A State may tax corporations for their privileges within the State in lieu of all other taxes, provided the amount is made. dependent on the value of its property within the State and payment is not a condition precedent to the right to carry on its business. The tax then becomes a mere property tax and not an interference with interstate commerce.1

The existence of federal supervision over interstate commerce is not inconsistent with the power of the State to control its internal commerce and to tax franchises, property, or business of domestic corporations engaged in such commerce, nor with power to tax foreign corporations on property within the State.2 In this connection it has been well said that

"commerce between the States consists of intercourse and traffic between their citizens and includes the transportation of persons and property, and the navigation of public waters for that purpose as well as the purchase, sale, and exchange of commodities. It makes no difference whether such commerce is carried on by individuals or by corporations. It is true that the property of corporations engaged in foreign or interstate commerce, as well as the property of corporations engaged in other business, is subject to State taxation, provided always it is within the jurisdiction of the State. Where there is jurisdiction on the part of the State neither as to persons nor property, the imposition of a tax is unconstitutional and void. If the legislature of a State enacted that the citizens of another State or country should be taxed in the same manner as the persons within its own limits, and subject to its authority or in any other manner whatsoever, such a law would be as much a nullity as if in conflict with the most explicit constitutional inhibition. Jurisdiction is as necessary to valid legislative as to valid judicial action. It has been repeatedly decided, and is settled law, that a tax upon the capital stock of a corporation is a tax upon its property and assets; that it is undoubtedly competent for the legislature to lay a franchise or license tax upon foreign corporations for the privilege of doing business within the State, but that such a tax is in no sense a license tax. It is a fundamental principle that in order to tax the corporation it must have a domicile within the State; that when it is sought to tax capital stock of a corporation, the law imposing such a tax must be construed to mean so much of the capital stock as is measured by the property actually brought within the State by the corporation in the transaction of its business. To the States must be conceded power

1 Postal Tel. Co. v. Adams, 155 U. S. 696.

2 Erie R. R. v. Pennsylvania, 158 U. S. 437.

to exclude foreign corporations altogether from its borders or to impose a license tax so heavy as to amount to the same thing. They must be denied the power to tax either persons or property not within their jurisdiction." 1

1 Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196. See also Philadelphia, etc. Steamship Co. v. Pennsylvania, 122 U. S. 345; Norfolk, etc. R. R. v. Pennsylvania,

136 U. S. 120; Ashley v. Ryan, 153 U. S. 446; Erie R. R. v. Pennsylvania 158 U. S. 437; New York State v. Roberts, 171 U. S. 665.

PART II.

SYNOPSIS-DIGEST OF THE INCORPORATION ACTS OF THE SEVERAL STATES AND TERRITORIES OF THE UNITED STATES.

ALABAMA.

(The references are to the Session Laws of 1903, chap. 395, where not otherwise stated.) 1. Statute under which Business Corporations may incorporate. Business corporations are organized under the Act of October 2, 1903, found in the Alabama Session Laws of 1903, chap. 395. Under it corporations may be organized" for any lawful business or businesses of any kind or nature whatsoever."

2. Incorporators.

Three or more. There are no residential require

ments (Session Laws of 1903, chap. 395, sec. 1).

3. Contents of the Certificate of Incorporation. — The certificate must contain:

a. Name. — Similarity of names is forbidden. If the name of a person or partnership be assumed, it must be followed by the addition of some word designating the nature of at least one of the businesses to be carried on, followed by the word "Company" or "Corporation."

b. Purposes. The objects for which the corporation is to be formed. Corporations may be formed under the General Act for any purpose whatever, and for as many purposes as desired. The only limitation is that banking and trust company powers cannot be exercised by corporations formed for any other purpose.

c. Domiciliary Office. - Location of principal office in the State.

d. Capital Stock. The amount of total authorized capital stock not to be less than $2,000. There is no maximum limit. The number of shares into which it is divided, also amount of capital stock with which it will commence business, not to be less than twenty-five per cent of the authorized capital, in no case less than $1,000. If there be more than one class of stock, the certificate must contain a description of the different classes of stock, with the terms on which each class is created.

e. Subscription Agent. The name and post-office address of the officer or agent designated by the incorporators to receive subscriptions to the capital stock.

f. Incorporators, Directors, and Officers. Names and addresses of the incorporators, together with the number of shares subscribed for by each, this representing the amount of capital stock with which the corporation will be

gin business. In addition, the incorporators' names, and names and addresses of the directors and officers for the first year must be given. (See ante, sec. 2, and post, sec. 12.)

g. Corporate Existence. Duration of corporate existence, which may be perpetual if desired.

h. Corporate Rules and Regulations. Provisions desired for the regulation of the business and for the conduct of the affairs of the corporation, creating and defining the powers of the corporation, the directors and stockholders or any class or classes of stockholders (Id. sec. 2).

NOTE. Additional statements are required for railway transportation, canal, telegraph, telephone, and public utility corporations (Id. sec. 2, sub. h, i).

