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Boutwell Case, for the inability of the court, Although by the statutes in force prior in mandamus proceedings, to substitute an to the passage of the Interstate Commerce existing public officer as a party in the place (1887) and anti-trust acts (1890), the terof his predecessor, who had ceased to be in ritorial district courts of New Mexico were office, we perceive no reason why, under the given the same jurisdiction in cases arisact of 1899, the successor of Judge Baker ing under the Constitution and laws of the may not be now made a party in his stead. United States as is vested in the circuit and Certainly, the statute authorizes that to be district courts of the United States, are done if, in the judgment of the court, there those acts to be construed as excepting from is a necessity for such action in order to ob- the general jurisdiction of the territorial tain a settlement of the legal question in- district courts cases that may arise under volved. We think such a necessity exists in them? In other words, can a suit for damthis case, and, as Judge Abbott waives any ages under either of those acts be brought formal summons, and consents to the sub- in any court except, under the act of 1887, stitution of his name in place of that of in a circuit or district court of the United Judge Baker, the motion of appellant is States, and, under the act of 1890, in a cirgranted, and such substitution is ordered to cuit court of the United States ? Did Conbe and is now made, subject, however, to the gress intend that only courts of the United condition that he shall not be liable for any States, invested by the 3d article of the costs prior to this date.

Constitution with the judicial power of the We come now to the merits of the case. United States (McAllister v. United States,

The act under which the territory of New 141 U. S. 174, 35 L. ed. 693, 11 Sup. Ct. Mexico was created and organized, approved Rep. 949), should have original jurisdiction September 9th, 1850, provides that the legis- of suits of that character? The questions lative power of the territory of New Mexico suggested by these inquiries were not much should extend to all rightful subjects of leg- discussed by counsel, and we pass them as islation consistent with the Constitution of being, in our view of the case, not necessary the United States. The same act divides to be now decided; for, if a controversy like the territory into three judicial districts, that raised by the plaintiff is equally cogand requires a district court to be held in nizable by a territorial district court, or by a each of such districts by one of the justices circuit or district court of the United States, of the territorial supreme court. It also it would still remain to inquire whether the provides: "Each of the said district courts defendant company was brought before the shall have and exercise the same jurisdic-court in which the suit was instituted in tion, in all cases arising under the Consti- such a way that a personal judgment could tution and laws of the United States, as is be rendered against it? vested in the circuit and district courts of It is firmly established that a court of the United States. ." [9 Stat. at L. justice cannot acquire jurisdiction over the 450, chap. 49, § 10.] This provision was re- person of a defendant, "except by actual

, tained in the Revised Statutes of the United service of notice within the jurisdiction upStates. $ 1910.

on him, or upon someone authorized to acThe present case clearly arises under the cept service in his behalf, or by his waiver, laws of the United States; for the action by general appearance or otherwise, of the brought in the territorial district court was want of due service.” Goldey v. Morning expressly based on the Interstate Commerce News, 156 U. S. 521, 39 L. ed. 518, 15 Sup. Act of 1887 and the anti-trust act of 1890. Ct. Rep. 559; Pennoyer v. Neff, 95 U. S.

And the question arises upon the very 714, 24 L. ed. 565; Mexican 0. R. Co. v. face of the record, whether the territorial Pinkney, 149 U. S. 209, 37 L. ed. 705, 13 district court could take cognizance at all Sup. Ct. Rep. 859; United States v. Ameriof suits for damages authorized by those can Bell Teleph. Co. 29 Fed. 17. This prinacts. We have seen that by § 9 of the above ciple is applicable to all courts. act of 1887 any person or persons alleged to We are of opinion that the service of sumhave been damaged by a common carrier, em- mons upon Ripley, as president, while he braced by the provisions of that act, may was passing through the territory on a railbring suit in his or their own behalf "in road train was insufficient as a personal any district or circuit court of the United service on the company of which he was States of competent jurisdiction;' and, by president.

