Sherman Anti-Trust Act of 1890. A summons was issued against the Santa Fé Pacific Railway Company, which was served by the United States marshal, within the district, upon E. P. Ripley, president of the defendant corporation. Defendant was organized under an act of Congress, approved March 3, 1897. When Mr. Ripley, the president, was served, he was a passenger on board a railway train passing through the Territory. The company, however, had its principal office in the city of New York. Its land commissioner had an office at Topeka, Kan., and its president had an office in Chicago, Ill. The company had no property in the Territory of New Mexico except lands acquired by it under the foreclosure of a mortgage. It had no office or place of business in the Territory since the sale of its road. Upon a motion in which the defendant appeared especially for the purpose of moving to quash the service of the process, the court held that such service was wholly insufficient to confer jurisdiction upon the defendant corporation, because it had no office in New Mexico, and mere ownership of lands in New Mexico was not sufficient to locate the corporation there for the purpose of a personal action against it, and as there was no law in the Territory of New Mexico authorizing service upon an officer of a corporation other than a domestic corporation temporarily within the jurisdiction, the court held that the service was insufficient and the judgment of the Supreme Court of the Territory of New Mexico affirming the order to quash the return of the summons, and refusing to assume jurisdiction of the action as against the Santa Fé Railway Company, and dismissing an application for a writ of mandamus to compel the court to assume jurisdiction, was affirmed. (Caledonian Coal Co. v. Baker, 196 U. S. 432.)

§ 31. Federal Question.- Where the record of a case in the State court shows that a Federal question was raised, and, in the absence of an opinion, it appears from a certificate, made part of the record, that it was not raised too late under the local procedure and that it was necessarily

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considered and decided by the highest court of the State, a Federal question is presented, which the Supreme Court of the United States may review upon a writ of error. It is enough that the Federal question was raised and necessarily decided by the highest court of the State. (Cincinnati Packet Co. v. Bay, 200 U. S. 179.)

§ 32. Appeal Directly to Supreme Court of the United States Under Act of February 11, 1903.- Under the act expediting cases brought under the Interstate Commerce Act, and under the Sherman Anti-Trust Law, in which the United States is a party complainant, approved February 11, 1903, appeals to the United States Circuit Court of Appeals are abolished and the appeal may be taken directly from the Circuit Court to the Supreme Court of the United States. The Act of February 11, 1903 (chapter 544), is entitled "An act to expedite the hearing and determination of suits in equity pending or hereafter brought under the Act of July 2, 1890, entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' 'An act to regulate commerce,' approved February 4, 1887, or any other acts having a like purpose that may hereafter be enacted." Section 3 of the Elkins Act, approved February 19, 1903, declares that the provisions of the Expediting Act which was passed on February 11, 1903, shall be applicable to "any case prosecuted under the direction of the AttorneyGeneral in the name of the Interstate Commerce Commission." It was held that an appeal in a proceeding instituted by the Attorney-General of the United States at the request of the Interstate Commerce Commission to procure orders requiring testimony of witnesses to be taken and to procure the production of books, papers, and documents under a complaint filed with the Interstate Commerce Commission against carriers, could be taken directly from the Circuit Court of the United States to the Supreme Court of the United States. (Interstate Commerce Commission v. Baird, 194 U. S. 25.)

The proviso in section 3 of the Elkins Act making the

provisions of the Expediting Act applicable to suits prosecuted by the Attorney-General of the United States in the name of the Interstate Commerce Commission was not inserted in any restrictive sense, or to make clear that which might be doubtful upon the general language used. It was inserted for the purpose of enlarging the operation of the statute (Elkins Act), so as to include a class of cases not otherwise within the operation of the section. The court observed (citing Minis v. United States, 15 Pet. 423; Georgia Bank Co. v. Smith, 128 U. S. 174), that it might be admitted that this use of a proviso is not in accord with the technical meaning of the term or the office of such part of a statute when properly used. But it is nevertheless a frequent use of the proviso in Federal legislation to introduce, as in the present case, new matter extending rather than limiting or explaining that which has gone before. (Interstate Com. Co. v. Baird, 194 U. S. 25.)

