Page:Harvard Law Review Volume 32.djvu/743

707 POWERS OF CORPORATIONS CREATED BY CONGRESS 707 stantive powers conferred upon Congress, but it is one" of the ordinary incidents of sovereignty and it is one of the means which Congress may employ for the purpose of carrying into effect any of the powers vested in the government of the United States. A corporation so created is, in a broader or a narrower sense, an instrument of the government. Chief Justice Marshall, in speaking of the United States Bank, said "it was not considered as a private corporation whose principal object is individual trade and individual profit, but as a public corporation created for public and national purposes." And again, "It was not created for its own sake or for private purposes. It has never been supposed that Congress could create such a corporation."^ The idea of a public corporation attaches also to the interstate rail- road company and telegraph company which are themselves instruments of interstate commerce; but it is more difficult to connect it very closely with corporations that are created to carry on business in interstate commerce the regulation of which is quite independent of the fact of incorporation; but in all cases in which the United States creates a corporation for executing any of its powers, the primary purpose is the execution of the powers of Congress, and whatever incidental powers the corpora- tions may have are powers which are applied because they are relevant and appropriate to making it efficient as an instrument for carrying those powers into effect. The decision in the recent case of the First National Bank v. Union Trust Co. ^^ has not modified the principles laid down by Chief Justice Marshall in the cases of the United States Bank. The court laid stress upon the fact that Congress must have wide discretion and that this discretion must be exercised by Congress rather than by the court, and that in judging the powers you must take the corporation as an entity and consider the particular functions as connected with the operation of the corporation as a whole for the purposes for which it was created; but it did not intimate that once the corporation was created for a federal purpose it was capable of doing anything that might be done by a corpora- " Osborn c. Bank (U. S.), 9 Wheat. (U. S.) 738, 860 (1824). " 244 U.S. 416 (1917).