EDITORIAL DEPARTMENT precedent to vesting in possession." He con cludes " that Professor Kales has run into error because (i) he has not a clear conception of what is meant by the vesting ' in interest ' of a remainder, and therefore (2) has failed to grasp the distinction between a condition precedent to the vesting of a remainder and a condition precedent to its coming into pos session." PUBLIC EMPLOYMENT (Restrictions on Policy) . Taking admittedly advanced ground, Bruce Wyman writes in the May Harvard Law Review, a very interesting article on "Business Policies Inconsistent with Public Employment " (V. xx, p. 511). The follow ing extracts show somewhat the scope and tendency of his ideas. "It should now be apparent that the fun damental question under discussion is how far public duty must necessarily deprive those who conduct public employments from basing their business policies upon the elementary principle of the law of increasing returns. That net returns tend to increase with the volume of business in a normal case of an industrial enterprise is obvious; and the ques tion is whether a public service company is to be permitted without hindrance to shape all things so as to hold its present business and to add to it. Some managers of public ser vice companies assert this boldly, and a few say frankly, for example, that they base their rates upon what the traffic will bear, making high charges against business from which high rates can be got, conceding low rates in order to get business which could not otherwise be obtained. Of course this consideration has some place in every philosophy of rate mak ing, but it is submitted that it is a dangerous principle which may often operate to the dis advantage of the public. "The real truth of the matter seems to be that, while in private business nothing need be considered except the law of decreasing cost, in public business there is the law against discrimination to be reckoned with. As the court said in the case of Tift v. Southern Railway Company, it is no excuse for raising the rate upon a particular article, as lumber, that it will bear the advance; the question is rather what price it is fair lumber should pay in comparison with other commodities. It
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must be admitted, however, that the view of many economists, that it will be to the ad vantage of all concerned if railroad managers are permitted to adopt any schedule of rates which will produce the most tonnage, because that policy will by the law of decreasing costs tend with an enlightened management to the lowering of all rates, is occasionally adopted by lawyers. . . . But if railway managers are left practically unrestrained by law, it is suffi ciently plain that they will maintain a high schedule of rates between localities where they have control of the situation and for valuable goods which will bear high rates, while at the same time making dispropor tionate concessions from this standard to get business at competitive points or to induce the movement of low grade commodities. "The authorities upon these questions are a seething mass. The various commissions which are near to actual conditions seem to show a tendency to condemn the fixing of the differing rates between localities and the differential rates between commodities solely by economic principles of demand and supply, the unequal and unjust results of which the courts are apparently too far removed from the vital facts to realize or appreciate. But even in the courts a reaction seems to be at hand; in the Naval Stores case the court seemed to be much shocked, at least, by the disproportion between the locality rates there disclosed; and in the Window Shade case the court considered the proportion to be ob served between the rate established on raw material and the rate on the finished product. It is not enough to say that this power to make preferential rates may be used for the benefit of a railway's territory as a whole or the industries of the whole country the fact remains that it is a power which may be abused. So long as this power is left in the hands of the railway management without power of review by any authority upon any fundamental principle, it is in the hands of the railroad officials to build up an artificial market where the natural conditions are ad verse, or to turn an industrious city into a wilderness again; and, without restrictions by law, it is within their power to protect cer tain lines of industry and to crush out others. It is believed that these are too great powers
