and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes,' stated in section 3:

"That there be, and is hereby, granted to the said company for the purpose of aiding in the construction. of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores thereon. .

In the case of United States v. Union Pacific R. R. Co.' it was said:

"This enterprise was viewed as a national undertaking for national purposes; and the public mind was directed to the end in view, rather than to the particular means of securing it. Although this road was a military necessity, there were other reasons active at the time in producing an opinion for its completion besides the protection of an exposed frontier. There was a vast unpeopled territory lying between the Missouri and Sacramento rivers which was practically worthless without the facilities afforded by a railroad for the transportation of persons and property. With its construction, the agricultural and mineral resources of this territory could be developed, settlements made where settlements were possible, and thereby the wealth and power of the United States largely increased; and there was also the pressing want, in time of peace even, of an improved and cheaper method for the transportation of the mails and of supplies for the Army and the Indians.

"It was in the presence of these facts that Congress undertook to deal with the subject of this railroad.

1 United States v. Union Pacific R. R. Co., 91 U. S. 72, 79.

The difficulties in the way of building it were great, and by many intelligent persons considered insurmountable."

While it is said that the Union Pacific companies were incorporated under the war power, under the power to provide for the common defence, and the power to establish post-roads, and even to provide for the general welfare, and while the power of the United States to incorporate companies in the District of Columbia and the Territories is ascribed to other clauses, it is overlooked that all these powers are exercised by a nation for national purposes in a way that does not suggest restrictions to the power. The authority is not statutory but constitutional. It would hardly be doubted that if in the exercise of the abovementioned powers the United States condemned and expropriated the railroads it could then lease them to the present or other owners, and incorporate the owners in order to control them. That is exactly what was done with the Pacific roads, and it was or could have been done under the power to regulate commerce. The fact is that the power to regulate commerce is practically equivalent to the power to provide for the general welfare. It involves the power to tax, and it is often said that the railroads now exercise this power in the fixing of the price of transportation. They undoubtedly set aside the provisions of tariff laws based upon a comparison of cost at home and abroad.1

$113. INTERSTATE COMMERCE AND INCIDENTAL PURPOSES AND POWERS. But it happens that few, if any,

1 Import Rate Decision, 4 1. C. C. Reports, 448; Annual Report, I. C. C. (1896), p. 8; I. C. C. v. C. N. O. & T. P. R. R. Co., 162 U. S.

corporations are engaged exclusively in interstate commerce. How far can Congress control corporations which are engaged in other than interstate commerce? Does the control stop with that commerce, or does it extend to all the activities of the corporation?

If Congress has power to grant charters to all corporations engaged in interstate commerce, can it include in that charter the right to engage in business which is not interstate commerce? Under the doctrine of implied powers, Congress may grant a franchise to a corporation which will enable it to engage in those things which are necessary and incidental to the carrying on of interstate commerce. A railroad chartered by Congress would have the power to carry passengers and freight from point to point within the State as well as from State to State, for it would be a practical impossibility for it to engage in one kind of commerce and not in the other.

In the case of McCall v. California,' the city of San Francisco had attempted to exact a license tax from an agent of a line running from New York to Chicago. His only business was to solicit passengers for the road, but it was held that this was so incidental to interstate commerce as to be protected by the Federal Constitution. It was claimed that this was too remote a connection, but Judge Lamar said:

"The reply to this proposition is, that the essentiality of the business of the plaintiff in error to the commerce of the road he represented is not the test as to whether that business was a part of interstate commerce. It may readily be admitted, without prejudicing his defence, that the road would continue to carry passengers 1 136 U. S. 104.

between Chicago and New York, even if the agent had been prohibited altogether from pursuing his business in California. The test is: Was this business a part of the commerce of the road? Did it assist, or was it carried on with a purpose to assist in increasing the amount of passenger traffic on the road? If it did, the power to tax involves the lessening of the commerce of the road to an extent commensurate with the amount of business done by the agent."1

§ 114. MANUFACTURING. - This idea might be extended so that it would allow Congress to incorporate companies engaged in both manufacturing and in interstate commerce, as the former would be in a large measure auxiliary to the latter. The Supreme Court has extended the protection from State interference which the interstate commerce clause affords well back into the process of manufacture.

2

The result of the decisions seems to be that the

1 See also Norfolk & W. R. R. v. Pa., 136 U. S. 164; State Freight Tax, 15 Wall. 232; Gloucester Ferry Co. v. Pa., 114 U. S. 196; New Orleans & M. Packet Co. v. James, 32 Fed. 21; Pacific Express Co. v. Seibert, 142 U. S. 339. An exclusive charter given by a State to one telegraph company cannot prevent a foreign telegraph company from entering the State. Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1; but see the Slaughter House Cases where the opposite result was reached (83 U. S. 36); and in the same way anything used to facilitate transportation between States is an agency of interstate commerce. Thus a bridge company created to build a bridge between two States is engaged in interstate commerce, and in that function cannot be interfered with by either State. Stockton v. Baltimore & N. Y. R. R., 32 Fed. 9. The Jim Crow car law was held to be a legitimate exercise of the police power and not an interference with interstate commerce. Louisville & Nashville R. R. Co. v. Mississippi, 133 U. S. 587.

2 U. S. v. E. C. Knight Co., 156 U. S. 1; Kidd v. Pearson, 128 U. S. 1; Addyston Pipe & Steel Company v. U. S., 175 U. S. 211; Gibbs v. McNeely, 118 Fed. Rep. 120; see also, sales by agents,

production of goods with the intention of sending them to another State, if that intention be clearly expressed in the agreement or articles under which the production is carried on, will subject the business to Congressional control. To that extent a law requiring the federal incorporation of companies would be effective.

§ 115. NATIONAL REGULATION BY EXCLUSION OF STATE CORPORATIONS. So far as Congress has this power of incorporation it can exercise it exclusively and can prohibit the corporations from engaging in interstate commerce except under charters granted under federal law, for the general government and the laws enacted by Congress are supreme. It has been frequently decided that the authority of Congress in matters pertaining to interstate commerce is paramount.1

In McCulloch v. Maryland the question arose as to the right of the State to tax the United States Bank. In holding the law levying the tax unconstitutional, the principle of Federal supremacy and the right of the United States to protect corporations of its own creation, was thus stated by Chief Justice Marshall:

"This great principle is that the Constitution, and the laws made in pursuance thereof, are supreme; that they control the Constitution and laws of the respective Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Caldwell v. North Carolina, 187 U. S. 622; Holder v. Aultman, 169 U. S. 81. State cases on commissioners for foreign manufacturers are Allen v. Tyson-Jones Buggy Co., 91 Tex. 22; Hallwood C. R. Co. v. Berry (Tex. Civ. App.), 80 S. W. 857; Gunn v. White Sewing Machine Co., 57 Ark. 24; Lowry v. Montague, 193 U. S. 38, quoted p. 267 n. 1 See among other cases, Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Id. 419: Leisy v. Hardin, 135 U. S. 100.

McCulloch v. Maryland. 4 Wheat. 316.