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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.

Judge Hough, of the United Eighty-Cent 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 City than to passengers in and out of Buffalo, Watertown, and numerous other places in 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 public 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

strife. It has been advanced as an explanation of or excuse for the violence in connection with the strikes of the Western Federation, that the surroundings are different from those in the more thickly settled eastern country. The coalminer in Montana or Wyoming lives in the same atmosphere as the quartz miner. The owner of a coal mine is not different from the owner of a gold or silver mine. The difference appears to lie in the quality of leadership in the two unions and the consequent policies of the organizations. The results seem to justify the conclusion that conciliation can accomplish more than strikes and that diplomacy is better than revolutionary utterances.

A Breakdown of Ward Government

A noteworthy and unexpected indorsement of the commission form of municipal government has come from a recent investigation by a Grand Jury of a bribery scandal in St. Louis. In its report the Grand Jury declares that the lower house of the St. Louis municipal assembly-known as the House of Delegates-elected by wards, should be abolished and that the assembly should be supplanted by a commission or a unicameral body of limited membership. The upper house, elected at large, the Grand Jury finds to be composed of men of ability, dignity, and standing, and it commends their work. The lower house, composed of twenty-eight ward representatives, it says is "a menace to decency, order, and good government." A large part of the trouble, in the opinion of the Grand Jury, is due to the ward representation. "The idea," the report continues, "that any one member should represent his own locality to the exclusion of the interests of the entire municipality is repugnant in itself." Yet this is what has happened repeatedly, and the Grand Jury finds that legislation of the most beneficial public character has been held up and denied. Existing conditions, it thinks, show that the charter of St. Louis has become obsolete and that radical action is necessary. Therefore, the report says, "We most heartily recommend that our present system of a bicameral legislative body, with its large membership, be sup

planted by either a commission or a unicameral body of limited membership, to the end that the responsibility for the faithful and efficient discharge of the duties of our city officials may be assumed by men elected, not through political pull or ward popularity, but rather because of their approved intelligence, character, and ability." This instance from St. Louis is only one among many which show that American cities are more and more turning to the Texas idea, first demonstrated in Galveston and Houston, for relief from municipal inefficiency. The commission plan, centering authority and responsibility in a board of perhaps five men elected at large, does away with the difficulties of divided responsibility and conflicting ward interests experienced by St. Louis and most other large American cities. That it makes for efficiency and honesty has been amply demonstrated.

Preparations for

Prohibition

With the beginning of the new year prohibition will go into effect in Georgia. The enforcement of a prohibitory law depends upon a supporting public sentiment in the various localities of the State. In those communities where supporting public sentiment is weak the law is likely to be loosely observed or but spasmodically enforced. In Georgia conditions are largely favorable to the new law. In the first place, sentiment against the saloon has been spread widely throughout the State under an effectual system of local option. County after county had expelled the saloon; out of about one hundred and forty only a score or so recognized it as legal. In the second place, Atlanta, which, as the chief city of the State, might naturally be expected to regard the saloon with lenity, was stirred with animosity toward the saloon by the experiences of the riot of September, 1906. At that time it became evident that the worthless blacks who were a menace to the city and the brutalized whites who composed the avenging mobs were fostered if not produced by the drinkingplaces. It is believed that if a local option election had taken place at that time the vote for no-license would have

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been overwhelming. The opposition to the saloon in Atlanta is not merely a sentimental feeling-it has become an element in many men's business principles. Consequently preparations for enforcement are businesslike. Breweries are being transformed into ice-houses and manufactories of "soft drinks." On Decatur Street one saloon at least is giving place to a bank-the first to be located on that street. The city has been districted for the organization of law and order leagues; these will undertake to prevent or drive out "blind tigers." As for saloons under the guise of social clubs, a tax on such places laid by the Legislature is expected to be prohibitive.

the Saloon

If such a reform is to be Substitutes for made permanent, restrictive measures must be supplemented by measures that are constructive. This many churches of the city have realized. In place of the saloons they are undertaking to provide wholesome resorts. We are informed that the churches for the whites are projecting "institutional " facilities to cost over a half million-the Baptists two hundred and fifty thousand, and the Methodists four hundred thousand dollars. For the negro population one colored church is preparing similar facilities. The minister of the church, Dr. H. H. Proctor, one of the leaders of his race in the South, has prepared plans for an enlargement which will include a reading-room and library, a gymnasium, bath, model kitchen, sewing-room, etc. This movement has the indorsement of the Governor of Georgia, the Mayor of Atlanta, Dr. Booker T. Washington, and others. The white people of Atlanta are supporting this movement financially, and, with what Dr. Proctor is securing in the North in addition to what his own people are giving to the limit of their ability, this significant movement would seem assured-a movement to utilize the religious sentiment of a race for its practical betterment by harnessing it to life. In the effort to secure temperance and orderliness these positive measures taken by the citizens and the churches of Atlanta are as important as the new law.

American Painting

Reflects

American Character

No student of art should miss the opportunity of observing the peculiarly national note in American painting as afforded by the annual exhibitions of the National Academy of Design in New York City. Among some observers it has long been the fashion to slight these exhibitions. This was notably true during the years when the Society of American Artists, a secession from the old Academy, held rival exhibitions. Yet even now, when the Academy has reabsorbed the Society, some critics say that the exhibitions have reverted to the level of their least distinguished period! It is true that the average of the nearly four hundred pictures at this year's show is far from reaching the average of the Ten American Painters' Exhibition, for instance. To Americans in general, however, the Academy exhibitions are more varied, interesting, and suggestive; they serve as a specially popular object-lesson to the whole country in present-day American painting, as distinguished from French, Dutch, or any other. More and more our painters reflect our restless, nervous, but virile energy, our instinct and sense for the vivid in anything, our vivacity and touch-and-go of manner, whether in an individual's movement, carriage, conversation, gestures, or in a painter's brush-work. These qualities are emphasized this year in two departments of painting in which our artists have won preeminence-portraiture and landscape. As examples of the first, Mr. Kenyon Cox's portrait of Saint-Gaudens, Mr. Alexander's portrait of Mr. Worthington Whittredge, Miss Emmett's "Father and Son," and Mr. Wiles's "The Twins," may be selected. Expressed by more or less competent technique, one feels the varying vigor and vitality of the subjects. Emphasis is placed upon the tenderer aspects of portraiture in Mr Henry Oliver Walker's "Brother and Sister," as is usual with this painter, whose refined workmanship also rarely loses sight of the purely decorative as an ideal. But neither with him nor with any other of our best men has this ideal been lowered to a mere prettiness

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