Page:The Green Bag (1889–1914), Volume 19.pdf/641

 6oj

THE GREEN BAG

opinior^will have a single point for its direc tion, and will not be dissipated among many conflicting authorities. The subject does not demand separate rules for the separate states. Their action refutes such a doctrine. By the legislation of the past winter Virginia and Ohio, Pennsylvania and Minnesota are combined in the same passenger rate, though they vary as five to one in density of popu lation and travel. The subject is national, and the federal government with its national outlook can, by organized investigation and accumulated experience, best acquire the skill and knowledge necessary for its just and efficient regulation. As to interstate industrial corporations, the subject is of much more recent develop ment and the, necessity for federal control is less urgent. It may well happen that many of the abuses in this field will dis appear with the abolition of rebates and the other special privileges which such corpo rations have enjoyed at the hands of carriers. The evil arising from hostile state enact ments may be remedied by a change of emphasis on this subject in the decisions of the Supreme Court. Heretofore that tribunal has been governed in such cases solely by a consideration of the nature of the corporate being. But the present ten dency in corporate law is to look at rights rather than the nature of the being possess ing them, and if the court shall adopt that view, it may yet hold that alienage alone is not a proper basis for discriminatory legislation; that legislation based solely upon that ground constitutes a denial of the equal protection of the laws. The late case of American Smelting Co. v. Colorado affords encouragement to expect such a change. If, however, federal control shall be found necessary to correct the evils and protect the rights of interstate industrial corporatons, authority for its exercise exists in the com merce clause of the Constitution as already interpreted. It has been decided by the highest court that, " The power to regulate commerce among the several states is

vested in congress as absolutely as it would be in a single government having in its con stitution the same restrictions as are found in the Constitution of the United States." That court has also held that as a means of executing this authority Congress may create corporations for the purpose of carry ing on interstate commerce. One branch of that commerce is traffic or exchange among the several states, and if national corpora tions may be created for the purpose of carrying on that branch of interstate com merce which consists of transportation, as was done in the case of the Pacific Rail roads, the same method may be adopted as to the other branch of interstate commerce which consists of traffic and exchange. Can a corporation created for this purpose be also authorized to produce the articles in which it deals? In thought, manufacture and commerce may be separated, but in business the former is always combined with the latter. No one ever manufactured except for the purpose of sale. Under the present regime of wide markets, large sales, and small profits, commerce has become the paramount feature even of manufacturing enterprises. The incidental powers which Congress may confer upon a corporation created for federal purposes, were clearly defined in the litigation arising out of the United States Banks. There the federal feature was the collecting and disbursing of the national revenue. But to accom plish this result a corporation was created, authorized to do a general banking business and to establish branches for that purpose in the several states. Of the actual business transacted, the federal feature, though of capital importance to the nation, was a sub ordinate function of the corporation as a business concern. The opposition of the states was largely grounded upon this consideration. Is was denied that they were federal agents. A resolution by the legislature of Ohio put the matter plainly : "We resist the shaving shops of a club of foreigners located among us without our