by the Constitution. Neither the President of the United States nor the Houses of Congress nor the Governor of Massachusetts can legally exercise a single power which is inconsistent with the articles of the Constitution."1

The articles of the Constitution, however, make a whole which, when read together, expresses something which, while not expressed in any one article, is yet as effectively expressed as if it were appended to each, and is a part of the Constitution, less separable from it than any article, for it must be read into each. If the Constitution created a government stronger than a confederation, the United States thereby became a nation.

This was true at the beginning, and although not seen by some until pointed out by Lincoln (when he denied that the Constitution created a nation the principle of which was disintegration) and fought for by the nation's army and navy, yet it was true as an inherent fact. Dicey, then, failed to see that distinction pointed out by Webster when he said that the Constitution was an executed contract to be a nation.2 The United States was from its inception not a government of Federal States, as Dicey leaves it to be supposed, but an executed federation into which all were received as into a greater paramount State — the Nation.3

"And so a corporation created by or under an act of Congress, since it is a creature of the Federal Government, is not subject to control by the State legislatures, 1 Law of the Constitution, 144.

2 Reply to Calhoun, quoted infra.

"In a unitarian republic, a federal court has no proper place." Dicey, Law of the Constitution, 166. See Webster, Works, Vol. VI, P. 121.

except in so far as Congress has subjected them to State control." 1

$31. A CORPORATION IS A CONTRACT BETWEEN THE MEMBERS, PROTECTED BY NATIONAL LAW. - The same rule of State action governs national corporations, foreign corporations created in other States, and domestic corporations, citizens of the United States, citizens of other States, and citizens of the States. It is impossible, under the Constitution, to formulate any other rule based either on fact or on consistency. The corporation is a group of individuals joined by contract, and the fact that they are several and indeterminate cannot change their collective status. Nor is the corporation property in itself. Finance takes note of this in its estimate of the value of a going concern, and this estimate is adopted by the courts in appointing receivers under railroad mortgages. The State government may tax the property of the corporation. within the State, and regulate the acts of the corporation in the interest of the public peace, but it may neither impair the usefulness of the property devoted to the public service nor the obligation of the contract upon which the existence of the corporation rests.

3

In the Dartmouth College Case, it was held

"that the charter granted by the British crown to the trustees of Dartmouth College in 1769, was a contract

1 State v. Curtis, 35 Conn. 374, 95 Am. Dec. 263; McCulloch v. Maryland, 4 Wheat. 316; First National Bank of Louisville v. Commonwealth, 9 Wall. 353; Union Pacific R. Co. v. Peniston, 18 Wall. 5; Farmers' & Mechanics' National Bank v. Dearing, 91 U. S. 29; Clark & Marshall on Corporations, sec. 282, b.

2 Pumpelly v. Green Bay Co., 13 Wall. 166, 181.

3 4 Wheat. 518.

within the meaning of the Constitution, and protected by it; that the college was a private charitable institution not liable to the control of the legislature of New Hampshire, and that an act of that body altering the charter in a material respect, without the consent of the corporation, was an act impairing the obligation of the charter in a material respect, and consequently unconstitutional and void."

§ 32. A STATE COULD NOT AUTHORIZE A CONTRACT OF INCORPORATION WHICH IT COULD NOT IMPAIR. THE RESERVED POWER TO REPEAL, ALTER, OR AMEND. In the case of The Charles River Bridge v. The Warren Bridge,' the true nature of the State control of corporations and the substantial element of corporations which the State by actual creation reserves the right to control was indicated.

"The object and end of all government is to promote the happiness and prosperity of the community by which it is established, and it can never be assumed that the govern

1 II Pet. 420. In Cross v. Peach Bottom Ry. Co., 90 Pa. St. 392, Mr. Justice Gordon says: "The legislative reservation is in the nature of a police power designed for the protection of the public welfare, and where such protection becomes necessary, the lawmaking power may act without consulting either the interests or will of the company and in such case it may well be that not only the company but its stockholders must submit to the legislation thus imposed upon them. Where, however, this legislation results from the motion, and for the benefit of the corporation, the case is different; for when an alteration of the charter is made on the suggestion of the company itself, the Act of 1849 has nothing to do with the case; the legislature always had such power. The reservation in the act named was only intended to enable the legislature to act without the consent and against the will of the corporation." But a prior statute could not add to the police power of the State; such power is inherent and correlative with inherent duty.

ment intended to diminish its power of accomplishing the end for which it was created; and in a country like ours, free, active, and enterprising, continually advancing in numbers and wealth, new channels of communication are daily found necessary. When a corporation alleges that a State has abandoned for seventy years its power of improvement and public accommodation, the community have a right to insist that its abandonment ought not to be presumed.

"The act of incorporation of the proprietors of the Charles River Bridge is in the usual form, and the privileges such as are usually given to corporations of that kind. It confers on them the ordinary faculties of a corporation for the purpose of building a bridge, and establishes certain rates of toll, which the company are authorized to take. This is the whole grant. There is no exclusive privilege given to them over the waters of the Charles

River.

"Amid the multitude of cases which have recurred, and have been daily occurring for the last forty or fifty years, this is the first in which such an implied contract has been contended for; and this court is called upon to infer it from an ordinary act of incorporation containing nothing more than the usual stipulations and provisions to be found in every such law. The absence of any such controversy, where there must have been so many occasions to give rise to it, proves that neither States nor individuals nor corporations ever imagined that such a contract can be implied from such charters. It shows that the men who voted for these laws never imagined that they were forming such a contract, and if it is maintained that they have made it, it must be by a legal fiction in opposition to the truth of the fact, and the obvious intention of the party. The court cannot deal thus with rights reserved to the States, and by legal intendment and mere technical reasoning take away from them any portion of that power

over their own internal police and improvement which is so necessary to their well-being and prosperity.'

The State will not be presumed to have divested itself of property or of its police power. The reason given for this refusal to presume is the very one why we should not presume that the States have the right by reservation to make laws which have the effect of retarding that development, referred to in the case, which is now being carried forward by the agency of corporations and individuals incapable of being the citizens of all the States through which their operations extend. It is the reason, too, which leads to the opinion, established in later cases as a principle, that this police power of the State over corporations is in its extent and limitations merely an obligation of which the State not only is not presumed to have divested itself, but is forbidden to divest itself. The right of the public to means of communication is publici juris, that is, of public right and interest. By our Constitution that which is of public right for the citizens of one State is so for the citizens of the other States, and the States cannot by grant to corporations divest themselves of their right and obligation to protect these rights for their own citizens and for those of the other States. The case shows that only when the State gives the use of property or a real franchise does the reservation of control arise. No interest attaches to the free exercise of the right of contract.

The common law recognized the right of association of individuals into what we now term "unincorporated associations." The difference between such

1 Lord Hale, De Portibus Maris, 77.