were time and again confronted by acts, which, under the guise of general legislation, sought to evade the inhibitions of article 3." 1 By this time the court had become satisfied that abuse was being perpetrated under color of its decision in Wheeler v. City of Philadelphia. It proceeded to limit its application by its decisions in Scowden's Appeal 2 and in Ayar's Appeal,3 saying, “It was never intended to license indiscriminate classification as a mere pretext for the enactment of laws essentially local or special." In the same way it will be impossible for the judiciary to follow to its legitimate and logical conclusions the principle affirmed in the case under review. As the dissent says: "Factional politics and partisan politics are not troubled by scruples. Under the principle of this decision, there is nothing to hinder a hostile partisan majority in the legislature from ousting the party in power in Philadelphia, a city of the first class, and placing its government in possession of the minority." Worse even than this, if courts are to shut their eyes to what our legislators are openly doing, and if the right to local self-government is to be ignored and denied, there is nothing to hinder a hostile partisan majority in the legislature from abolishing the office of treasurer in all the towns and cities in the state, directing that the contents of all their treasuries be handed over to a new officer to be appointed by the governor, who, under the direction of the political machine, may be the very man behind the throne to whom the governor is indebted for his office and for whom the penal law has no terror. "It requires but a glance at the act to see that it is an attempt to evade the constitution. It is special legislation under the attempted disguise of a general law. Of all forms of special legislation, this is the most vicious." The dissent is placed "upon the strong ground that it" (the statute in question) "is local and special legislation under the guise of a general law. Therefore it is in direct violation of section 7, article 3."7 "It is purely a question of law whether section 7 of the constitution has been violated, yet we, in effect, say it is the province of the legisla ture to decide the question, and that we will not inquire into it." 1 See the dissenting opinion in the case under review, 49 Atl. Rep. 360. 4 P. 279. By Paxson, J., in Scowden's Appeal, 96 Pa. 422, at 425. 5 P. 360. And the dissent well concludes: I fear the time is not far distant when the pernicious results of our decision will either bring about a constitutional enactment to remedy the mischief, or move us to overrule it." The decision is plainly erroneous, because the act in question violates the express provisions of the constitution of the state, and also because, even if the constitution were silent on the subject, it ignores the right to local self-government, one of the fundamental rights in every American state. It is another step on the downward path leading to the loss of one of our dearest and most valued legal, as well as political, rights — the right to local selfgovernment. Amasa M. Eaton. PROVIDENCE, R. I. HARVARD LAW REVIEW. Published monthly, during the Academic Year, by Harvard Law Students. A decision of the JUDICIAL RESTRAINTS UPON TRADE COMPETITION. supreme court of Alabama is instructive in its relation to the question of unfair competition. The plaintiff, a water company, filed a bill against the city of Mobile, a corporation operating a system of waterworks and sewers for itself and its inhabitants. The bill alleged that the defendant unjustly discriminated against the patrons of the plaintiff by charging them the same price for sewerage service alone, that it charged the public for water and sewerage service together, thereby causing the patrons of the plaintiff to discontinue taking the plaintiff's water. The bill prayed for an injunction against such discrimination in the future, and the decree of the lower court granting an injunction was affirmed upon appeal. City of Mobile v. Bienville Water Supply Co., 30 So. Rep. 445. The interesting feature of the case is that the injunction was obtained not by a person discriminated against, but by a rival company which by reason of the discrimination was threatened with the loss of its business. The case therefore stands for the proposition that a corporation engaged in a public employment may not build up its own business by discriminating against persons trading with a rival, and a rival damaged by such action may have it enjoined although not itself the direct victim of the discrimi nation. The dividing line between fair and unfair competition has never been clearly indicated and it is impossible to mark it off with anything like precision. An early case decided that an action lay against a rival who injured the plaintiff's business by the intimidation of his prospective patrons. Tarleton v. M'Gawley, Peake 205. The trade union cases are every day illustrations of the doctrine that violence actual or threatened against persons trading with or employed by the plaintiff is a legal injury to him if resulting in damage to his business. The trade mark and trade name cases show that the deceiving of the public by the counterfeiting or simulation of the plaintiff's goods resulting in his damage may be enjoined by him. Reddaway v. Banham, [1896] A. C. 199. Another example of an act tortious as regards a third person and resulting in damage to the plaintiff's trade being held within the principle of unfair competition is Hughes v. McDonough, 43 N. J. Law 459. On the other hand not every act tortious as regards prospective customers of the plaintiff, and resulting in damage to his business, will be enjoined at his request. Deceit of the public as to the quality of goods, false testimonials and untrue representations of fact, although drawing away trade that otherwise would go to the plaintiff do not entitle him to the intervention of the courts. American Washboard Co. v. Saginaw Manufacturing Co., 103 Fed. Rep. 281. The