It is true that the company the above act of 1890, any person injured in owned lands in the territory, but its office, his business or property by any other per- at the which the meetings of its directors son or corporation by reason of anything were held, was in the city of New York, forbidden or declared to be unlawful by while the office of its land commissioner was that act may sue therfor “in any circuit at Topeka, Kansas, and the office of its court of the United States in the district in president was at Chicago, Illinois. The which the defendant resides or is found." mere ownership of lands in New Mexico, or

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the bringing of suits there to protect its ble to a corporation created by an act of lands against trespasses, could not have had Congress, and that, for the purposes of suit, the effect to put the company into that ter- such a corporation may be deemed a domesritory for the purposes of a personal ac- tic corporation in any state or territory tion against it, based on service of sum- which it might lawfully enter, still, it is mons upon one of its officers while passing evident that the above section cannot avail through the territory on a railroad train. the plaintiff. The Santa Fé Railroad ComIf by the laws of New Mexico a party hav- pany, when sued in the territorial district ing a cause of action against the company, court, was not an inhabitant of the district based on the acts of 1889 and 1890, could within the meaning of the local statute; it have sued out an attachment and caused it had no principal or other office in the terto be levied upon its lands in the territory ritory; nor did it have an officer who could, in order to secure the satisfaction of any in a legal sense, be “found” there; nor did judgment he might finally obtain in such ac-it, in any just sense, carry on business in tion,-upon which point we express no opin- the territory. The company simply owned ion,-it would not follow that a personal lands there, and that fact was not sufficient judgment could have been rendered against by itself to bring the case within the prothe company. In such case the judgment of visions of the territorial statute. This state the court could not affect anything except of the law may sometimes operate injuriousthe lands attached. No personal judg- ly upon those who may wish to sue the ment could have been rendered against the railroad company in the territorial courts. company by reason merely of such attach- But the situation cannot be changed by the ment.

courts. That can only be done by legislaIt is contended that the case is covered by | tion. § 450 of the Compiled Laws of New Mexico, For the reasons stated the judgment of 1897. That section provides that, “in suits the Supreme Court of the Territory must against any corporation, summons shall be be affirmed. served in that county where the principal office of the corporation is kept, or its principal business carried on, by delivering a

(197 U. S. 115) copy to the president thereof, if he may be NATIONAL COTTON OIL COMPANY A found in said county, but, if he is absent

al., Piffs. in Err., therefrom, then the summons shall be

V. served in like manner in the county, on

STATE OF TEXAS. either the vice president, secretary, treasurer, cashier, general agent, general su

perintendent or stockholder, or any agent Constitutional larovalidity of Texas anti

trust laus-due process of laro-equal of said corporation, within such time and under such rules as are provided by law for

protection of the laws-conclusiveness of

state court's construction of state stat. the service of such process in suits against

utes. real persons, and, if no such person can be found in the county where the principal

1. The property of a foreign corporation enoffice of the corporation is kept, or in the

gaged in manufacturing products of cotton county where its principal business is car

seed is not taken without due process of law ried on, to serve such process upon, a sum- by the Texas anti-trust laws, under which mons may issue from either one of such its license to do business in that state is counties, directed to the sheriff of any coun- forfeited for violating those laws by entering ty in this territory where any such person

into an agreement to regulate or fix the

price of cotton seed. may be found and served with process. If

2. The construction given by the state courts such corporation keeps no principal office in

to Tex. act of May 25, 1899, as removing the any county, and there is no county in which

discriminatory features of prior anti-trust the principal business of such corporation laws, is conclusive on the Federal Supreme is carried on, then suit may be brought Court in determining, on writ of error to the against it in any county where the above- state court, whether such statute denies the

equal protection of the laws. mentioned officers, or any or either of them, may be found: Provided, That the plaintiff ( 3. A. foreign corporation whose license to do

business in Texas is sought to be forfeited may, in all cases, bring his action in the

by a suit brought under the anti-trust laws county where the cause of action accrued.” of that state cannot claim to be denied the

Counsel for appellant substantially con- equal protection of the laws, where the discedes that this statute applies only to do- criminatory features of the prior anti-trust mestic corporations,—that is, corporations

laws have been removed by Tex. act of May

25, 1899, although they may still remain in created by, or organized under, territorial

the revised statutes of the state and in the enactments. But, if it is to be assumed

penal code, under which certain excepted that these provisions could be made applica- classes are exempted from indictment and

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punishment, while the corporation may be rious other persons, firms, and corporations, subject to both.

