(concurring). The principal conclusions, upon which we are all agreed, may be briefly stated as follows: A holding company, owning the stocks of other concerns whose commercial activities, if free and independent of a common control, would naturally bring them into competition with each other, is a form of trust or combination prohibited by section 1 of the Sherman antitrust act. The Standard Oil Company of New Jersey is such a holding company. The defendants, who are in the combination, are enjoined from continuing it, and from forming another like it. The holding company is enjoined from exercising the rights of a stockholder in the subordinate companies, and they are enjoined from allowing it to do so or to benefit therefrom in the way of dividends. A means of dissolving the present form of, combination is left open, to wit: The distribution among the stockholders of the holding company of the stocks it owns in the subordinate companies, to the end that each corporate member of the combination engaging in interstate or foreign commerce shall in the future have and exercise corporate independence, with its own particular set of stockholders not united with or tied to those of its competitors, actual or potential, under a single or common control. Until the defendants discontinue the operation of the combination, they are denied the right to engage in commerce among the states or in *194the territories. The defendants in the combination are also monopolizing interstate and foreign commerce in petroleum and its products, .contrary to section 2 of the act. A wrongful method employed to gain the monopoly is found to exist in the unlawful combination above mentioned, and it therefore becomes unnecessary to determine the other charges upon that subject in the petition of the government. It is thought that with the end of the combination the monopoly will naturally disappear; but lest, instead of resulting that way, the monopoly so wrongfully gained be perpetuated by the aggregation of the physical properties and instrumentalities by which it is maintained in the hands of a member of the combination and the liquidation and retirement from business of the other members, it is held that such a course would violate the decree.
The issues in the case before us and the scope of the arguments of counsel make it not inappropriate that I express more fully, but in a general way, my views of the proper construction of the anti-trust act, particularly of the second section, directed against the monopolizing of interstate and foreign commerce. The extent and limitations of the first section have been pretty well defined in the many adjudged cases. The construction of the act should not be so narrow or technical as to belittle the work of Congress; but, on the contrary, it should accord with the great importance of the subject of the legislation and the broad lines upon which the act was framed. The language employed in the act is as comprehensive as the power of Congress in the premises, and the purpose was not to hamper business fairly conducted, but adequately to promote the-common interest in freedom of competition and to remove improper obstacles from the channels of commerce that all may enter and enjoy them. The wisdom of a law lies in its spirit as well as in its letter, and unless they go together in its construction and application justice goes astray,
The true test to apply to a case under the first section is not whether the restraint upon competition imposed by the contract or combination in question should be regarded as reasonable or as unreasonable, but whether it is direct and appreciable. Conceptions of the reasonable and unreasonable are much too diverse to afford a stable, uniform rule for construing a law’which contains no mention of those terms. So much depends upon the point of view, that it frequently happens that what appears to one to be wholly unreasonable is thought entirely reasonable - by another. But if the restraint is direct and 'appreciable, and not merely incidental to some contract having a lawful purpose, it falls clearly within the prohibition of the statute, and there is no room for further construction. There are many contracts which, in the days when the common law was forming, would'have been adjudged contrary to public welfare, as being in restraint of the narrow trade of those times, but which in a commercial age like the present have such a negligible effect in that direction as to be no longer evil within the meaning of the law. Their effect is so indirect and inappreciable that it is properly referable to the class de minimis, and it is not to be supposed Congress had them in view when it legislated to preserve freedom of competition in the broad field of interstate and foreign *195commerce. Vital principles, however, have not changed; the change is merely in the conditions upon which they operate.
The second section of the act provides :
“Every person who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among- ¡lie several states or with foreign nations, shall be deemed guilty of a misdemeanor,” etc.
