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 Bakering under the Constitution and laws of the may not be now made a party in his stead. Certainly, the statute authorizes that to be done if, in the judgment of the court, there is a necessity for such action in order to obtain a settlement of the legal question involved. We think such a necessity exists in this case, and, as Judge Abbott waives any formal summons, and consents to the substitution of his name in place of that of Judge Baker, the motion of appellant is granted, and such substitution is ordered to be and is now made, subject, however, to the condition that he shall not be liable for any costs prior to this date.

United States as is vested in the circuit and district courts of the United States, are those acts to be construed as excepting from the general jurisdiction of the territorial district courts cases that may arise under them? In other words, can a suit for damages under either of those acts be brought in any court except, under the act of 1887, in a circuit or district court of the United States, and, under the act of 1890, in a circuit court of the United States? Did Congress intend that only courts of the United States, invested by the 3d article of the Constitution with the judicial power of the United States (McAllister v. United States, 141 U. S. 174, 35 L. ed. 693, 11 Sup. Ct. Rep. 949), should have original jurisdiction of suits of that character? The questions suggested by these inquiries were not much

We come now to the merits of the case. The act under which the territory of New Mexico was created and organized, approved September 9th, 1850, provides that the legislative power of the territory of New Mexico should extend to all rightful subjects of leg-discussed by counsel, and we pass them as islation consistent with the Constitution of the United States. The same act divides the territory into three judicial districts, and requires a district court to be held in each of such districts by one of the justices of the territorial supreme court. It also provides: "Each of the said district courts shall have and exercise the same jurisdiction, in all cases arising under the Constitution and laws of the United States, as is vested in the circuit and district courts of the United States. 450, chap. 49, § 10.] tained in the Revised States. 1910.

[9 Stat. at L.
This provision was re-
This provision was re-
Statutes of the United

The present case clearly arises under the laws of the United States; for the action brought in the territorial district court was expressly based on the Interstate Commerce Act of 1887 and the anti-trust act of 1890. And the question arises upon the very face of the record, whether the territorial district court could take cognizance at all of suits for damages authorized by those acts. We have seen that by § 9 of the above act of 1887 any person or persons alleged to have been damaged by a common carrier, embraced by the provisions of that act, may bring suit in his or their own behalf "in any district or circuit court of the United States of competent jurisdiction;" and, by the above act of 1890, any person injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by that act may sue therfor "in any circuit court of the United States in the district in which the defendant resides or is found."

being, in our view of the case, not necessary to be now decided; for, if a controversy like that raised by the plaintiff is equally cognizable by a territorial district court, or by a circuit or district court of the United States, it would still remain to inquire whether the defendant company was brought before the court in which the suit was instituted in such a way that a personal judgment could be rendered against it?

It is firmly established that a court of justice cannot acquire jurisdiction over the person of a defendant, "except by actual service of notice within the jurisdiction upon him, or upon someone authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service." Goldey v. Morning News, 156 U. S. 521, 39 L. ed. 518, 15 Sup. Ct. Rep. 559; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Mexican C. R. Co. v. Pinkney, 149 U. S. 209, 37 L. ed. 705, 13 Sup. Ct. Rep. 859; United States v. American Bell Teleph. Co. 29 Fed. 17. This principle is applicable to all courts.

We are of opinion that the service of summons upon Ripley, as president, while he was passing through the territory on a railroad train was insufficient as a personal service on the company of which he was president. It is true that the company owned lands in the territory, but its office, at the which the meetings of its directors were held, was in the city of New York, while the office of its land commissioner was at Topeka, Kansas, and the office of its president was at Chicago, Illinois. The mere ownership of lands in New Mexico, or

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, based on the acts of 1889 and 1890, could have sued out an attachment and caused it to be levied upon its lands in the territory in order to secure the satisfaction of any judgment he might finally obtain in such action,-upon which point we express no opinion,-it would not follow that a personal | judgment could have been rendered against the company. In such case the judgment of the court could not affect anything except the lands attached. No personal judgment could have been rendered against the company by reason merely of such attachment.

be

court, was not an inhabitant of the district within the meaning of the local statute; it had no principal or other office in the territory; nor did it have an officer who could, in a legal sense, be "found" there; nor did it, in any just sense, carry on business in the territory. The company simply owned lands there, and that fact was not sufficient by itself to bring the case within the provisions of the territorial statute. This state of the law may sometimes operate injuriously upon those who may wish to sue the railroad company in the territorial courts. But the situation cannot be changed by the courts. That can only be done by legislation.

For the reasons stated the judgment of the Supreme Court of the Territory must be affirmed.

(197 U. S. 115)

al., Plffs. in Err.,

v.