whose names are to the defendant in error

unknown, and the said corporations “became [No. 37.]

members of and parties to a pool, trust, Argued November 1, 2, 1904. Decided Feb-agreement, confederation, and understand

ing with each of the other of said corporaruary 27, 1905.

tions, firms, and persons, whereby they did IN

in and for the Third Supreme Judicial together agree to regulate and fix, and did District of the State of Texas to review a regulate and fix, the price at which they judgment which affirmed a judgment of the would buy cotton seed; that they especially District Court of Travis County, in that regulated and fixed the price of cotton seed State, forfeiting the license of a foreign cor- throughout the state of Texas at $14.00 per poration to do business in that State, beton, and agreed amongst and with each other cause of its violation of the anti-trust laws. that they would not give more than said Affirmed.

$14.00 per ton for cotton seed in any of the See same case below (Tex. Civ. App.) 72 towns and communities of the state of TexS. W. 615.

as.” Whereby, “and by maintaining the agree

ment to regulate and fix the price of cotton Statement by Mr. Justice McKenna: seed aforesaid, the defendant (the National

This suit was brought under the anti- Cotton Oil Company) was guilty of a violatrust acts of the state of Texas, to forfeittion of the laws of the state of Texas," and the license of the National Cotton Oil Com- in consequence has forfeited its permit to pany to do business in the state of Texas, transact business in the state. for violating those acts. The defense is The cancelation and forfeiture of the perthat they are repugnant to the 14th Amend- mit was prayed, and that the oil company ment of the Constitution of the United be enjoined from transacting business in the States.

state. A demurrer was filed to the petition The suit was instituted by the attorney for insufficiency in law to entitle the state general of the state and the district attorney to any relief, and alleged against each of the of the twenty-sixth judicial district, and the anti-trust acts of the state and the provipetition alleged the following facts: The sions of the Penal Code based thereon, that National Cotton Oil Company and the they violated § 1, article 14 of the AmendSouthern Cotton Oil Company are New Jerments to the Constitution of the United sey corporations, doing and transacting busi- States, in that the act of March 30, 1889, ness in the state of Texas by reason of a and the Code provisions based thereon, depermit issued to them respectively on the 20 prived the company of the equal protection day of May, 1900, and the 3d day of June, of the laws, because it was provided by g 1897.

13 of said act and article 988 of the Penal The Taylor Cotton Oil Works is a Texas Code that the said statutes “shall not apply corporation doing business in the state un- to agricultural products or live stock while der a charter granted August 25, 1898. The in the hands of the producer or raiser.” And said foreign corporations, from the date of that the act of April 30, 1895, and certain their respective permits and the Taylor Cot- sections of the Revised Statutes of Texas ton Oil Works from the date of its charter and of the Penal Code were likewise dishave been and are “engaged in the business criminatory because of the same exceptions, of the manufacture and sale of cotton-seed and the further exception that said statoil, cotton-seed meal, and the other by-prod-utes should not be held to "be understood or ucts of cotton seed; that the business in considered to prevent the organization of which each and all of such corporations were laborers for the purpose of maintaining any engaged necessitated the purchase of cotton standard of wages;" and the act of May 25, seed from which the products which they 1899, because it was cumulative and a mere manufactured and sold were made, and that supplement to the others, and carried, theresaid cotton seed was an article and com- fore, the same unconstitutional discriminamodity of merchandise."

tions. Each of them on or about the 1st of No- All of the acts and Code provisions are vember, 1901, and on every day prior and charged with depriving the oil company of subsequently thereto, has been engaged in its property without due process of law and the business of buying cotton seed in the in violation of the 14th Amendment, in that various counties of the state, and on the 1st the penalties are excessive and their provi. of November, 1901, the National Cotton Oil sions so vague and uncertain that the comCompany made and entered into a combina-pany is denied a resort to the tribunals of tion with each of the other companies, the country to defend its rights, except on and they with it, and each of them with va-' the condition that, if not successful, it shall subject its property to confiscation and for- | The various ways in which these purposes feit its right to do business in the state. can be accomplished are enumerated and

