do things forbidden by the statute, without criminal responsibility, and yet be criminally responsible for the same things done at the instance of others, and to promote purposes not their own? or will it be said that under this statute one who is not a capitalist may, without criminality, assist capitalists in the doing of things which on their part are criminal."

The law condemns combinations, not only when they take the form of trusts, but in whatever form they may be found, if they restrain trade. In this case the defendants were adjudged guilty of contempt of Court in violating an injunction, and this order was approved by the Supreme Court upon application for a writ of habeas corpus but without basing its decision on the statute: re Debs, 158 U.S., 564.

Anti-Combine Law in Australia.

In

The constitutionality of Commonwealth contract restrictive legislation, as represented by the Australian Industries Preservation Act was considered by the High Court in the case of Huddart Parker & Co. Ltd. v. Moorehead and Appleton v. Moorehead, (1909) 8 C.L.R., 330. These appeals were brought from convictions for breaches of section 15 (b) of the Act of 1906 in refusing to answer certain questions put to the appellants by the Comptroller-General of Customs. Huddart Parker & Co. was a corporation duly formed under the law of the State of Victoria. Appleton was the manager of the Company. On behalf of Huddart Parker & Co. it was contended sections 5 and 8 relating to foreign and State formed corporations, were ultra vires. Both appellants urged that section 15 (b)" power to put questions to any person" was ultra vires. The Full Court (per GRIFFITH, C.J., and BARTON, O'CONNOR, ISAACS and HIGGINS, JJ.) held that section 15 (b) was within the legislative competence of the Commonwealth Parliament. Appleton's appeal was dismissed and he was required to answer the questions. The Full Court, ISAACS, J. dissenting, held that sections 5 and 8, relating to State formed corporations, such as Huddart Parker & Co. Ltd., were ultra vires of the Commonwealth Parliament and void because they were not limited to "trade and commerce with other countries and among the States" but purported to regulate the operations and conduct of corporations engaged in trade and commerce within a State. The conviction against the Company was quashed. See notes to section 51 (xx.).

The High Court, first in its original jurisdiction before Mr. Justice ISAACS, in the case of The King and the Attorney-General of the Commonwealth v. The Associated Northern Collieries, (1911) 14 C.L.R., 387, and afterwards in its appellate jurisdiction before the Full Court in the same case sub. nomine the Adelaide Steamship Co. v. The King and the Attorney-General of the Commonwealth, (1912) 15 C.L.R., 65, had the opportunity of considering and adjudicating upon the constitutionality and scope of some of the provisions of the Australian Industries Preservation Act.

In this case the meaning and effect of some of these sections came before the High Court for consideration under the following circumstances. Shortly after the Act came into operation a complete express contract was entered into between the collieries' owners of the first part, and the ship-owners of the second part, in relation to inter-state trade and commerce in Newcastle and Maitland coal. This contract was renewed and it continued to exist and operate with some intermediate modifications down to the commencement of this action, and it was then still in force. It was entered into and at all events was renewed, as was alleged by the prosecution, with intent to restrain that trade and commerce to the detriment of the public. In other words the contract itself was relied on as constituting an offence against section 4. Next, it is said that there existed during the period mentioned a combination between the two sets of proprietors-coal and shipping-created by the conduct of the parties; that conduct of the parties consisting of concerted business action carried on upon certain recognized lines laid down probably by some contract in the nature of that already referred to, or, if not, then by understanding or practice of a similar tendency and effect and that during the greater part of that period two other shipping firms, the Melbourne Steamship Co. and James Paterson & Co., not defendants, were added to the combination. This combination, it was averred, was maintained with the like intent to restrain the inter-state trade and commerce in Newcastle and Maitland coal to the detriment of the public. The defendants concerned were said to come within the ambit of section 4 as to combinations in three different ways-inasmuch as each of them was, and continued to be, and was engaged in the combination. Next, it was charged that the business conduct of the defendants and their established relations with each other amounted to monopolizing or attempting to monopolize, and to a combination and conspiracy to

monopolize the trade and commerce in Newcastle and Maitland coal, with intent to control, to the detriment of the public, the supply and price of the coal. Lastly as to those who might be considered as merely assisting others to effect the prohibited acts, it was charged that they come within the provisions of section 9 as aiding, abetting. counselling or procuring, and are therefore to be deemed to have committed the principal offences. The detriment to the public which was alleged to have arisen and to have been intended, as a result of the matters complained of, consisted in the practical and persistent annihilation of competition on land and sea, excessive, arbitrary and capricious prices charged to consumers, restriction of their opportunities of choice, difficulties in obtaining particular classes or grades of coal desired, substitution really compulsory of other coal for coal preferred, and delays in obtaining delivery. The defence was in effect a denial of all that was charged by the plaintiffs.

