54 OTHER PEOPLE'S MONEY
man, the Reading, the Telephone, the Telegraph
and the General Electric companies, like the
New Haven, buy steel products from the Steel
Corporation.
man, the Reading, the Telephone, the Telegraph
and the General Electric companies, like the
New Haven, buy steel products from the Steel
Corporation.
Louis Brandeis - 1914 - Other People's Money, and How Bankers Use It
42 OTHER PEOPLE'S MONEY
"Beyond these inner groups and sub-groups are
banks and bankers throughout the country who
co-operate with them in underwriting or guaran-
teeing the sale of securities offered to the public,
and who also act as distributors of such securities.
It was impossible to learn the identity of these
corporations, owing to the unwillingness of the
members of the inner group to disclose the names
of their underwriters, but sufficient appears to
justify the statement that there are at least
hundreds of them and that they extend into
many of the cities throughout this and foreign
countries.
"The patronage thus proceeding from the
inner group and its sub-groups is of great value
to these banks and bankers, who are thus tied
by self-interest to the great issuing houses and
may be regarded as a part of this vast financial
organization. Such patronage yields no incon-
siderable part of the income of these banks and
bankers and without much risk on account of the
facilities of the principal groups for placing issues
of securities through their domination of great
banks and trust companies and their other do-
mestic affiliations and their foreign connections.
The underwriting commissions on issues made by
this inner group are usually easily earned and do
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? HOW THE COMBINERS COMBINE 43
not ordinarily involve the underwriters in the
purchase of the underwritten securities. Their
interest in the transaction is generally adjusted
unless they choose to purchase part of the securi-
ties, by the payment to them of a commission.
There are, however, occasions on which this is
not the case. The underwriters are then re-
quired to take the securities. Bankers and
brokers are so anxious to be permitted to par-
ticipate in these transactions under the lead of
the inner group that as a rule they join when
invited to do so, regardless of their approval of
the particular business, lest by refusing they
should thereafter cease to be invited. "
In other words, an invitation from these
royal bankers is interpreted as a command. As
a result, these great bankers frequently get huge
commissions without themselves distributing any
of the bonds, or ever having taken any actual
risk.
"In the case of the New York subway financ-
ing of $170,000,000 of bonds by Messrs. Morgan
& Co. and their associates, Mr. Davison [as the
Pujo Committee reports] estimated that there
were from 100 to 125 such underwriters who
were apparently glad to agree that Messrs.
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 44 OTHER PEOPLE'S MONEY
Morgan & Co. , the First National Bank, and the
National City Bank should receive 3 per cent. ,
--equal to $5,100,000--for forming this syndi-
cate, thus relieving themselves from all liability,
whilst the underwriters assumed the risk of what
the bonds would realize and of being required to
take their share of the unsold portion. "
THE PKOTECTION OF PSEUDO-ETHICS
The organization of the Money Trust is in-
tensive, the combination comprehensive; but
one other element was recognized as necessary
to render it stable, and to make its dynamic force
irresistible. Despotism, be it financial or politi-
cal, is vulnerable, unless it is believed to rest
upon a moral sanction. The longing for freedom
is ineradicable. It will express itself in protest
against servitude and inaction, unless the striv-
ing for freedom be made to seem immoral.
Long ago monarchs invented, as a preservative
of absolutism, the fiction of "The divine right of
kings. " Bankers, imitating royalty, invented re-
cently that precious rule of so-called "Ethics," by
which it is declared unprofessional to come to the
financial relief of any corporation which is already
the prey of another "reputable" banker.
"The possibility of competition between these
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? HOW THE COMBINERS COMBINE 45
banking houses in the purchase of securities,"
says the Pujo Committee, "is further removed
by the understanding between them and others,
that one will not seek, by offering better terms,
to take away from another, a customer which it
has theretofore served, and by corollary of this,
namely, that where given bankers have once
satisfactorily united in bringing out an issue of
a corporation, they shall also join in bringing
out any subsequent issue of the same corpora-
tions. This is described as a principle of banking
ethics. "
The "Ethical" basis of the rule must be that
the interests of the combined bankers are
superior to the interests of the rest of the com-
munity. Their attitude reminds one of the
"spheres of influence" with ample "hinterlands"
by which rapacious nations are adjusting differ-
ences. Important banking concerns, too am-
bitious to be willing to take a subordinate position
in the alliance, and too powerful to be suppressed,
are accorded a financial "sphere of influence"
upon the understanding that the rule of banking
ethics will be faithfully observed. Most promi-
nent among such lesser potentates are Kuhn,
Loeb & Co. , of New York, an international
banking house of great wealth, with large clientele
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 46 OTHER PEOPLE'S MONEY
and connections. They are accorded an impor*
tant "sphere of influence" in American rail-
roading, including among other systems the
Baltimore & Ohio, the Union Pacific and the
Southern Pacific. They and the Morgan group
have with few exceptions preempted the banking
business of the important railroads of the
country. But even Kuhn, Loeb & Co. are not
wholly independent. The Pujo Committee re-
ports that they are "qualified allies of the inner
group"; and through their "close relations with
the National City Bank and the National Bank
of Commerce and other financial institutions"
have "many interests in common with the
Morgan associates, conducting large joint-
account operations with them. "
THE EVILS BESXJLTANT
First: These banker-barons levy, through
their excessive exactions, a heavy toll upon the
whole community; upon owners of money for
leave to invest it; upon railroads, public service
and industrial companies, for leave to use this
money of other people; and, through these
corporations, upon consumers.
"The charge of capital," says the Pujo Com-
mittee, "which of course enters universally into
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? HOW THE COMBINERS COMBINE 47
the price of commodities and of service, is thus
in effect determined by agreement amongst those
supplying it and not under the check of competi-
tion. If there be any virtue in the principle of
competition, certainly any plan or arrangement
which prevents its operation in the performance
of so fundamental a commercial function as the
supplying of capital is peculiarly injurious. "
Second: More serious, however, is the effect
of the Money Trust in directly suppressing com-
petition. That suppression enables the monopo-
list to extort excessive profits; but monopoly
increases the burden of the consumer even more
in other ways. Monopoly arrests development;
and through arresting development, prevents
that lessening of the cost of production and of
distribution which would otherwise take place.
