"Without authority in Congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts of commerce. . . Congress has plenary power over the whole subject."

Such a national corporation may exercise the power of eminent domain within the states if so authorized, without the state's consent,1 it is exempt from state control or taxation so far as the same might impair its efficiency as an instrument for carrying on the purposes for which organized," and has the right to sue in the United States courts.3 The national constitutional provision forbidding "impairing the obligation of contracts" does not specifically apply to Congress, although the provisions of the fifth amendment,—that "no person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation," do apply."

5

The authority of Congress to create corporations in the District of Columbia, and in the Territories, and to exercise control over them has never been doubted, and is as extensive as is the power of the legislature of any state to create corporations within the state. Such corporation may be empowered by state comity, to act outside of the District or territory in which it is located, but it cannot, though empowered to do so, act in another state without that state's consent unless it is engaged in the performance of some national function.

From the foregoing it seems certain that the power of the National Government is ample to enable it to create whatever transmission, transportation, or trading corporations, to engage in interstate commerce, that it may deem wise to establish. But is this sufficient? The combinations of which complaint is made are not only engaged in the foregoing but in growing, mining, or making things, and neither of these is commerce. Can the National Government incorporate companies to do these things within the states? The answer is difficult, but probably the government cannot do so if that is the

1 Kohl v. U. S. 91 U. S. 367 (1875); Luxton v. North River Bridge Co., 153 U. S. 525 (1894). ? National Bank v. Commonwealth, 9 Wall. 353 (1869); Railroad Co. v. Peniston, 18 Wall. 5 (1873); Farmers & M. Natl, Bank v. Dearing, 91 U. S, 29; Easton v. Iowa, 188 U. S. 220 (1903). * Texas etc, R. Co. v. Cody, 166 U. S. 606 (1897).

♦ Corporation of Jesus Christ v. U. S., 136 U. S. 1 (1890); U. S. v. Union Pacific Ry., 98 U. S. 569 (1878); Sinking Fund Cases, 99 U. S. 700.

6 Huntington v. Savings Banks, 96 U. S. 388; Hadley v. Freedman's Savings, etc Co., 2 Tenn. Ch. 122 (1874).

Daly v. Natl. Life Ins. Co., 64 Ind. 1.

'Stoutenburgh v. Hennick, 129 U. S. 141.

primary or sole purpose for which the corporation is created, and the state in which it seeks to carry on its transactions objects, and it is not desirable to clothe the National Government with such power. A constitutional amendment proposing to give to the National Government power to create a corporation, or authorize a state-created corporation, for private business purposes to go into a state and against its consent to establish and operate a manufacturing plant there, I believe would and ought to be resented by every state. But no such power or authority is needed. If the govern

ment can obtain control over the corporations that do the growing, mining or making of things, it will have ample power to solve our difficulties; but if it cannot obtain this control in a way to exercise it directly and unequivocally, then it is doubtful it the national arm is long and strong enough to extricate us from our perils.

As things now are the manufacturing companies do the trading; the National Government has control of the trading, but neither the manufacturing, nor the company that does it; if the process can be reversed, so that the trading company, incorporated by the National Government, will do the mauufacturing, then both the trading and the company doing it, can be directly controlled, and the manufacturing, also, incidentally, so far as the regulation of commerce may make necessary. It is believed this is enough, and nothing else is. The question is, then, can a National transmission, transportation, or trading company, be authorized to engage in growing, mining, or making things, in the states, if they do not object? I think so: (1) Because making or producing things is incidental or necessary to each of the other operations. A railroad company would have the right to repair its cars, and nearly every such company has extensive shops for repairing and constructing its cars; and if they can construct for any purpose, they can be given the right to sell, at least outside the state. (2) Such has been the practice already. All the Pacific railroads were authorized to carry intra as well as inter-state freight; National banks do an ordinary private loan and discount business as well as issue notes; the Union and Central Pacific charters permitted them to mine coal for their supply, then in the territories, but since in the states through which they pass; the Maritime Canal Company is authorized to construct and operate a canal, in a place where the United States has no jurisdiction. (3) If the states can give authority to do such things away from home, which by comity is sufficient for the company, there seems to be no reason to think a federal corporation cannot

be given the same power, which will also be effective through the comity of the state where exercised. (4) Now a federal corporation may be created in the District of Columbia or a territory to carry on a manufacturing business there; such a corporation, if its charter does not forbid, may by comity engage in such manufacture in any state, the same as a state-created corporation; the fact that the National Government also expressly authorized it to engage in interstate trade or transporation would not limit its power, by comity, to carry on its manufacture wherever it was not forbidden. (5) But the power to engage in trade or transportation necessarily implies the power to secure something to trade or transport; the National Government may authorize such a company to acquire these things by contracts of purchase and sale, in any state; if a trading company can buy the things in which it deals, there is no good reason why its charter may not allow it to make the thing it trades in if the state where it does this, does not object. So I believe that if the National Government can create a trading company, the Nation, in the charter, and the states by comity, can and will allow it to do manufacturing in any state. There seems to be no direct authority on the matter, but what there is leans that way. Such intra-statebusiness probably is, and would be, subject to state laws.'