The trial before Mr. Justice ISAACS lasted 73 days. His findings in a powerful and brilliant judgment were as follows:-Held first that the defendants had made and entered into a contract and were and continued to be members of and were engaged in a combination with intent to restrain the inter-state trade and commerce in Newcastle coal to the detriment of the public and that they had also monopolized and combined or conspired to monopolize the said trade with intent to restrain to the detriment of the public the supply and price of the said commodity within the provisions of sections 4 and 7 of the Act and that the defendants had aided and abetted one another under section 9 in the commission of the said offences and penalties inflicted on the individual defendants and an injunction granted against the further carrying out of the unlawful contract or combination.

Upon appeal to the High Court in August 1912, the judgment of Mr. Justice ISAACS was reversed on the following ground :"That the agreement between the proprietors and the ship-owners was not, on its face, made with intent to restrain trade or commerce to the detriment of the public or with intent to monopolize the inter-State trade in such coal to the like detriment. (2) That an intention to cause detriment to the public should not be inferred from the mere fact that the powers conferred by the agreement could be used so as to cause such detriment. (3) That on the evidence, that no actual detriment to the public was shown to have

been caused by the exercise of the powers conferred by the agreement and, therefore, that no intent to cause such detriment could be inferred: Adelaide Steamship Co. Ltd. v. The King and the AttorneyGeneral of the Commonwealth, (1912) 15 C.L.R., 65. On appeal to the Privy Council the decision of the High Court was affirmed: (1913) 18 C.L.R., 30.

Employers' Liability Legislation in United States.

Congress has passed several Employers' Liability Acts for the benefit and protection of persons engaged in inter-state traffic and transportation including goods and passengers. The validity of the first of these Acts was considered by the Supreme Court in the case of Howard v. Illinois Central Railroad Co. (1907) (Employers' Liability Case (No. 1), 207 U.S., 463. The Act of 1906 provided that inter-state carriers should be liable to the personal representatives of an employee who has died from injuries resulting from the negligence of the employers or their servants, or from negligence in the condition of their plant or work. It altered the law as to contributory negligence in respect of liability; it directed how the jury should deal with damages, and for whose benefit whether the widow, children, parents or next of kin of the deceased; it prevented contracting out, etc. All these were, strictly matters covered by the police powers of the States, at all events until Congress otherwise legislated. The Act was declared invalid by five Judges to four, but only on the ground that in its terms these provisions extended to purely intra-state commerce. On the question of constitutional power, six Judges held that all the provisions were fully within the competency of Congress if limited to inter-state commerce. So limited it extends to prescribing rules of conduct as to anything directly tending to promote the efficiency or safety of the operations of commerce and laws abrogating the defence of common employment and the defence generally expressed by the maxim volenti non fit injuria are within the power.

The argument that the Federal Act inordinately extended the power of Congress and unduly diminished the legislative authority of the States, since it sought to exert the power of Congress as to the relation of master and servant, a subject hitherto treated as being exclusively within the control of the States, and that in practice its execution would cripple the States and enlarge the Federal power, was dismissed by the Supreme Court of the United States from its consideration as concerning merely the expediency of the

Act and in the power of Congress to pass it. The Supreme Court held that Congress could regulate inter-state commerce and therefore it could regulate a train moving in that commerce; that then it could regulate the relations of the master and his servants operating the train, and the relations of the servants between themselves. To refuse to extend the power to these contractual relations would, as the Court said be to concede the power and then to deny it, or, at all events, to recognize the power and yet to render it incomplete" Cited by Mr. Justice ISAACS, 6 C.L.R., at p. 103.

Mr. Justice MOODY who dissented on the minor question of construction of the Act, was in accord with the majority on the point of power. He dismissed as futile the objection of novelty in the character of legislation, describing it as an argument that misunderstands the nature of the Constitution, undervalues its usefulness, and forgets that its unchanging provisions are adaptable to the infinite variety of the changing conditions of the national life. He traced the gradual steps of Congress to deal with national problems as they arose, and instanced postal legislation, commerce legislation, the safety appliance law, and the Act limiting the hours of service of employees engaged in inter-state commerce-an Act which the defendants would, of course contend was ultra vires: Cited by Mr. Justice ISAACS, 6 C.L.R., at pp. 103-4.

The Employers. Liability Act 1908, as amended by the Act of 1910 has been held by the Supreme Court to be constitutional; that Congress may in the execution of its power over inter-state commerce regulate the relations of common carriers and their employees whilst they are engaged in such commerce; that such commerce which includes transportation is an act done by the labour of men and the help of things; that men and things are the agents and instruments of commerce; that Congress may lawfully legislate with respect to such agents and instruments and the conditions under which they perform the work of inter-state commerce that such legislation can promote the reliability, promptness, economy or security or utility of the inter-state commerce Act.

In Mondou v. New York Railroad Co. (Employers' Liability Case, No. 2), 223 U.S., at p. 49, the Supreme Court sustained a Federal Act enforcing the liability of employers for accidents to their employees whilst both were engaged in inter-state commerce, such accidents arising from the negligence of the employers. The