(2) The delays in making settlement with the insurance adjuster, sometimes resorting to court proceedings, operates a severe hardship on the injured employee.

(3) Contrasting the German system with the one herein proposed, if an insurance fund of $8,000,000 was provided, the best that the German employees could get would be $3,200,000, while $4,800,000 would go to pay the expense and profits of writing and securing the insurance. Whereas, under the plan proposed, the injured employees in mining industries in the United States would receive the whole sum of $8,000,000 after paying a small sum for actual medical attendance.

PAYMENT OF BENEFITS.

(1) The amount of the payment should always be a reasonable compensation to be measured by the extent and duration of the injury.

(2) During inability to work the payments should equal the full wages received immediately prior to the accident, in addition to hospital and medical attention.

(3) If death, total or partial disability ensue, the compensation should be paid at such times and in such sums and manner as the commission may determine.

SCOPE OF THE LEGISLATION PROPOSED.

First. To provide by national legislation a certain speedy and adequate compensation for all persons injured while engaged in and about the business of mining and shipping coal without regard to the cause of the injury.

Second. To provide and enforce rules and regulations for the mining of coal that will best protect the lives and health of all persons engaged in that industry.

Third. To prescribe and enforce rules and regulations for the proper mining of coal, so as to prevent unnecessary waste and conserve this great natural resource as far as practicable.

Fourth. To provide a method whereby trade agreements between competitors engaged in mining and selling coal may be entered into and approved as lawful wherever such agreements do not unreasonably limit or suppress competition. While this provision would not amend the Sherman antitrust law in terms, it would operate to make certain trade agreements between competitors in the coal business lawful, which would be condemned under the strict construction placed upon the antitrust act by the Supreme Court prior to the decisions in the oil and tobacco cases.

Fifth. The appointment of commissioners acquainted with and skilled in the coal-mining business to carry out the foregoing purposes, and vest them with all the powers necessary to that end.

If the authors of the law expected that it would operate to increase business by stimulating a healthy and continued competition, conducted on fair lines, they forgot and entirely overlooked that universal, economic law that the strong and efficient must certainly crush out the weaker and less efficient adversary. If it is the policy of the legislation of this Government to compel, under the most severe penalties, a continued competition between a small coal operation producing a hundred thousand tons per annum, and a large concern producing two or three million tons per annum, then it is inevitable that the smaller concern must close down and go out of business. By reason of boats, barges, docks, depots, and coal yards, and various distributing agencies owned and used by the large producer, he can and does take his coal from the mine directly to the consumer, thereby eliminating the middleman-the broker and commission merchant-and all his expenses and profits. In this manner of dealing directly with the consumer the larger producer is enabled to make a material saving which the smaller producer can not effect, because he must pay all the expenses and profits of this middleman.

Every time one of the smaller concerns is forced to suspend its operations it gives the larger company that much less actual competition and that much additional influence in controlling the market price of coal. Compelled by a harsh and inflexible statute to carry on this unequal struggle the small coal operation has about as much chance to succeed in its battle against its gigantic competitor as a mouse would have in a combat for its life with a cat. That the men who wrote and passed the antitrust act thought that it must necessarily crush the small man and drive him out of business can not be believed for a moment. That the operation of this law is in direct conflict with their cherished expecta

tions will not be doubted by anyone who has given the matter any consideration at all. That all the men who are at the head of large industrial concerns are malefactors engaged in a lawless defiance of law is a proposition entertained only by the anarchist and revolutionist. That the enforcement of the antitrust act as it stands on the statute book to-day means the destruction of the smail concerns and a general business depression in every branch of industry for many years to come is admitted by every man who has the courage to give expression to his honest opinion.

The present plan, through court proceedings, to test the legality of the larger organizations is wholly inadequate from every point of view. It is very evident that the Supreme Court does not intend to confiscate private property, even though it is owned by an illegal combination, and its decrees will go no further than to require disintegration and reorganization along competitive lines. The time required to take each case through all the courts would be at the very least two years, and as there would be several hundred cases that would have to take this course, the confusion that now exists would still remain, causing a consequent depression which is so keenly felt throughout the whole country. Breaking up these large companies into their constituent parts and forcing the subsidiary corporations thus severed from the parent company into real and active competition, where the controlling interest remains in the same hands, is humanly impossible, and in each instance the courts will be called upon to make further rulings and readjustments after the plans of division and reorganization have been approved and settled in the first instance. Such perpetual litigation will create, and has created, such a state of doubt and uncertainty in all our industrial enterprises, whether legal or illegal, that we can not reasonably hope for any improvement as long as this condition exists.