Can full competition exist among the anthra-
cite coal railroads when the Morgan associates
are potent in all of them? And with like
conditions prevailing, what competition is to be
expected between the Northern Pacific and the
Great Northern, the Southern, the Louisville
and Nashville, and the Atlantic Coast Line; or
between the Westinghouse Manufacturing Com-
pany and the General Electric Company? As
the Pujo Committee finds:
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 48 OTHER PEOPLE'S MONEY
"Such affiliations tend as a cover and conduit
for secret arrangements and understandings in
restriction of competition through the agency of
the banking house thus situated. "
And under existing conditions of combina-
tion, relief through other banking houses is
precluded.
"It can hardly be expected that the banks,
trust companies, and other institutions that are
thus seeking participation from this inner group
would be likely to engage in business of a charac-
ter that would be displeasing to the latter or
would interfere with their plans or prestige.
And so the protection that can be afforded by the
members of the inner group constitutes the
safest refuge of our great industrial combinations
against future competition. The powerful grip
of these gentlemen is upon the throttle that
controls the wheels of credit, and upon their
signal those wheels will turn or stop. "
Third: But far more serious even than the
suppression of competition is the suppression of
industrial liberty, indeed of manhood itself,
which this overweening financial power entails.
The intimidation which it effects extends far
beyond "the banks, trust companies, and other
institutions seeking participation from this inner
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? HOW THE COMBINERS COMBINE 49
group in their lucrative underwritings"; and far
beyond those interested in the great corporations
directly dependent upon the inner group. Its
blighting and benumbing effect extends as well
to the small and seemingly independent business
man, to the vast army of professional men and
others directly dependent upon "Big Business,"
and to many another; for
1. Nearly every enterprising business man
needs bank credit. The granting of credit in-
volves the exercise of judgment of the bank offi-
cials; and however honestly the bank officials may
wish to exercise their discretion, experience shows
that their judgment is warped by the existence
of the all-pervading power of the Money Trust.
He who openly opposes the great interests will
often be found to lack that quality of "safe
and sane"-ness which is the basis of financial
credit.
2. Nearly every enterprising business man and
a large part of our professional men have some-
thing to sell to, or must buy something from, the
great corporations to which the control or
influence of the money lords extends directly, or
from or to affiliated interests. Sometimes it is
merchandise; sometimes it is service; sometimes
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 50 OTHER PEOPLE'S MONEY
they have nothing either to buy or to sell, but
desire political or social advancement. Some-
times they want merely peace. Experience shows
that "it is not healthy to buck against a locomo-
tive," and "Business is business. "
Here and there you will find a hero,--red-
blooded, and courageous,--loving manhood more
than wealth, place or security,--who dared to
fight for independence and won. Here and there
you may find the martyr, who resisted in silence
and suffered with resignation. But America,
which seeks "the greatest good of the greatest
number," cannot be content with conditions that
fit only the hero, the martyr or the slave.
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? CHAPTER III
INTERLOCKING DIRECTORATES
The practice of interlocking directorates is the
root of many evils. It offends laws human and
divine. Applied to rival corporations, it tends to
the suppression of competition and to violation of
the Sherman law. Applied to corporations which
deal with each other, it tends to disloyalty and to
violation of the fundamental law that no man can
serve two masters. In either event it tends to
inefficiency; for it removes incentive and destroys
soundness of judgment. It is undemocratic, for
it rejects the platform: "A fair field and no
favors,"--substituting the pull of privilege for the
push of manhood. It is the most potent instru-
ment of the Money Trust. Break the control so
exercised by the investment bankers over rail-
roads, public-service and industrial corporations,
over banks, life insurance and trust companies,
and a long step will have been taken toward
attainment of the New Freedom.
The term "Interlocking directorates" is here
used in a broad sense as including all intertwined
41
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 52 OTHER PEOPLE'S MONEY
conflicting interests, whatever the form, and by
whatever device effected. The objection extends
alike to contracts of a corporation whether with
one of its directors individually, or with a firm
of which he is a member, or with another corpora-
tion in which he is interested as an officer or
director or stockholder. The objection extends
likewise to men holding the inconsistent position
of director in two potentially competing corpora-
tions, even if those corporations do not actually
deal with each other.
THE ENDLESS CHAIN
A single example will illustrate the vicious circle
of control--the endless chain--through which our
financial oligarchy now operates:
J. P. Morgan (or a partner), a director of the
New York, New Haven & Hartford Railroad,
causes that company to sell to J. P. Morgan &
Co. an issue of bonds. J. P. Morgan & Co.
borrow the money with which to pay for the bonds
from the Guaranty Trust Company, of which
Mr. Morgan (or a partner) is a director. J. P.
Morgan & Co. sell the bonds to the Penn Mutual
Life Insurance Company, of which Mr. Morgan
(or a partner) is a director. The New Haven
spends the proceeds of the bonds in purchasing
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 53
steel rails from the United States Steel Corpora-
tion, of which Mr. Morgan (or a partner) is a
director. The United States Steel Corporation
spends the proceeds of the rails in purchasing
electrical supplies from the General Electric
Company, of which Mr. Morgan (or a partner)
is a director. The General Electric sells supplies
to the Western Union Telegraph Company, a
subsidiary of the American Telephone and
Telegraph Company; and in both Mr. Morgan
(or a partner) is a director. The Telegraph
Company has an exclusive wire contract with the
Reading, of which Mr. Morgan (or a partner) is
a director. The Reading buys its passenger cars
from the Pullman Company, of which Mr.
Morgan (or a partner) is a director. The
Pullman Company buys (for local use) loco-
motives from the Baldwin Locomotive Company,
of which Mr. Morgan (or a partner) is a director.
The Reading, the General Electric, the Steel
Corporation and the New Haven, like the
Pullman, buy locomotives from the Baldwin
Company. The Steel Corporation, the Tele-
phone Company, the New Haven, the Reading,
the Pullman and the Baldwin Companies, like
the Western Union, buy electrical supplies from
the General Electric. The Baldwin, the Pull-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
?
54 OTHER PEOPLE'S MONEY
man, the Reading, the Telephone, the Telegraph
and the General Electric companies, like the
New Haven, buy steel products from the Steel
Corporation. Each and every one of the com-
panies last named markets its securities through
J. P. Morgan & Co. ; each deposits its funds with
J. P. Morgan & Co. ; and with these funds of
each, the firm enters upon further operations.
