I concur with Judge BURTON’S statement of fact and in the conclusion he has reached, but think best to state the particular ground upon which I have come to that conclusion. The principal ground upon which it is claimed that the decrees of the lower court should be reversed is that the transaction complained of was in violation of the national anti-trust act. It is urged also that it is in violation of the Michigan anti-trust act. The stress of the argument is upon the application of the national act, and I will proceed at once to address myself to the question as. to whether it affects the legality of the transaction complained of.
Here, we must first inquire whether this question is an open one. Is or not a consideration thereof foreclosed by any decision of the Supreme Court? I think that it is, and that by the first decision made by that court under that act. I refer to the case of United States v. E. C. Knight Company, 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325. It is practically conceded that this is so, if the authority of that case has not been overthrown or weakened by subsequent decisions. It is earnestly contended that it has been substantially overruled by later decisions of the Supreme Court. The decisions relied on are those in the cases of Addystone Pipe & Steel Co. v. United States, 175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136; Northern Securities Company v. United States, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679; Swift & Co. v. United States, 196 U. S. 375, 25 Sup. Ct. 276, 49 L. Ed. 518; Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488. It is claimed that the decision in the Addystone Pipe & Steel Company Case left not much, if any, force in it, and that in the Swift Case left nothing of it. But the deci*733siou in the Northern Securities Company Case is claimed to be more in point than either of the others, as its facts fit more closely the facts of the Knight Case, and it is said that these suits were brought on the basis of the decision in that case. It is further claimed that the majority of the court in the case of United States v. American Tobacco Company (C. C.) 164 Fed. 700, took the position that the Knight Case is no longer any proper foundation for the point decided in it. In answer to the possible suggestion that in no subsequent case has the Supreme, Court expressed any doubt as to the correctness of the decision in that case, and that whenever it has referred thereto it has done so with seeming approval, it is said that the Supreme Court had in mind that the facts of the case were different from what they really were, and that what it so approved was this supposititous case and not the real case. This is shown, it is claimed, by the consideration that the points actually decided in these later cases are in direct conflict with that really decided in the Knight Case.
I think that the majority of the court in the American Tobacco Company Case hardly went as far as claimed, but at least two of the three judges constituting that majority did question the correctness of the decision in that case, and did intimate that it was overthrown by the later decisions. Judge Lacombe said that it seemed to him that subsequent decisions of the Supreme Court had modified the opinion in that case, and Judge Coxe that it was interesting to note that the Chief Justice, who wrote the opinion of the court therein, also wrote the unanimous opinion in Loewe v. Hawlor, that an examination of numerous decisions since that case leads to the conclusion that there has been constantly a tendency towards a broader and more liberal construction of the statute or wider scope therefor, and that the only distinction between that case and the Hoewe-Fawlor Case is that in one the acts complained of related to the manufacture and sale of sugar and in the other to the manufacture and sale of hats. Both these judges seem to indicate a preference for the view taken by Justice Harlan in his dissenting opinion. I do not find that Judge Noyes, the other judge of the majority, questioned the authority of that decision to any extent. Judge Ward, who dissented, took the position that that decision had not been affected by any subsequent one and is still in full force. Counsel for appellant attacked that case in the lower court, the same as here, and possibly with some measure of success, as it seems to have been somewhat shy of basing the conclusion reached on the authority thereof.
The vital relation of the Knight Case to this case, and the attack made upon it in the American Tobacco Company Case and here, calls for a somewhat extended consideration thereof. The propriety of so doing is helped out by the fact that this seems to be the first case that has arisen since then involving the exact question involved therein. I do not understand that the American Tobacco Company Case hinges upon that case, as this one does. Besides, a true conception of what was decided therein and the reasoning upon which it was based is essential tó a correct determination of the effect thereon of the later cases which are claimed to have overthrown it.
*734I may say at the outset that I think that that case not only fits this case, and has not been affected by the decision in any subsequent case, but that it was correctly decided; and, further, that it is not likely that it was incorrectly decided. The conclusion there reached represented not only the views of all the members of the Supreme Court except Justice Harlan, who dissented, and Justice Jackson, who did not sit therein because of illness, but of the Circuit Court of the Eastern District of Pennsylvania, where the case originated, and of the Circuit Court of Appeals for the Third Circuit, where it was first carried on appeal. And though Mr. Justice Jackson did not sit in the case, the conclusion reached accorded with his views as expressed in the case of In re Greene (C. C.) 52 Fed. 104, a case of like character, and those courts, in deciding as they did, simply followed in the path which he had theretofore clearly marked out.
