plan applicable throughout the entire country. This case had been brought in the state court and removed by the defendant to the circuit court of the United States, on the ground that it was one arising under the constitution and laws of the United States. The circuit court sustained the jurisdiction and dismissed the bill upon the merits. 123 Fed. 692. But the supreme court reversed the decree, with directions to remand the case to the state court on the ground that the circuit court of the United States could not acquire jurisdiction of such proceeding, although both parties urged the court to take jurisdiction, as the State of Minnesota was not a citizen within the meaning of the constitution, and there was no diverse citizenship to sustain the jurisdiction of the federal court.

§ 471. Suits by the government for dissolution of unlawful combinations.-Procedure: It was claimed in the Standard Oil Case, supra, § 446, that the circuit court erred in overruling exceptions on the ground of impertinence of so much of the bill filed by the United States, as counted upon facts occurring prior to the Anti-Trust Act. But the court held that this ruling could not be regarded as prejudicial error where the court gave no weight to the testimony adduced in the averments complained of, except as far as it tended to throw light upon the acts done after the passage of the statute, the results of which it was charged. were being participated in and enjoyed by the alleged combination at the time of filing the bill.

In Union Pacific Coal Company v. United States, 173 Fed. 737 (1909), it was held by the circuit judges of the eighth circuit that a combination between a corporation and its officers or agents could not be formed by the efforts of the officers or agents alone without the conscious participation in it by any other officer or agent of the corporation, and that conscious participation of two or more minds is indispensable to an unlawful combination. Neither were non-participating stockholders criminally liable for a violation of law by the corporation wherein they did not participate.

In Alexander v. U. S., 201 U. S. 117, 50 L. Ed. 686 (1906), it was held that orders of a federal circuit court, directing witnesses to answer the questions put to them and produce written evidence in their possession, on their examination before a special examiner appointed in a suit brought by the United States

to enjoin an alleged violation of the Anti-Trust Act, lacked the finality requisite to sustain an appeal to the supreme court.

§ 472. The decree in the Standard Oil case. In the Standard Oil Case, the decree entered by the circuit court ordered the dissolution of the New Jersey holding corporation, and enjoined the subsidiary corporations and their stockholders from making any agreement tending to bring about further violations of the statute. This was criticised as too broad and of itself preventing legitimate business transactions. The supreme court said that it was not capable of any such construction and therefore could not produce any harmful results. The decree should be construed, not as depriving the stockholders of the corporations of the power to make lawful and normal contracts and agreements after the dissolution of the corporation, but as restraining them from by any device whatever creating directly or indirectly the illegal combination which the decree dissolved.

In this case the court said that in view of the magnitude of the interests involved and their complexity, the thirty days for executing the decree was too short, and it was extended so to embrace a period of at least six months; and that in view of the possible injury to result to the public from the decree prohibiting interstate commerce in petroleum and its products, the injunction against the carrying on of interstate commerce by the New Jersey corporation and the subsidiary companies until the dissolution of the company should not have been awarded. The case was therefore remanded with the affirmance of the decree with these instructions, and the circuit court was authorized to retain jurisdiction to the extent necessary to compel compliance in every respect with its decrees. (With respect to the modifications and also as to the decree in the Tobacco case, Justice Harlan dissented, though concurring in the findings of the court.)

§ 473. The decree in the American Tobacco Company case.In the American Tobacco Case, supra, § 447, where the supreme court without dissent found that there was an unlawful combination in restraint of trade and an attempted monopolization of the business, the court said that with respect to the remedy the situation involved difficulties greater than were presented in any anti-trust case which had been considered by the court. The mere decree forbidding stock ownership by one party to the combination of another part would afford no adequate measure of

relief since the different ingredients of the company would remain unaffected, and that the settled device which had been resorted to made it difficult to formulate a remedy; and because the tobacco business had been so separted under various subordinate companies and so unified by the control acquired by the scheme condemned, that any specific form of relief might operate really to injure the public, and may be to perpetuate the The court therefore found it inexpedient to allow a permanent injunction against all parts of the combination, or to direct the appointment of a receiver of all the property in all its ramifications. Considering the complexity of the situation, therefore, the court decreed that the combination was in restraint of trade and an attempt to monopolize, and that the circuit court should be ordered to hear the parties by evidence or otherwise for the purpose of ascertaining and determining upon some plan or method of dissolving the corporation and of recreating out of the elements now composing it a new company which should be honestly in harmony with the law, and not repugnant to the law. Six months was allowed from the receipt of the mandate to accomplish these purposes, with leave, however, in the event the necessities required it in the judgment of the court below, to extend such period for a further time, not exceeding sixty days, and that if, in the event that this condition of disintegration was not brought about in this time it should be the duty of the court, either by way of injunction, or by the appointment of a receiver, to give effect to the requirements of the statute; and the court concluded:

"Pending the bringing about of the results stated, each and all of the parties, individuals as well as corporations, should be restrained from doing any act which might thereafter extend or enlarge the power of the combination by any means or device whatsoever."

The circuit judges under this decree approved (Nov. 1911) the plan or reorganization whereunder the assets of the "trust" were distributed pro rata to the stockholders organized in four new companies; and the attorney-general announced that no appeal would be taken by the United States therefrom. Such pro rata distribution of the assets of a combination adjudged illegal was approved by the supreme court in the case of the Northern Securities Company v. Harriman, 197 U. S. 244, 49. L. Ed. 739, 1905.

474. Section 5 of the act.

SECTION 5.

475. Judicial application of section.

§ 474 (335). Additional parties may be summoned.-SEC. 5. Whenever it shall appear to the court before which any proceeding under section four of this act may be pending that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.

§ 475. Judicial application of section.-The comprehensive jurisdiction vested in the court under this section is enforced by the provisions of the act of February 11, 1903, known as the Expedition Act, infra, § 490, whereunder suits in equity brought by the United States may be given precedence over others on the certificate of the attorney general as to the general public importance of the suit.

The provision of this section however, whereunder the court can order parties to be summoned residing in other districts and can direct subpoena to be served in any district by the marshal thereof, only applies to suits in equity, that is, to statutory injunctions brought by the government under section 4 of the Anti-Trust Act. It does not apply to private actions for damages under section 7 of the act, which can only be brought in the district where the defendant resides or is found. Under the Elkins Act, § 422, supra, criminal prosecutions brought under the Interstate Commerce Act must be brought in the district where the violation is committed, or through which the transportation may have been conducted.

The jurisdiction vested in the courts in this class of proceedings, enabling the government to select a forum in any state, where anyone of the defendants is a resident, was illustrated in the Standard Oil case, wherein there were some seventy-one corporate and partnership defendants and several individual defendants and only one of the numerous defendants, the WatersPierce Oil Co., was a resident in the district in which the suit

was commenced, and the only defendant served with process therein. Contemporaneously with the filing of the bill, the court made an order under this section to serve process upon all the other defendants, wherever they could be found. This jurisdiction was sustained by the circuit judges, see 152 Fed. 290, and also on appeal by the supreme court, supra, which held that under this section the court took rightful jurisdiction over the case, and properly ordered notice to be served upon the nonresident defendants. As to parties in suit in equity by United States, see also Powder Trust Case, 188 Fed. 151, supra.

There is no provision in the Anti-trust Act as to the court wherein criminal offenses shall be prosecuted. Such prosecutions must therefore be had in the district where the offense is committed. See cases cited, § 455.