It only remains to call attention to one difference in phraseology between the original amendment of 1893 (under which Mills v. Mills was decided) and its successors, the Acts of 1896 and 1897-a difference which may in itself render the decision in the Mills case inapplicable to the present statute. The Act of 1893 extends the right to destroy the trust and effect a merger to any beneficiary of a trust to receive and apply rents and profits or income, who

"shall have heretofore become or may hereafter be or become entitled in his or her own right or through title derived as legatee, distributee or next of kin, or derived through the legal representatives of any deceased person to the remainder in the whole or any part of the principal fund so held in trust ;"

while the present statutes confer such right upon a beneficiary who

is entitled to a remainder in the whole or a part of the principal fund so held in trust."

The meaning of the earlier statute of 1893 is extremely obscure. It is not worth while to consider in detail what one court has derisively described as its "faultless idiom." But what is clear is, that in the later acts the Legislature, while preserving the theory of allowing a merger in certain cases, has adopted an entirely new scheme of treatment, confined on the one hand to the "beneficiary" of a trust, and on the other to the person "entitled to a remainder." For the reasons above stated, it would appear that whether or not the decision in Mills v. Mills is justified by the phraseology of the Act of 1893, it should not be followed in construing the Acts of 1896 and 1897, which should be held to apply only where the beneficiary is by the terms of the trust instrument entitled to a remainder.

1 Real Prop. L. § 83; Pers. Prop, L. § 3,

STEWART CHAPLIN.

CONSIDERATIONS ON THE STATE CORPORATION IN FEDERAL AND INTER

STATE RELATIONS.

THE NORTHERN SECURITIES CASES.

I. The several suits brought against the Northern Securities Company of New Jersey and other parties by the United States, by the State of Washington and by the State of Minnesota are of notable interest. All the suits if pressed, will be finally adjudicated by the Supreme Court of the United States, which takes original jurisdiction of the Washington case, and will hear the others on appeal.

The transaction involved in these cases was also the subject of stockholders' actions, but these have been abandoned, leaving only the public suits; and as the company is attacked from three sides by three sovereigns we may expect a comprehensive definition of the Federal and interstate relations of a State corporation in some of their most important phases.

These suits are the matter of this article, which espouses the defendant's cause, but the fate of the Securities Company is so unimportant in comparsion with the general principles I discuss that I have ventured a broader title than a strict estimation of the text might justify.

THE UNITED STATES SUIT.

2. The petition of the United States against the Northern Securities Company of New Jersey, the Great Northern Railway Company of Minnesota, the Northern Pacific Railway Company of Wisconsin, and James J. Hill and other persons, contains the following charges:

"A virtual consolidation under one ownership and source of control of the Great Northern and Northern Pacific Railway systems has been effected, a combination or conspiracy in restraint of the trade or commerce among the several States and with foreign nations formerly carried on by the defendant railway companies independently and in free competition one with the other has been formed and is in operation, and the defendants are thereby attempting to monopolize and have monopolized, such interstate and for

eign trade or commerce to the great and irreparable damage of the people of the United States, in derogation of their common rights, and in violation of the act of Congress, of July 2, 1890, entitled 'An Act to protect trade and commerce against unlawful restraints and monopolies.'"

The Governing Law.

3. In charging the defendants with violating the "common rights" of the people of the United States, the Government may seem to appeal to broad principles of law antedating the act of Congress presently cited-principles deemed sufficient in themselves to support the suit.

These "common rights" cannot be common law rights, for while most States have inherited or adopted the common law the United States have inherited none of it, and have adopted only such portions as are reproduced in their written law. 1

This statement covers the written as well as the unwritten law of England, of the American colonies, and of the American States prior to the adoption of the Constitution; it emphasizes the institution of our Congress as a legislature with no inherited enactments, continuing in force until changed, with no law whatever behind it save the Constitution which created it; it marks the incapacity of our Department of Justice to institute suits, for the dissolution of a monopoly or a contract in restraint of trade for example, without authority derived from new law of the United States promulgated by Congress. Yet the old law is hon. ored, as it is frequently consulted for interpreting the new.

4. The common rights in question can mean only constitutional rights which, in this relation, are such particular rights in respect of interstate intercourse as are so clearly defined in the Constitution itself that the Government may enforce them by suit without the special authority of an act of Congress.