STATE OF TEXAS.

Constitutional law-validity of Texas antitrust laws-due process of law-equal protection of the laws-conclusiveness of state court's construction of state statutes.

It is contended that the case is covered by § 450 of the Compiled Laws of New Mexico, 1897. That section provides that, "in suits against any corporation, summons shall be served in that county where the principal office of the corporation is kept, or its principal business carried on, by delivering a copy to the president thereof, if he may be NATIONAL COTTON OIL COMPANY et found in said county, but, if he is absent therefrom, then the summons the summons shall served in like manner in the county, on either the vice president, secretary, treasurer, cashier, general agent, general superintendent or stockholder, or any agent of said corporation, within such time and under such rules as are provided by law for the service of such process in suits against real persons, and, if no such person can be found in the county where the principal office of the corporation is kept, or in the county where its principal business is carried on, to serve such process upon, a summons may issue from either one of such counties, directed to the sheriff of any county in this territory where any such person may be found and served with process. If such corporation keeps no principal office in any county, and there is no county in which the principal business of such corporation is carried on, then suit may be brought against it in any county where the above

1.

2.

The property of a foreign corporation engaged in manufacturing products of cotton seed is not taken without due process of law by the Texas anti-trust laws, under which its license to do business in that state is forfeited for violating those laws by entering into an agreement to regulate or fix the price of cotton seed.

The construction given by the state courts to Tex. act of May 25, 1899, as removing the discriminatory features of prior anti-trust laws, is conclusive on the Federal Supreme Court in determining, on writ of error to the state court, whether such statute denies the equal protection of the laws.

mentioned officers, or any or either of them, 3. A foreign corporation whose license to do

may be found: Provided, That the plaintiff may, in all cases, bring his action in the county where the cause of action accrued."

Counsel for appellant substantially concedes that this statute applies only to domestic corporations, that is, corporations created by, or organized under, territorial enactments. But, if it is to be assumed that these provisions could be made applica

business in Texas is sought to be forfeited by a suit brought under the anti-trust laws of that state cannot claim to be denied the equal protection of the laws, where the discriminatory features of the prior anti-trust laws have been removed by Tex. act of May 25, 1899, although they may still remain in the revised statutes of the state and in the penal code, under which certain excepted classes are exempted from indictment and

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

[No. 37.]

whose names are to the defendant in error unknown, and the said corporations "became members of and parties to a pool, trust,

Argued November 1, 2, 1904. Decided Feb- agreement, confederation, and understand

I'

ruary 27, 1905.

N ERROR to the Court of Civil Appeals in and for the Third Supreme Judicial District of the State of Texas to review a judgment which affirmed a judgment of the District Court of Travis County, in that State, forfeiting the license of a foreign corporation to do business in that State, because of its violation of the anti-trust laws. Affirmed.

See same case below (Tex. Civ. App.) 72

S. W. 615.

Statement by Mr. Justice McKenna: This suit was brought under the antitrust acts of the state of Texas, to forfeit the license of the National Cotton Oil Company to do business in the state of Texas, for violating those acts. The defense is that they are repugnant to the 14th Amendment of the Constitution of the United States.

The suit was instituted by the attorney general of the state and the district attorney of the twenty-sixth judicial district, and the petition alleged the following facts: The National Cotton Oil Company and the Southern Cotton Oil Company are New Jersey corporations, doing and transacting business in the state of Texas by reason of a permit issued to them respectively on the 2d day of May, 1900, and the 3d day of June, 1897.

ing with each of the other of said corporations, firms, and persons, whereby they did each for itself and with each other and all together agree to regulate and fix, and did regulate and fix, the price at which they would buy cotton seed; that they especially regulated and fixed the price of cotton seed throughout the state of Texas at $14.00 per ton, and agreed amongst and with each other that they would not give more than said $14.00 per ton for cotton seed in any of the towns and communities of the state of Texas." Whereby, "and by maintaining the agreement to regulate and fix the price of cotton seed aforesaid, the defendant (the National Cotton Oil Company) was guilty of a violation of the laws of the state of Texas," and in consequence has forfeited its permit to transact business in the state.