In considering this case, I would direct the attention singly to three separate and distinct matters. They are, first, the condition of things before the doing of the thing complained of therein; second, the thing done that was complained of; and, third, the thing sought to have done. The condition of things referred to was this: The American Sugar Refining Company, a New Jersey corporation, in New York, New Jersey, and several other places, was engaged in the business of refining sugar thereat and selling the sugar so refined. The business which it so did was 65 per cent, of the business of that kind done in the United States. The E. C. Knight Company, the Franklin Sugar Company, the Spreckels Sugar Refining Company, and the Delaware Sugar House, each of which was a Pennsylvania corporation and had no connection with the others, owned like plants located at Philadelphia, and were engaged in the business of refining sugar at their respective refineries and selling the sugar so refined. The business done by all four was 33 per cent, of the whole. The business done by the five, therefore, constituted 98 per cent, thereof. The other 2 per cent, was done by a Massachusetts corporation, the Revere, whose plant was located at Boston. Each one of the five corporations was engaged in external commerce. They sold sugar for delivery in other states than where made and sold, and no doubt a great, if not the principal, part of the business done by them was so sold. The facts of the case will not allow this feature thereof to be minimized; and, as I view, it, there is no occasion to minimize it.
Then, what was the thing done that was complained of ? The American Company purchased the entire capital stock of the other four companies, and gave in exchange therefor shares of its own stock. It thus acquired control of 98 per cent, of the business of making and selling refined sugar in the United States. This control as to 65 per cent, was by virtue of its ownership of its own plant, and as to 33 per cent, by virtue of its ownership of the entire capital stock of the other four companies, enabling it to choose the boards of directors thereof, who would have control of the operation of their plants respectively, And the acquisition of such stock was for the purpose of obtaining such control. This feature of the case, also, is not to be blinked.
*735And finally, as to the thing sought to have done. It was simply an undoing of what had been done, and an injunction against attempting to do it again. It was held that the nation was not entitled to have this thing (lone. We are thus brought face to face with the reasoning upon which this conclusion was based. It was not that what had been done was not within the national act. The court went, deeper than this. It was that the nation, through Congress, by the national act, had no right to attempt to prevent what had been done from being done, and hence had no right to complain of its being done. Of course, this being so, the presumption was that the nation, through Congress, had not by the national act attempted to prevent what had been done from being done, and hence that it was not within the act. But the court concerned itself with the deeper question — with what was fundamental, and not with what was accidental. And, if I may be permitted to suggest it, I think that the confusion that has arisen as to the correctness and effect of the decision in the Knight Case and the effect thereon of the later decisions is due to the fact that it has been overlooked that concern was there had, not with what the act meant, but with what the nation, through Congress, had power to enact.
How, then, was it' made out that the nation had no right, through Congress, by that act, to prevent what had been done from being done, and hence had no right to complain of its being done. It was in this way. What had been done was not external commerce, nor did it relate to or affect directly such commerce, and hence did not come within the commercial provision of the national Constitution, which was the only provision thereof that could be claimed to authorize the nation, through Congress, to prevent what had been done from being done. - So far as it was commerce at all or was related to or directly affected commerce, it was internal commerce, and the doing of it was solely within the state’s jurisdiction. Mr. Chief Justice Fuller emphasized the importance of respecting the boundary of each government’s jurisdiction. It was “vital,” he said, that “the delimitation between the two, however sometimes perplexing, should always be recognized and observed.” And, further, he said that “acknowledged evils, however grave and urgent they may appear to be, had better be borne than the risk be run in the effort to suppress them of more serious consequences by resort to expedients-of even doubtful constitutionality.”
To complete the line of reasoning upon which the conclusion reached is based, it remains to indicate wherein what had been done was held not to be external commerce and not to relate thereto or affect it directly. It was essential both that it was not such commerce, and that it did not relate thereto or so affect it, in order that what had been done should have been beyond the national jurisdiction. _ The nation has jurisdiction of what relates to or affects directly external commerce as well as external commerce itself under the commercial provision. It is necessary to complete jurisdiction of such commerce. Jurisdiction of the thing itself would be of but little consequence if jurisdiction did not also cover that which related thereto or affected *736it directly. It is only of what is not external commerce and affects it only indirectly that it does not have jurisdiction. There was no room to claim that what had been done was itself external commerce. What had been done was simply the purchase by the one company of the entire capital stock of the other four, and the giving in exchange therefor shares of its own capital stock. If it be a fact that a sale of such stock for delivery in another state than that where the sale was made would have been external commerce, there was, no such sale made. The most that can be claimed is that what had been done related to or affected directly such commerce. Did it do so?
