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by medical officers, with a shipping master and civilian crew for purposes of navigation; that the Relief itself formerly belonged to the army and was so commanded; and that Japanese naval hospital ships were commanded by medical officers, largely because otherwise their neutrality would not be recognized. In short, as Dr. Rixey has said, hospital ships are simply floating hospitals, and the medical department, which is responsible for the care of the sick and injured, should have supreme control. This view will seem as reasonable to a layman as that a hospital on shore should be under the supreme direction of medical authorities rather than that of a lay superintendent or manager.

A year ago last April The A Conviction Outlook reported the conAffirmed viction in Savannah of John F. Gaynor and Benjamin D. Greene, and their sentence to pay a fine of $575,749 and to undergo a term of imprisonment of four years on charges of embezzlement and conspiracy, in association with Oberlin M. Carter, who was a captain of engineers in the United States army. This fraud, as readers of The Outlook will remember, was perpetrated in connection with extensive harbor improvements in Savannah. Gaynor and Greene took an appeal to the Supreme Court of the United States in the form of a petition for a writ of certiorari, in order to bring the case for review before that Court. The accused, who have been convicts in prison dress for some time past, raised every possible question and took every possible step to delay and defeat the justice which has officially overtaken them. All the resources which large wealth and great legal ability could command have been used in their behalf. They have left no stone unturned to postpone, delay, and defeat the justice which has overtaken them. When Gaynor and Greene were sentenced, a year ago last April, Judge Speer remarked that it has been said that no man who had a million dollars could he convicted of crime in America. He also pointed out that one of these convicted men had had distinguished politi

cal honors and the other had been a graduate of West Point. The final disposition of this case shows that, before the law, all men stand alike; that wealth, position, and past record cannot defeat the ends of justice; and it also shows that the higher the position and the greater the opportunities of men, the more rigorous is the punishment awarded them. Carter has already been in prison for a number of years. His punishment has been heavy. It ought to have been; for he brought disgrace on the uniform of a United States army officer and was guilty of a heinous offense against the honor and purity of a profession which has had a singularly clean record. Gaynor and Greene were both men of large wealth. The three men were engaged in a fraud of the most barefaced and abominable kind against the United States Government. They lowered themselves to the rank of common thieves, and as common thieves, in spite of the advantages of their position, they are being punished. The lesson is an obvious one.

The Brownsville

On the shocking affray in Brownsville, Texas,

Case Again in August, 1906, the

President directed an official investigation by the War Department, and on the report of the investigating officer that the shooting was done by members of a negro battalion, and that the negroes of the battalion had combined to save their comrades from punishment, the President ordered their summary dismissal "without honor." One of these dismissed soldiers has now brought suit for his pay since the dismissal. As reported in the newspapers, there are two grounds alleged for this claim: first, that it was in violation of the law, and, second, of the Constitution of the United States. It is not the custom of The Outlook to anticipate the judgment of the courts, but we think it legitimate to repeat what we have already said on this subject. On the question, Has the President legal power to order such a dismissal without a trial? we quoted (December 1, 1906) the Advocate-General as saying that 66 the Government may terminate at pleasure an enlistment without regard to

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the soldier." He added, and The Outlook agrees with him, "It is essential to the discipline and efficiency of the military establishment that the Government should not only have but should be able to exercise this power without question or controversy, and at its discretion." A somewhat careful examination of the Articles of Laws enacted by Congress satisfied The Outlook that the Government has this power, as it ought to have it. The claim that the discharge was unconstitutional appears to be based on the clause of the Constitution that no person shall be deprived of liberty or property without due process of law." The Outlook does not believe that an office is property within the meaning of this clause. If a railway president may discharge an engineer without proceeding against him in the courts for incompetence, the President of the United States may discharge a soldier in his discretion without bringing a suit at law or subjecting himself to one. The Outlook does not, therefore, believe that this suit will come to anything but disappointment to the suitor; we doubt whether it will even involve any judicial inquiry into the facts, the right of the Commander-in-Chief of the army to discharge an enlisted soldier, whatever the facts, being, we believe, indisputable. We shall be interested to see whether our judgment is confirmed by the results of this proceeding.

