merce, and provide for their suppression as well through civil proceedings instituted for that purpose as by penalties against those engaged in them.

*In committing to congress the control of commerce with foreign nations and among the several states, the constitution did not define the means that may be employed to protect the freedom of commercial intercourse and traffic established for the benefit of all the people of the Union. It wisely forbore to impose any limitations upon the exercise of that power except those arising from the general nature of the government, or such as are embodied in the fundamental guaranties of liberty and property. It gives to congress, in express words, authority to enact all laws necessary and proper for carrying into execution the power to regulate commerce; and whether an act of congress, passed to accomplish an object to which the general government is competent, is within the power granted, must be determined by the rule announced through Chief Justice Marshall three-quarters of a century ago, and which has been repeatedly affirmed by this court. That rule is: "The sound construction of the constitution must allow to the national legislature the discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution; and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional." M'Culloch v. Maryland,

4 Wheat. 316, 421. The end proposed to be accomplished by the act of 1890 is the protection of trade and commerce among the states against unlawful restraints. Who can say that that end is not legitimate, or is not within the scope of the constitution? The means employed are the suppression, by legal proceedings, of combinations, conspiracies, and monopolies which, by their inevitable and admitted tendency, improperly restrain trade and commerce among the states. Who can say that such means are not appropriate to attain the end of freeing commercial intercourse among the states from burdens and exactions imposed upon it by combinations which, under principles long recognized in this country, as well as at the common law, are illegal and dangerous to the public welfare? What clause of the constitution can be referred to which prohibits the means thus prescribed in the act of congress?

It may be that the means employed by congress to suppress combinations that restrain interstate trade and commerce are not all or the best that could have been devised. But congress, under the delegation of authority to enact laws necessary and proper to carry into effect a power granted, is not restricted to the employment of those means

"without which the end would be entirely unattainable." "To have prescribed the means," this court has said, "by which government should, in all future time, execute its powers, would have been to change entirely the character of that instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." Again: "Where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground." M'Culloch v. Maryland, 4 Wheat. 316, 415, 423.

By the act of 1890, congress subjected to forfeiture "any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and being in the course of transportation from one state to another, or to a foreign country." It was not deemed wise to subject such property to forfeiture before transportation began or after it ended. If it be suggested that congress might have prohibited the transportation from the state in which they are manufactured any articles, by whomsoever at the time owned, that had been manufactured by combinations formed to monopolize some designated part of trade or commerce among the states, my answer is that it is not within the functions of the judiciary to adjudge that congress shall employ particular means in execution of a given power, simply because such means are, in the judgment of the courts, best conducive to the end sought to be accomplished. gress, in the exercise of its discretion as to choice of means conducive to an end to which it was competent, determined to reach that end through civil proceedings, instituted to prevent or restrain these obnoxious combinations in their attempts to burden interstate commerce by obstructions that interfere in advance of transportation with the free course of trade between the people of the states. In other words, congress sought to prevent the coming into existence of combinations, the purpose or tendency of which was to impose unlawful restraints upon interstate com

merce.

Con

to another state, were liable to be taxed in the former state before actual transportation to the latter state began. The court held that the logs might be taxed while they remained in the state of their origin as part of the general mass of property there; that "for this purpose" (taxation) the property did not pass from the jurisdiction of the state in which it was until transportation began. The scope of the decision is clearly indicated by the following clause in the opinion of Mr. Justice Bradley: "How can property thus situated, to wit, deposited or stored at the place of entrepot for future exportation, be taxed in the regular way as part of the property of the state? The answer is plain. It can be taxed as all other property is taxed, in the place where it is found, if taxed or assessed for taxation in the usual manner in which such property is taxed; and not singled out to be assessed by itself in an unusual and exceptional manner because of its situation." As we have now no question as to the taxation of articles manufactured by one of the combinations condemned by the act of congress, and as no one has suggested that the state in which they may be manufactured could not tax them as property so long as they remained within its limits, and before transportation of them to other states began, I am at a loss to understand how the case before us can be affected by a decision that personal property, while it remains in the state of its origin, although it is to be sent at a future time to another state, is within the jurisdiction of the former state for purposes of taxation.

