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which we possess. If the people will be true to themselves the courts will be true to the people. I have never joined in the cry against the courts, that indiscriminate denunciation of the courts, whether it be the Supreme Court of the United States or our State court's. Many people have denounced the Supreme Court of the United States that it had monopolistic tendencies, but as shown in the late railroad traffic case has it not undertaken to do justice to the people? Our last legislative session passed by without ever saying a word upon the subject. You have a trust law upon the statute books, and two years ago that same combination of influence was able to minimize the effect of that trust law and you have never had one prosecution under it. In truth the people of Illinois have not been true to themselves, and all these ills will befall them justly until they become true to themselves.
MR. LESSING ROSENTHAL: I suppose that I am not in sympathy with the majority of the persons who are here, possibly not in sympathy with a majority of many persons who have expressed themselves on the subject, in saying that my own views are much at variance with those views that are usually expressed. My own views are entirely at variance with the views just expressed by the gentleman who preceded me. I believe that there is nothing wrong whatever about the gas trust law in so far as it affects the consolidation of those corporations. Prof. Henry C. Adams, the statistician of the Inter-State Commerce Commission, and one of the leading economists of the country, now professor at Ann Arbor, long ago stated, and it has been repeated again and again by leading economists, that where it is in the interest of men to combine no law in the world can make them compete. Now that has been amply proven and demonstrated by our experience within the last few years. The trouble with us is that we have sought to introduce competition into fields where competition can not properly exist. Take the gas trust as an illustration. Gas is almost as much a necessity as water now. The water is
furnished to the people by the city; we allow gas to be furnished by private individuals. Now the furnishing of water is a monopoly in this city, but the benefits of it are entirely conserved to the city. The same might be done with respect to gas. Suppose that we have a dozen competing companies in this city, have they not always made an effort to combine and has it not been shown again and again that by attempting to have competition in those fields there has been enormous waste of capital? Pipes have been laid in the same street, millions of dollars have been spent in placing conduits under our streets, and then the companies afterwards combined.
Now what we should endeavor to do is not to take the wrong course of attempting to infuse competition into that field, but to take the other course and attempt to conserve for the public the benefit of this monopoly. That may be done in several ways, by regulation of prices, by state supervision, or it may be done by the community itself taking hold of such enterprises as the gas industry, or the railroad industry. They are industries in which, when capital is once invested any additional outlay of capital produces dollars in geometrical ratio. These are distinctions which courts of late years and in former years have failed to recognize. Now I say the day must come when the courts can not be so conservative and must not be behind the men who have studied these questions; can not be behind what these men have begun to realize, that competition cannot exist in those fields, but we must have consolidation and combination and our efforts and aims should be to conserve to the public the benefits of this. I think some of our decisions, some of the decisions of this State, of our highest courts in this State can not be supported on principle. Of course they have become established but they do not seem to me to be in accord with the principles of the common law. I think that if the common law is carefully investigated it will be found that combinations in reasonable restraint of trade were never
unlawful, and many of our combinations have been that. Here a few years ago the Supreme Court pronounced unlawful the Stenographers' Association—I have forgotten the name of the association at the present time—but that was simply an association to regulate prices between stenographers, and the result of it was simply that stenographers employed here in our courts and at other places would receive fair compensation for their work-charge a uniform price. Some of the evils of competition were done away with by that association. That was pronounced unlawful. I think there is no basis for any such decision in the common law. I could dwell at length on these propositions at the present time. These things have been pointed out in very learned articles by such men as Prof. Dwight. I might refer to Mr. Dodge, although he has been connected with the Standard Oil Company and it might not have the weight as such articles by Prof. Dwight and others have.
And this well known case referred to by Mr. Smith, the steamship company case.—to my mind that case is not a departure from the common law; it is a departure from some of the previous decisions, but it is a case that again recognizes the principle underlying the common law and recognizes the fact that such combinations as that have come to stay, and that the courts ought not to be attempting to wipe out those things. To my mind the law should neither attempt to foster these combinations nor attempt, on the other hand, to hamper them. For the present let us study these questions and see what the result would be.
We should be observant, I do say, and say it most emphatically, because it ought to be done, our corporation laws ought to be improved; we ought to prevent such matters as speculation in stock by the officers of the corporation. Take the case of the Whisky Trust, when the receivers were appointed, Joseph B. Gruenhutt was at that time found to be short 15,000 shares of the capital stock of the Distilling and Cattle Feeding
Company. He was president of the association; being short that number of shares it was of course to his interest to depress the value of that stock, and to depress it at the expense of the other stockholders. Such things ought not to be allowed. And then we ought to have fuller reports to the State and better supervision and more regulation, but all those things would aid us a great deal more than our endeavors, which have been fruitless, over and over again, in attempting to interfere with combination, where we have found that we can not do it. I wish to say a word more, and that is in reference to the constitutional restrictions to which Mr. Smith has referred in his able paper, and which Mr. Smith supposes will interfere with our having the legislation which we might have. The Supreme Court of the United States has only recently in the case of the St. Louis & Iron Mountain Railway, 173 United States, held that where the power is reserved in the law to amend the charter of a corporation, the State has the power to amend the charter in any respect and to any extent. It has also held in the recent Matthews case, 174 United States, and that simply follows some previous cases, that these various constitutional provisions will not interfere with the police powers of the State. That when it is necessary for the State to pass laws for the safety, health or comfort of its citizens, these restrictions do not apply. The Supreme Court of the United States also held that foreign corporations are not citizens within that section of the constitution that says that citizens of each state shall have the rights and privileges of every other state. So for the constitutional part of it we are not hampered if we want such legislation. But the important question to us at present is, do we want all these laws, all these restrictions, is it not better that we allow individuals to look out, to a certain extent, for their own wel. fare, to safeguard these as much as we possibly can, but not attempt, as we have been attempting to do impossible igs.
MR. SHERMAN: I rise simply to move the thanks of the Association to Mr. Smith for the very able, thoughtful and suggestive paper which he has presented.
Which motion was seconded and carried.
VICE PRESIDENT WOOD: The next in order is the report of the Necrologist, Judge Bradwell.
MR. MOSES: Before Judge Bradwell takes his place, let me offer a resolution.
VICE PRESIDENT Wood: While he is coming up the Chair will recognize Mr. Moses for the purpose of offering a resolution.
Resolution read as follows:
It is moved that a special committee of three be appointed by the Chair to take into consideration the rápid increase of the Supreme Court and Appellate Court Reports, and to act in the premises with a view of procuring, if possible, the enforcement of Rule 57 of the Supreme Court of Illinois, which permits the publication of a table of cases “directed not to be reported.”
Said committee is also charged to confer with the various Appellate Courts of the State, and with the Reporter of the Supreme and Appellatę Courts, for the purpose of inducing the Appellate Courts to adopt the practice not to cause to be published any decisions which have no general interest to the legal profession, and which interest only the respective parties to the litigation.
Said committee is requested to make a full report in the premises at the next meeting of this Association.
It was moved and seconded that the resolution be adopted, which motion was carried.
VICE PRESIDENT Wood: The Chair has omitted to call attention to the fact, at the request of the banquet committee, that at 7:30 to-night is the banquet, and that the committee have appointed a place, I think it is the next room to where we were in session this morning, and a very handsome and intelligent young lady is there who will issue the tickets for the banquet at a small consideration. The attention of the younger members of the Association is partieularly called to this matter-and also the older ones.