Central Law Journal.

ST. LOUIS, JANUARY 9, 1914.

INJUNCTION AGAINST ROVING

CHICKENS.

The Supreme Court of Iowa, admitting that by the common law an owner could be compelled by injunction not to allow his demestic animals to trespass on the lands of another, holds that this rule was never applicable to conditions in that state. In statutory changes of the Iowa rule, it is stated that chickens and the like still may run where they list and also lay. Possibly the last supplies the reason for lack of legislation and the egg away from home may be deemed of an animal ferae naturae and therefore the property of the owner of the soil. Vide Kemple v. Schafer, 143 N. W. 505, for a very learned and voluminous discussion on the rural rights of domestic fowls, the roosting place being their domi cile.

CORPORATION TAX AS APPLIED TO RECEIVERSHIP.

The Supreme Court, speaking by Mr. Justice Pitney, rules that the net income earned by receivers of a corporation was not subject to the Federal corporation tax. That ruling is now academical, but why receivers are any more than corporate officers, pro hac vice, is to us difficult to discern. They struggle for success along the same lines as corporate officers; must obey the same regulations and charge only just rates, which are supposed to be fair earnings of capital over and above public taxes and as sessments. The old franchised concern is there of which a court has taken charge just as it would take charge of the business of an individual or a partnership. U. S. v. Whitridge, 34 Supp. Ct. 24.

THE RIGHT OF STATE BANKS TO ENTER INTO THE FEDERAL RESERVE SYSTEM.

The question being agitated through the press as to the right of state banks to enter and, incidentally, to qualify for entrance, into the federal reserve system under the new currency law, has been pitched rather on the incidental, than on the main, thing for con

sideration.

In other words, it has been assumed in discussion, that it lies within the power of state banks to join in the plan which has been provided for a country-wide banking system under the Federal currency law, because the pervasiveness of such law creates a condition in the country of which a corporate entity organized under other law, and yet surrounded by that condition, in wise discretion may recognize as a matter of self-protection.

In this it seems to us the assumption has behind it indisputable basis, and state statutes by the express inhibitions they level against state banks strongly imply that this is true. We mean to say, generally, that state banks have ample power to go into the banking business, and this power under familiar rules of construction carries with it all the incidental powers necessary to its fair and reasonable exercise. The principle expressio unius, exclusio alterius here comes into play.

It might be thought that in the prosecution of its business a bank should have the right to invest its funds in outside property, its duty being to earn interest for its shareFolders. This the law recognizes, but the field of investment is expressly limited, generally it being said it shall not acquire

stock in other banks, except to protect itself in loans previously made. Therefore there is no sin in a bank owning stock in other banks but there is a sin in using its assets to make an investment, as such, in stock of other banks,

We think nothing else may be said as to the intent of statutes of this character, and it is to be conceded, that the limitation is

not to be frittered away by construction. But the question arises is it, in fact, a purchase of stock for a state bank to comply with a detail for admission to the federal reserve system, because the detail is purchase of stock, eo nominic?

It is to be noticed, that it is not bank stock as bank stock that is required to be purchased, but it is stock in a reserve institution required to be a bank. When it is acquired it does not stand as an investment, but it is the basis of qualification for membership in a banking system of the country.

Suppose, for example, the federal law had provided that banks entering this system should, like foreign insurance companies, deposit bonds with a federal regional bank, as a condition of doing business in the new system, would state banks be unable to comply? We think not. If they would not, may we not recur to Blackstone's illustration about the law forbidding the letting of blood in the street?

A state bank, in effect, makes the same kind of a deposit that the foreign insurance company does, except that it does not gef the same kind of receipt the insurance company gets, and it cannot call for the specific thing it deposits, or the equivalent thereof. It is, however, no more an investment or purchase, as such, in one case than in the other. N. C. C.

INJUNCTION BY PRIVATE PARTY AGAINST CONSPIRACY TO BAR THE USE AND SALE OF NON-UNION MADE GOODS.

