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by medical officers, with a shipping mas cal honors and the other had been a gradter and civilian crew for purposes of uate of West Point. The final disposition navigation; that the Relief itself formerly of this case shows that, before the law, all belonged to the army and was so com men stand alike; that wealth, position, manded; and that Japanese naval hospital and past record cannot defeat the ends of ships were commanded by medical offi- justice; and it also shows that the higher cers, largely because otherwise their the position and the greater the opporneutrality would not be recognized. In tunities of men, the more rigorous is the short, as Dr. Rixey has said, hospital punishment awarded them. Carter has ships are simply floating hospitals, and already been in prison for a number of the medical department, which is re years. His punishment has been heavy. sponsible for the care of the sick and It ought to have been; for he brought injured, should have supreme control. disgrace on the uniform of a United This view will seem as reasonable to a States army officer and was guilty of a layman as that a hospital on shore should heinous offense against the honor and be under the supreme direction of medi- purity of a profession which has had a cal authorities rather than that of a lay singularly clean record. Gaynor and superintendent or manager.

Greene were both men of large wealth.
The three men were engaged in a fraud

of the most barefaced and abominable A year ago last April The kind against the United States GovernA Conviction

Outlook reported the con ment. They lowered themselves to the Affirmed

viction in Savannah of rank of common thieves, and as common John F. Gaynor and Benjamin D. thieves, in spite of the advantages of their Greene, and their sentence to pay a fine position, they are being punished. The of $575,749 and to undergo a term of lesson is an obvious one. imprisonment of four years on charges of embezzlement and conspiracy, in association with Oberlin M. Carter,

On the shocking affray who was a captain of engineers in the

The Brownsville

in Brownsville, Texas,

Case Again United States army. This fraud, as

in August, 1906, the readers of The Outlook will remember, President directed an official investigawas perpetrated in connection with exten- tion by the War Department, and on the sive harbor improvements in Savannah. report of the investigating officer that Gaynor and Greene took an appeal to the shooting was done by members of a the Supreme Court of the United States negro battalion, and that the negroes of in the form of a petition for a writ of the battalion had combined to save their certiorari, in order to bring the case for comrades from punishment, the Presireview before that Court. The accused, dent ordered their summary dismissal who have been convicts in prison dress “ without honor.” One of these disfor some time past, raised every possible missed soldiers has now brought suit for question and took every possible step to his pay since the dismissal. As reported delay and defeat the justice which has in the newspapers, there are two grounds officially overtaken them. All the re- alleged for this claim: first, that it was sources which large wealth and great in violation of the law, and, second, of legal ability could command have been the Constitution of the United States. used in their behalf. They have left no It is not the custom of The Outlook to stone unturned to postpone, delay, and anticipate the judgment of the courts, defeat the justice which has overtaken but we think it legitimate to repeat what them. When Gaynor and Greene were we have already said on this subject. sentenced, a year ago last April, Judge On the question, Has the President Speer remarked that it has been said that legal power to order such a dismissal no man who had a million dollars could without a trial? we quoted (December 1, he convicted of crime in America. He 1906) the Advocate-General as saying also pointed out that one of these con that “the Government may terminate at victed men had had distinguished politi- pleasure an enlistment without regard to

the soldier." He added, and The State to public

State to public service monopolies Outlook agrees with him, “ It is essen created by the State. In the spring of tial to the discipline and efficiency of 1906, after a considerable period of agithe military establishment that the Gov. tation and investigation, in which genernment should not only have but should eral complaint was made that the gas be able to exercise this power without monopoly of New York City was both question or controversy, and at its dis- charging the citizens an excessive price cretion.” A somewhat careful examina- for gas and giving them an inadequate tion of the Articles of Laws enacted by service, the New York Legislature passed Congress satisfied The Outlook that the an Act fixing the price of gas in the Government has this power, as it ought Borough of Manhattan at eighty cents to have it. The claim that the discharge per thousand feet. The Gas Commiswas unconstitutional appears to be based sion of that time, which has since been on the clause of the Constitution that succeeded by the Public Service Com“no person shall be deprived of liberty mission, put the law into force, and the or property without due process of law.” gas monopoly immediately contested it The Outlook does not believe that an in the courts. During the progress of office is property within the meaning of the trial of the case the difference bethis clause. If a railway president may tween the old price of a dollar and the discharge an engineer without proceed- eighty-cent rate has been paid into the ing against him in the courts for in- hands of a legal trustee. Unless the competence, the President of the United case is carried to the Supreme Court of States may discharge a soldier in his the United States the gas monopoly will discretion without bringing a suit at be properly entitled to charge the old law or subjecting himself to one. The price and collect the accumulations in Outlook does not, therefore, believe that the hands of the legal trustee. Judge this suit will come to anything but dis- Hough agrees with the principle laid appointment to the suitor; we doubt down by a Pennsylvania court, and rewhether it will even involve any judicial cently reported in these columns, that inquiry into the facts, the right of the the State may by statute regulate the Commander-in-Chief of the army to dis- earnings of a public service corporation charge an enlisted soldier, whatever the to a point where it can pay the stockfacts, being, we believe, indisputable. holders on their investment a rate not We shall be interested to see whether less than the legal rate of interest. If our judgment is confirmed by the results the returns on invested capital are made of this proceeding.