Taxing power: The National Government also has at its command the taxing power; if direct taxes are levied they must be apportioned according to population,2 if indirect they need not be so,3 but must be uniform throughout the country; it can reach the property and transactions of all persons natural and artificial, sub-ject to the foregoing provisions, and a few others not important in this connection. The power to tax is the power to destroy as was said in McCulloch v. Maryland, and this power has been used by the National Government to produce a uniform currency by taxing out of existence the issues of the state banks, in favor of the National banks, and such a tax was held to be constitutional.5 The consequences of this decision were pointed out by Mr. Justice Nelson in his dissenting opinion as follows:

6

1 Reagan v. Mercantile Trust Co., 154 U. S. 413; Smyth v. Ames, 169 U. S. 466, 519-22; California v. Pacific R. R. Co. 127 U. S. 1; Central Pacific R. R. Co., v. California, 162 U. S. 91.

2 Pollock v, Farmers' Loan & T. Co.. 158 U. S. 601.

Nicol v. Ames, 173 U. S. 509.

44 Wheat, 316 (1819).

5 Veazie Bank v. Fenno, 8 Wall. 533; Casey v. Galli, 94 U. S. 673; National Bank v.U. S., 101 U. S. 1.

• In Veazie Bauk v. Fenno, 8 Wall. 533.

"It is true the present decision strikes only at the power to create banks, but no person can fail to see that the principle involved affects the power to create any other description of corporation, such as railroads, turapikes, manufacturing companies and others."

Such a tax is not a direct tax, and required to be apportioned, but is a tax or excise on a privilege, business, employment or occupation.' It perhaps would have to be uniform upon the same subjects throughout the country.

A corporation formed by the National Government, not only would be subject to the control of that government in many ways that it could not otherwise be, but in addition might be made subject to a franchise fee or tax that need be neither uniform nor apportioned as direct taxes are.

Treaty making power: It has been said that the National Government could not exclude an English manufacturing company from coming into any state that did not forbid it and there carrying on its manufacturing business, and hence the National Government could not reach such a condition. Such certainly is a mistake. Congress can forbid natural persons from entering the states for any purpose, and it certainly has as complete power over alien corporations as over alien natural persons. The right to exclude in this case is not based wholly on the commerce clause,but on the treatymaking power also.

V. Methods of control. If our analysis has been correct the things to be controlled are interstate commerce, and the corporations engaged therein; as things now are, the first is within the exclusive jurisdiction of the National Government, and the second, merely as a corporation,-what it is, who shall be its members, how it shall be constituted, the officers it shall have, and their powers, functions and relations to the members, the amount of stock, the kinds of stock, the consideration for which it is or may be issued, the transfer of its shares, the right to hold shares in other corporations, or to allow its shares to be held by other corporations, the right to consolidate with other corporations, to sell all of its stock or property and go out of business, to lease its property to other corporations, the liability of its officers and members to other persons, the dissolution and winding up,-in short, every thing relating to its birth, anatomy, organization, existence, mode of action, and death,—is now exclusively within the power of the state creating the corporations. As a corporation it is responsible alone

1 Nicol v. Ames, 173 U, S. 509.

to the state that creates it, and to no other.1 Only certain acts that it may undertake to perform, which are under the jurisdiction of some other government, give the latter any power over such a corporation, and then only in naming the terms and conditions under which those acts may be performed.

The available methods of procedure are therefore three: (1) State control of state-created corporations; or (2) State and National control of state-created corporations; or (3) National control of national corporations,-engaged in national commerce, interstate and foreign.

1. As to the first, as things now stand, we have before seen the practical impossibility of success in this direction. This is generally acknowledged on all sides. It has therefore been proposed that the National Government relinquish, by an act of Congress, all power of control over the interstate commerce of manufacturing and trading companies to the states. In the first place it is doubtful if such an act would be constitutional. The cases upon which such an idea is based are far from sustaining a general act relinquishing control over such commerce, except in a few cases like selling intoxicating liquors or convict made goods, and as the Court said, "It does not admit of argument that Congress can neither delegate its own powers nor enlarge those of a state,❞— such an act of Congress can be valid only in a case of a state law "which could not operate upon articles occupying a certain situation until the passage of the act of Congress."

But again, if Congress should do so, and the relinquishment of its power was constitutional, its operation throughout the country could or would not be uniform,-it must necessarily vary with the different states, -and we would have substantially the conditions existing before the formation of the government under the constitution, an infinite variety of annoying commercial obstructions.

Such a scheme also, that left out regulating the railroads would not reach half the problem. Still further it would be ineffective, unless it forbade the sale of trust made goods, in the case of a trading company, or forbade individuals as well as corporations from sending such goods into the state; otherwise the goods might be sold by the offending corporation to an individual purchaser in an adjoining state that did not forbid, and he could sell them in the

1 State v. Curtis, 36 Conn

2 In re Rahrer, 140 U. S. 545.