It is also urged as a ground of demurrer forbidden. Penalties are affixed to the viothat the act of 1895 violated a provision of lation of the acts, offending domestic corthe Constitution of the state which pro- porations forfeit their charters, and offendhibited a bill to contain more than one ing foreign corporations forfeit their privsubject.

ileges to do business in the state. The demurrer was overruled. The com- There was also an act passed in 1903, pany declined to answer further, and judg- which repealed all laws or parts of laws in ment was entered forfeiting the license or conflict with it, and expressly repealed cerpermit of the company, and enjoining the tain provisions of the Penal Code of the company from transacting any business in state, and the acts of 1895 and 1899. The the state, “except such business as may be right to recover penalties or to forfeit charand constitute interstate commerce." The ters of domestic, or the permits of foreign, judgment was affirmed by the court of civil corporations, for acts committed before the appeals. A rehearing was denied and a writ going into effect of the statute, was reof error from the supreme court refused. served. This writ of error was then granted.

The argument, which is directed against

the validity of the statutes, is drawn from Messrs. William V. Rowe, R. S. Lov- extremes. It is difficult to present its eleett, Ralph Oakley, and James A. Baker for ments in a concise way. Its ultimate founplaintiffs in error.

dation is the right of individuals and corMr. C. K. Bell for defendant in error. porations as well, under the Constitution of

the United States, to make contracts and Mr. Justice McKenna, after stating the combine in business enterprises; and, it is case as above, delivered the opinion of the argued, to prohibit them from so doing "in court:

the ordinary way through the making of The charges made against the statutes of purchases and sales and the fixing of prices, Texas are that they deny the oil company is clearly to work a deprivation of property the equal protection of the law, and take its without due process of law, and to impair property without due process of law. The the well-recognized liberty of contract, inanswer to the first depends upon the effect of volved in the acquiring, using, and dealing the statutes. The answer of the second in- with property," assured by the Federal Convolves their validity and broader consid-stitution. erations. We will deal with it first.

To support the argument the usages and The specification in the demurrer of necessity of business are adduced, and partwherein the statutes deprive the oil com- nerships and their effect are brought forpany of its property without due process of ward as illustrations. There are some things law is indefinite and peculiar. It may be which counsel easily demonstrate. They different from an attack on the validity of easily demonstrate that some combination the statutes but counsel have treated it as of “capital, skill, or acts” is necessary to tantamount to such attack, and we will so any business development, and that the retreat it.

sult must inevitably be a cessation of comDefendant in error contends that it is not petition. But this does not prove that all open to the oil company to attack the con- combinations are inviolable, or that no restitutionality of the statutes, either as dis- striction upon competition can be forbidcriminating against it or as depriving it of den. To contend for these extremes is to property without due process of law, and overlook the difference in the effect of accites Waters-Pierce Oil Co. v. Texas, 177 U. tions, and to limit too much the function S. 28, 44 L. ed. 657, 20 Sup. Ct. Rep. 518. and power of government. By arguing from Counsel for the company contests the appli- extremes almost every exercise of governcation of that case; and we will assume ment can be shown to be a deprivation of in(not decide) with them that it is not de- dividual liberty. It is common-place to say terminative of their contention.