by legislation less than the legal rate of interest, the act becomes confiscatory

and unconstitutional. Judge Hough's Judge Hough, of the United decision points out that the tangible Eighty-Cent

States Circuit Court, has capital of the New York gas monopoly Gas

handed down a decision is $47,000,000; that the net annual inwhich declares the so-called eighty-cent come, with gas selling at eighty cents, gas law of the State of New York to be would be $3,030,000 ; this, as he says, unconstitutional. The ground of the would be over six per cent upon the unconstitutionality is that the enforce- tangible capital of the company, and ment of the law would result in confis- would be constitutional if there were no cation of private property by the State, capital but the tangible property. But a and the Fourteenth Amendment to the large part of his opinion is devoted to a conConstitution of the United States forbids sideration of what he calls the intangible the separate States to take property for property” of the gas company. After a public use without due process of law. legal and philosophical discussion of Judge Hough's decision is of very much franchises, he decides that the franchise more than local interest, as it brings into of a public service corporation actually prominence and leaves in a condition carrying on operations under that franmore unsettled than ever a fundamental chise may be capitalized. He values question regarding the relation of the the franchise of the gas monopoly at

$12,000,000. If this amount be added to question was whether proper precautions the above-mentioned capital account, the were taken to guard against accident, return to the stockholders is considerably they concern chiefly those who reside in less than six per cent; and it is on this New York City or its vicinity, and into ground that the eighty-cent rate is de- those questions we do not enter. But clared to be unconstitutional. We have the charge of Judge Kellogg, before whom carefully read Judge Hough's decision, the case was tried, involved one legal and we welcome it for two reasons. principle of universal application and of First, it clearly sustains the legal prin- great importance—the question how far ciple that the State has a constitutional the general manager of a railway is right to regulate the earnings of a public criminally responsible for accidents. On service corporation, provided it does not this subject the Judge, in his charge to reduce those earnings below the legal the jury, spoke as follows: rate of interest. Second, it brings up in The defendant was the general manager of a sharply defined form the question as the New York Central Railroad. The manto the legal definition of a franchise. agement intrusted to him was general and Judge Hough believes that a franchise

not special. He had under his control fifty

thousand men ; he had under his control granting a monopoly to a public service

some seven thousand miles of track, and in corporation may be capitalized in accord- that seven thousand miles of trackage there

were fifteen hundred miles of curve. He ance with the earnings obtained under

owed a duty of transporting freight and the operation of the franchise. It ap

passengers upon this railway. and he owed a pears to us that there is danger that his

duty of providing generally for the safety of reasoning, if sustained by court decis- passengers who traveled; but he owed that ions generally, would enable public serv

duty no more to passengers in New York ice corporations to exercise their monop

City than to passengers in and out of Buffalo,

Watertown, and numerous other places in olistic power, granted by the people, to this State and elsewhere. It was humanly the real injury of the people. The other impossible for this defendant to know every view of franchises is that they are simply

switch, to know every locomotive, to know licenses to be paid for as a push-cart

every man, to know every car, to know every

block signal, to know every curve. ... The peddler pays for his license, but not to most that he could do was to provide a genbe capitalized. It is clear that a uniform eral scheme for the operation of the passenand stable definition of franchises must

ger and freight traffic and for the safety of be reached by the courts of last resort in

passengers. That is the utmost in the nature

of things that he could be called upon to do. the country before such contests as that He must have delegated to others the detail between the Legislature of the State of of carrying out that general duty. ... He New York and the Consolidated Gas

is liable only for his own omission to perCompany can be satisfactorily settled.