Manifestly this section is quite distinct from the first, and was not intended to cover precisely the same ground. To say otherwise would be to impute to Congress the doing of the unnecessary and useless. Though the natural tendency of a combination in restraint of trade declared illegal by section 1 may be and generally is towards monopoly denounced by section 2, and may even accomplish it, yet the scope of the latter section is far broader and was designed to extend also to monopolies secured by other means than by contracts, combinations, and conspiracies in restraint of trade, which, as those terms necessarily imply, require concert between two or more persons or corporations. One person or corporation may offend against the second section by monopolizing, but the first section contemplates conduct of two or more. A cursory reading of the act shows this. That it was the intention of Congress to condemn monopolies, not based on illegal combinations among several, but secured by single persons, natural or artificial, by other means, also appears from" the history of the legislation. The bill originally introduced in the Senate bore slight resemblance to the law finally enacted, and there was uncertainty as to the particular constitutional authority for the legislation. At one time it was thought by some to rest upon the jurisdiction of the courts of the United States of controversies between citizens of different states, and at another there were provisions regarding competition between the products and manufactures of one state with those of another. Finally, alter much difference of view, the bill, with many amendments, was referred to the judiciary committee of which Senator Edmunds was chairman, and refrained by it under the commerce clause of the Constitution. .It was then reported in the simple, comprehensive form in which it filially became a law. A motion was made to amend the second section by striking out the words “monopolize or attempt to monopolize'' so it would read:
“Every person who shall combine or conspire with any other person or persons to monopolize,” etc.
But it was rejected.
What is a monopoly in contravention of the statute? I would not say that every person who strives to gain as much as he gan of the commerce in a commodity is thereby attempting to monopolize that commerce, within the meaning of the term as it is employed in legislative acts and understood in the courts. Magnitude of business does not, alone, constitute a monopoly, nor effort at magnitude an attempt to monopolize. To offend the act the monopoly must have been secured by methods contrary to the public policy as expressed in the statutes or in the common law. The wrongful element in a monopoly under the act is not necessarily the violation of some penal statute, but *196may consist of other acts or conduct which the law condemns and the benefit of which, if sought in a civil court of justice, could not be obtained. And it may be observed in this connection that there is more of the Decalogue in the common law respecting the trading of merchants than is sometimes supposed. On the other hand, Congress did not intend to impede legitimate commercial activity, nor put a limit to its fruits. The genius and industry of man, when kept to ethical 'standards, still have full play, and what he achieves is his; and this applies as well to a corporation, in which the energies of many are concentrated under the authority of law in a single organization. A railroad company, for instance, which has extended its lines across the continent and conquered the waste or wilderness, is not a monopofy within the statute merely because its capital is great and it alone serves the tributary country; and so of an industrial corporation, the wisdom and business sagacity of whose managers have foreseen and taken advantage of the natural tendencies of trade and caused it to outstrip all competition. Success and magnitude of business, the rewards of fair and honorable endeavor, were not among the evils which threatened the public welfare and attracted the attention of Congress. But when they have been attained by wrongful or unlawful methods, and competition has been crippled or destroyed, the elements of monopoly are present. A governmental grant of special privileges is no longer essential, though in England the Crown was for a period the frequent source of monopolies, which were condemned by the courts and finally by Parliament as contrary to public welfare. It was these Bacon had in mind in his advice to Villiers:
“But especially care must be taken that monopolies, wlricb are tbe cankers of all trading, be not admitted under specious colors of public good.”
The modern doctrine is but a recognition of the obvious truth that what a government should not grant, because injurious to public welfare, the individual should not be allowed to secure and hold by wrongful means. . The baneful effect is the same, whether the monopoly comes as a gift from a government or is the result of individual wrongdoing. Nor can arguments of reduced prices of product, economy in operation, and the like, have weight. One English sovereign was accustomed to recite in the preambles of royal grants of monopolies the special benefits to be derived; but it was then, and is now, almost universally believed that the ultimate, if not the immediate, effect upon the development of trade and commerce is detrimental, and that belief, so generally prevalent and enduring, has been embodied in legislation, the policy of which is not open to question in the courts.
During the discussion of the amendment above referred to, apprehension was expressed over the broad language of the .second section of the proposed act, and inquiry was made whether the committee having the bill in charge intended it should make it an offense if an individual engaged in interstate and foreign commerce, “by his own skill and energy, by the propriety of his conduct generally, shall pursue his calling in such a way as to monopolize a trade.” Assurances were given that the term “monopolize” had no such signification, but that it contemplated the employment of means which prevented others *197from engaging in fair competition, the engrossing of the trade, and the like. Undoubtedly this view prevailed at the passage of the law.
DECREE.
