in the impairment of the contract of incorporation. While it would also be asserted that the State had the power to vary the terms of a private contract, yet the presumption would be set up to show that this was also derived from the presumed consent of those damaged, but as was well said by Judge Cullen in a similar case 'before the New York Court of Appeals, the English language cannot express the right to vary the terms of a contract and it cannot be presumed. To use the supposed power of the State is downright fraud.

§ 47. THE CORPORATION LAW OF ALL THE STATES AND THE COMMON LAW OF THE UNITED STATES ARE PRACTICALLY IDENTICAL. - But there is a practical indentity in the corporation laws of all the States so far as organization and powers are concerned. Considering the provisions of the corporation laws of the States (including provisions of State Constitutions) as the terms of the corporation contract, and excluding from consideration the question of taxation, as not pertaining in any sense peculiarly to corporations, and such formal matters as, for example, the number of incorporators required and the number (if any) who must be resident; the purposes for which corporations must be formed; the amount of capital stock which must be paid in before doing business (if there is any requirement of the sort); the special examination, if any, made by a State officer before issuing the charter; the term for which the corporation may continue existence; requirements (if any) for publishing a list of stockholders; there remain, as the only essential points of difference in State laws, the enumeration

1 General and Industrial Trust v. Tod, 170 N. Y. 233.

and limitations of corporate powers and stockholders' liability. These subjects, it is seen, are the very ones in which the charter State is made a matter of choice. The special treatment of banking, insurance, public service, and, in some States, manufacturing corporations, is referable to the police power, State control over State property, and the economic policy of the State as to the development of natural wealth of the State. The liability of stockholders is really a matter of common law; the only contribution of State statutes thereto being in the providing of a procedure for the prosecution of the remedy in the courts of the State. Except in matters pertaining to the special corporations mentioned above, the question of the powers of a corporation is not one of State polity. No State of the United States can confer power upon a corporation chartered in another State in excess of that granted in the charter, according to a line of cases,' but it is to be noticed that they all refer to public service corporations or those using public property or exercising a public calling. The cases generally establish that the corporation is determined in its powers by the laws of the State only as to the exercise of those powers within the State,' as a matter of internal police. The present theory of State

1 St. Louis, V. & T. H. etc. R. R. v. T. H. & I. R. R., 145 U. S. 393, 36 L. Ed. 748; State v. So. Pac. Co., 52 La. Ann. 1822.

2 Warren v. First National Bank, 149 Ill. 9; Brehm v. Rall, 51 N. J. Eq. 541; Pairpont Mfg. Co. v. Phila. Optical, etc. Co., 101 Pa. St. 17; Barton v. Brines Chair Co., 175 Pa. 209; see McQueen v. New, 33 N. Y. Supp. 802, 87 Hun, 206; Pierce v. Crompton, 13 R. I. 312; East Side Bank v. Columbus, etc. Co., 170 Pa. 1; Nathan v. Lee, 152 Ind. 232; Hoyt v. Thompson, 19 N. Y. 207; Hoyt v. Sheridan, 3 Bosw. 267, 298; Standard Nat'l Bank v. Garfield Nat'l B'k, 67 N. Y. S. 472; Milner v. N. Y. & N. H. R. R., 53 N. Y. 363; Rice v. Mo. Pac. Ry., 74 Tex. 474, contra.

In

incorporation has for its chief effect the promotion of piratical private corporations formed outside of the very State or States in which they are intended to act for the purpose of exercising powers or combinations of powers which not only the laws of the State or States in which they are intended to act, but also the broad rules of the common law forbid. The determination of powers is properly left to the agreement of the incorporators and the common law. most of the States, in fact, there is a constitutional prohibition of special laws in the matter of corporations. There can, therefore, be no contribution by State statutes to the American law of incorporation; nor by the decisions of State courts so far as they are based upon these statutes or depart from the broad principles of law upon the subject common to all the States. It is that law which, with unessential variations, they have all adopted from the common law and put in statute form. Taking a composite of the statutes of all the States and a digest of the decisions of the Federal courts, it is evident that the corporation law common to all the States is the common law of the United States upon corporations. And the national law is the better guide in that all corporations are most important as "foreign" corporations, and as such their position depends almost entirely upon national law. As to domestic or State corporations, the national law is the ultimate determinant. There are questions, however, which demand the general policy of the common law for their solution. One such question is whether a corporation should transact more than one business. The basis in the common law of the limitation of liability of corporations is ihe

limitation of purposes and powers. The authorization of incorporation under national common law is the only method of protecting other States from the so-called unlimited powers with limited liability claimed under State charters by associations which are not corporations in any legal sense. The other important question is whether a State may empower one corporation to hold stock in another. A fundamental idea of the corporation is that it should be controlled by its directors. A corporation whose stock is owned by another corporation is controlled by the directors of the other corporation and its directors are their dummies. In both of these questions there is involved a restraint of interstate trade which may be got at only by incorporation under national law.

