Page images



that corporations engaged in inter-state commerce are subject to the control of Congress. United States vs. Trans-Missouri Freight Association, 166 U.S., 290. The act of Congress of July 2, 1890, may be followed by further legislation, as its declaration, that "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states or with foreign nations," is illegal, can hardly be made to cover the compact of monopoly corporation.

These special difficulties aside, some vital questions on the merits remain. What limitations are we prepared to impose on combination by way of incorporation? Are we ready to limit the kinds of business in which corporations may engage? May we confine a corporation to a given territory, or place a limitation on the amount of its business? Is there some standard of "fairness" or "reasonableness” that may be imposed for the regulation of competition? In order to steer our course between the Scylla of competition and the Charybdis of monopoly, shall we by law impose terms upon industry and fix prices for its products? The answers to these inquiries do not lie within the purpose of this paper. They must finally be given by the economist and the legislator. Suffice it here to say, that corporations can never be above the law. As its creatures, they must remain subject to the law. That they are beyond public control cannot be conceded. Whatever limitations upon their powers or their activities the public welfare requires, must be imposed. Resort must be had to charter reservations of control where

they exist. Neither constitutional construction nor established practice, however venerable or sustained by authority, must be permitted to interfere with their control, or even their suppression, if called for by the public welfare. In our regard for private rights, we must not perpetuate public wrongs. In order to guard vested rights we must not protect vested wrongs. The commonwealth is greater than the corporation of its crea


tion. The Constitution has made trade free within the United States. It must not be so interpreted as to make monopoly supreme throughout a land dedicated to freedom.

The choice does not lie, as some believe, between excessive competition and uncontrolled monopoly. It is not a question whether we shall have combination; but, having it, whether the few or all shall enjoy its benefits. We cannot go back to a condition of competition mainly local and upon equal terms. World-wide transportation facilities render forever impossible the old local competition. We have tasted the tremendous advantages of combination with freedom from destructive competition. Such advantages

realized are never surrendered. The problem for solution is how to secure them for all. It is the purpose of the trust to seize them for the few. The struggle is always and everywhere between equal opportunity and special privilege. In such a contest the State, which is but their representative, must stand for all against some. To whatever extent the public good requires, the monopoly corporation must yield to public control.





To the Officers and Members of the Illinois State Bar Association:

Your Committee on Law Reform, at the outset, desire to state their regret that by reason of the sickness of the honored president of this Association, they have not had the benefit of his counsel and advice in making up this report. The committee beg leave to express the hope that Mr. Hurd will soon recover, in order that the legal profession of the State may continue to have the benefit of his valuable advice regarding the administration of the law in this State.

In view of the fact that during the incumbency of this committee the General Assembly had a legislative session, it might have been hoped that this report could bring to the notice of the Association some beneficent legislative measures, which are needful in the administration of justice in this State. But we regret to report the fact that while the General Assembly passed one hundred and seventy-six laws, but one of them was of a general character, influencing the administration of justice in the courts. That is “an Act to amend an Act entitled 'an Act in regard to Evidence and Depositions in Civil Cases,' approved April 24, 1899.”

Although this committee was not charged with any special mandate, except that of the Constitution of the Association, it, through its chairman, prepared several bills of a needful character and caused them to be introduced into the


General Assembly for consideration and passage. The following are the bills, copies of which are added to this report:

An Act to provide for and regulate appeals from interlocutory orders in cases of injunctions, receiverships and applications for injunctions or receivers.

2. An Act to amend Section 13 of an Act concerning corporations, approved April 18, 1872, and to provide for the protection of stockholders and a more speedy and efficient procedure for the examination of corporate books.

3. An Act to amend an Act in regard to practice in courts of record, the purpose of which is to reduce the time to sue out a writ of error to two years.

4. An Act to punish the embezzlement of property belonging to a partnership or to joint owners by a partner or joint owner.

5. An Act to amend Section 2 of "an Act requiring compensation for causing death by wrongful act, neglect or default, approved February 12, 1853," the purpose of which is to give one more year within which suit may be brought in case of a compulsory nonsuit, if the time limited for bringing such action shall have expired during the pendency of the suit.

6. An Act to amend Section 16 of the Act concerning corporations, the object of which is to obviate the effects of some of the decisions of the Supreme Court regarding the creation of indebtedness beyond the amount of the capital stock, by corporations and officers assenting thereto.

7. An Act relating to fraudulent conveyances and enlarging the powers of administrators and executors, guardians and assignees for the benefit of creditors and receivers, in setting aside the fraudulent acts of their principals.

8. An Act to amend Section 3 of an Act to revise the law in relation to joint rights and obligations, approved February 25, 1874, making all joint obligations and covenants of a partnership joint and several.


[ocr errors]

9. An Act to amend Sections 9 and 11 of an Act in regard to practice of courts of record, which proposed law has become necessary by reason of the decision of Sandusky. Sidwell, 173 Ill., 493.

10. An Act to amend an Act concerning voluntary assignments, approved May 22, 1877.

This Act became necessary in order to harmonize it with the Act on the same subject regarding executions and receiverships.

11. An Act to amend Section 70 of an Act in regard to the administration of estates, the purpose of which Act is to compel claims in the Probate Courts of the State to be exhibited within one year instead of two years, as is permissible under the present law.

12. An Act to amend Section 1 of an Act in regard to attachments in courts of record, approved December 23, 1871.

The purpose of this proposed amendment is to permit a debt fraudulently contracted by the debtor, and reduced to writing, to be sued upon prior to the maturity of the debt.

Your committee, through its chairman, also participated in the framing of a joint resolution creating a Practice Commission with the duty of undertaking a revision of the practice and procedure in the courts of justice of this State. For a full reading of this resolution see Laws of Illinois, 1899, Bradwell's edition, p. 290.

While the members of this Commission will be appointed by the Governor, two of the members must be residents of the county of Cook and must be appointed, one on the nomination of the Appellate Court Judges of the First District and one on the nomination of the Chicago Bar Association. Two others, residents of the State outside of Cook county, must be appointed on the nomination of the Judges of the Supreme Court and of the Illinois State Bar Association re

. spectively. The fifth member is appointed by the Governor on his own motion.

« PreviousContinue »