There is, perhaps, no more interesting question in this day of alliances and organizations, for offense and defense, than the reach of the equity arm of the courts against their operation. There are premeditated plans, carefully concocted, underneath the surface of trade, which are opposed ever to the natural law of demand and supply, in a land otherwise of free and healthful competition. And while the lines of the poet,

"How few are all the ills we feel,
That laws may either help or heal,"

may be as true, generally, as when he penned them, it is not true that the machinations of conspiracy, in the world of commerce or of labor, are unable to multiply evidences of success, in the wan faces and starved eyes of victims in a land of plenty.

All of this is because, in artificial conditions, the intellectual energies of our civilization are arrayed, in great measure, against healthful enterprise and honest endeavor along legitimate lines of progressthe purpose to give for what one is paid at just equivalent.

We do not mean to ascribe to labor organizations sins along objectionable lines, but, on the contrary, we go as far as the most loyal to its cause, in our belief that organized labor means the necessary banding together of men with true aspirations for freedom, the right to demand a fair meed for toil.

When, however, its processes go beyond the defensive, in what may really seem to it but the furtherance of defensive tactics, its

efforts are necessarily more in the open than plotting which has made conditions oppressive and pervasive. In other words, there are overt acts against our society which, false at bottom as it may be, the law must guard, because it cannot by fiat erect something in its place and then guard that. Having to recognize society as it stands, it must treat as unlawful any combination to overturn it.

The above reflections come from the reading of an opinion recently appearing in 50 N. Y. Law Journal, page 1497, as rendered in the Federal District Court for the Southern District of New York in the case of Paine Lumber Co. v. Neal, not yet reported.

In this case certain manufacturers and wholesalers of supplies entering into the construction of buildings and which were not the products of union labor, sought to enjoin certain labor organizations and their officers from the enforcement of regulations barring these supplies from buildings, in

the construction of which members of such organizations were or were to be employed. This barring is declared to be the result of an agreement making a combination in restraint of trade, but it is said: "It must be borne in mind that it is not sufficient to show that the agreement may create a monopoly, may be in restraint of trade or may be opposed to public policy. Agreements of that nature are invalid and unenforcible. The law takes them as it finds them and as it finds them leaves them; but they are not illegal in the sense of giving a right of action to third persons for injuries sustained."

Whether this proposition is well based or not we do not stop to inquire, but we do agree with New York Court of Appeals, from which the opinion quotes, that: "A civil action is maintainable by one who suffers injury as the result of a conspiracy forbidden by the criminal law to recover the damages which he has sustained at the hands of the parties to the combination." | Kellogg v. Sowerby, 190 N. Y. 370. We think also it excessive refinement to distinguish in this way between the common law and statutes declaratory of the common law, merely because there is a misdemeanor for violation of the latter. Yet this distinction seems to have grown up in our jurisprudence.

But how does the court get around to it that injunction should not be granted? The opinion as it proceeds seems to admit that there were averments in the complaint that these plaintiffs had suffered injury in the loss of sales because of an agreement and operations thereunder forbidden both by the Sherman Act and the New York anti- | trust law, and then says: "Of the many cases cited I find none where a general business situation in the case of employers or a general trade situation in the case of employees was corrected by injunction at the instance of private suitors. Ample remedy is provided at common law or by statute for recovery of money damage in actions by private suitors. The courts have time and again extended the equity arm to prevent

the commission or continuance of injury directed against particular persons and have protected employers against violence and sympathetic strikes, but where the purpose of an injunction is, as in the case at bar, to attempt to control a large body of men generally to work or not to work on a class of goods or in a kind of manufacture, the remedy of injunction is not to be granted in a litigation between private parties." The court's conclusion is that only the state as the guardian of the people in their general rights may undertake to take care of this situation.