This specific illustration is in part suppositi-
tious; but it represents truthfully the operation of
interlocking directorates. Only it must be multi-
plied many times and with many permutations
to represent fully the extent to which the interests
of a few men are intertwined. Instead of taking
the New Haven as the railroad starting point in
our example, the New York Central, the Santa
F6, the Southern, the Lehigh Valley, the Chicago ?
and Great Western, the Erie or the Pere Mar-
quette might have been selected; instead of the
Guaranty Trust Company as the banking reser-
voir, any one of a dozen other important banks or
trust companies; instead of the Penn Mutual as
purchaser of the bonds, other insurance compa-
nies; instead of the General Electric, its qualified
competitor, the Westinghouse Electric and Manu-
facturing Company. The chain is indeed end-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 55
less; for each controlled corporation is entwined
with many others.
As the nexus of "Big Business" the Steel
Corporation stands, of course, preeminent. The
Stanley Committee showed that the few men who
control the Steel Corporation, itself an owner of
important railroads, are directors also in twenty-
nine other railroad systems, with 126,000 miles
of line (more than half the railroad mileage of the
United States), and in important steamship
companies. Through all these alliances and the
huge traffic it controls, the Steel Corporation's
influence pervades railroad and steamship com-
panies--not as carriers only--but as the largest
customers for steel. And its influence with
users of steel extends much further. These same
few men are also directors in twelve steel-using
street railway systems, including some of the
largest in the world. They are directors in forty
machinery and similar steel-using manufacturing
companies; in many gas, oil and water com-
panies, extensive users of iron products; and
in the great wire-using telephone and telegraph
companies. The aggregate assets of these differ-
ent corporations--through which these few men
exert their influence over the business of the
United States--exceeds sixteen billion dollars.
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 56 OTHER PEOPLE'S MONEY
Obviously, interlocking directorates, and all
that term implies, must be effectually prohibited
before the freedom of American business can be
regained. The prohibition will not be an in-
novation. It will merely give full legal sanction
to the fundamental law of morals and of human
nature: that "No man can serve two masters. "
The surprising fact is that a principle of equity so
firmly rooted should have been departed from at
all in dealing with corporations. For no rule
of law has, in other connections, been more rigor-
ously applied, than that which prohibits a trustee
from occupying inconsistent positions, from deal-
ing with himself, or from using his fiduciary
position for personal profit. And a director of a
corporation is as obviously a trustee as persons
holding similar positions in an unincorporated
association, or in a private trust estate, who are
called specifically by that name. The Courts
have recognized this fully.
Thus, the Court of Appeals of New York de-
clared in an important case:
"While not technically trustees, for the title
of the corporate property was in the corporation
itself, they were charged with the duties and
subject to the liabilities of trustees. Clothed
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 57
with the power of controlling the property and
managing the affairs of the corporation without
let or hindrance, as to third persons, they were its
agents; but as to the corporation itself equity
holds them liable as trustees. While courts of
law generally treat the directors as agents, courts
of equity treat them as trustees, and hold them
to a strict account for any breach of the trust
relation. For all practical purposes they are
trustees, when called upon in equity to account
for their official conduct. "
NULLIFYING THE LAW
But this wholesome rule of business, so clearly
laid down, was practically nullified by courts
in creating two unfortunate limitations, as
concessions doubtless to the supposed needs of
commerce.
First: Courts held valid contracts between a
corporation and a director, or between two
corporations with a common director, where it
was shown that in making the contract, the cor-
poration was represented by independent direct-
ors and that the vote of the interested director
was unnecessary to carry the motion and his pres-
ence was not needed to constitute a quorum.
Second: Courts held that even where a com-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 58 OTHER PEOPLE'S MONEY
mon director participated actively in the making
of a contract between two corporations, the
contract was not absolutely void, but voidable
only at the election of the corporation.
The first limitation ignored the rule of law that
a beneficiary is entitled to disinterested advice
from all his trustees, and not merely from some;
and that a trustee may violate his trust by in-
action as well as by action. It ignored, also, the
laws of human nature, in assuming that the in-
fluence of a director is confined to the act of
voting. Every one knows that the most effective
work is done before any vote is taken, subtly,
and without provable participation. Every one
should know that the denial of minority repre-
sentation on boards of directors has resulted in
the domination of most corporations by one or
two men; and in practically banishing all criti-
cism of the dominant power. And even where
the board is not so dominated, there is too often
that "harmonious cooperation" among directors
which secures for each, in his own line, a due share
of the corporation's favors.
The second limitation--by which contracts,
in the making of which the interested director
participates actively, are held merely voidable
instead of absolutely void--ignores the teachings
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 59
of experience. To hold such contracts merely
voidable has resulted practically in declaring
them valid. It is the directors who control
corporate action; and there is little reason to
expect that any contract, entered into by a
board with a fellow director, however unfair,
would be subsequently avoided. Appeals from
Philip drunk to Philip sober are not of frequent
occurrence, nor very fruitful. But here we lack
even an appealing party. Directors and the
dominant stockholders would, of course, not
appeal; and the minority stockholders have
rarely the knowledge of facts which is essential
to an effective appeal, whether it be made to
the directors, to the whole body of stockholders,
or to the courts. Besides, the financial burden
and the risks incident to any attempt of individual
stockholders to interfere with an existing manage-
ment is ordinarily prohibitive. Proceedings to
avoid contracts with directors are, therefore, sel-
dom brought, except after a radical change in the
membership of the board. And radical changes
in a board's membership are rare. Indeed the
Pujo Committee reports:
"None of the witnesses (the leading American
bankers testified) was able to name an instance in
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 60 OTHER PEOPLE'S MONEY
the history of the country in which the stock-
holders had succeeded in overthrowing an exist-
ing management in any large corporation. Nor
does it appear that stockholders have ever even
succeeded in so far as to secure the investigation
of an existing management of a corporation to
ascertain whether it has been well or honestly
managed. "
/ Mr. Max Pam proposed in the April, 1913,
I Harvard Law Review, that the government come
to the aid of minority stockholders. He urged
that the president of every corporation be re-
quired to rejport annually to the stockholders, and
to state and federal officials every contract made
by the company in which any director is inter-
ested; that the Attorney-General of the United
States or the State investigate the same and take
proper proceedings to set all such contracts
aside and recover any damages suffered; or
without disaffirming the contracts to recover
(rom the interested directors the profits derived
therefrom. And to this end also, that State and
National Bank Examiners, State Superintend-
ents of Insurance, and the Interstate Commerce
Commission be directed to examine the records
of every bank, trust company, insurance com-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 61
pany, railroad company and every other corpora-
tion engaged in interstate commerce. Mr. Pam's
views concerning interlocking directorates are
entitled to careful study. As counsel promi-
nently identified with the organization of trusts,
he had for years full opportunity of weighing the
advantages and disadvantages of "Big Business. "
His conviction that the practice of interlocking
directorates is a menace to the public and demands
drastic legislation, is significant. And much can
be said in support of the specific measure which
he proposes. But to be effective, the remedy
must be fundamental and comprehensive.