The question here relates to restraints upon the freedom of interstate trade and commerce imposed by illegal combinations. After the fullest consideration I have been able to bestow upon this important question, I find it impossible to refuse my assent to this proposition: Whatever a state may do to protect its completely interior traffic or trade against unlawful restraints, the general government is empowered to do for the protection of the people of all the states-for this purpose, one people-against unlawful restraints imposed upon interstate traffic or trade in articles that are to enter into com. merce among the several states. If, as already shown, a state may prevent or suppress a combination, the effect of which is to subject its domestic trade to the restraints necessarily arising from their obtaining the absclute control of the sale of a particular article in general use by the community, there ought to be no hesitation in allowing to congre's the right to suppress a similar combination that imposes a like unlawful restraint upon interstate trade and traffic in that article. While the states retain, because they have never surrendered, full control of their completely internal traffic, it was not intended by the framers of the constitution that any part of interstate commerce should be excluded from the control of congress. Each state can reach and sup

press combinations so far as they unlawfully restrain its interior trade, while the national government may reach and suppress them so far as they unlawfully restrain trade among the states.

While the opinion of the court in this case does not declare the act of 1890 to be unconstitutional, it defeats the main object for which it was passed, for it is, in effect, held that the statute would be unconstitutional if interpreted as embracing such unlawful restraints upon the purchasing of goods in one state to be carried to another state as necessarily arise from the existence of combinations formed for the purpose and with the effect, not only of monopolizing the ownership of all such goods in every part of the country, but of controlling the prices for them in all the states. This view of the scope of the act leaves the public, so far as national power is concerned, entirely at the mercy of combinations which arbitrarily control the prices of articles purchased to be transported from one state to another state. I cannot assent to that view. In my judgment, the general government is not placed by the constitution in such a condition of helplessness that it must fold its arms and remain inactive while capital combines, under the name of a corporation, to destroy competition, not in one state only, but throughout the entire country, in the buying and selling of articlesespecially the necessaries of life-that go into commerce among the states. The doctrine of the autonomy of the states cannot properly be invoked to justify a denial of power in the national government to meet such an emergency, involving, as it does, that freedom of commercial intercourse among the states which the constitution sought to attain. It is said that there are no proofs in the record which indicate an intention upon the part of the American Sugar Refining Company and its associates to put a restraint upon trade or commerce. Was it necessary that formal proof be made that the persons engaged in this combination admitted in words that they intended to restrain trade or commerce? Did any one expect to find in the written agreements which resulted in the formation of this combination a distinct expression of a purpose to restrain interstate trade or commerce? Men who form and control these combinations are too cautious and wary to make such admissions orally or in writing. Why, it is conceded that the object of this combination was to obtain control of the business of making and selling refined sugar throughout the entire country. Those interested in its operations will be satisfied with nothing less than to have the whole population of America pay tribute to them. That object is disclosed upon the very face of the transactions described in the bill. And it is proved-indeed, is conceded-that that object has been accomplished to the extent that the American Sugar Refining Company now controls 98 per cent. of all the

sugar refining business in the country, and therefore controls the price of that article everywhere. Now, the mere existence of a combination having such an object and possessing such extraordinary power is itself, under settled principles of law,-there being no adjudged case to the contrary in this country, a direct restraint of trade in the article for the control of the sales of which in this country that combination was organized. And that restraint is felt in all the states, for the reason, known to all, that the article in question goes, was intended to go, and must always go, into commerce among the several states, and into the homes of people in every condition of life.

