ganization, openly and flagrantly violated the law? If this violation cannot be reached in a criminal proceeding, because that is barred by the Statute of Limitations, or in a civil proceeding, because equity may enjoin only future violations of the law, then we have this company continuing its course without molestation, while the existing law, if enforced against those who desire to organize similar combinations, will prevent the organization of combinations large enough to cope with this giant corporation in the fields of trade. In other words, in its practical execution the Anti-Trust Law becomes a law for the protection of those great combinations which were not interfered with at the time of, or shortly after, their organization. The New Clayton Act-We come now to the recent anti-trust legislation, the Interstate Trade Commerce Law and the Clayton Law. The result of the failures of the criminal suits and of the dissatisfaction with the decrees in the Standard Oil and the Tobacco cases and of the obvious fact that the operations of these great combinations have not been apparently affected by the government litigation, was a demand for the strengthening of the Anti-Trust Law. Political platforms were filled with demands that drastic criminal provisions must be inserted in the law, and that strenuous steps must be taken to curb the growth of monopoly. Many bills were introduced in both the House and Senate. There were long hearings before committees. The Clayton Bill, as it was originally inintroduced in both the House and Senate. visions, as well as other provisions which it was claimed were designed to make the operation of the Anti-Trust Law more effective. It would be interesting to trace the proceedings in Congress with reference to this legislation, and to show how the bill was gradually transformed from its orignial state to the one which was finally agreed on by the Conference Committee of the House and the Senate. In the form in which it was finally enacted, the effect of the Clayton Law is to confuse and to make uncertain, rather than to supplement the existing laws. Its long definitions of offenses are actually nothing more than what the Supreme Court. had already held the Anti-Trust Law to mean. Its provision against interlocking directors is a mere subterfuge, and does not meet the real evil at all. Its so-called "personal guilt" provision narrows the provision of the Federal Criminal Code, and makes the prosecution of officers of an offending corporation more difficult than was the case under the old law. And to cap the climax, a general amnesty was granted to the Standard Oil Company and other offending corporations for violations of existing injunctions by a provision limiting contempt proceedings to one year from the date of the act complained of. Take § 2 of the act, which is directed against discriminations in price. The first part of the section is a mere reaffirmance of the meaning of the Anti-Trust Law as declared by the Supreme Court; that is to say, a discrimination in prices. between different purchasers is lawful, where the effect of the discrimination is to substantially lessen competition, or to create a monopoly. The proviso, however, contains language calculated to lend aid and comfort to those who are seeking to devise ways in which to evade the law. The language was very skillfully and adroitly framed. It is provided that nothing contained in the section shall prevent discrimination in price between purchasers of commodities on account of differences in grade, quality or quantity of the commodity sold, or that makes only undue allowance for difference in the cost of selling or transportation, or discrimination in price in the same or different communities, made in good faith to meet competition. Here the intent of the seller is made such an ingredient of the offense that in practical operation it will be extremely difficult to show a violation. The effect of this new section, therefore, will be to weaken what had already been accomplished through the decisions of the Supreme Court under the old law. Section 3 of the act is the one which makes it unlawful to make leases, sales or contracts, or to fix a price on the condition that the lessee or purchaser shall not use or deal in the commodities of a competitor, where the effect of the transactions is to lessen competition or create a monopoly. It is merely a restatement of what the Supreme Court had declared the old law to mean in the Bauers, the Creamery Packing Company, and the Standard Sanitary Co. cases.10 Take § 7 of the act, which prohibits the acquisition by a corporation of stock of another corporation, where the effect of the acquisition is to lessen competition or to restrain commerce or to create a monopoly. This section states nothing new. In the Northern Securities Company case," Reading Railroad Company case,12 Union Pacific Ry. Co. case,13 and other cases, the Supreme Court had applied the existing law so as to leave no doubt as to its meaning on this subject. After the general definition of the offense, however, follow some provisions whose only effect can be to confuse the law as already established. We find this provision: "This section shall not apply to corporations purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about the substantial lessening of competition." This deals with the situation involved in the Northern Securities Company case, and is an apparent attempt to introduce into offenses of this nature the element of intent, which might be invoked to take cases which would otherwise fall within the rule in the Northern Securities Company case out of the rule. The provision is useless unless designed for that purpose. The most favorable thing which can be said about it is that it makes confused and uncertain that which before the enactment of the Clayton Law was entirely clear. The same thing may be said as to the last clause of § 7, which presents a combination of language, the untangling of which will keep the courts busy for ten years, if this law is permitted to remain on the statute books. This provision is: "Nothing contained in this section shall be held to affect or impair any right heretofore legally acquired: Provided, that nothing contained