THE ESSENTIALS OP PROTECTION
Protection to minority stockholders demands
that corporations be prohibited absolutely from
making contracts in which a director has a
private interest, and that all such contracts be
declared not voidable merely, but absolutely
void.
In the case of railroads and public-service
corporations (in contradistinction to private
industrial companies), such prohibition is de-
manded, also, in the interests of the general
public. For interlocking interests breed in-
efficiency and disloyalty; and the public pays,
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 62 OTHER PEOPLE'S MONEY
in higher rates or in poor service, a large part of
the penalty for graft and inefficiency. Indeed,
whether rates are adequate or excessive cannot
be determined until it is known whether the
gross earnings of the corporation are properly
expended. For when a company's important
contracts are made through directors who are
interested on both sides, the common presump-
tion that money spent has been properly spent
does not prevail. And this is particularly true
in railroading, where the company so often lacks
effective competition in its own field.
But the compelling reason for prohibiting
interlocking directorates is neither the protection
of stockholders, nor the protection of the public
from the incidents of inefficiency and graft.
Conclusive evidence (if obtainable) that the
practice of interlocking directorates benefited all
stockholders and was the most efficient form of
organization, would not remove the objections.
For even more important than efficiency are in-
dustrial and political liberty; and these are
imperiled by the Money Trust. Interlocking
directorates must be prohibited, because it is impos-
sible to break the Money Trust without putting an
end to the practice in the larger corporations.
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 68
y
? ^f BANKS AS PUBLIC-SERVICE CORPORATIONS
The practice of interlocking directorates is
peculiarly objectionable when applied to banks,
because of the nature and functions of those
institutions. Bank deposits are an important
part of our currency system. They are almost
as essential a factor in commerce as our railways.
Receiving deposits and making loans therefrom
should be treated by the law not as a private
business, but as one of the public services. And
recognizing it to be such, the law already regu-
lates it in many ways. The function of a bank
is to receive and to loan money. It has no more
right than a common carrier to use its powers
specifically to build up or to destroy other
businesses. The granting or withholding of a
loan should be determined, so far as concerns the
borrower, solely by the interest rate and the risk
involved; and not by favoritism or other con-
siderations foreign to the banking function.
Men may safely be allowed to grant or to deny
loans of their own money to whomsoever they
see fit, whatsoever their motive may be. But
bank resources are, in the main, not owned by the
stockholders nor by the directors. Nearly three-
fourths of the aggregate resources of the thirty-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 64 OTHER PEOPLE'S MONEY
four banking institutions in which the Morgan
associates hold a predominant influence are rep-
resented by deposits. The dependence of com-
merce and industry upon bank deposits, as the
common reservoir of quick capital is so complete,
that deposit banking should be recognized as
one of the businesses "affected with a public
interest. " And the general rule which forbids
public-service corporations from making unjust
discriminations or giving undue preference should
be applied to the operations of such banks.
Senator Owen, Chairman of the Committee
on Banking and Currency, said recently:
"My own judgment is that a bank is a public-
utility institution and cannot be treated as a
private affair, for the simple reason that the
public is invited, under the safeguards of the
government, to deposit its money with the bank,
and the public has a right to have its interests
safeguarded through organized authorities. The
logic of this is beyond escape. All banks in the
United States, public and private, should be
treated as public-utility institutions, where they
receive public deposits. "
The directors and officers of banking institu-
tions must, of course, be entrusted with wide
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 65
discretion in the granting or denying of loans.
But that discretion should be exercised, not only
honestly as it affects stockholders, but also
impartially as it affects the public. Mere
honesty to the stockholders demands that the
interests to be considered by the directors be
the interests of all the stockholders; not the profit
of the part of them who happen to be its direct-
ors. But the general welfare demands of the
director, as trustee for the public, performance of
a stricter duty. The fact that the granting of
loans involves a delicate exercise of discretion
makes it difficult to determine whether the rule
of equality of treatment, which every public-
service corporation owes, has been performed.
But that difficulty merely emphasizes the im-
portance of making absolute the rule that banks
of deposit shall not make any loan nor engage in
any transaction in which a director has a private
interest. And we should bear this in mind:
If privately-owned banks fail in the public
duty to afford borrowers equality of opportunity,
there will arise a demand for government-owned
banks, which will become irresistible.
The statement of Mr. Justice Holmes of the
Supreme Court of the United States, in the
Oklahoma Bank case, is significant:
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 66 OTHER PEOPLE'S MONEY
"We cannot say that the public interests to
which we have adverted, and others, are not
sufficient to warrant the State in taking the whole
business of banking under its control. On the
contrary we are of opinion that it may go on from
regulation to prohibition except upon such con-
ditions as it may prescribe. "
Nor would the requirement that banks shall
make no loan in which a director has a private
interest impose undue hardships or restrictions
upon bank directors. It might make a bank
director dispose of some of his investments and
refrain from making others; but it often happens
that the holding of one office precludes a man
from holding another, or compels him to dispose
of certain financial interests.
A judge is disqualified from sitting in any
case in which he has even the smallest financial
interest; and most judges, in order to be free to
act in any matters arising in their court, proceed,
upon taking office, to dispose of all investments
which could conceivably bias their judgment
in any matter that might come before them. An
Interstate Commerce Commissioner is prohibited
from owning any bonds or stocks in any corpora-
OFFICIAL PRECEDENTS
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1.