That legislation is necessary to change or modify the antitrust act so that business men may know that they are obeying the law, and at the same time carry on. their affairs, is self-evident. Economic laws, strong and certain as the laws of gravitation, have been brought about and compelled combination and concentration, and we can not escape such laws without crippling our industries and setting back the hands of progress.

The evils that may result from uncontrolled combination and concentration must be eliminated, while the good should be guarded and preserved inviolate. The quantity of an article or commodity produced or dealt in should not be the test of the legality of the enterprise, but rather the exercise of the power which a strong combination provides, to oppress the consumer by increasing prices beyond what the law of supply and demand justifies or unfair methods of competition to destroy a weaker opponent, should be the rule by which illegality should be established.

No industrial concern should be punished or condemned because of its size it has the power to oppress either the public or a competitor, until it has actually begun to carry out such a purpose, any more than an individual should be indicted for murder simply because he has the power to commit that offense. The mere fact of the existence of a large industrial combination made up of smaller competing concerns should in and of itself be no more a violation of law than the existence of a labor union, but each should be judged or condemned by what it actually does, rather than by what it has the power to do. Each should receive the fullest protection of the law as long as they refrain from a policy of oppression.

IV.

THE REMEDY.

Any effective remedy that may be prescribed must recognize the principle of concentration and combination, as the result of economic laws operating in favor of constantly increasing efficiency. The right to combine or concentrate should not be impaired, nor should combinations be deemed illegal unless they actually engage in and pursue oppressive methods in the prosecution of their business.

The real evil that should engage the attention of legislators is an arbitrary advance in prices unwarranted by market conditions and unfair competitive methods against weaker adversaries. When laws are passed that will effectively prevent large companies from using their power to raise prices unreasonably and will restrain them from using methods of unfair competition, all the evils incident to such companies will have been cured so far as legislation can cure

them. To attempt to go further and prohibit combination and concentration per se will be to have your legislation run counter to economic laws and repress industrial enterprises rather than promote them.

In order that commerce may be unhampered and have the broadest scope in which to exercise its varied activities it is essential that those who invest their money should feel that the Government will protect their investment rather than destroy it.

Up to a certain point combination is not only useful and beneficial but absolutely necessary, in order that economies may be practiced, and those forces making for cheaper production and distribution may have full sway. If we are to continue to be a factor in the world's commerce, then we must meet the world's competition with a commodity that represents a low cost of production. Large capital, intelligently directed, can reduce the cost of production to a point that smaller capital, although ably managed, can not hope to reach.

In our struggle for world-wide commercial supremacy we should not forget our own public, nor should we impose upon our own domestic consumers unnatural nor unnecessary burdens. The laws regulating trade should be so framed as to permit combination and concentration to the extent of producing the greatest possible efficiency and at the same time protect the public against unreasonable exactions and weaker rivals against unfair competition. That this can be done if our statesmen will approach the matter without prejudice there can be no doubt. The difficulty seems to lie wholly in providing a tribunal, an arbiter, if you please, vested with sufficient power and authority to determine the questions that would arise in the application of the law. A tribunal of some kind unst be provided that will decide when a combination is using its power to oppress. When questions arise involving the public interest as against the interest of the combination, this arbiter created by law must step in and determine their respective rights in each concrete case. In behalf of the public the arbiter must say to the combination, You shall not use your power to oppress; and it must say to the public, You shall not use your power to harass and spoliate the property either of the individual or the corporation so long as they follow their business puruits without resorting to oppression.