A decree recognizing the freedom of commercial intercourse as embracing the right to buy goods to be transported from one state to another without buyers being burdened by unlawful restraints imposed by combinations of corporations or individuals, so far from disturbing or endangering would tend to preserve the autonomy of the states, and protect the people of all the states against dangers so portentous as to excite apprehension for the safety of our liberties. If this be not a sound interpretation of the constitution, it is easy to perceive that interstate traffic, so far as it involves the price to be paid for articles necessary to the comfort and well-being of the people in all the states, may pass under the absolute control of overshadowing combinations having financial resources without limit, and an audacity in the accomplishment of their objects that recognizes none of the restraints of moral obligations controlling the action of individuals; combinations governed entirely by the law of greed and selfishness, so powerful that no single state is able to overthrow them, and give the required protection to the whole country, and so all-pervading that they threaten the integrity of our institutions.

We have before us the case of a combination which absolutely controls, or may, at its discretion, control, the price of all refined sugar in this country. Suppose another combination, organized for private gain and to control prices, should obtain possession of all the large flour mills in the United States; another, of all the grain elevators; another, of all the oil territory; another, of all the saltproducing regions; another, of all the cotton mills; and another, of all the great establishments for slaughtering animals and the preparation of meats. What power is competent to protect the people of the United States against such dangers except a national power, one that is capable of exerting its sovereign authority throughout every part of the territory and over all the people of the nation?

To the general government has been committed the control of commercial intercourse among the states, to the end that it may be free at all times from any restraints except such as congress may impose or permit for the

benefit of the whole country. The common government of all the people is the only one that can adequately deal with a matter which directly and injuriously affects the entire commerce of the country, which concerns equally all the people of the Union, and which, it must be confessed, cannot be adequately controlled by any one state. Its authority should not be so weakened by construction that it cannot reach and eradicate evils that, beyond all question, tend to defeat an object which that government is entitled, by the constitution, to accomplish. "Powerful and ingenious minds," this court has said, "taking, as postulates, that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass, and that the original powers of the states are retained, if any possible construction will retain them, may, by a course of well-digested but refined and metaphysical reasoning, founded on these premises, explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived." Gibbons v. Ogden, 9 Wheat. 1, 222.

While a decree annulling the contracts un der which the combination in question was formed may not, in view of the facts disclosed, be effectual to accomplish the object of the act of 1890, I perceive no difficulty in the way of the court passing a decree declaring that that combination imposes an unlawful restraint upon trade and commerce among the states, and perpetually enjoining it from further prosecuting any business pursuant to the unlawful agreements under which it was formed, or by which it was created. Such a decree would be within the scope of the bill, and is appropriate to the end which congress intended to accomplish, namely, to protect the freedom of commercial intercourse among the states against combinations and conspiracies which impose unlawful restraints upon such intercourse. For the reasons stated, I dissent from the opinion and judgment of the court.

689.

though jurisdiction would be lacking if such proceedings had been originally and independently prosecuted (Stewart v. Dunham, 115 U. S. 61, 64, 5 Sup. Ct. 1163; Richmond v. Irons, 121 U. S. 27, 52, 7 Sup. Ct. 788). And since, where jurisdiction would not obtain in an independent suit, an intervening proceeding may nevertheless be maintained as ancillary and supplemental under jurisdiction already subsisting, such proceeding is to be regarded in that aspect, even in cases where the circuit court might have had jurisdiction of an independent action. Here, as we have said, the jurisdiction of the circuit court was invoked in the first instance by the filing of the bill, and it was under that jurisdiction that appellee intervened in the case, and that jurisdiction depended entirely upon diverse citizenship. We think the use of the words "suit or controversy" in the sixth section does not affect the conclusion. If the word "controversy" added anything to the comprehensiveness of the section, the fact remains that the exercise of the power of disposition over this intervention, whether styled "suit" or "controversy," was the exercise of power invoked at the institution of the main suit, and it is to that point of time that the inquiry as to jurisdiction must necessarily be referred. Mining Co. v. Turck, 150 U. S. 138, 14 Sup. Ct. 35. Nor can the conclusion be otherwise because separate appeals may be allowed on such interventions. Decrees upon controversies separable from the main suit may, indeed, be separately reviewed, but the jurisdiction of the circuit court over such controversies is not, therefore, to be ascribed to grounds independent of jurisdiction in the main suit. We are unable to attribute to congress the intention of allowing final orders on every incidental controversy, involving over $1,000, to be brought to this court for review, while denying such review of the principal decree, although involving millions.