After deliberation, it is ordered, adjudged, and decreed:
Section 1. That in and prior to the year 1899 there were 20 corporations, organized, respectively, under the laws of various states, engaged in commerce in peiroleum and its products, either among the states, or in the territories, or with foreign nations, and these corporations held a majority of the stock and controlled the business and operations of many other corporations engaged in that commerce; that one of these corporations was the Standard Oil Ooihpany of New Jersey, hereafter called the Standard Company, which had a capital stock of $10,000,000; that since the year 1890 the defendants named in section 2 of this decree have entered into and are carrying out s, combination or conspiracy in pursuance whereof about the year 1899 they caused the capital stock of the Standard Company to lie increased to $100,000,000, caused a majority of the stock of the 19 companies, and the power to control them, and to manage their trade, and the power to control the corporations which they controlled and to manage their trade, to be vested in and hold by the Standard Company in exchange for its stock, which was issued to the former holders of the stock of the 19 companies, and caused the Standard Company ever since to control all these corporations, hereafter called the subsidiary corporations, and to manage their trade without competition among themselves as the trade and business of a single person; that this combination or conspiracy is a combination or conspiracy in restraint of trade and commerce in petroleum and its products among the several slates, in the territories, and with foreign nations, such as an act: of Congress approved July 2, 1890 (26 Stat. 209, e. 617 [U. S. Comp. St. 1901, p. 3200]), entilled “An act to protect trade and commerce against unlawful restraints and monopolies,” declares to be illegal.
Section 2. That the defendants John D. Rockefeller, William Rockefeller, Henry H. Rogers, Henry M. Flagler, John D. Arclibold, Oliver H. I’ayne, and Charles M. Pratt, hereafter called the seven individual defendants, united with, the Standard Company and other defendants to form and effectuate this combination, and since its formation have been and still are engaged in carrying it into effect and continuing it; that the defendants Anglo-American Oil Company (Limited), Atlantic Refining Company, Buckeye Pipe Line Company, Bome-Scrymser Company, Chesebrough Manufacturing Company, Consolidated, Cumberland Pipe Line Company, Colonial Oil Company, Continental Oil Company, Crescent Pipe Line Company, Henry O. Folger, Jr., and Calvin N. Payne, a copartnership doing business under the firm name and style of Corsicana Refining Company, Eureka Pipe Line Company, Galena Signal Oil Company. Indiana, Pipe Line Company, Manhattan Oil Company, National Transit Company, New York Transit; Company, Northern Pipe Line Company, Ohio Oil Company, Prairie Oil & Gas Company, Security Oil Company, Solar Refining Company, Southern Pipe Line Company, South Penn Oil Company, Southwest Pennsylvania Pipe Lines Company, Standard Oil Company of California, Standard Oil Company of Indiana, Standard Oil Company of Iowa, Standard Oil Company of Kansas, Standard Oil Company of Kentucky, Standard Oil Company of Nebraska, Standard Oil Company of New York, Standard Oil Company of Ohio, Swan & Finch Company, Union Tank Line Company, Vacuum Oil Company, Washington Oil Company, and WatersdPierce Oil Company, have entered into and became parties to this combination and are either actively opera ting- or aiding in the operation of it; that by means of this combination the defendants named in this section have combined and conspired to monopolize, have monopolized, and are continuing to monopolizo a substantial part of the commerce among the states, in the territories, and with foreign nations, in violation of section 2 of the anti-trust act.
Section 3. That the defendants Argand Refining Company, American Lubricating Oil Company, Acme Oil Company, Baltimore United Oil Company, Buffalo Natural Gas Fuel Company, Bush & Denslow Manufacturing Company, *198Camden Consolidated Oil Company, Commercial Natural Gas Company. Connecting Gas Company, Eastern Ohio Oil & Gas Company, Eclipse Lubricating Oil Company, Florence Oil & liefining Company, Franklin Pipe Company (Limited), Lawrence Natural Gas Company, Mahoning Gas Fuel Company, Bloun'tain State Gas Company, National Fuel Gas Company, Northwestern Ohio Natural Gas Company, Oil City Fuel Supply Company, Oswego Manufacturing Comi>any, Pennsylvania Gas Company, Pennsylvania Oil Company, People’s Natural Gas Company, Pittsburg Natural Gas Company, Platt and Washburn Refining Company, Republic Oil Company, Salamanca Gas Company, Standard Oil Company of Minnesota, Taylorstown Natural Gas Company, Tide Water Oil Company, Tide Water Pipe Company (Limited), United Natural Gas Company, and United Oil Company, have not been proved to be engaged in the operation or carrying out of the combination, and the bill is dismissed as against éaeh of them.