The cancelation and forfeiture of the permit was prayed, and that the oil company be enjoined from transacting business in the state. A demurrer was filed to the petition for insufficiency in law to entitle the state to any relief, and alleged against each of the anti-trust acts of the state and the provisions of the Penal Code based thereon, that they violated § 1, article 14 of the Amendments to the Constitution of the United States, in that the act of March 30, 1889, and the Code provisions based thereon, deprived the company of the equal protection of the laws, because it was provided by § 13 of said act and article 988 of the Penal Code that the said statutes "shall not apply to agricultural products or live stock while in the hands of the producer or raiser." And that the act of April 30, 1895, and certain sections of the Revised Statutes of Texas and of the Penal Code were likewise discriminatory because of the same exceptions, and the further exception that said stat

The Taylor Cotton Oil Works is a Texas corporation doing business in the state under a charter granted August 25, 1898. The said foreign corporations, from the date of their respective permits and the Taylor Cotton Oil Works from the date of its charter have been and are "engaged in the business of the manufacture and sale of cotton-seed oil, 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 which each and all of such corporations were engaged necessitated the purchase of cotton seed from which the products which they manufactured and sold were made, and that said cotton seed was an article and commodity of merchandise."

considered to prevent the organization of laborers for the purpose of maintaining any standard of wages;" and the act of May 25, 1899, because it was cumulative and a mere supplement to the others, and carried, therefore, the same unconstitutional discriminations.

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 proviof 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.

It is also urged as a ground of demurrer that the act of 1895 violated a provision of the Constitution of the state which pro-porations forfeit their charters, and offendhibited a bill to contain more than one subject.

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

acts, their discriminations are preserved and continued, and that, under the Code provisions, the company may be criminally prosecuted, and that the excepted classes of the acts of 1889 and 1895 are exempt from prosecution. It is further urged, whether such discrimination results from the statutes is for us to determine independently of what views the courts of the state may entertain of them and their relations.

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 of competition by the unification of interest or management, or it may be through agreement and concert of action. And the purpose is so definitely the control of prices that monopoly has been defined to be "unified tactics with regard to prices." It is the power to control prices which makes the inducement of combinations and their profit. It is such power that makes it the concern of the law to prohibit or limit them. And this concern and the policy based upon it has not only expression in the Texas statutes; it has expression in the statutes of other states and in a well-known national enactment. According to them, competition, not combination, should be the law of trade. If there is evil in this it is accepted as less than that which may result from the unification of interests, and the power such unification gives. And that legislatures may so ordain this court has decided. United States v. E. C. Knight Co. 156 U. S. 1, 39 L. ed. 325, 15 Sup. Ct. Rep. 249; United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540; United States v. Joint Traffic Asso. 171 U. S. 505, 43 L. ed. 259, 19 Sup. Ct. Rep. 25; Northern Securities Co. v. United States, 193 U. S. 197, 48 L. ed. 679, 24 Sup. Ct. Rep. 436; Swift & Co. v. United States, 196 U. S. 375, ante, 276, 25 Sup. Ct. Rep. 276.

Upon the last contention depends the mode of approaching the other, and we will dispose of it first. We cannot assent to it. There are cases in which we determine for ourselves the meaning of a state law, but this is not one of them. The contention of the company is that the statutes of the state discriminate against it; in other words, deny it the equal protection of the law, by forbidding it from doing what they permit others to do in similar circumstances, punish its acts and exempt from punishment the same acts when done by others. But the courts of the state are the tribunals appointed to administer the statutes and impose their penalties, and to do so they must necessarily interpret them. In other words, they are the tribunals to declare the meaning of the statutes, and if in declaring it they make the statutes discriminatory, then may the statutes become unconstitutional. Olsen v. Smith, 195 U. S. 332, 25 Sup. Ct. Rep. 52, 49 L. ed. 224.

What has the supreme court of Texas said of the statutes?

The court of civil appeals in the case at bar expressed the following view:

In Smiley v. Kansas, decided at this term, 196 U. S. 447, 25 Sup. Ct. Rep. 289, 49 L. ed. 546, a statute of Kansas is passed on which is identical in effect, and even in words, in all that concerns the present controversy, with the Texas statutes. The statute was assailed as "an unwarranted attempt upon the part of the legislature to limit the rights of the individual in the matter of contracting and dealing with his fellowmen." The right which Smiley claimed was to combine with certain grain dealers, persons, companies, and corporations, who were competitors, to pool and fix the price of grain in the town of Bison, and to prevent competition in the purchase and sale of grain at that place. We followed the ruling of the supreme court of the state in holding that the combination was within the The supreme court refused a writ of erprohibition 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

"The trial court did not err in overruling appellant's demurrers. While it has been correctly held that certain provisions of the anti-trust statutes are unconstitutional, the supreme court, in the case of State v. Shippers' Compress & Warehouse Co. 95 Tex. 603, 69 S. W. 61, relying upon the case of Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 44 L. ed. 657, 20 Sup. Ct. Rep. 518, holds that so much of these statutes that authorize the canceling and forfeiture of a charter or permit to do business within the state of Texas are valid, and are not in violation of the Constitution."