Tested by these principles, the decree of the circuit court of appeals was final, and the motion to dismiss must be sustained. Appeal dismissed.

(156 U. S. 46)

STUART v. CITY OF EASTON et al.
(January 21, 1895.)
No. 151.

FEDERAL COURTS-JURISDICTION-ALIens. Jurisdiction dependent on the alienage of one of the parties cannot be sustained upon the mere description of such party, throughout the record, as a "citizen of London, England."

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

W. B. Rawle, A. F. Freedley, and C. keley Taylor, for plaintiff in error. H. ele, for defendants in error.

Mr. Chief Justice FULLER Plaintiff in error is described throughout the record as "a citizen of London, England," and the defendants as "corporations of the state of Pennsylvania." As the jurisdiction of the circuit court confessedly depended on the alienage of plaintiff in error, and that fact was not made affirmatively to appear, the judgment must be reversed at the costs of plaintiff in error, and the cause be remanded to the circuit court with leave to apply for amendment, and for further proceedings. Bingham v. Cabbot, 3 Dall. 382; Mossman v. Higginson, 4 Dall. 12; Capron v. Van Noorden, 2 Cranch, 126; Jackson v. Twentyman, 2 Pet. 136; Connolly v. Taylor, Id. 556; Brown v. Keene, 8 Pet. 115; Robertson v. Cease, 97 U. S. 646; Börs v. Preston, 111 U. S. 252, 263, 4 Sup. Ct. 407; Denny v. Pironi, 141 U. S. 121, 11 Sup. Ct. 966; Horne v. George H. Hammond Co., 15 Sup. Ct. 167. Judgment reversed.

(155 U. S. 688) POSTAL TELEGRAPH CABLE CO. v. ADAMS, Revenue Agent of State of Mississippi.

(January 21, 1895.)

No. 649.

TELEGRAPH COMPANIES-PRIVILEGE TAX- INTERSTATE COMMERCE.

A state privilege tax of a certain amount per mile of wires operated within the state, imposed on all telegraph companies therein operating, in lieu of all other state, county, and municipal taxes, and amounting to less than the ordinary ad valorem tax, is substantially a mere tax on property, to which a foreign corporation operating within the state is subject, notwithstanding it is engaged in interstate commerce, and has accepted the rights conferred on telegraph companies by Rev. St. § 5263. 14 South. 36, affirmed.

In Error to the Supreme Court of the State of Mississippi.

By the revenue laws of Mississippi certain taxes were levied as privilege taxes on various corporations, such as express companies, telegraph companies, insurance companies, sleeping-car companies, banks of deposit or discount, gas companies, and the like, and on taverns, hotels, restaurants, brokers, auctioneers, peddlers, liquor sellers, dealers in malt liquors, and so on. Code Miss. 1880, c. 10, § 585; Sess. Laws Miss. 1888, c. 3. The tax required to be paid by telegraph companies was $3,000 on each telegraph company operating within the state 1,000 miles or more of wire, and on each telegraph company operating less than 1,000 miles of wire a tax of $1 per mile, and the tax thus levied was "in lieu of other state, county, and municipal taxes." During the fiscal years 1890 and 1891 the Postal Telegraph Cable Company, a corporation chartered under the laws of New York, operated within the state of Mississippi 391.28 miles of wire. The telegraph lines, equipment, and property appertaining thereto, owned and operated by the company within the limits of 19