Section 4. That in the formation and execution of the combination or conspiracy the Standard Company has issued its stock to the amount of more than $90,000,000 in exchange for the stocks of other corporations which it holds, and it now owns and controls all of the capital stock of many corporations, a majority of the stock oi” controlling interests in some corporations, and stock in other corporations as follows:
Name of Company. Total Owned by Capital Standard Oil Stock. Company.
Anglo-American Oil Company (Limited)... £ 1,000,000 £ 999,740
Atlantic Refining Company............... $ 5,000,000 $5,000.000
Borne-Scrymser Company........... 200,000 . 199,700
Buckeye Pipe Line Company............. 10,000,000 9,999,700
Chesebrough Manufacturing Company, dated................................ Consoli500.000 277.700
Colonial Oil Company.................... 250.000 249.300
Continental Oil Company................ 300.000 300.000
Crescent Pipe Line Company.......... 3.000. 000 3.000.
Eureka Pipe Line Company............... 5.000. 000 4.999.400
Galena Signal Oil Company..........:----10,000,000 7,079,500
Indiana Pipe Line Company............. 1.000. 000 999.700
Lawrence Natural Gas Company......... 450.000 450.000
Mahoning Gas Fuel Company............ Mountain State Gas Company........... National Transit Company.............. 150.000 500.000 25,455,200 149,900 500.000 25,451,650
New York Transit Company............. 5.000. 000 5.000. 000
Northern Pipe Line Company............ 4.000. 000 4.000. 000
Northwestern Ohio Natural Gas Company 2,775,250 1,649,450
Ohio Oil Company...................... 10,000,000 9,999.850
People’s Natural Gas-Compans'........... 1.000. 000 1.000. 000
Pittsburg Natural Gas Company......... 310.000 310.000
Solar Refining Company................ ■500,000 499,400
Southern Pipe Line Company............ 10,000,000 10,000,000
South Penn Oil Company................ 2.500.000 2.500.000 '
Southwest Pennsylvania Pipe Lines...... 3.500.000 3,500,000
Standard Oil Company of California..... 17.000. 000 16,999,300
Standard Oil Company of Indiana....... 1,000,000 999.000
Standard Oil Company of Iowa.......... 1,000,000 1,000.000
Standard Oil Company of Kansas........ 1,000,000 999.300
Standard Oil Company of Kentucky..... •1,000,000 997,200
Standard Oil Company of Nebraska...... 000,000 599,500
Standard Oil Company of New, York..... 15.000. 000 15,000,000
Standard Oil Company of Ohio.......... 3.500.000 3.499.400
Swan & Finch Company................. 100.000 100.000
Union Tank Line Company.............. 3.500.000 3.499.400
Vacuum Oil Company................... 2.500.000 2.500.000
Washington Oil Conip-'iiy............... 100,000 71,480
Waters-Pierce Oil Company............. 400,000 274.700
*199That the defendant National Transit Company, which is owned and controlled by the Standard Oil Company as aforesaid, owns_ and controls the amounts of The capital stocks of The following named corporations and limited partnerships stated opposite each, respectively, as follows:
Name of Company. Owned by National Transit Company. Total Capital ' Stock.