The tribunal best suited to act as such an arbiter is a commission. Government by commission, I know, has many able critics who feel that the creation of commissions vested with power and authority to regulate our complex industrial affairs is a surrender of the proper functions of government, and the practice should not be extended. On the other hand, the one supreme test of the efficiency of commission administration is to be found in the Interstate Commerce Commission. This commission has done more to prevent oppression of the public by the carriers and to prevent confiscation of the property of carriers by the public than all the courts combined could have done. It brings about a complete understanding between shipper and carrier and compels them to respect each other's rights. An industrial commission organized and administered along kindred lines will soon harmonize all the conflicting interests between large industrial organizations and the public.

Every company, big and little, should receive the law's protection and encouragement in their efforts to extend their business activities as far as possible, as long as these efforts are unaccompanied by oppression. Whenever the public weal requires it, an industrial commission can give the fullest protection, and at the same time confer its sanction and approval upon all combinations and big business desiring to carry on a legitimate enterprise.

COMPETITION.

Until the recent decisions of the Supreme Court in the Standard Oil and Tobacco Co. cases it was generally believed that the Sherman antitrust statute prohibited all agreements, arrangements, or understandings which placed any restraints upon interstate trade. The former opinions of the court construed the statute to apply to any and all restraints of trade, whether such restraints were reasonable or unreasonable. (Case, Joint Traffic Association.) These earlier decisions went further, and defined what was meant by the term "restraint of commerce." It was held in a number of cases that an agreement which tended to restrain or limit competition in interstate trade violated this act. The court went so far as to hold that an act or agreement that in any manner had a tendency to limit or restrict competition was a violation of this law, no matter how reasonable or in accord with common sense such a restriction upon competition might be, and in the earlier interpretation the court

read into the statute the word "competition," and construed it as prohibiting and making criminal every agreement which in any wise decreased competition. however small and insignificant it might be. Prior to this statute the law permitted and upheld contracts that were entered into for the express purpose of doing away with competition, provided, however, that the restrictions thus placed upon competition were not unreasonable under all the circumstances surrounding the particular transaction. In other words, those trade agreements which were dictated or supported by common sense and sanity were upheld as legal and binding upon the parties making them, even though they did suppress competition.

Construing this statute literally as it is written, the Supreme Court said that agreements tending to lessen competition were made criminal, notwithstanding they were dictated by reason and supported by common sense. In other words, the necessary conclusion was that in passing this act the Congress intended to make criminals out of men for doing those things which are justified by the sanity and common sense of all right-thinking minds.

In the Standard Oil and Tobacco cases the court has said that the Congress could not have had any such intention; that it is inconceivable that the Congress ever intended to make felons out of men for doing the reasonable, sane, sensible thing in connection with their business transactions. The court has been severely criticized for holding that Congress never intended that the citizen should be sent to the penitentiary for doing that which is sane and sensible. The logical inference to be drawn from the position taken by such critics is that in order to keep out of prison the Congress intended that business men must refrain from doing the common-sense thing. I think this inference is a necessary one, when we consider that the court is condemned because it placed by construction into the statute the word "reasonable." The law that will condemn men because they conduct their business affairs in a reasonable and sane way must be an obstruction to business and should be repealed at once.

It is a well-known fact that most of the business concerns of any magnitude in this country, including merchandise, wholesale and retail, manufacturing, transportation, and banking, have been created by grouping together under one control and ownership a number of smaller establishments that were in competition one with the other. Every one of these enterprises are in violation of the Sherman Act as interpreted by the court's former decisions, for the reason that by being consolidated under one management necessarily destroyed the competition that existed among them when they were all independent units. If the criminal part of the Sherman Act had been invoked before the decisions in the recent trust cases, a very large part of the business men of the country would now be either under conviction or indictment, and most business enterprises of importance would now be in process of dissolution in civil suits brought by the Government. That the industries of the country have not been completely paralyzed is due to the fact that the Department of Justice, for lack of a sufficient force, has been unable to enforce the law. The enforcement of the law would have destroyed our whole industrial fabric. Stability of railway rates could not have been maintained if the carriers had obeyed this law. It is a well-known fact that railway rates between competitive points are made, fixed, and decided upon by agreement between the representatives of the carriers at conferences held for that purpose; that before any rate is put into effect between New York and Chicago all the carriers operating between these points must agree to it, otherwise rate cutting would be continuous, and both shippers and carriers would be the sufferers. This agreement between the carriers to make the rate the same for all the carriers violates this Sherman Act, because it destroys all competition between these carriers so far as the rates to be charged are concerned. Every rate in the United States to-day between points served by two or more carriers has been made by an agreement which violated the Sherman Antitrust Act. The fact is that rates can not be made between competitive points in any other way than by agreement between different carriers. If the rule laid down by the court in the Standard Oil and Tobacco cases is to be changed by legislation so that the former rulings of the court should prevail, then every rate maker in the country who discharges his duties must necessarily violate the criminal provisions of the law.