that it is the purpose, and indeed duty, of The acts of 1889 and 1895 are set out at government, to get all it can of good out length in Waters-Pierce Oil Co. v. Texas. of the activities of men, and limit or forbid The act of 1899, so far as the present ques- them when they become or tend to evil. Of tion is concerned, is substantially the same course, what is evil may not be always as they. All of the acts are directed to the clear; but to be able to dispute the policy prohibition of combinations to restrict trade, of a law is not to establish its invalidity. or in any way limit competition in the pro- It is certainly the conception of a large body duction or sale of articles, or to increase of public opinion that the control of prices or reduce their price in order to preclude through combinations tends to restraint of & free and unrestricted competition in them.' trade and to monopoly, and is evil. The foundations of the belief we are not called | bition was a valid exercise of the police upon to discuss, nor does our purpose re- power of the state. quire us to distinguish between the kinds It follows that the statutes of Texas do of combinations or the degrees of monopoly. not deprive the oil company of its property It is enough to say that the idea of monop- without due process of law. oly is not now confined to a grant of privi- Next, as to the effect of the statutes. leges. It is understood to include a "condi- The act of May 25, 1899, omits the distion produced by the acts of mere individ- criminatory provisions of the prior acts, uals." Its dominant thought now is, to but, it is contended that, as the latter act quote another, “the notion of exclusiveness is declared to be cumulative of the prior or unity;" in other words, the suppression acts, their discriminations are preserved and of competition by the unification of inter- continued, and that, under the Code provi. est or management, or it may be through sions, the company may be criminally progagreement and concert of action. And the ecuted, and that the excepted classes of the purpose is so definitely the control of prices acts of 1889 and 1895 are exempt from pros. that monopoly has been defined to be "uni-ecution. It is further urged, whether such fied tactics with regard to prices.” It is discrimination results from the statutes is the power to control prices which makes the for us to determine independently of what inducement of combinations and their profit. views the courts of the state may entertain It is such power that makes it the concern of them and their relations. of the law to prohibit or limit them. And Upon the last contention depends the this concern and the policy based upon it mode of approaching the other, and we will has not only expression in the Texas stat- dispose of it first. We cannot assent to it. utes; it has expression in the statutes of There are cases in which we determine for other states and in a well-known national ourselves the meaning of a state law, but enactment. According to them, competition, this is not one of them. The contention of not combination, should be the law of trade. the company is that the statutes of the state If there is evil in this it is accepted as less discriminate against it; in other words, deny than that which may result from the unifi- it the equal protection of the law, by forbidcation of interests, and the power such uni- ding it from doing what they permit others fication gives. And that legislatures may so to do in similar circumstances,-punish its ordain this court has decided. United States acts and exempt from punishment the same v. E. 0. Knight Co. 156 U. S. 1, 39 L. ed. acts when done by others. But the courts 325, 15 Sup. Ct. Rep. 249; United States v. of the state are the tribunals appointed to Trans-Missouri Freight Asso. 166 U. S. 290, administer the statutes and impose their 41 L. ed. 1007, 17 Sup. Ct. Rep. 540; United penalties, and to do so they must necessaStates v. Joint Traffic Asso. 171 U. S. 505, rily interpret them. In other words, they 43 L. ed. 259, 19 Sup. Ct. Rep. 25; Northern are the tribunals to declare the meaning of Securities Co. v. United States, 193 U. s. the statutes, and if in declaring it they make 197, 48 L. ed. 679, 24 Sup. Ct. Rep. 436; the statutes discriminatory, then may the Swift & Co. v. United States, 196 U. S. 375, statutes become unconstitutional. Olsen v. ante, 276, 25 Sup. Ct. Rep. 276.

Smith, 195 U. S. 332, 25 Sup. Ct. Rep. 52, 49 In Smiley v. Kansas, decided at this L. ed. 224. term, 196 U. S. 447, 25 Sup. Ct. Rep. 289, 49

What has the supreme court of Texas said L. ed. 546, a statute of Kansas is passed on

of the statutes ? which is identical in effect, and even in

The court of civil appeals in the case at words, in all that concerns the present con

bar expressed the following view:

“The trial court did not err in overruling troversy, with the Texas statutes. The statute was assailed as "an unwarranted at. appellant's demurrers. While it has been cor. tempt upon the part of the legislature to rectly held that certain provisions of the

anti-trust statutes are unconstitutional, the limit the rights of the individual in the matter of contracting and dealing with his supreme court, in the case of State v. Ship

pers' Compress & Warehouse Co. 95 Tex. fellowmen." The right which Smiley claimed was to combine with certain grain Waters-Pierce Oil Co. v. Texas, 177 U. S.

603, 69 S. W. 61, relying upon the case of dealers, persons, companies, and corpora- 28, 44 L. ed. 657, 20 Sup. Ct. Rep. 518, holds tions, who were competitors, to pool and fix that so much of these statutes that authorthe price of grain in the town of Bison, and ize the canceling and forfeiture of a charter to prevent competition in the purchase and or permit to do business within the state of sale of grain at that place. We followed the Texas are valid, and are not in violation of ruling of the supreme court of the state in the Constitution.” holding that the combination was within the The supreme court refused a writ of er. prohibition of the statute; we concurred ror, and thereby, as we understand the local with that court in deciding that the prohi- 'rule to be, approved the views of the court

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