Connecting Gas Company......... $ 825,000 $ 412,000
Cumberland 1’ipe Line Company.. 1,000,000 998,500
East Ohio Gas Company.......... 6,000,000 5.999.500
Franklin 1’ipe Company (Limited) 50,000 19,500
Prairie Oil & Gas Company...... 10,000,000 9.999.500
That the Standard Company has also acquired the control, by the ownership of its stock or otherwise, of the Security Oil Company, a corporation created under the laws of Texas, which owns a refinery at Beaumont, in that state, and the Manhattan Oil Company, a corporation which owns a pipe line situated in the states of Indiana and Ohio; 1 hat the Standard Company, and the corporations and partnerships named in section 2, are engaged ill the various branches of the business of producing, purchasing, and transporting petroleum in the principal oil-producing districts of the United States, in New York, Pennsylvania, AA'esf Virginia, Tennessee, Kentucky, Ohio, Indiana, Illinois, Kansas, Oklahoma, Louisiana, Texas, Colorado, and California, in shipping and transporting the oil through pipe lines owned or controlled-by these companies from the various oil-producing districts into and through other states, in refining the petroleum and manufacturing it into various products, in shipping the petroleum and the products thereof into the states and territories of the United States,.the District of Columbia, and to foreign nations, in shipping the petroleum and its products in tank cars owned or controlled by the subsidiary companies into various states and territories of the United States and Into the District of Columbia, and in selling the petroleum and its products In various places in the states and territories of the United States, in the District of Columbia, and in foreign countries; that the Standard Company controls the subsidiary companies and direc-is the management thereof, so that none of the subsidiary companies competes with any other of those companies or with the Standard Company, but their trade is all managed as that of a single person.
Section 5. That the stocks of the various corporations which are named in section 2 and described in section 4 of this decree, held by the Standard Company, were acquired and are held by it by virtue of the illegal combination; that the Standard Company, its directors, officers, agents, servants, and employes, are enjoined and prohibited from voting any of the stock in any of the subsidiary companies named in section 2 of this decree and from exercising or attempting to exercise any control, direction, supervision, or influence over the acts of these subsidiary companies by virtue of its holding of their stock. And these subsidiary companies, their officers, directors, agents, servants, and employes are, and each of them is, enjoined and prohibited from declaring or paying any dividends to the Standard Company on account of any of the stock of these subsidiary companies held by the Standard Company, and from permitting the latter company to vote any stock in, or to direct the policy of, any of said companies, or to exercise any control whatsoever over the corporate acts of any of said companies by virtue of such stock, or by virtue of the power over such subsidiary corporation acquired by means of The illegal combination. But the defendants are not prohibited by this decree from distributing ratably to the shareholders of the principal company the shares to which they are equitably entitled in the stocks of the defendant corporations that are parties to the combination.
Section 6. That the defendants named in section 2 of this decree, their officers, directors, agents, servants, and employe's, are enjoined and prohibited from continuing or carrying into further effect the combination adjudged illegal hereby, and from entering into or performing any like combination or conspiracy, the effect of which is, or will be, to restrain commerce in petroleum or its products among the states, or in the territories, or with foreign *200nations, or to prolong the unlawful monopoly of such commerce obtained and possessed by defendants' as before stated, in violation of. the act of July 2, 1890, either (1) by the use of liquidating certificates, or other written evidences, of a stock .interest in two or more potentially competitive parties to the illegal combination, by causing the conveyance of the physical property and business of any of said parties to a potentially competitive party to this combination, by causing the conveyance of the property and business of two or more of the potentially competitive parties to this combination to any party thereto, by placing the control of any of said corporations in a trustee, or group of trustees, by causing its stock or property to be held by others than its equitable owners, or by any similar device, or (2) by making any express or implied agreement or arrangement together, or one with another, like that adjudged illegal hereby relative to the control or. management of any of said corporations, or the price or terms of purchase, or of sale, or the rates of transportation, of petroleum or its products in interstate or international commerce, or relative to the quantities thereof purchased, sold, transported, or manufactured by any of said corporations, which will have a like effect in restraint of commerce among the states, in the territories, and with foreign nations to that of the combination the operation of which is hereby enjoined.
Section 7. The defendants named in section 2 of this decree are enjoined and prohibited, until the discontinuance of the operation of the illegal combination, from engaging or continuing in commerce among the states, or in the territories of the United States.
Section 8. The United States shall recover its costs herein, to be taxed by the clerk of the court, and shall have execution therefor. -
Section 9. This decree shall take effect thirty (30) days after its entry in . case no appeal is taken from it. If an appeal is taken from this decree by the defendants, or by any of them, and a bond in the amount of fifty thousand dollars ($50,000) conditioned to operate as a supersedeas approved by oné of the circuit judges is given within thirty (30) days after the entry of this decree, then this decree, unless reversed or modified, shall take effect thirty (30) days after the final decision of this case by the Supreme Court upon the appeal.