form his own personal duty, not otherwise, criminally. The master may be liable civilly in a similar case, but he cannot be held crim

inally except for his own omission to act as Our readers will

required to act by his contract. Officers Are Criminally remember that in This principle, that an officer of a railLiable Only for Their

February, 1907,
Own Acts

way, while he may be civilly responsible

a serious railway for the acts of his agent or appointee, is accident occurred on the Harlem Divis- not criminally responsible except for his ion of the New York Central Railway, in own acts, was affirmed, the reader may which twenty-three persons were killed remember, by The Outlook in its comand a hundred were injured; the acci- ment on the refusal of the Administradent occurring to an electric local train tion to prosecute criminally Mr. Paul just after the opening of the electric Morton (Outlook, June 24, 1905, p. 454 ; service. As a result of this accident, the December 16, 1905, p. 899). The pub General Manager, who was also a Vice- lic rightly demands such government President of the railway, was put on trial regulation of railways as will protect for manslaughter, on the ground that the passengers from unnecessary accidents accident was due in part to his culpable as well as shippers from unjust charges, negligence. In so far as the issues of but in this demand the public must this trial were issues of fact and the not forget the principle that no man is

criminally responsible except for his own conditions were gained by the workmen. act, or neglect to act, and this principle A hospital commission, with full authoris moral as well as legal.

ity to hire and discharge doctors, was provided for at each camp to take the

place of the company doctors, for whose The Western Federation services the miners had formerly been Conciliation

of Miners is again attract- compelled to pay whether they needed Versus Strikes ing attention by reason

such services or not. The hospital comof the strike in Goldfield, Nevada. At mission is composed of four members, their annual convention, held in Denver one representing the company, one the last June, the metalliferous miners, who store and office employees who are not form practically the whole body of the members of the union, and two elected Western Federation of Miners, went from the union ranks. The companies on record as opposed to agreements with agreed to deduct all union dues, assessemployers. Contracts with mine-owners ments, and initiation fees from the wages were declared to be instruments of op- of their employees, which means in subpression, intended to bind the miners stance that only union men can remain hand and foot so they could not strike. employed in any of the coal mines. In The Butte, Montana, local union, which the event of a suspension of work, either was working under an agreement with at the expiration of the agreement or the copper companies, was requested to otherwise, the companies agreed that the abrogate the contract, which advice, how- engineers employed to operate pumps ever, it did not follow. At the time the and otherwise guard against the destrucconvention of the Western Federation tion of property should not be asked to was in session adopting its “no-agree- hoist coal mined by non-union men. The ment” policy, another conference was agreement, which covers the entire Wyobeing held in Denver between the coal ming field and affects twelve thousand mine owners of Wyoming and repre men, became operative September 1 and sentatives of the United Mine Workers. runs for twelve months. Following the The object of that conference, which was example of the Wyoming operators, the presided over by John Mitchell, was to coal inine owners in Montana formed an bring about a joint working agreement association and asked for a conference covering the coal fields of Wyoming with the officials of the United Mine The leaders of the coal-miners were as Workers. An agreement similar to the anxious to procure an agreement with Wyoming contract was reached at the the employers as the representatives of end of four weeks of debate, except that the ore-miners were to avoid such con the wage scale set for Montana is higher. tracts. The conference was the first of The miners receive $3.75 a day. They its kind which included all the coal com have the eight-hour work day and the panies in Wyoming, and it lasted thirty- "check-off” system of collecting dues. three days. The coal-miners had been A former member of the National Execworking ten hours a day without any gen- utive Board of the United Mine Workers eral recognized wage scale. Miners who was hired by the Montana operators as worked by the day received $3 a day in commissioner to handle disputes arising the highest-paid camps. An agreement under the agreement. The wages paid was reached through which a general coal-miners in Montana are higher and eight-hour work-day was established for working conditions are better than in every man employed about the mines. any other coal-mining center in the counA minimum wage scale of $3.40 a day try. All this was accomplished through was set for miners. Engineers, who conciliation in the heart of the country formerly had been paid $100 a month, where the Western Federation of Miners working ten hours a day, were conceded has engaged in so many turbulent strikes. $112.50 a month on the eight-hour basis. The coal-miners through wise leadership A proportionate increase was granted have gained conditions, without strikes, every worker in or around the mines. which the metalliferous miners have been Many valuable concessions in working unable to secure after years of industrial

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