We can better understand the operation of this statute and more fully ap preciate what it means to the general public by applying it to concrete cases. In making application of it to any given case, we must keep in mind that as formerly construed it was intended to prohibit and make criminal every agree

ment or understanding that lessened or restricted competition between two or more persons engaged in interstate trade, and that it made no difference whether such a restriction was reasonable or unreasonable. The common sense and sanity of the transaction did not take it out of the statute's condemnation.

I know of a case where a coal company is mining and selling about 2,000,000 tons of coal per annum. This company has $6,000,000 invested in this property and plant. There are three other mining companies within 2 or 3 miles whose capital does not exceed $100,000 each. These smaller companies are not only in competition with each other and the larger company, and with the coal mined from other districts, but also in other States. It costs the smaller operations more per ton to mine their coal than it does the larger company, by reason of the fixed charges being more per ton in proportion to the coal produced. In addition to the greater cost of production it costs them 6 or 7 cents per ton more to sell their coal; owing to their limited capacity of output they can not secure sale contracts from large consumers, not being able to give a daily and continuous supply. In the last two years they have not made any money, although exhausting their property. If they could have a joint selling agency with the larger concern, they would save 6 or 7 cents per ton, and thereby procure a more constant demand. They are told by their counsel that if they enter into a joint selling agency they will violate the Sherman law, because such an arrangement would necessarily limit if not entirely suppress the competition that now exists between these industries. The owners would sell these smaller mines to the larger one, but such contract of sale would violate this act, because it would entirely suppress all existing competition. They can not successfully compete with the larger concerns, although the larger concerns do not cut the price, nor do they attempt to drive them out of business by unfair methods of competition. As they are advised, the law will not permit them to cheapen their sale's cost nor sell their plant, but, on the contrary, the law that is supposed to promote trade and expand industry is driving them slowly but surely into bankruptcy.

The law that should secure to the individual the liberty to trade denies them the right to save expense and to sell their property in order to save it from ruin. At least five out of every six of all the coal operations in West Virginia are of this smaller variety, and are thus compelled to submit to this unwarranted economic waste. Is it a wise public policy to drive these smaller independent concerns out of business? The only possible salvation for them is to so change the law as to permit them to enter into trade agreements with the larger concerns whereby joint selling agencies may be established. This course contemplates a lessening if not a suppression of competition in the markets.

The result of a policy of enforced competition should be thoroughly understood before the Government commits itself to it. If universal competition between all persons engaged in the same line of business is to be enforced by law, if men may not contract to soften the cruelty of competition, then those who would impose it should know in advance just what they are doing. Competition between men engaged in the same business is a fight for life and success. Such a struggle is always unequal. The large concern with unlimited capital can and does command great ability in its management. It can and does practice economies both in production and sale that are not possible for the smaller institution. Large manufacturing establishments with ample capital can and do sell their products direct to the consumer, and save for themselves all the expense and profits made by the jobber and the middlemen. Small concerns with limited capital can not do this. The coal company that has an output of 20,000 tons a day can afford to sell at a less sum per ton than the mine that is only producing 500 tons, and at the same time will make much more money in proportion for its stockholders on the capital they have invested. Nothing can be farther from the truth than to say the small concern can be kept alive by competition with its larger and more efficient adversary. Enforced competition means the survival of the fittest-the triumph of the strong over the weak.

I submit that the law should not compel the small business man to engage in such an unequal struggle, which must sooner or later bankrupt him. Ruin to the small business is the inevitable consequence of such a policy. The law should place in his hands the power to relieve himself from destruction by giving him the right to make contracts with his all-powerful competitor for a joint selling agency, or for the sale of his plant if he prefers. The Supreme Court in the oil and tobacco cases have said he may do this, provided such con