"Beyond these inner groups and sub-groups are
banks and bankers throughout the country who
co-operate with them in underwriting or guaran-
teeing the sale of securities offered to the public,
and who also act as distributors of such securities.
It was impossible to learn the identity of these
corporations, owing to the unwillingness of the
members of the inner group to disclose the names
of their underwriters, but sufficient appears to
justify the statement that there are at least
hundreds of them and that they extend into
many of the cities throughout this and foreign
countries.
"The patronage thus proceeding from the
inner group and its sub-groups is of great value
to these banks and bankers, who are thus tied
by self-interest to the great issuing houses and
may be regarded as a part of this vast financial
organization. Such patronage yields no incon-
siderable part of the income of these banks and
bankers and without much risk on account of the
facilities of the principal groups for placing issues
of securities through their domination of great
banks and trust companies and their other do-
mestic affiliations and their foreign connections.
The underwriting commissions on issues made by
this inner group are usually easily earned and do
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? HOW THE COMBINERS COMBINE 43
not ordinarily involve the underwriters in the
purchase of the underwritten securities. Their
interest in the transaction is generally adjusted
unless they choose to purchase part of the securi-
ties, by the payment to them of a commission.
There are, however, occasions on which this is
not the case. The underwriters are then re-
quired to take the securities. Bankers and
brokers are so anxious to be permitted to par-
ticipate in these transactions under the lead of
the inner group that as a rule they join when
invited to do so, regardless of their approval of
the particular business, lest by refusing they
should thereafter cease to be invited. "
In other words, an invitation from these
royal bankers is interpreted as a command. As
a result, these great bankers frequently get huge
commissions without themselves distributing any
of the bonds, or ever having taken any actual
risk.
"In the case of the New York subway financ-
ing of $170,000,000 of bonds by Messrs. Morgan
& Co. and their associates, Mr. Davison [as the
Pujo Committee reports] estimated that there
were from 100 to 125 such underwriters who
were apparently glad to agree that Messrs.
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 44 OTHER PEOPLE'S MONEY
Morgan & Co. , the First National Bank, and the
National City Bank should receive 3 per cent. ,
--equal to $5,100,000--for forming this syndi-
cate, thus relieving themselves from all liability,
whilst the underwriters assumed the risk of what
the bonds would realize and of being required to
take their share of the unsold portion. "
THE PKOTECTION OF PSEUDO-ETHICS
The organization of the Money Trust is in-
tensive, the combination comprehensive; but
one other element was recognized as necessary
to render it stable, and to make its dynamic force
irresistible. Despotism, be it financial or politi-
cal, is vulnerable, unless it is believed to rest
upon a moral sanction. The longing for freedom
is ineradicable. It will express itself in protest
against servitude and inaction, unless the striv-
ing for freedom be made to seem immoral.
Long ago monarchs invented, as a preservative
of absolutism, the fiction of "The divine right of
kings. " Bankers, imitating royalty, invented re-
cently that precious rule of so-called "Ethics," by
which it is declared unprofessional to come to the
financial relief of any corporation which is already
the prey of another "reputable" banker.
"The possibility of competition between these
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? HOW THE COMBINERS COMBINE 45
banking houses in the purchase of securities,"
says the Pujo Committee, "is further removed
by the understanding between them and others,
that one will not seek, by offering better terms,
to take away from another, a customer which it
has theretofore served, and by corollary of this,
namely, that where given bankers have once
satisfactorily united in bringing out an issue of
a corporation, they shall also join in bringing
out any subsequent issue of the same corpora-
tions. This is described as a principle of banking
ethics. "
The "Ethical" basis of the rule must be that
the interests of the combined bankers are
superior to the interests of the rest of the com-
munity. Their attitude reminds one of the
"spheres of influence" with ample "hinterlands"
by which rapacious nations are adjusting differ-
ences. Important banking concerns, too am-
bitious to be willing to take a subordinate position
in the alliance, and too powerful to be suppressed,
are accorded a financial "sphere of influence"
upon the understanding that the rule of banking
ethics will be faithfully observed. Most promi-
nent among such lesser potentates are Kuhn,
Loeb & Co. , of New York, an international
banking house of great wealth, with large clientele
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 46 OTHER PEOPLE'S MONEY
and connections. They are accorded an impor*
tant "sphere of influence" in American rail-
roading, including among other systems the
Baltimore & Ohio, the Union Pacific and the
Southern Pacific. They and the Morgan group
have with few exceptions preempted the banking
business of the important railroads of the
country. But even Kuhn, Loeb & Co. are not
wholly independent. The Pujo Committee re-
ports that they are "qualified allies of the inner
group"; and through their "close relations with
the National City Bank and the National Bank
of Commerce and other financial institutions"
have "many interests in common with the
Morgan associates, conducting large joint-
account operations with them. "
THE EVILS BESXJLTANT
First: These banker-barons levy, through
their excessive exactions, a heavy toll upon the
whole community; upon owners of money for
leave to invest it; upon railroads, public service
and industrial companies, for leave to use this
money of other people; and, through these
corporations, upon consumers.
"The charge of capital," says the Pujo Com-
mittee, "which of course enters universally into
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? HOW THE COMBINERS COMBINE 47
the price of commodities and of service, is thus
in effect determined by agreement amongst those
supplying it and not under the check of competi-
tion. If there be any virtue in the principle of
competition, certainly any plan or arrangement
which prevents its operation in the performance
of so fundamental a commercial function as the
supplying of capital is peculiarly injurious. "
Second: More serious, however, is the effect
of the Money Trust in directly suppressing com-
petition. That suppression enables the monopo-
list to extort excessive profits; but monopoly
increases the burden of the consumer even more
in other ways. Monopoly arrests development;
and through arresting development, prevents
that lessening of the cost of production and of
distribution which would otherwise take place.
Can full competition exist among the anthra-
cite coal railroads when the Morgan associates
are potent in all of them? And with like
conditions prevailing, what competition is to be
expected between the Northern Pacific and the
Great Northern, the Southern, the Louisville
and Nashville, and the Atlantic Coast Line; or
between the Westinghouse Manufacturing Com-
pany and the General Electric Company? As
the Pujo Committee finds:
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 48 OTHER PEOPLE'S MONEY
"Such affiliations tend as a cover and conduit
for secret arrangements and understandings in
restriction of competition through the agency of
the banking house thus situated. "
And under existing conditions of combina-
tion, relief through other banking houses is
precluded.
