Round for Mellon

When the U. S. Government entered suit in a Federal District Court in Manhattan last month asking that the Mellon family's great Aluminum Co. of America be not only perpetually enjoined from monopolistic practices but also that it be dissolved into several independent corporations (TIME, May 3), the nation confidently expected to see a great drama played, on & off stage, by three notable citizens. One was old Andrew William Mellon, who is supposed to dominate Alcoa's affairs. Another was Homer Stille Cummings, an unsuccessful legal opponent of Alcoa long before he became Franklin Roosevelt's Attorney General. The third was Mr. Cummings' brilliant young assistant, Robert H. Jackson, who argued the Government's still pending income tax case against Mr. Mellon and was now to prosecute the Aluminum Co. suit.

Five days later a fourth figure popped into what loomed as the biggest corporate anti-trust case since the dissolution of old Standard Oil in 1911. The distinguished kibitzer was Pittsburgh's Federal District Judge Robert Murray Gibson, 67, and his surprise move was to issue a temporary order restraining Attorney General Cummings and his subordinates from pursuing their action against Alcoa. In their petition for the order, Aluminum Co. attorneys had asserted that: 1) the Attorney General should have sued the company in Pittsburgh where its head offices are," instead of in Manhattan; 2) the charges were the same as those brought in a 1912 suit against the company, tried in the Pittsburgh court; 3) the Pittsburgh court had settled the issue in 1912 by a consent decree* perpetually enjoining the company and its officers "from entering into or participating in any combination or agreement the purpose or effect of which is to restrict or control the output or the prices of aluminum." Effect of Judge Gibson's order was to require Government attorneys to come into his court and attempt to convince him that they were not trying to convict the company a second time for the same offense.

If cynics suspected Messrs. Cummings, Jackson & Co. of personal animus in initiating the Alcoa suit, New Deal partisans now equally wondered whether a "Mellon judge" was cracking back at them. White-haired, erudite Judge Gibson was appointed to the bench by President Harding 16 months after Mr. Mellon became Harding's Secretary of the Treasury. His son-in-law, William H. Eckert, is a member of the law firm of Smith, Buchanan, Scott & Ingersoll, Aluminum Co. attorneys. But in Pittsburgh it is a rare Republican, Presbyterian and substantial citizen who does not have at least one son-in-law connected with a Mellon enterprise and who, though no creature of the Mellons, does not think much as the Mellons do.

Last fortnight Assistant Attorney General Jackson, one of the nation's ablest trial lawyers, went to Pittsburgh and did his persuasive best to make Judge Gibson change his mind. He denied that the charges of 1912 and 1937 were identical. In 1912, he declared, the Government had only sought to restrain Aluminum Co. from, certain monopolistic practices; now it was trying to dissolve the company. Since 1912 the company had expanded and extended its control of the market, establishing Aluminum Ltd. of Canada "to prevent competition from abroad." The consent decree of 1912 was still in effect, returned Alcoa counsel, and there was not one charge in the Manhattan suit which if proved would not render the company in contempt of the Pittsburgh court. Even so, pursued Attorney Jackson, he and his associates could be sued only as agents of the Government and, as everyone knew, the Government could not be sued without its consent. "We can't show you a case where an Attorney General has ever been restrained," cried Judge Gibson's son-in-law's partner, "but never did an Attorney General attempt such an action as this."

Judge Gibson retired to his chambers to ponder these perplexities. Last week he emerged to announce that his mind was unchanged, to strengthen his restraining order by issuing a temporary injunction. Final hearing on a permanent injunction would be held later. Thoroughly vexed at this stubborn obstacle in their path, Government attorneys pondered whether to make one more attempt to win Judge Gibson over; to try to get the Manhattan Court to enjoin him; or to appeal the case to a higher Federal Court.

* Consent decrees are settlements, common in anti-trust prosecutions, by which legal opponents come to terms, agreeing to a judgment of the court.

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