Each corporation was a Pennsylvania corporation. The refineries and other property owned by each was internal. The operation of the refineries and manufacture of refined sugar thereat was internal. It was only when the corporations were engaged in selling the sugar so made that things took on an external hue, and then only in case sales for delivery outside of the state were made. Commerce has been likened to a stream, and sugar produced at those refineries did not become a part of external commerce until placed in the stream of external commerce, which would be when sold for delivery on the outside. Sales 'for delivery within the state were purely internal. Now, the purchase of the stock had no relation to and did not affect in any way the sugar that had been put into the stream of external commerce prior thereto. That was a matter of the past. Nor did it relate to or affect directly the sugar that might be placed therein thereafter. It depended entirely on whether thereafter the refineries were operated, and, if operated, on whether, if any of the' sugar thereafter refined thereat were placed in said stream, such purchase would affect it at all. The mere fact that the intent and purpose was to place such sugar therein could not make such purchase relate to or affect directly external commerce. It may be said that it affected it, but only indirectly so. If it can be said that it affected it directly, then, whenever one, under any circumstances, intends and purposes to place property owned by him in the stream of external commerce, such commerce is affected directly, and he and that property pass within the national jurisdiction. But this cannot be. As well said by Mr. Justice Lamar in the case of Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346:
“If it be field tfiat tfie term (commerce) includes tfie regulation of all sucfi manufactures as are intended to be tfie subject of commercial transactions in the future, it is impossible to deny tfiat it would also include tfie productive industries that contemplate tfie same thing. The result would be tfiat Congress would be invested to tfie exclusion of tfie states with tfie power to regulate not only manufacturers, but also agriculture, horticulture, stock raising, domestic fisheries, mining — in short, every branch of human industry.”
In the Knight Case Mr. Chief Justice Puller said:
“Slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate result may affect external commerce, comparatively little of business operations and affairs would be left for state control.”
The purchase of those stocks no more related to or affected directly external commerce than'if the American Company, instead of pur*737chasing them, had purchased from those corporations themselves their refineries and other property. Purchase of the capital stock was but an indirect way of acquiring the properties themselves. By the purchase, instead of acquiring the properties of the corporations, they acquired an interest in the corporations lhat owned them. If the properties of the corporations had been owned and operated, not by the corporations, hut by trustees for the benefit of the stockholders, a purchase from the cestuis que trustent of their beneficial interests would have had no more relation to or affected no differently external commerce than a purchase from the trustees.
Such, then, is the line of reasoning by which the Supreme Court reached its conclusion in the Knight Case. I have put it in a different and somewhat amplified form in an effort to make it plain, luff a reading of Mr. Chief Justice Puller’s opinion will show that I am justified in claiming that such is the reasoning on which that conclusion is based.
Before passing from the consideration of this case, it is to be noted that it was not involved therein whether if, after the purchase, those corporations had entered into an agreement amongst themselves concerning the external commerce to be done by them, such an agreement would have related to and affected directly such commerce and been within the national jurisdiction. What was sought to have done was not the undoing of any such agreement, but the undoing of the purchase of the stock. Nor was it involved therein whether the nation, through its jurisdiction over commerce among the states and with foreign nations, could by appropriate legislation have excluded from such commercial stream any of the sugar that had been manufactured at the refineries of any of the five corporations. These two questions are entirely distinct from that which arose and was decided in that case. That question was whether the one corporation had the right, so far as the national act was concerned, to purchase the capital slock of the other four. It was held that it did, and it seems to me that there is no escape from that conclusion and the reasoning on which it is based.
We come, then, to the question whether this decision has been affected to any extent by the subsequent decisions of the Supreme Court. As heretofore staled, I do not think that it has; and I will low attempt to make this position good. The extended consideration of the Knight Case renders unnecessary any like consideration of the cases, the decisions in which are claimed to have affected that in that case. A very general reference thereto will be sufficient to show that they have in no wise affected it. Take, for instance, the Addystone Pipe & Steel Company and Swift Cases, which are somewhat alike in their essential characteristics. Each of these cases involved an agreement between several independent manufacturers or producers, the one of iron pipe and the other of meat, each of whom \vas engaged in interstate commerce, which agreement related to and 'directely affected that commerce so far as they were engaged in it in the way of restraining it, their independency being preserved except so tar as affected by that agreement. It was held that the agree*738ment in each case was a combination • within the national act, and its further execution was enjoined. In the Swift Case the agreement related to and affected some matters that may be said to have been purely internal as well as to the external commerce of the, parties thereto, and the execution of the agreement in those particulars was enjoined as well as in so far as it affected such commerce. The necessities of this case do not require a presentation of the line of reasoning by which Mr. Justice Holmes justifies this part of the decision. That portion thereof in no way concerns the Knight Case.
