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from the beginning. In what period of time, or through what change of circumstances, may a union of competing interests in the form of a corporation hope to be born anew and escape the danger of suffering dissolution on account of its original sin?
Furthermore, if the distinction between valid sales of business between competitors and illegal combinations is to be maintained, a further difficulty is presented in the case of those consolidations which are a compound of sales and combinations. In the organization of many of the industrial trusts there is an absolute purchase and sale of some plants, and what may strictly be a union or combination of interests in the case of others, but any substantial control of the market may not be accomplished without the properties purchased. If neither the combinations nor the sales, considered separately, are illegal, what is to be said of the final result?
Suppose that three wealthy men should agree each to purchase a controlling interest in one of three competing companies which dominated or controlled the market in some line of business, and should bind themselves to unite their separate interests subsequently by means of a partnership or corporation. There can be no doubt that the agreement would be illegal, and that the resulting corporation would be an illegal combination within the meaning of the authorities. Would the result be different if the partnership or corporation were first formed, with the same ultimate purpose in view, and its combined capital employed in the purchase one by one of a controlling interest in the three competing companies? The separate sales in either case might be perfectly valid, the different vendors having no part in the combination; but might not the men who combined their capital to accomplish the combination of existing competing interests be held, in the second case as well as in the first, to be parties from the beginning to an illegal combination ? Such a combination would certainly fall within the prohibition of such statutes as the Texas anti-trust act, which defines a trust as a combination of capital, skill, or acts by two or more persons, corporations, etc., for the purpose of suppressing or lessening competition. The corporation would be an illegal combination from the beginning, because formed for an illegal purpose — to secure a monopoly by means of a union of competing enterprises.
It would follow, also, that a corporation formed by a combination of part of the competitors in a particular line of business, with the intention that the combination should purchase the
business of enough of the remaining competitors to enable it to dominate the market, would also be an illegal combination from the beginning. And so in the Northern Securities case both the Circuit and Supreme Courts held that the Northern Securities Company was from the outset, and prior to its purchase of control of the two railroad companies, an illegal combination.
This view, as was shown in discussing Mr. Morawetz's contention, does not involve holding that a corporation, legal when formed, will become an illegal combination if, in the course of its business, it purchases a competing enterprise, even though such purchase may give it for the time being a substantial monopoly. The line is drawn between combinations formed for the purpose of securing a monopoly by means of the union of existing competing interests, and monopoly which is the result of the growth or development of a single business, whether carried on by an individual or a corporation. If, in the case of every business enterprise, conspicuous success in the competitive struggle were to result only in illegal monopoly, the value of the competitive system would be impaired.
It is clear, however, that some monopolies must be tolerated unless all roads leading to monopoly are closed. If that cannot be done without interfering with the ordinary methods of competition, then the only course left is, not to prohibit altogether size which gives control of the market, but to restrict the uses which may be made of size and limit the competitive power of size to perpetuate itself regardless of the interests of the general public. The success of a competitor, where competition is still active, is the gain of the purchasing or consuming public. But success which is so secure that the public may be disregarded must be controlled. The competitive system is maintained, not merely for the benefit of the successful competitor, but to serve the welfare of the whole community. The public is interested, not in the success of any one competitor, but in the continuous and effective operation of free competition, active and potential. When such restraining influences are no longer effective, so that the interests of the successful competitor and those of the public no longer correspond, the public interests must be protected in some other way. It may then become necessary by means of legislation to control the power and regulate the conduct of all large corporations, no matter what their past history.
Herbert Pope. CHICAGO.
SEVERAL PROBLEMS OF GRAY'S RULE AGAINST PERPETUITIES, SECOND
of problems in the law of future interests is, it is believed, such as to call for articles dealing in some detail with the learned author's treatment of particular topics.
VESTED AND CONTINGENT REMAINDERS.
It is believed that Professor Gray's exposition of the distinction between vested and contingent remainders is capable of some further development.
We are told in § 100 that “the word 'vested' had originally no reference to the absence of contingency." This indicates at once that vested remainders must include remainders which are not subject to a condition precedent and some that are; while contingent remainders include only a portion of those which are subject to a condition precedent. Then in § 101 we are brought face to face with this definition of a vested remainder: “A remainder is vested in A, when throughout its continuance A, or A and his heirs, have the right to the immediate possession whenever and however the preceding estates may determine." What is the reason for this definition? Surely it is not supportable from any purely modern point of view. Is its origin to be referred, then, to the feudal system of land law? It is submitted that Mr. Gray might at least have hinted at the answer to this question and suggested the reason upon which his definition was based.