The title to this editorial was taken to conform to the particular question involved, which presents as seen an exception to the general rule. For injury already inflicted and recurrent injury threatened by continuance of the course that has brought an injury, it may indeed be thought a quite universal rule, that injunction will lie, especially if the injury is of an irreparable na

ture.

Here, however, not because a court of equity cannot inquire into the complex causes of a general business or trade situation, but merely because it is general, a private suitor must rely on the general government, though from it he suffers special injury, merely because his products as a class are outlawed.

We say a court of equity is not re luctant to sift out the truth in complexity Lecause it will do this at the instance of the parens patriac. But why this distinction? Why should not the participants in a corner in wheat or cotton be personally liable to any producer who seeks a natural market. for their sale? And why, if he can trace loss in sale prices to the conspiracy against free competition, may not any one having wheat or cotton for market enjoin the forming of a pool to lower its price?

We know this suggests an elusive pursuit, where the sword of injunction would be cutting off heads while others would rise. up in their places. But would not principle be back of such a remedy? Suppose a stock

the construction of which members of such organizations were or were to be employed. This barring is declared to be the result of an agreement making a combination in restraint of trade, but it is said: "It must be borne in mind that it is not sufficient to show that the agreement may create a monopoly, may be in restraint of trade or may be opposed to public policy. Agreements of that nature are invalid and unenforcible. The law takes them as it finds them and as it finds them leaves them; but they are not illegal in the sense of giving a right of action to third persons for injuries sustained."

Whether this proposition is well based or not we do not stop to inquire, but we do agree with New York Court of Appeals, from which the opinion quotes, that: "A civil action is maintainable by one who suffers injury as the result of a conspiracy forbidden by the criminal law to recover the damages which he has sustained at the hands of the parties to the combination." Kellogg v. Sowerby, 190 N. Y. 370. We think also it excessive refinement to distinguish in this way between the common law and statutes declaratory of the common law, merely because there is a misdemeanor for violation of the latter. Yet this distinction seems to have grown up in our jurisprudence.

But how does the court get around to it that injunction should not be granted? The opinion as it proceeds seems to admit that there were averments in the complaint that these plaintiffs had suffered injury in the loss of sales because of an agreement and operations thereunder forbidden both by the Sherman Act and the New York antitrust law, and then says: "Of the many cases cited I find none where a general business situation in the case of employers or a general trade situation in the case of employees was corrected by injunction at the instance of private suitors. Ample remedy is provided at common law or by statute for recovery of money damage in actions by private suitors. The courts have time and again extended the equity arm to prevent

the commission or continuance of injury directed against particular persons and have protected employers against violence and sympathetic strikes, but where the purpose of an injunction is, as in the case at bar, to attempt to control a large body of men generally to work or not to work on a class of goods or in a kind of manufacture, the remedy of injunction is not to be granted in a litigation between private parties." The court's conclusion is that only the state as the guardian of the people in their general rights may undertake to take care of this situation.

The title to this editorial was taken to conform to the particular question involved, which presents as seen an exception to the general rule. For injury already inflicted and recurrent injury threatened by continuance of the course that has brought an injury, it may indeed be thought a quite universal rule, that injunction will lie, especially if the injury is of an irreparable na

ture.

Here, however, not because a court of equity cannot inquire into the complex causes of a general business or trade situation, but merely because it is general, a private suitor must rely on the general government, though from it he suffers special injury, merely because his products as a class are outlawed.

We say a court of equity is not re luctant to sift out the truth in complexity because it will do this at the instance of the parens patriae. But why this distinction? Why should not the participants in a corner in wheat or cotton be personally liable to any producer who seeks a natural market for their sale? And why, if he can trace loss in sale prices to the conspiracy against free competition, may not any one having wheat or cotton for market enjoin the forming of a pool to lower its price?

We know this suggests an elusive pursuit, where the sword of injunction would be cutting off heads while others would rise up in their places. But would not principle be back of such a remedy? Suppose a stock