"It can hardly be expected that the banks,
trust companies, and other institutions that are
thus seeking participation from this inner group
would be likely to engage in business of a charac-
ter that would be displeasing to the latter or
would interfere with their plans or prestige.
And so the protection that can be afforded by the
members of the inner group constitutes the
safest refuge of our great industrial combinations
against future competition. The powerful grip
of these gentlemen is upon the throttle that
controls the wheels of credit, and upon their
signal those wheels will turn or stop. "
Third: But far more serious even than the
suppression of competition is the suppression of
industrial liberty, indeed of manhood itself,
which this overweening financial power entails.
The intimidation which it effects extends far
beyond "the banks, trust companies, and other
institutions seeking participation from this inner
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? HOW THE COMBINERS COMBINE 49
group in their lucrative underwritings"; and far
beyond those interested in the great corporations
directly dependent upon the inner group. Its
blighting and benumbing effect extends as well
to the small and seemingly independent business
man, to the vast army of professional men and
others directly dependent upon "Big Business,"
and to many another; for
1. Nearly every enterprising business man
needs bank credit. The granting of credit in-
volves the exercise of judgment of the bank offi-
cials; and however honestly the bank officials may
wish to exercise their discretion, experience shows
that their judgment is warped by the existence
of the all-pervading power of the Money Trust.
He who openly opposes the great interests will
often be found to lack that quality of "safe
and sane"-ness which is the basis of financial
credit.
2. Nearly every enterprising business man and
a large part of our professional men have some-
thing to sell to, or must buy something from, the
great corporations to which the control or
influence of the money lords extends directly, or
from or to affiliated interests. Sometimes it is
merchandise; sometimes it is service; sometimes
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 50 OTHER PEOPLE'S MONEY
they have nothing either to buy or to sell, but
desire political or social advancement. Some-
times they want merely peace. Experience shows
that "it is not healthy to buck against a locomo-
tive," and "Business is business. "
Here and there you will find a hero,--red-
blooded, and courageous,--loving manhood more
than wealth, place or security,--who dared to
fight for independence and won. Here and there
you may find the martyr, who resisted in silence
and suffered with resignation. But America,
which seeks "the greatest good of the greatest
number," cannot be content with conditions that
fit only the hero, the martyr or the slave.
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? CHAPTER III
INTERLOCKING DIRECTORATES
The practice of interlocking directorates is the
root of many evils. It offends laws human and
divine. Applied to rival corporations, it tends to
the suppression of competition and to violation of
the Sherman law. Applied to corporations which
deal with each other, it tends to disloyalty and to
violation of the fundamental law that no man can
serve two masters. In either event it tends to
inefficiency; for it removes incentive and destroys
soundness of judgment. It is undemocratic, for
it rejects the platform: "A fair field and no
favors,"--substituting the pull of privilege for the
push of manhood. It is the most potent instru-
ment of the Money Trust. Break the control so
exercised by the investment bankers over rail-
roads, public-service and industrial corporations,
over banks, life insurance and trust companies,
and a long step will have been taken toward
attainment of the New Freedom.
The term "Interlocking directorates" is here
used in a broad sense as including all intertwined
41
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 52 OTHER PEOPLE'S MONEY
conflicting interests, whatever the form, and by
whatever device effected. The objection extends
alike to contracts of a corporation whether with
one of its directors individually, or with a firm
of which he is a member, or with another corpora-
tion in which he is interested as an officer or
director or stockholder. The objection extends
likewise to men holding the inconsistent position
of director in two potentially competing corpora-
tions, even if those corporations do not actually
deal with each other.
THE ENDLESS CHAIN
A single example will illustrate the vicious circle
of control--the endless chain--through which our
financial oligarchy now operates:
J. P. Morgan (or a partner), a director of the
New York, New Haven & Hartford Railroad,
causes that company to sell to J. P. Morgan &
Co. an issue of bonds. J. P. Morgan & Co.
borrow the money with which to pay for the bonds
from the Guaranty Trust Company, of which
Mr. Morgan (or a partner) is a director. J. P.
Morgan & Co. sell the bonds to the Penn Mutual
Life Insurance Company, of which Mr. Morgan
(or a partner) is a director. The New Haven
spends the proceeds of the bonds in purchasing
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 53
steel rails from the United States Steel Corpora-
tion, of which Mr. Morgan (or a partner) is a
director. The United States Steel Corporation
spends the proceeds of the rails in purchasing
electrical supplies from the General Electric
Company, of which Mr. Morgan (or a partner)
is a director. The General Electric sells supplies
to the Western Union Telegraph Company, a
subsidiary of the American Telephone and
Telegraph Company; and in both Mr. Morgan
(or a partner) is a director. The Telegraph
Company has an exclusive wire contract with the
Reading, of which Mr. Morgan (or a partner) is
a director. The Reading buys its passenger cars
from the Pullman Company, of which Mr.
Morgan (or a partner) is a director. The
Pullman Company buys (for local use) loco-
motives from the Baldwin Locomotive Company,
of which Mr. Morgan (or a partner) is a director.
The Reading, the General Electric, the Steel
Corporation and the New Haven, like the
Pullman, buy locomotives from the Baldwin
Company. The Steel Corporation, the Tele-
phone Company, the New Haven, the Reading,
the Pullman and the Baldwin Companies, like
the Western Union, buy electrical supplies from
the General Electric. The Baldwin, the Pull-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
?
54 OTHER PEOPLE'S MONEY
man, the Reading, the Telephone, the Telegraph
and the General Electric companies, like the
New Haven, buy steel products from the Steel
Corporation. Each and every one of the com-
panies last named markets its securities through
J. P. Morgan & Co. ; each deposits its funds with
J. P. Morgan & Co. ; and with these funds of
each, the firm enters upon further operations.
