Argument for Appellants. 221 U.S. ing and attempts to monopolize. Monopolizing does not enlarge the operation of the first section nor does its absence restrict the operation of that section. The first section deals with entities, a contract, combination, a conspiracy; and the entities themselves are expressly declared to be illegal, and may be annulled or destroyed. The second section deals with acts. At common law monopoly had a precise definition. Blackstone, Vol. 4, p. 160; Butchers' Union Co. v. Crescent City Co., 111 U. S. 756. Monopoly imports the idea of exclusiveness and an exclusiveness existing by reason of the restraint of the liberty of others. With the commonlaw monopoly the restraint resulted from the grant of the exclusive right or privilege. Under the Sherman Act there must be some substitute for the grant as a source of the exclusiveness and restraint essential to monopolizing. The essential element is found in the statement of Judge Jackson (In re Greene, 52 Fed. Rep. 116) that monopolizing is securing or acquiring "the exclusive right in such trade or commerce by means which prevent or restrain others from engaging therein." Exclusion by competition is not monopolizing. Pollock on Torts, 8th ed., p. 152; Mogul Case, L. R. 23 Q. B. D. 615; (1892) App. Cas. 51. Monopolizing within the act is the appropriation of a trade by means of contracts, combinations or conspiracies in restraint of trade or other unlawful or tortious acts, whereby "the subject in general is restrained from that liberty of trading which he had before." In the absence of such means or agencies of exclusion, size, aggregated capital, power, and volume of business are not monopolizing in a legal sense. Swift v. United States, 196 U. S. 375, was the case of a combination of corporations, firms and individuals separately and independently engaged in the business, together controlling nearly the whole of it, to monopolize it by certain acts and courses of conduct effective to 221 U.S. Argument for Appellants. that end when done and pursued by such a combination. Richardson v. Buhl, 77 Michigan, 632; People v. North River Sugar Refining Co., 54 Hun, 354; State v. Standard Oil Co., 49 Oh. St. 137; State v. Distillery Co., 29 Nebraska, 700; Distilling Co. v. People, 156 Illinois, 448, and Anderson v. Shawnee Compress Co., 209 U. S. 423, rest upon special grounds and are not applicable to this case. See on the other hand, In re Greene, 52 Fed. Rep. 104, Jackson, J.; Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507; Oakdale Co. v. Garst, 18 R. I. 484; State v. Continental Tobacco Co., 177 Missouri, 1; Diamond Match Co. v. Roeber, 106 N. Y. 473; Davis v. Booth & Co., 131 Fed. Rep. 31; Robinson v. Brick Co., 127 Fed. Rep. 804. The acquisition of existing plants or properties however extensive, though made to obtain their trade and eliminate their competition, is not a monopoly at common law or monopolizing under the Sherman Act, in the absence of the exclusion of others from the trade by conspiracies to that end or contracts in restraint of trade on an elaborate and effective scale, or other systematic, wrongful, tortious or illegal acts. When such monopolizing is present the remedy of the act is to prohibit the offending conspiracies, contracts, and illegal acts or means of exclusion, leaving the individual or corporation to pursue his or its business with the properties and plants that have been acquired or created shorn of the monopolizing elements in the conduct of the business. The acquisition of competing plants and properties cannot be rendered unlawful by imputing to such acquisitions an intent to monopolize. The acquisition of plants and properties does not exclude anyone from the trade and therefore the intent to monopolize cannot be attributed to such acquisitions. The proposition that an acquisition of property is rendered invalid because of a collateral intent to monopolize is not sustained by the Argument for Appellants. 221 U.S. Addyston Pipe authorities relied upon to support it. The ownership of the pipe lines has not been a means of monopolizing. Substantially all of the pipe lines owned by the Standard Oil companies have been constructed by those companies. There has never been any exclusion of anyone from the oil fields either in the production of oil, or its purchase, or its storage, or its gathering or transportation by pipe lines. Ownership of the pipe lines does not give the Standard companies any advantages in dealing with the producers which are not open to others. The decree erroneously includes and operates upon several of the appellant companies. The sixth section of the decree is unwarranted and impracticable in various of its provisions. It was error to deny the motion of the appellants to vacate the order permitting service upon them outside of the Eastern Division of the Eastern District of Missouri, and to set aside the service upon them of the writs of subpœna issued thereunder; and error to overrule the pleas of the appellants to the jurisdiction of the court 221 U.S. Argument for Appellants. over them. The appellants were not residents of the Eastern District of Missouri nor were they found therein when the order was made authorizing the service of process upon them outside of the district. There was no proceeding pending in that district involving a controversy for the determination of which the appellants were necessary parties. Mr. D. T. Watson, also for appellants: The Government has failed to maintain the affirmative of the issue made by the pleadings. Brent v. The Bank, 10 Pet. 614; The Siren, 7 Wall. 154; United States v. Stinson, 197 U. S. 200, 205. The transfer in 1899 to the Standard Oil Company of New Jersey of the various non-competitive properties jointly used by them as one property was not a restriction of interstate trade, or an attempt to monopolize, or a violation of the Sherman Act. The Sherman Act permits trusts, combines, corporations and individuals to enter into and compete for interstate trade so long as they act lawfully. It does not seek to regulate the methods nor forbid those who enter into trade from doing their business in the form of a trust, corporation or combine, provided they carry it on lawfully. The Standard Oil Company of New Jersey after 1899 might legitimately and properly compete for interstate trade, notwithstanding the combination of the group of properties gave it a great power, only provided it did not restrain such trade or by unlawful means seek to gain a monopoly contrary to the provisions of the Sherman Act. There is nothing in this case to show that after 1899 the combination did unlawfully compete, restrict or seek to monopolize interstate trade; yet such evidence was indispensable to prove that the combination was violating the Sherman Act in 1906. See the Calumet & Hecla Argument for Appellants. 221 U.S. Case, Judge Knappen, 167 Fed. Rep. 709, 715; Judge Lurton, 167 Fed. Rep. 727, 728; Judge Gray in United States v. Reading Co., decided December 8, 1910. There is a great difference between the Northern Securities Case and the case at bar. On the question of potential competition, the idea of competition between properties all owned by the same persons is a novelty. The idea that properties themselves compete, and that if one man owns two or more he must compete with himself, is startling. Competition between joint owners is also novel. Fairbanks v. Leary, 40 Wisconsin, 642, 643; Whitwell v. Continental Tobacco Co., 125 Fed. Rep. 454. Competition is the striving of two or more persons, or corporations, either individually or jointly, for one thing, i. e., trade; it is personal action; the strife between different persons. Properties do not compete. Their relative locations may more readily enable their owners to use them in competition, but of themselves and as against each other, they do not compete. This idea makes the Sherman Act read that the same person or group of individuals shall not own and operate two or more sites for refineries or for stores or for any kind of manufactories which might be used by different owners in competition. Joint Traffic Association Case, 171 U. S. 505, 567. The words "potential" or "naturally competitive" are not in the Sherman Act. Cascade Railroad Co. v. Superior Court, 51 Washington, 346. The rule of potential competition refers only to the ownership of the physical properties which produce the oil which goes into interstate commerce, and not to the oil itself. United States v. E. C. Knight Co., 156 U. S. 1; Northern Securities Co. v. United States, 193 U. S. 407. The Sherman Act is a highly penal one. In a criminal prosecution under the act the degree of proof is beyond a |