne alone appealed, and the appellee moved to dismiss the appeal because Commissioner Doran was not joined therein.
The case at bar arose under the Act of March 3, 1927 (5 USCA § 281 et seq.), which conferred the rights, powers, and duties regarding prohibition, theretofore exercised by the Commissioner of Internal Revenue, upon the Secretary of the Treasury with authority in him to confer such rights, powers, and duties upon the Commissioner of Prohibition. These were conferred upon the Commissioner by the order of April 1, 1927, so that he at the time this suit was begun exercised the rights, duties, powers and privileges which before vested in the Commissioner of Internal Revenue.
Samuel O. Wynne, when this suit was in progress below was Prohibition Administrator. As such he was subordinate to and a mere agent of the commissioner, under whose direction he acted and performed such duties as were committed to him. His acts were those of the commissioner, who in fact was the necessary and principal party defendant. If he had not been made a party defendant, the bill of complaint could have been dismissed for that reason. Chamberlain v. Lembeck (C.C.A.) 18 F.2d 408; Gnerich v. Rutter, Prohibition Director, 265 U.S. 388, 44 S. Ct. 532, 68 L. Ed. 1068. He was properly and necessarily made a party defendant. The decree was entered against him, and so he should have joined in the appeal unless there had been an order of severance excluding him from the case.
It is a well-settled rule that where there is a joint judgment or decree, all parties against whom the decree is entered must join in the appeal unless there has been severance, excluding those who refuse, or fail to join, or the appeal will be dismissed. Masterson v. Herndon, 10 Wall. (77 U.S.) 416, 19 L. Ed. 953; Parker v. New England Oil Corporation (D.C.) 15 F.2d 236; American Baptist Home Mission Society v. Barnett (C.C.A.) 26 F.2d 350.
He was not joined in the appeal and there was no severance. It follows that the decree of the District Court must be affirmed and the appeal dismissed.