There is at least one such right: The people are entitled to peaceful passage among the States both for themselves. and their property. This right was upheld by the Supreme Court in the Debs case:

"The scope and purpose of the bill," said the Court, was only to restrain the forcible obstruction of the highways along which interstate commerce travels and the mails are carried," and the Court held that in the exercise 1 See Smith v. Alabama (1887) 124 U. S. 465.

of its enumerated powers the nation is competent "to remove all obstruction, natural or artificial, to the passage of interstate commerce or the carrying of the mail.”1 When the Court took the position in the Debs case that in an emergency warranting the employment of the Federal army at the President's instance the effective process of the Federal courts must be conspicuously appropriate, it emphasized the insurrectionary character of the acts which it proceeded to enjoin without citing any particular statute in justification of its course. The Court referred to the Act of 1890 only to disclaim reliance upon its provisions.

The facts in the case at bar do not disclose either an actual, or a constructive obstruction of the constitutional right of passage. And it is not worth while to speculate whether the power asserted in the Debs case could be properly exerted to dissolve a contract in restraint of commerce, or a monopoly of commerce, on the ground that the general right of passage includes a particular right to transportation by common carriers at reasonable rates.

The charge of violating "common rights" must be dismissed as a rhetorical flourish introducing the Act of July 2, 1890. Upon this statute the Government must rely exclusively.2

1 (1894) 158 U. S., 598-9.

2 The Supreme Court has condemned under the Act two associations formed by railroad companies for the purpose of regulating interstate traffic and rates (U. S. v. Freight Association (1897), 166 U. S., 290; U.S. v. Joint Traffic Association (1898), 171 U. S., 505); and a combination formed by pipe manufacturers for the purpose of directly regulating the interstate transportation and sale of their products (U. S. v. Addyston Pipe Co. (1899), 175 U. S., 211).

The Court has held that the Act is not directed against monopoly by patent, and so does not forbid a patentee from stipulating that the licensee shall sell articles throughout the United States at a fixed price (Bement v. National Harrow Co. (1902), 186 U. S., 70); that it does not deprive a State court of jurisdiction of a murder committed by wrecking a train carrying the mails (Crossley v. California (1898), 168 U. S., 641); and the Court has declined to enforce the Act collaterally where a mortgagor tried to repudiate a mortgage on the ground that its execution was part of a scheme to form an unlawful combination (Dikerman v. Northern Trust Co. (1900), 176 U. S., 195); and where a purchaser sought to repudiate a contract of sale on the ground that the vendor was a "trust" (Connolly v. Union Pipe Co. (1902), 184 U. S., 40.)

In considering this Act in relation to the case at bar, we shall inquire whether there is a transaction affecting commerce within the meaning of the Act? If so, whether there is a contract, combination or conspiracy in restraint of trade within the meaning of the Act? If not, whether there is a monopoly forbidden by the Act?

The Relation of the Defendants to Commerce.

5. Three suits brought under the Act have been dismissed by the Supreme Court, because the transactions in question were not sufficiently related to interstate commerce. These transactions were: The production in a State of a commodity distributed throughout the country;1 the maintenance of a live stock exchange, whose members, for a commission, received, fed and forwarded cattle from other States, and submitted to various self-imposed restrictions upon the conduct of business; the maintenance of a live stock exchange differing from the above chiefly in the fact that members bought cattle on their own account.3

The common principle of the above decisions seems to be, that a business ramifying through several States is not necessarily interstate commerce within the meaning of the Act. "The Act of Congress," said the Court in another case, "must have a reasonable construction, or else there would scarcely be an agreement or contract among business men that could not be said to have directly or remotely some bearing upon interstate commerce, and possibly to restrain it."4

6. Coming to the relation of the defendants in the case at bar to interstate commerce, we find that the Great Northern, and Northern Pacific Railway Companies are directly engaged in it, but they do not figure as participants in the alleged violations of law. True their joint purchase of the Chicago, Burlington and Quincy Railway, in 1901, is alleged to have been a preliminary step to the organization of the Securities Company, but no decree is prayed in respect of that transaction. The Court is simply requested to forbid these corporations to recognize the Securities Company as a stockholder-a matter of secondary importance, for if the 1 U. S. v. E. C. Knight Co., (1894) 156 U. S., I.

2 Hopkins v. U. S., (1898) 171 U. S., 578.

3 Anderson v. U. S., (1898) 171 U. S., 604.

U. S. v. Joint Traffic Association, (1898) 171 U. S., 568.