This specific illustration is in part suppositi-
tious; but it represents truthfully the operation of
interlocking directorates. Only it must be multi-
plied many times and with many permutations
to represent fully the extent to which the interests
of a few men are intertwined. Instead of taking
the New Haven as the railroad starting point in
our example, the New York Central, the Santa
F6, the Southern, the Lehigh Valley, the Chicago ?
and Great Western, the Erie or the Pere Mar-
quette might have been selected; instead of the
Guaranty Trust Company as the banking reser-
voir, any one of a dozen other important banks or
trust companies; instead of the Penn Mutual as
purchaser of the bonds, other insurance compa-
nies; instead of the General Electric, its qualified
competitor, the Westinghouse Electric and Manu-
facturing Company. The chain is indeed end-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 55
less; for each controlled corporation is entwined
with many others.
As the nexus of "Big Business" the Steel
Corporation stands, of course, preeminent. The
Stanley Committee showed that the few men who
control the Steel Corporation, itself an owner of
important railroads, are directors also in twenty-
nine other railroad systems, with 126,000 miles
of line (more than half the railroad mileage of the
United States), and in important steamship
companies. Through all these alliances and the
huge traffic it controls, the Steel Corporation's
influence pervades railroad and steamship com-
panies--not as carriers only--but as the largest
customers for steel. And its influence with
users of steel extends much further. These same
few men are also directors in twelve steel-using
street railway systems, including some of the
largest in the world. They are directors in forty
machinery and similar steel-using manufacturing
companies; in many gas, oil and water com-
panies, extensive users of iron products; and
in the great wire-using telephone and telegraph
companies. The aggregate assets of these differ-
ent corporations--through which these few men
exert their influence over the business of the
United States--exceeds sixteen billion dollars.
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 56 OTHER PEOPLE'S MONEY
Obviously, interlocking directorates, and all
that term implies, must be effectually prohibited
before the freedom of American business can be
regained. The prohibition will not be an in-
novation. It will merely give full legal sanction
to the fundamental law of morals and of human
nature: that "No man can serve two masters. "
The surprising fact is that a principle of equity so
firmly rooted should have been departed from at
all in dealing with corporations. For no rule
of law has, in other connections, been more rigor-
ously applied, than that which prohibits a trustee
from occupying inconsistent positions, from deal-
ing with himself, or from using his fiduciary
position for personal profit. And a director of a
corporation is as obviously a trustee as persons
holding similar positions in an unincorporated
association, or in a private trust estate, who are
called specifically by that name. The Courts
have recognized this fully.
Thus, the Court of Appeals of New York de-
clared in an important case:
"While not technically trustees, for the title
of the corporate property was in the corporation
itself, they were charged with the duties and
subject to the liabilities of trustees. Clothed
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 57
with the power of controlling the property and
managing the affairs of the corporation without
let or hindrance, as to third persons, they were its
agents; but as to the corporation itself equity
holds them liable as trustees. While courts of
law generally treat the directors as agents, courts
of equity treat them as trustees, and hold them
to a strict account for any breach of the trust
relation. For all practical purposes they are
trustees, when called upon in equity to account
for their official conduct. "
NULLIFYING THE LAW
But this wholesome rule of business, so clearly
laid down, was practically nullified by courts
in creating two unfortunate limitations, as
concessions doubtless to the supposed needs of
commerce.
First: Courts held valid contracts between a
corporation and a director, or between two
corporations with a common director, where it
was shown that in making the contract, the cor-
poration was represented by independent direct-
ors and that the vote of the interested director
was unnecessary to carry the motion and his pres-
ence was not needed to constitute a quorum.
Second: Courts held that even where a com-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 58 OTHER PEOPLE'S MONEY
mon director participated actively in the making
of a contract between two corporations, the
contract was not absolutely void, but voidable
only at the election of the corporation.
The first limitation ignored the rule of law that
a beneficiary is entitled to disinterested advice
from all his trustees, and not merely from some;
and that a trustee may violate his trust by in-
action as well as by action. It ignored, also, the
laws of human nature, in assuming that the in-
fluence of a director is confined to the act of
voting. Every one knows that the most effective
work is done before any vote is taken, subtly,
and without provable participation. Every one
should know that the denial of minority repre-
sentation on boards of directors has resulted in
the domination of most corporations by one or
two men; and in practically banishing all criti-
cism of the dominant power. And even where
the board is not so dominated, there is too often
that "harmonious cooperation" among directors
which secures for each, in his own line, a due share
of the corporation's favors.
The second limitation--by which contracts,
in the making of which the interested director
participates actively, are held merely voidable
instead of absolutely void--ignores the teachings
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 59
of experience. To hold such contracts merely
voidable has resulted practically in declaring
them valid. It is the directors who control
corporate action; and there is little reason to
expect that any contract, entered into by a
board with a fellow director, however unfair,
would be subsequently avoided. Appeals from
Philip drunk to Philip sober are not of frequent
occurrence, nor very fruitful. But here we lack
even an appealing party. Directors and the
dominant stockholders would, of course, not
appeal; and the minority stockholders have
rarely the knowledge of facts which is essential
to an effective appeal, whether it be made to
the directors, to the whole body of stockholders,
or to the courts. Besides, the financial burden
and the risks incident to any attempt of individual
stockholders to interfere with an existing manage-
ment is ordinarily prohibitive. Proceedings to
avoid contracts with directors are, therefore, sel-
dom brought, except after a radical change in the
membership of the board. And radical changes
in a board's membership are rare. Indeed the
Pujo Committee reports:
"None of the witnesses (the leading American
bankers testified) was able to name an instance in
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 60 OTHER PEOPLE'S MONEY
the history of the country in which the stock-
holders had succeeded in overthrowing an exist-
ing management in any large corporation. Nor
does it appear that stockholders have ever even
succeeded in so far as to secure the investigation
of an existing management of a corporation to
ascertain whether it has been well or honestly
managed. "
/ Mr. Max Pam proposed in the April, 1913,
I Harvard Law Review, that the government come
to the aid of minority stockholders. He urged
that the president of every corporation be re-
quired to rejport annually to the stockholders, and
to state and federal officials every contract made
by the company in which any director is inter-
ested; that the Attorney-General of the United
States or the State investigate the same and take
proper proceedings to set all such contracts
aside and recover any damages suffered; or
without disaffirming the contracts to recover
(rom the interested directors the profits derived
therefrom. And to this end also, that State and
National Bank Examiners, State Superintend-
ents of Insurance, and the Interstate Commerce
Commission be directed to examine the records
of every bank, trust company, insurance com-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 61
pany, railroad company and every other corpora-
tion engaged in interstate commerce. Mr. Pam's
views concerning interlocking directorates are
entitled to careful study. As counsel promi-
nently identified with the organization of trusts,
he had for years full opportunity of weighing the
advantages and disadvantages of "Big Business. "
His conviction that the practice of interlocking
directorates is a menace to the public and demands
drastic legislation, is significant. And much can
be said in support of the specific measure which
he proposes. But to be effective, the remedy
must be fundamental and comprehensive.