§ 48. THE CONSOLIDATED INTERSTATE CORPORATION CANNOT EXIST UNDER THE PRINCIPLES OF CORPORATION LAW OR THE CONSTITUTION OF THE UNITED STATES. National regulation of what are now considered State corporations would not cause loss of rights in a trade name through the present requirement in some States that no new corporation may adopt a name already in use. The common law right seems to be no more than the right to protect the corporate name as a trade-mark, which exists only when. the name is a distinctive one, and the use of it by the defendant would cause deception and loss to the plaintiff.' The police power of the State may prohibit

1 Goodyear's I. R. G. Mfg. Co. v. Goodyear R. Co., 128 U. S. 598; see as to what constitutes a right in a trade name Evans v. Harlow, 5 Q. B. D. 624; White v. Mellin, 1895, A. C. 154; Ayer v. Rushton, 7 Daly, 9; Choynski v. Cohen, 39 Cal. 501; Parsons v. Gillespie, 1898, A. C. 239; Passaic Print Works v. Ely & Walker Dry Goods Co., 105 Fed. 163; Walsh v. Dwight, 40 A. D. N. Y. 513;. Continental Ins. Co. v. Continental Fire Ass'n, 101 Fed. 255; Hazleton Boiler Co. v. Hazleton Tripod Boiler Co., 142 Ill. 494.

the duplication of names only as between domestic corporations, but could require the addition of a distinctive title by a foreign corporation within the State. Comity can have no effect in this matter and national supervision is necessary to prevent the increase of unfair competition. Many things cannot be done by a corporation deriving its so-called franchise, or right to be, from one State. The idea that trade or manufacture in another State by a corporation owes its legality to the State of origin, is false. Comity is never extended (if there were comity between the States) so far as to allow a foreign corporation to exercise what is strictly a franchise. The Supreme Court of Maine said that a bridge corporation of Maine could not, merely by comity, collect tolls at the Canadian end of its bridge.' It has often been held that a

1 Middle Bridge Co. v. Marks, 26 Me. 326; see Columbus v. Rodgers, 10 Ala. 37; but the mere holding of land is not a franchise. Thompson v. Waters, 25 Mich. 214; State v. Boston, C. & M. R. R., 25 Vt. 433. As to basis of so-called franchise in fact as distinguished from grant of a State privilege, see Anonymous, Year Book, II Henry IV., folio 47, pl. 21; Johnson v. Hitchcock, 15 Johnson, 185 (N. Y.); Snowden v. Noah, Hopkins (N. Y.) 351; Pudsey Coal Gas Co. v. Corporation of Bradford, L. R. 15 Eq. 167; Hopkins v. Great Northern Ry., 2 Q. B. D. 224; Att'y Gen'l v. Cambridge Consumers Gas Company, L. R. 4 Ch. 71, 6 Eq. 282; Stockport District Water Works Company v. Corporation of Manchester, 9 Jur. (N. S.) 267; Railway Co. v. Telegraph Ass'n, 48 Ohio State, 390; Fermor v. Brooke, Cro. Eliz. 203; Corp. of Weavers v. Brown, Cro. Eliz. 803; Tripp v. Frank, 4 T. R. 666; Shaw, C. J., in Boston & Lowell R. R. v. Salem & Lowell R. R., 2 Gray, 1; The Binghamton Bridge, 3 Wall. 51,75; Parrott v. City of Lawrence, 2 Dillon, 332; Mohawk Bridge Co. v. R. R. Co., 6 Paige, 564; Bridge Proprietors v. Hoboken Co., I Wall. 116, 150; Omaha Horse Railway v. Cable Tramway Co., 30 Fed. 324; Blissett v. Hart, Welles, 508; Huzzey v. Field, 2 C. M. & R. 432; Newton v. Cribbett, 12 C. B. n. s. 32; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Gas Co. v. Light Co., 115 U. S. 650; Sands v. River Co., 123 U. S. 288; Gas Co. v. Saginaw, 28 Fed. 529;