$ 33. Appeal Directly to Supreme Court Under Court of Appeals Act, March 3, 1891.*- Appeals or writs of error may also be taken from the District Courts or from the Circuit Courts direct to the Supreme Court, pursuant to section 5 of Act of March 3, 1891 chapter 517, establishing Circuit Courts of Appeals "in any case that involves the construction or application of the Constitution of the United States." In such cases the appeal to the Supreme Court of the United States is authorized by the subject-matter of the litigation, without regard to the diversity of the citizenship of the parties. Where a bill of complaint contains allegations sufficient to make a case of alleged violation of constitutional rights, an appeal may be taken directly to the Supreme Court of the United States, notwithstanding the bill contains an allegation of diverse citizenship, as it appears that the jurisdiction of the court is invoked upon the constitutional grounds recited in the bill. (Field v. Barber Asphalt Co., 194 U. S. 618.)

* For text of this statute see Snyder's Interstate Commerce Act, page 172.

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34. Evidence - Documentary Evidence Under Commerce Act. The Commerce Act, amended June 29, 1906, makes certain reports, contracts, and data filed with the Commission prima facie evidence of what they purport to contain, and provides also for certified copies of extracts from official records which may, when so certified, be offered in evidence. The provisions of the act in this regard defines such documentary evidence as follows:

1. Reports and decisions of the Commission are made competent evidence in all courts of the United States. All reports and investigations made by the Commission shall be entered of record and copies furnished. (Commerce Act, § 14.)

2. Orders of the Commission awarding damages, and its findings accompanying the order, are prima facie evidence of the facts therein stated, and may be received in evidence on the trial of damage suits, in Circuit Courts of the United States. (Commerce Act, § 15.)

3. Copies of schedules and tariffs of rates, fares, and charges and of all contracts, agreements, and arrangements between carriers, and the statistics, tables, and figures therein contained, and the annual reports of carriers, when filed with the secretary of the Commission, are made public records, and shall be received as prima facie evidence of what they purport to be, in all investigations and judicial proceedings. (Commerce Act, § 16.)

4. Copies or extracts from schedules, tariffs, contracts, agreements, arrangements, or reports, which are made public records by the act, shall be received in evidence when certified by the secretary of the Commission under its seal. (Commerce Act, § 16.)

§ 35. Remedies - Orders of Commission - Legislation of 1906. On and after August 28, 1906, the Interstate Commerce Commission will assume new powers. It is no longer an inquisitorial and advisory body. It is an investigating and prosecuting body, clothed with authority to enforce its orders. Under the Act of June 29, 1906, the carrier, when directed by the Commission to "cease and desist" from doing

the acts specified in the order, must obey or disregard the order at its peril. The statute (section 16) declares that it shall be the duty of the carrier to comply with the orders of the Commission, as long as they remain in effect. The penalty prescribed is a forfeiture to the United States of $5,000 for each offense. Distinct violations are made separate offenses. Where an order is continuously violated from day to day, each day shall be deemed a separate offense.

The power of the Commission, however, is limited by reason of the fact that it cannot make its order effective immediately. In this regard Congress did not adopt the recommendation of the President in his message, that the law be amended so as to provide that the ruling of the Commission "take effect immediately, and obtain, unless and until reversed by the court." The orders of the Commission, other than orders containing a direction for the payment of money to the shipper by way of damages or reparation, cannot become effective until a period of thirty days after the order is made. The carrier may utilize this period of time as a sort of locus penitentia if it intends to obey the order. But if it seeks to review it, the carrier can bring suit in the Federal court to "enjoin, set aside, annul, or suspend” the order. The provision designed to prevent an ex parte injunction restraining the enforcement of the order, and declaring that no such restraining order shall be granted, except after a hearing, on not less than five days' notice, will not necessarily operate to prevent the order of the Commission from taking effect until the suit is tried. The hearing to secure an injunction can be heard and decided within the thirty-day period, and if the injunction is granted the order of the Commission will be suspended. The injunction will prevent the order from taking effect after the thirty-day period, when it would otherwise have become operative. The penalty of $5,000 per day for failure to obey the order would not ensue, in case the injunction should be denied, within the thirty-day period. If the injunction were denied, and thereafter the order became effective, pcnding the suit by the carrier to set it aside, the penalty could run only from the time the order became effective. It can