question is one of sound public policy and practical expediency. On the one hand should be considered the necessity of protecting a man's right to that trade which he has built up by his industry and enterprise, a right of property, possessing commercial value and frequently bought and sold. On the other hand lies the danger of opening too wide a field of litigation and extending the range of tort liability too far beyond those persons against whom the wrongful acts are primarily directed. The principal case is one about which no difference of opinion will arise as to the expediency and good policy of equitable intervention. Corporations engaged in public employments should not be permitted to build up their own or another's business by the abuse of those powers with which, by reason of the nature of their calling, they have become invested. The discrimination complained of in the principal case was clearly such an abuse. The fact that under the circumstances the persons directly discriminated against were not likely to complain rendered the damage to the plaintiff all the more certain and the good policy of the court's intervention all the more clear. THE CARE REQUIRED OF DIRECTORS. Whatever may be the precise relation of directors to their corporation, their direct responsibility is to the corporation. On insolvency, the right to hold them accountable passes to the receiver. 3 THOMP., CORP., § 4121. In a recent case in New Jersey, the directors of a bank were held liable to the receiver for loss resulting from negligence in supervising the management of the bank. Campbell v. Watson, 50 Atl. Rep. (N. J. Ch.) 120. The principal negligence complained of was a failure to make examinations with the frequency stipulated in the by-laws, and especially a total failure to look at the balance sheets returned by a correspondent bank, in consequence of which the cashier was able to draw drafts for amounts in excess of those entered on the books. It has been suggested that directors should be liable only for gross negligence. Swentzel v. Penn Bank, 147 Pa. St. 140. It is said that they are gratuitous mandataries, and cannot be expected to give a great amount of attention to the position. If they are held strictly accountable, no honest man will desire to accept the position. Spering's Appeal, 71 Pa. St. 11. On the other hand it is urged that such a test would allow directors to give a corporation credit by the use of their names, while remaining practically figureheads. Accordingly the rule of reasonable care under the circumstances is adopted. Gibbons v. Anderson, 80 Fed. Rep. 345; Hun v. Cary, 82 N. Y. 65. This is the broad rule, so often applied in other connections, and is much preferable both theoretically and practically, avoiding as it does the rather discredited doctrine of degrees of negligence. Obviously also the care which ought to be bestowed must vary with the nature of the business, and the time and place of its exercise. The care of a prudent man in his own business and the care ordinarily exercised by directors would seem to be valuable rather as evidence of what is reasonable care than as direct standards of care. Probably many of the differences in the cases are due rather to the application of the law to the facts than to any marked conflict in the conception of the law; differences as to what constitutes reasonable diligence. Cf. Briggs v. Spaulding, 141 U. S. 132; Percy v. Millaudon, 8 Mart. N. s. (La.) 68. The principal case in the main adopts the preferable rule stated above. Moreover, its application of the law to the facts, though the result is extremely hard on the directors, seems justified. THE SPECIFIC ENFORCEME ENT OF CONTRACTS BY INJUNCTION. - The latest decision of the English Chancery Division gives promise for the future of an intelligible treatment of the much confused subject of specific enforcement of affirmative covenants by process of injunction. Metropolitan Electric Supply Co. v. Ginder, [1901] 2 Ch. 799. A bill was brought by an electric light company against a hotel proprietor who had agreed to take from the plaintiff all the electricity he might require for five years. The prayer was for an injunction restraining the defendant from purchasing electric energy from any one other than the plaintiff during that period. In granting the injunction the court reviews the earlier decisions, and cites with approval and as embodying the now settled rule of the court the opinion of Lord Selborne in Wolverhampton, etc., R. R. v. London, etc., R. R., L. R. 16 Eq. 433. If the opinion of Lord Selborne in the case mentioned represents the present view of the English court upon this subject it may be of interest to note the general outlines and to consider the effect upon the earlier cases of Lumley v. Wagner, 1 DeG., M. & G. 604; Fothergill v. Rowland, L. R. 17 Eq. 132: Donnell v. Bennett, 22 Ch. Div. 835, and Whitwood Co. v. Hardman, [1891] 2 Ch. 416. The general principles laid down by Lord Selborne appear to be as follows. The court will first construe the contract of which specific performance is sought. The substance of the agreement as well as the language used will be regarded, and weight will not be given to the accidental use of affirmative rather than negative forms of expression. The question will then arise whether the act sought to be enjoined is a breach of the substance of the agreement, and if so, whether adequate damages can be had in an action at law. It must further appear that the contract is of a kind that equity can and will specifically enforce. Under this consideration will be raised questions of public policy, expediency, mutuality and others resting largely in the discretion of the court. If these issues all result in favor of the party seeking relief, equity will grant relief by injunction or affirmative decree, regardless of the affirmative or negative form of the original agreement. Tested by these principles Fothergill v. Rowland and Whitwood Co. v. Hardman, supra, are supported, the former upon the ground of the ade |