Then as to the case of Loewe v. Lawlor, sometimes referred to as the “Danbury Hat Case.” That case involved the question whether a boycott on the part of the United Hatters and affiliated organizations of laborers against the external commerce of the manufacturers of those hats was a combination within the national act. It was held that it was and its continuation was enjoined.
Now, I fail to see how these three cases have any bearing whatever on the Knight Case. A decision that a combination that relates to and affects directly external commerce within the national act is certainly not antagonistic to one that decides that a transaction which does not relate thereto and affects it indirectly only is not within that act. Nor is a decision that an agreement between two or more corporations with reference to the external commerce done by them relates thereto and affects it 'directly antagonistic to one that decides that a purchase by one competitor of the property by which he carries on such business does not relate to external commerce and affects it indirectly only. Of similar character to these three cases is that of Montague v. Lowry, 193 U. S. 38, 24 Sup. Ct. 307, 48 L. Ed. 608.
Finally, how is it as to the Northern Securities Company Case? It must be conceded that this case is more like the Knight Case than either of the others. The minority, judges in that case, as represented by the dissenting opinion of Mr. Justice White, regarded that the Knight Case required a decision that the transaction there involved was nbt within the national act. Of course, if this position was correct, then the decision in that case does conflict with that in the Knight Case, and the latter case must be considered to have been overthrown by the former. The likeness between the two cases consists in the fact that in the later case, as in the earlier one, the validity of the purchase of the stock in a corporation was involved. But even here there was a difference. In the earlier case the purchasing corporation was engaged in the same business as that of the corporations whose stock it purchased, and those corporations were competitors of it, whereas in the later case the purchasing corporation was not engaged in the same business as that of the competing corporations whose stock it purchased. It was engaged in no business except that of purchasing and holding that stock. But in this case, as in that, the effect of the purchase was to put the control of the competing corporations in one and the same hand. There was, therefore, nothing in this difference to cause a difference of decision. If one of the competing corporations in the Northern Securities Company Case had purchased the capital stock of the other, we would have thus far *739exactly the same case as tlie Knight Case. And the purchase by the outside corporation of the capital stock of the two competing corporations was, in its legal significance, nowise different from a purchase by one of the two of the capital stock of the other.
But here the likeness between the two cases stops. In a striking particular they are different — so different in this particular as to necessitate, in my judgment, a difference of decision. That particular was this: The property of each of the two competing corporations, to wit, the Great Northern Railway Company and the Northern Pacific. Railway Company, was interstate in its character, and the operation thereof was interstate. It follows that the purchase of the stock of the two corporations and combining them in one corporation was an interstate transaction. That transaction related to and affected directly interstate commerce. It did so as much as if the one corporation had purchased the property of the other. If that had been the nature of the transaction, it could not have been contended that it was not interstate in its character. How different this from what we have found to have been the case in the Knight Case. The properties of the four Pennsylvania corporations and their operation were not interstate in their character. They were purely internal to the state' of Pennsylvania, and likewise would have been tlieir purchase by the New Jersey corporation. Nowise different was the purchase by it of the capital stock of these corporations. It follows that there was no room to claim in the Northern Securities Company Case that the transaction there involved was not within the national jurisdiction. The question raised was solely as to whether that transaction was within the meaning of the national act. It is true that Mr. Justice White argued strenuously that it was not within that jurisdiction, but, with all due respect, I submit that he was in error here. The basis of his argument that the transaction attacked was not within the national jurisdiction was that the purchase by the Northern Securities Company of the capital stock of the two railway companies was not interstate commerce. That is undoubtedly true. But that circumstance was not sufficient to take the transaction out of such jurisdiction. If, though not itself interstate commerce, it related to and affected directly interstate commerce, then it was within that jurisdiction. That it did so is evident from the fact that it was a purchase of the stock of corporations whose property and the operation thereof was interstate. It was as much interstate as if one of the two competing corporations liad purchased the capital stock or the prop - erty of the other.
I, therefore, conclude that, to no extent whatever, has the authority of the Knight Case been affected by any of the later decisions of the Supreme Court.