THE ESSENTIALS OP PROTECTION
Protection to minority stockholders demands
that corporations be prohibited absolutely from
making contracts in which a director has a
private interest, and that all such contracts be
declared not voidable merely, but absolutely
void.
In the case of railroads and public-service
corporations (in contradistinction to private
industrial companies), such prohibition is de-
manded, also, in the interests of the general
public. For interlocking interests breed in-
efficiency and disloyalty; and the public pays,
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 62 OTHER PEOPLE'S MONEY
in higher rates or in poor service, a large part of
the penalty for graft and inefficiency. Indeed,
whether rates are adequate or excessive cannot
be determined until it is known whether the
gross earnings of the corporation are properly
expended. For when a company's important
contracts are made through directors who are
interested on both sides, the common presump-
tion that money spent has been properly spent
does not prevail. And this is particularly true
in railroading, where the company so often lacks
effective competition in its own field.
But the compelling reason for prohibiting
interlocking directorates is neither the protection
of stockholders, nor the protection of the public
from the incidents of inefficiency and graft.
Conclusive evidence (if obtainable) that the
practice of interlocking directorates benefited all
stockholders and was the most efficient form of
organization, would not remove the objections.
For even more important than efficiency are in-
dustrial and political liberty; and these are
imperiled by the Money Trust. Interlocking
directorates must be prohibited, because it is impos-
sible to break the Money Trust without putting an
end to the practice in the larger corporations.
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 68
y
? ^f BANKS AS PUBLIC-SERVICE CORPORATIONS
The practice of interlocking directorates is
peculiarly objectionable when applied to banks,
because of the nature and functions of those
institutions. Bank deposits are an important
part of our currency system. They are almost
as essential a factor in commerce as our railways.
Receiving deposits and making loans therefrom
should be treated by the law not as a private
business, but as one of the public services. And
recognizing it to be such, the law already regu-
lates it in many ways. The function of a bank
is to receive and to loan money. It has no more
right than a common carrier to use its powers
specifically to build up or to destroy other
businesses. The granting or withholding of a
loan should be determined, so far as concerns the
borrower, solely by the interest rate and the risk
involved; and not by favoritism or other con-
siderations foreign to the banking function.
Men may safely be allowed to grant or to deny
loans of their own money to whomsoever they
see fit, whatsoever their motive may be. But
bank resources are, in the main, not owned by the
stockholders nor by the directors. Nearly three-
fourths of the aggregate resources of the thirty-
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 64 OTHER PEOPLE'S MONEY
four banking institutions in which the Morgan
associates hold a predominant influence are rep-
resented by deposits. The dependence of com-
merce and industry upon bank deposits, as the
common reservoir of quick capital is so complete,
that deposit banking should be recognized as
one of the businesses "affected with a public
interest. " And the general rule which forbids
public-service corporations from making unjust
discriminations or giving undue preference should
be applied to the operations of such banks.
Senator Owen, Chairman of the Committee
on Banking and Currency, said recently:
"My own judgment is that a bank is a public-
utility institution and cannot be treated as a
private affair, for the simple reason that the
public is invited, under the safeguards of the
government, to deposit its money with the bank,
and the public has a right to have its interests
safeguarded through organized authorities. The
logic of this is beyond escape. All banks in the
United States, public and private, should be
treated as public-utility institutions, where they
receive public deposits. "
The directors and officers of banking institu-
tions must, of course, be entrusted with wide
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? INTERLOCKING DIRECTORATES 65
discretion in the granting or denying of loans.
But that discretion should be exercised, not only
honestly as it affects stockholders, but also
impartially as it affects the public. Mere
honesty to the stockholders demands that the
interests to be considered by the directors be
the interests of all the stockholders; not the profit
of the part of them who happen to be its direct-
ors. But the general welfare demands of the
director, as trustee for the public, performance of
a stricter duty. The fact that the granting of
loans involves a delicate exercise of discretion
makes it difficult to determine whether the rule
of equality of treatment, which every public-
service corporation owes, has been performed.
But that difficulty merely emphasizes the im-
portance of making absolute the rule that banks
of deposit shall not make any loan nor engage in
any transaction in which a director has a private
interest. And we should bear this in mind:
If privately-owned banks fail in the public
duty to afford borrowers equality of opportunity,
there will arise a demand for government-owned
banks, which will become irresistible.
The statement of Mr. Justice Holmes of the
Supreme Court of the United States, in the
Oklahoma Bank case, is significant:
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1. 32106000978228 Public Domain, Google-digitized / http://www. hathitrust. org/access_use#pd-google
? 66 OTHER PEOPLE'S MONEY
"We cannot say that the public interests to
which we have adverted, and others, are not
sufficient to warrant the State in taking the whole
business of banking under its control. On the
contrary we are of opinion that it may go on from
regulation to prohibition except upon such con-
ditions as it may prescribe. "
Nor would the requirement that banks shall
make no loan in which a director has a private
interest impose undue hardships or restrictions
upon bank directors. It might make a bank
director dispose of some of his investments and
refrain from making others; but it often happens
that the holding of one office precludes a man
from holding another, or compels him to dispose
of certain financial interests.
A judge is disqualified from sitting in any
case in which he has even the smallest financial
interest; and most judges, in order to be free to
act in any matters arising in their court, proceed,
upon taking office, to dispose of all investments
which could conceivably bias their judgment
in any matter that might come before them. An
Interstate Commerce Commissioner is prohibited
from owning any bonds or stocks in any corpora-
OFFICIAL PRECEDENTS
? ? Generated for (University of Chicago) on 2014-06-10 03:28 GMT / http://hdl. handle. net/2027/uc1.