Eighty-Cent

Judge Hough, of the United States Circuit Court, has Gas handed down a decision which declares the so-called eighty-cent gas law of the State of New York to be unconstitutional. The ground of the unconstitutionality is that the enforcement of the law would result in confiscation of private property by the State, and the Fourteenth Amendment to the Constitution of the United States forbids the separate States to take property for public use without due process of law. Judge Hough's decision is of very much more than local interest, as it brings into prominence and leaves in a condition more unsettled than ever a fundamental question regarding the relation of the

State to public service monopolies created by the State. In the spring of 1906, after a considerable period of agitation and investigation, in which general complaint was made that the gas monopoly of New York City was both charging the citizens an excessive price for gas and giving them an inadequate service, the New York Legislature passed an Act fixing the price of gas in the Borough of Manhattan at eighty cents per thousand feet. The Gas Commission of that time, which has since been succeeded by the Public Service Commission, put the law into force, and the gas monopoly immediately contested it in the courts. During the progress of the trial of the case the difference between the old price of a dollar and the eighty-cent rate has been paid into the hands of a legal trustee. Unless the case is carried to the Supreme Court of the United States the gas monopoly will be properly entitled to charge the old price and collect the accumulations in the hands of the legal trustee. Judge Hough agrees with the principle laid down by a Pennsylvania court, and recently reported in these columns, that the State may by statute regulate the earnings of a public service corporation to a point where it can pay the stockholders on their investment a rate not less than the legal rate of interest. If the returns on invested capital are made by legislation less than the legal rate of interest, the act becomes confiscatory and unconstitutional. Judge Hough's decision points out that the tangible capital of the New York gas monopoly is $47,000,000; that the net annual income, with gas selling at eighty cents, would be $3,030,000; this, as he says, would be over six per cent upon the tangible capital of the company, and would be constitutional if there were no capital but the tangible property. But a large part of his opinion is devoted to a consideration of what he calls "the intangible property" of the gas company. After a legal and philosophical discussion of franchises, he decides that the franchise of a public service corporation actually carrying on operations under that franchise may be capitalized. He values the franchise of the gas monopoly at

$12,000,000. If this amount be added to the above-mentioned capital account, the return to the stockholders is considerably less than six per cent; and it is on this ground that the eighty-cent rate is declared to be unconstitutional. We have carefully read Judge Hough's decision, and we welcome it for two reasons. First, it clearly sustains the legal principle that the State has a constitutional right to regulate the earnings of a public service corporation, provided it does not reduce those earnings below the legal rate of interest. Second, it brings up in a sharply defined form the question as to the legal definition of a franchise. Judge Hough believes that a franchise. granting a monopoly to a public service corporation may be capitalized in accordance with the earnings obtained under the operation of the franchise. It appears to us that there is danger that his reasoning, if sustained by court decisions generally, would enable public service corporations to exercise their monopolistic power, granted by the people, to the real injury of the people. The other view of franchises is that they are simply licenses to be paid for as a push-cart peddler pays for his license, but not to be capitalized. It is clear that a uniform and stable definition of franchises must be reached by the courts of last resort in the country before such contests as that between the Legislature of the State of New York and the Consolidated Gas Company can be satisfactorily settled.

Officers Are Criminally Liable Only for Their

Own Acts

Our readers will remember that in February, 1907, a serious railway accident occurred on the Harlem Division of the New York Central Railway, in which twenty-three persons were killed and a hundred were injured; the accident occurring to an electric local train just after the opening of the electric service. As a result of this accident, the General Manager, who was also a VicePresident of the railway, was put on trial for manslaughter, on the ground that the accident was due in part to his culpable negligence. In so far as the issues of this trial were issues of fact and the

question was whether proper precautions were taken to guard against accident, they concern chiefly those who reside in New York City or its vicinity, and into those questions we do not enter. But the charge of Judge Kellogg, before whom the case was tried, involved one legal principle of universal application and of great importance-the question how far the general manager of a railway is criminally responsible for accidents. On this subject the Judge, in his charge to the jury, spoke as follows:

The defendant was the general manager of the New York Central Railroad. The management intrusted to him was general and not special. He had under his control fifty thousand men; he had under his control some seven thousand miles of track, and in that seven thousand miles of trackage there were fifteen hundred miles of curve. He owed a duty of transporting freight and passengers upon this railway. and he owed a duty of providing generally for the safety of passengers who traveled; but he owed that duty no more to passengers in New York Watertown, and numerous other places in City than to passengers in and out of Buffalo, this State and elsewhere. It was humanly impossible for this defendant to know every switch, to know every locomotive, to know block signal, to know every curve.... The every man, to know every car, to know every most that he could do was to provide a general scheme for the operation of the passenger and freight traffic and for the safety of passengers. That is the utmost in the nature of things that he could be called upon to do. He must have delegated to others the detail of carrying out that general duty. . . . He is liable only for his own omission to perform his own personal duty, not otherwise, criminally. The master may be liable civilly in a similar case, but he cannot be held criminally except for his own omission to act as required to act by his contract.

This principle, that an officer of a railway, while he may be civilly responsible for the acts of his agent or appointee, is not criminally responsible except for his own acts, was affirmed, the reader may remember, by The Outlook in its comment on the refusal of the Administration to prosecute criminally Mr. Paul Morton (Outlook, June 24, 1905, p. 454; December 16, 1905, p. 899). The pub lic rightly demands such government regulation of railways as will protect passengers from unnecessary accidents as well as shippers from unjust charges, but in this demand the public must not forget the principle that no man is

criminally responsible except for his own act, or neglect to act, and this principle is moral as well as legal.

Conciliation Versus Strikes

The Western Federation of Miners is again attracting attention by reason of the strike in Goldfield, Nevada. At their annual convention, held in Denver last June, the metalliferous miners, who form practically the whole body of the Western Federation of Miners, went on record as opposed to agreements with employers. Contracts with mine-owners were declared to be instruments of oppression, intended to bind the miners hand and foot so they could not strike. The Butte, Montana, local union, which was working under an agreement with the copper companies, was requested to abrogate the contract, which advice, however, it did not follow. At the time the convention of the Western Federation was in session adopting its "no-agreement" policy, another conference was being held in Denver between the coal mine owners of Wyoming and representatives of the United Mine Workers. The object of that conference, which was presided over by John Mitchell, was to bring about a joint working agreement covering the coal fields of Wyoming. The leaders of the coal-miners were as anxious to procure an agreement with the employers as the representatives of the ore-miners were to avoid such contracts. The conference was the first of its kind which included all the coal companies in Wyoming, and it lasted thirtythree days. The coal-miners had been working ten hours a day without any general recognized wage scale. Miners who worked by the day received $3 a day in the highest-paid camps. An agreement was reached through which a general eight-hour work-day was established for every man employed about the mines. A minimum wage scale of $3.40 a day was set for miners. Engineers, who formerly had been paid $100 a month, working ten hours a day, were conceded $112.50 a month on the eight-hour basis. A proportionate increase was granted every worker in or around the mines. Many valuable concessions in working

conditions were gained by the workmen. A hospital commission, with full authority to hire and discharge doctors, was provided for at each camp to take the place of the company doctors, for whose services the miners had formerly been compelled to pay whether they needed such services or not. The hospital commission is composed of four members, one representing the company, one the store and office employees who are not members of the union, and two elected from the union ranks. The companies agreed to deduct all union dues, assessments, and initiation fees from the wages of their employees, which means in substance that only union men can remain employed in any of the coal mines. In the event of a suspension of work, either at the expiration of the agreement or otherwise, the companies agreed that the engineers employed to operate pumps and otherwise guard against the destruction of property should not be asked to hoist coal mined by non-union men. The agreement, which covers the entire Wyoming field and affects twelve thousand men, became operative September 1 and runs for twelve months. Following the example of the Wyoming operators, the coal mine owners in Montana formed an association and asked for a conference with the officials of the United Mine Workers. An agreement similar to the Wyoming contract was reached at the end of four weeks of debate, except that the wage scale set for Montana is higher. The miners receive $3.75 a day. They have the eight-hour work day and the "check-off" system of collecting dues. A former member of the National Executive Board of the United Mine Workers was hired by the Montana operators as commissioner to handle disputes arising under the agreement. The wages paid coal-miners in Montana are higher and working conditions are better than in any other coal-mining center in the country. All this was accomplished through conciliation in the heart of the country where the Western Federation of Miners has engaged in so many turbulent strikes. The coal-miners through wise leadership have gained conditions, without strikes, which the metalliferous miners have been unable to secure after years of industrial

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