in this section shall be held or construed to authorize or make lawful anything hertofore prohibited or made illegal by the Anti-Trust Law, nor to exempt any person from the penal provision thereof, or the civil remedies therein provided." It will be interesting to see just what use the United States Steel Company and other corporations which involve an amalgamation of a large number of subordinate corporations will attempt to make of this provision, and the interpretation which they will attempt to have placed on the word "legal," having in mind that the Supreme Court in mary cases, the Bellingham Bay Boom case,14 for example, has declared that the term "legal or authorized by law," when used either the state or the federal governin such a statute, means authorized by ment. I have already referred to § 14, the "personal guilt" section, which it was asserted would bring to justice the indivi ual who was responsible for violation of the law. Now, the courts have held repeatedly that individuals could be prosecuted for violating the old Anti-Trust Law, and § 332 of the Federal Criminal Code pro vides that "whoever directly commits any act constituting an offense defined in any law of the United States, or who aids, abets, counsels, commands, induces or procures its commission, is a principal." This § 14, which, of course, takes the place of the general provision of the law on the subject, provides that an officer or agent of the corporation shall be prosecuted if he "shall have authorized, ordered or done any acts, constituting in whole or in part such violation." The difference, of course, is apparent. Under this wonderful "personal guilt" section, it is necessary to prove that the officer or agent of the corporation authorized, ordered, or did some act which constituted a part of the violation. It is sufficient to say that under the language of this section, a successful prosecution of the president or any important officer of any great corporation is a practical impossibility. tainty, and not to strengthen the existing law. The Trade Commission Law-The same thing is true, for the most part, of the Trade Commission Law. The Trade Commission is given certain power of investigation, possessed by the Commissioner of Corporations before the enactment of the law. It is authorized to act as an adviser and assistant to the Attorney-General in the performance of his duties, and is a kind of master-inchancery in drafting decrees when called upon by the court to do so. It is also given power to institute hearings and enter orders against unfair methods of competition, and against violations of §§ 2, 3, 7 and 8 of the Clayton Act. Just what is meant by "unfair competition" does not appear from the act. In view of the provisions of the Clayton Law, which are to read in pari materia with the Trade Commission Law, there is a serious question whether or not the power of the Commission is not limited to the specific offenses enumerated in §§ 2, 3, 7 and 8 of the Clayton Law. Moreover, the term "unfair competition" has been defined repeatedly by the Supreme Court, and the Perhaps the most peculiar provision in the act is the one relating to interlocking directors. Now, everybody knows that large stockholders of great corporations. frequently do not sit on the board themselves. They have their representatives; and this provision, as it stands, is about as effective as to provide that a man may not deliver a letter in person, but is to be left perfectly free to send it by messenger. Already the offices on Wall Street which have to do with the affairs of large corporations, are putting in training profes-Court, and add the things included in the sional directors so that the technicality of the law may be observed. Even those portions of the act which are declared to give enlarged rights to labor are mere pieces of juggling with words. They merely reaffirm the existing law, as it had been declared repeatedly by the federal courts prior to the enactment of the statute. With the exception of the provision giving to private parties who are injured the right to maintain suit, the effect of the law is to produce confusion and uncer definition is limited to those dishonest trade practices by which a merchant or manufacturer attempts improperly to palm off his own goods as those of a competitor. If we give to the term the definition already given to it by the Supreme Clayton Law, the power given to the Commission is only a small fragment of that which a commission should have in order to accomplish any really effective results. In fact, the Commission is not given the power to do the only thing as to which a commission of this kind would be of real service, namely: the power to act upon a plan of business conduct submitted by a corporation or a combination of corporations, and to determine whether or not that plan is in violation of the law, and whether or not the corporation or combination of corporations is to be per mitted to engage in interstate commerce. Clayton and Trade Commission Laws Tentative-The fact about this recent antitrust legislation is that Congress really started out with an honest intent to make an effort to improve the law. Then followed a period of business depression, culminating in the financial disturbance arising from the war in Europe. Not having the courage to pass up the whole subject until the time was appropriate for effective legislation, Congress enacted these two laws, which for a long time to come will be held up as conspicuous examples of hypocritical and ineffective legislation. It is perhaps just as well, however, that the original intention of Congress was not carried out, because it has become quite apparent that the next step in the federal control of corporations must be in a difierent direction. The experience of the last ten years has demonstrated certain things. The first of these is that an attempt to regulate the operations of great corporations through criminal prosecutions is futile. The magnitude and complexity of the business involved, the inevitable lack of impartiality in the enforcement of the law, the subteranean influence always at work in furthering one set of prosecutions and in hindering another, are elements which cannot be eliminated