Before quitting this branch of the case, it may be proper to show that the Knight Case fits this case, though, as heretofore stated, it is practically conceded that it does. The Calumet & Hecla Company has not acquired the entire capital stock of the Osceola Company. It has not acquired the ownership oí a majority of that stock. It has acquired the ownership of a portion, and the right to vote another *740portion, the two together being a majorit}'- thereof. The business here, involved is that of mining instead of refining sugar. Otherwise there is no difference between that case and this. The property of the Osceoja Company and its operation is internal to the state of Michigan, as that of the Pennsylvania corporations was to that state. The differences in detail referred to do not call for a difference of decision. The conclusion must be reached, then, that the transaction complained of herein is not within the national act. If the Calumet & Hecla Company had purchased the property of the Osceola, or if that property had been held by a trustee for the benefit of its stockholders and the Calumet & Hecla Company had purchased the beneficial interests of the cestuis que trustent, certainly the transaction would not in either case have been within that act. No more can it be said that a purchase by it of the capital stock, or a majority thereof, or of a portion thereof and the right to vote another portion, the two together constituting a majority, is within it.
It seems to me that the existence of any difficulty in determining how this case ought to be decided, so far as this question is concerned, is due to the manner in which it is approached. If it is approached in an effort to reach a conclusion as to whether the transaction involved is within the meaning of the national act, it may be hard to dispose of it correctly. But if it is approached as the Knight Case was approached by the judges of the different courts who rendered opinions, holding that the transaction attacked therein was not within that act, which was in an effort to reach a conclusion as to whether it was within the national jurisdiction, and consequently whether it could properly have been put within that act, no room for doubt as to how it ought to be decided will be left.
As indicated at the start, it is also claimed that the transaction involved here is within the state act. The claim that it is so is based largely, if not altogether, on the same line of reasoning upon which it is claimed to be within the national act. Indeed, on the one side, it seems to be claimed to be within the state act because it is within the national act, and, on the other hand, that is not within the state act because it is not within the national act. This, no doubt, is due to the fact that both sides of this case have approached it from the standpoint as to what is the true meaning of both acts, and not from the standpoint as to which jurisdiction — national or state — the transaction complained of is within. So approaching it, it was but natural to feel that the question whether tha°t transaction was within the state act depended on whether it was within the national act. For the language of both acts is substantially similar, though that of the state act is somewhat more verbose. But approaching it from the proper standpoint, as I have claimed it to be, as soon as it is determined that the transaction in question is not within the national act, it is at once realized that it does not necessarily follow that' because it is not within the one act it is not within the other. The transaction being within the state jurisdiction, and not within the national, it may well be within the state act, though not within the national. The question, then, as to whether it is within the state act hangs on whether *741it is within the words thereof, construed in the light of the circumstance that the state had power to put it there. •
So construing these words, how does the matter stand? The Calumet & Ilecla Company and the Osceola Company, were created and organized, and have ever since continued, to transact business under a general act of the state of Michigan providing for the incorporation of companies for mining, smelting, and manufacturing copper and other metals. By that act, any two or more corporations existing thereunder may consolidate. This court in the case of Marbury v. Kentucky Union Land Co., 62 Fed. 335, 10 C. C. A. 393, held that an act authorizing two corporations to consolidate, also authorizes one to purchase the capital stock of the other, on the principle that the greater includes the less. But this wq.s not the only authority that the Calumet & ITecla Company had to purchase the stock of the Osceola. By an ametidment to that general act, approved May 10, 3 905 (Pub. Acts 1905, p. 153, No. 105), a company organized thereunder was expressly authorized “to subscribe to, purchase, acquire and own” stock in any company organized thereunder. Neither the provision authorizing a consolidation or purchase of stock has ever been repealed or modified to any extent, unless it has been done by the anti-trust legislation. There are two anti-trust acts in Michigan, one aproved June 23, 1899 (Pub. Acts 1899, p. 409, No. 255), and another, declared to be “supplementary to and declaratory of and in addition to” the earlier act, approved June 20, 1905 (Pub. Acts 3 905, p. 507, No. 329). The original act was in existence at the time of the approval of said amendment of May 10, 1905, and the supplementary one was approved subsequent to its approval. The one is entitled “An act to prevent trusts, monopolies and combinations,” etc., and the other “An act relative to agreements, contracts and combinations in restraint of trade or commerce.” It is not necessary to quote from the body of either act. Each contains general language in the line of its title. There is no express reference to the legislation referred' to as contained in said general act and the amendment thereto, [t is not to be taken that it impliedly has reference thereto. That legislation and those acts can be construed together, and 1 think that within well-recognized principles they ought to be so construed. So construing them, it is not to be held that what the one expressly authorizes is denied by the other.