Having started, however, in this somewhat abrupt fashion, the learned author seems to fall away from his own premises. In $ 104 he puts the case of a gift “to A for life, remainder to B and his heirs, but if B dies before the termination of the particular estate, then to C and his heirs." Of course the remainder to B is, by his definition, vested, though actually subject to a condition precedent to its taking effect in possession. B and his heirs stand ready at all times during the continuance of B's interest - that is, so long as there is any chance of its ever taking effect in possession — to come into possession whenever and however the preceding interest determines. Yet in § 105 the learned author intimates that “if the law looked on vested and contingent interests with an impartial eye, it would seem that such remainders should be held contingent. . . . But the preference of the law for vested interests has prevented this view being adopted.” This is confusing. If he means that from the modern point of view the remainder ought to be held contingent, he is correct; but his original hypothesis is that the distinction between vested and contingent remainders is not a rational one from the purely modern point of view. The statement that the preference of the law for vested interests makes it vested, implies that it is held vested as the illogical relaxation of a general rule by which it would be contingent; whereas the fact is that the result is according to the general rule of law (doubtless of feudal origin), and is no doubt entirely consistent with the principles and reasoning upon which that rule was founded, - whatever they may be.
i Upon the appearance of the first edition a very considerable discussion arose in one of the leading English Reviews over the question whether possibilities of reverter had been held to exist after the Statute of Quia Emptores. See 3 L. Quar. Rev. 399.
2 88 100-108.
In $$ 106 and 108 Mr. Gray does not make clear the application of the definition of a vested remainder which he announces. In § 106 he puts the case of a devise “to A for life, remainder to his surviving children,” and deplores the rule of some cases in Illinois and other states, which he says would make this remainder to the surviving children of A vested. He fails to observe that the children take a vested interest or not, by the application of his own definition, according as you construe the testator's meaning to be that the children shall literally survive A, or that they shall survive the termination of A's life estate, no matter how or when it may determine. If you accept the latter meaning, then the remainder is ready throughout its continuance (for it has a continuance so long as there is a possibility that it may take effect in possession) whenever and however the preceding estate determines. The fault of a case which held the remainder vested in the children of A in the above case would not necessarily be that it changed the definition of a vested remainder. It might be that it only departed from the construction of a contingency which generations of judges have clung to and approved.
In § 108 the learned author does not seem to stand by his definition of a vested remainder. He there announces the test by which it is to be determined when a remainder which is subject to a condition precedent to its ever taking effect in possession is to be regarded as vested or contingent. He says it all depends upon the form of the language used. “If the conditional element is incorporated into the description of, or into the gift to, the remainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, on a devise to A for life, remainder to his children, but if any child dies in the lifetime of A his share to go to those who survive, the share of each child is vested, subject to be divested by its death. But on a devise to A for life, remainder to such of his children as survive him, the remainder is contingent.” One may fairly ask why the learned author makes the test the mere form of words, when his own definition furnishes a sufficient foundation for the distinction which he wishes to draw. In the first case put, the remainder to the children of A is vested, because clearly enough during its continuance - that is, so long as it has a chance of taking effect at all — it stands ready to come into possession whenever and however the preceding estate may determine. So in the second case put, if the gift to the children of A who survive him be construed as a gift to the children of A who survive the termination of A's life estate, whenever and in whatever manner it may occur, it is no different in substance from the first case, and should, according to Mr. Gray's definition, be a vested remainder. The proper construction, however, of the limitations to the surviving children of A in the second case is that they must literally survive A's death. In such case Mr. Gray's definition of a vested remainder will not apply, and the remainder is contingent.
Mr. Gray states in $$ 106 and 107 the New York statutory definition of a vested remainder. He indicates also some cases where apart from statute that definition seems to have been adopted. He fails, however, to make the discrimination that in some of these where results were actually reached different from those which would have been obtained by applying the common law, the only question was whether the remainder was alienable by deed without covenants. This is most strikingly true of the leading case in Illinois, Boatman v. Boatman. This definition
1 198 I11. 414. See also In re Haslett, 116 Fed. Rep. 680; Forsythe v. Lansing, 109 Ky. 518. So in Chapin v. Nott, 203 I11. 341, the question was whether a remainder subject to a condition precedent that the life tenant die without issue, could descend upon the death of the remainderman. Clearly it could by the common law. The court,