from the situation. There is no reason to believe that the more drastic criminal laws which are advocated by some will be enforced more successfully than has the existing law. Prosecutions Unfruitful in Result-Another thing which we have learned is that the dissolution suits instituted long after the unlawful acts had been committed are inadequate in their results. The most that can be said for these suits is that they have checked the tendency toward a concentration of industry which might have gone on otherwise to greater lengths, if these suits had not been instituted when they were. The suits have not broken up the operations of the old combinations; they have produced some paper changes in stock ownership, but the real control and the real monopoly remains the same as it was before the institution of the suits. In their practical effect, they may prove in the end to be a positive menace. Existing combinations, such as the United States Steel Corporation, may be held, as I have said, to be within the law. New combinations to meet these great organizations of capital in the field of industry may be prevented by the existing law, and the net result will be that the enforcement of the law will be a protection and an aid to existing monopolies. Another thing which we have learned is that, while monopoly should be guarded against, there should be at the same time a definife method whereby it may be determined in advance whether or not a corporation, if it acts within its charter powers, is within the law, and whereby the corporation, if it acts in defiance of the law, may be excluded from interstate commerce. Federal Incorporation Law for Industries-It appears to me that a review of what has been really accomplished or not accomplished in dealing with these great corporations through the present cumbersome and ineffective methods, shows clearly that there is but one way of handling this question satisfactorily, and that is through the instrumentality of a federal incorporation law. Under such a law, corporations large enough to control any substantial part of interstate commerce can be required to operate under a federal charter, or, in any event, under a federal license. If it is deemed advisable to place any limitations on the size of corporations, this can be done in definite and concrete terms, and not be left to the uncertain speculations of a commission or of the courts. Under such a law, a corporation, in order to be permitted to engage in interstate commerce, can be compelled to com ply with rigid requirements as to its capitalization. Stocks and bonds will be made to represent real property value, and through a system of inspection similar to that which is applied to national banks, the confidence of the people in the stocks and bonds of these industrial corporations can be created. There will then be an incentive for the man working for a corporation to invest his money in the stock of the company for which he works instead of depositing it in a savings bank. There will then be represented in these corporations that diversity of property interest which is the only condition upon which, under our fundamental economic law, they can remain a permanent part of our institutions. Such a law can deal with the one thing, which, more than all the rest, is responsible for the dangerous monopolies in this country. It can place a limitation on the amount of stock which one individual may own in any one corporation, and can place restrictions on the ownership of stock by the same individual in competing corporations in the same line of business. Representation of Employes by Directors -Such a law can make a provision for representation on the part of the employes of great corporations in the management of the affairs of the corporation. We speak frequently of the good will of a business, that intangible asset which is the result of fair and honest dealing. The relation of the employes of a corporation to the corporation itself is just as much an element which should be considered in the management of the corporation; and the time is bound to come, if these aggregations of wealth are permitted to exist, when not only the money invested in the business will have representation on the board of directors, but the men who do the work of the corporation will be represented also. Under such a law, a corporation acting in restraint of trade in excess of its charter powers can be excluded from the channels of interstate trade, and its charter forfeited. Of course, it would be presumptuous for anyone to attempt to outline in detail the provisions of such a law. The point which it has been my purpose to emphasize is that in dealing with this problem of the control of industrial corporations, we have thus far failed, that this failure is a menace to the industrial peace of the nation, and that the situation demands the exercise of the federal authority in the creation and control of the great corporations which are to carry on the commerce of the nation. We have failed in attempting to deal with the question indirectly. We must assume direct control. I firmly believe that unless this situation is met speedily and effectually we will find ourselves confronted, in a very short time, by a movement toward socialism which will threaten our whole industrial system. Chicago, Ill. JAMES H. WILKERSON. ELECTRICITY-NEGLIGENCE. ADAMS v. BULLOCK. Court of Appeals of New York. Nov. 18, 1919. 125 N. E. 93. Where trolley wire of defendant traction company running under bridge of railroad company was so placed that no one standing on the bridge or even bending over the parapet could reach it, held, that defendant was not liable for injury to a boy who in crossing the bridge swung a wire about eight feet long, bringing it in contact with the trolley wire. CARDOZO, J. The defendant runs a trolley line in the city of Dunkirk, employing the overhead wire system. At one point the road is crossed by a bridge or culvert which carries the tracks of the Nickle Plate and Pennsyl vania railroads. Pedestrians often use the bridge as a short cut between streets, and chil dren play on it. On April 21, 1916, the plaintiff, a boy of 12 years, came across the bridge, swinging a wire about eight feet long. In |