4. Statutory Powers. The statute gives to corporations organizing under the General Act the following powers, which being such as existed at common law without any statutory enumeration thereof may be termed "common law powers." They are as follows: (1) The power of succession; (2) to sue and be sued; (3) to make, use, and alter the corporate seal; (4) to adopt by-laws; (5) to purchase and hold real property for the purposes of the organization; (6) to receive and grant by the corporate name; (7) to appoint officers and agents; (8) to borrow money; (9) to issue negotiable paper; (10) to mortgage the corporate property (Id. sec. 72).

Falconer v. Campbell, 2 McLean, 195.

In addition to the foregoing statutory enumeration of the common law powers of corporations, the following additional powers are conferred: To hold stockholders' and directors' meetings without the State, provided certain preliminary formalities are observed; to carry on corporate business in other States and foreign countries; to subscribe for, purchase, and hold stock and bonds of other corporations (Id. sec. 7); under certain conditions to operate railroads (Id. sec. 14); to issue bonds and mortgages or create indebtedness without limit with the consent of a majority of the stockholders first obtained (Id. sec. 7); to accept real and personal property in payment of capital stock; to create liens upon the stock of members for debts due the corporation (Id. sec. 7, sub. c). Corporations other than railway, telegraph and telephone, banking, insurance, and trust companies may consolidate with other corporations (Id. sec. 7, sub. j and k, secs. 39-42; see also Laws of 1903, chap. 117). Certain corporations doing a business of a quasi-public nature, but organized under the General Act, may exercise the power of eminent domain (Id. secs. 8 and 9).

Railway, mining, manufacturing, and quarrying corporations may construct, acquire, and operate steamboats, barges, ships for transportation of freight and passengers (Id. sec. 10). They may also subscribe for or aid any other corporation in the construction of a railroad, etc. (sec. 12).

Mining, manufacturing, and quarrying corporations may construct and operate to and from their plants, railways, tramways, canals, tunnels, and roads, and, as common carriers, transport freight and passengers thereon (Id. sec. 14).

Only corporations formed for the transaction of a banking or trust company business can engage in banking within the State (Id. sec. 22).

Corporations also have power to issue preferred stock; to authorize voting by proxy at stockholders' meeting; to forfeit stock for non-payment of assessments (Id. secs. 2, 37; see also Session Laws of 1903, chap. 68; also Id. chap. 111).

5. Corporate Indebtedness. There is no statutory limit upon the amount of indebtedness that may be contracted by a business corporation. To create a bonded indebtedness or increase the same, or to mortgage the real property of the corporation, the vote of the larger amount of stock present and voting at a meeting duly called for that purpose must be had (Id. sec. 7, sub. c; sec. 46).

Under the Constitution (Art. XIV. sec. 6) corporations cannot issue bonds except for money, labor done, or money or property actually received, and all fictitious increase of indebtedness shall be void.

Nelson v. Hubbard, 96 Ala. 238, 11 Sou. 428; Dexter v. McClellan, 116 Ala. 37, 22 Sou. 461.

6. Procuring the Charter. The certificate must be signed by all the subscribers to the capital stock named therein. The statute does not expressly require that the certificate be acknowledged by the subscribers. The certificate must then be filed and recorded in the office of the probate judge of the county where the corporation will have its principal place of business. After it has been recorded the probate judge endorses thereon a certificate of registration. Within ten days after the filing of the certificate in the office of the probate judge, the corporation must cause to be filed in the office of the Secretary of State a statement signed by said probate judge, giving the name of the corporation, the names of its incorporators, the date of the incorporation, the amount of the capital stock, and the name of the county in which located. The certificate must have attached to it a statement under oath by the person authorized by the incorporators to receive subscriptions to the capital stock, which shall show the amount of capital stock which has been paid in and the amount of stock secured by contracts for stipulated labor or services or transfer of property, which amount shall be at least twenty per cent of the stock subscribed for, and in no case less than $1,000. At the time the certificate is filed with the judge of probate the incorporators must pay the organization tax to the judge of probate (Id. secs. 3, 4, 5, and 6). A copy of the subscription list must be also attached to the certificate.

Corporate existence commences as soon as the articles are filed and recorded in the office of the probate judge of the county where the domiciliary office is located and the organization tax and filing fees paid.

O. W. Co. v. Bliss, 132 Ala. 253; 31 Sou. 81; M. & O. Ry. Co. v. P. T. C. Co., 120 Ala. 21; 24 Sou. 408; N. C. Bank v. McDonnell, 92 Ala. 387; 9 Sou. 149; Harris v. G. L. Co., 128 Ala. 652; 29 Sou. 611; Bolling & Son v. Le Grand, 87 Ala. 482; 6 Sou. 332; Bebb v. Hall & Farley, 101 Ala. 79; 14 Sou. 98; C. & C. Co. v. Lumber Co., 121 Ala. 340; 25 Sou. 566; Savage v. Company, 84 Ala. 103; 4 Sou. 235; Sparks v. Company, 87 Ala. 294; 6 Sou. 195.

7. Organization Tax. On capitalization not exceeding $50,000, $25; when it exceeds $50,000 and does not exceed $100,000, $50; when it exceeds $100,000, a fee of $50 on the first $100,000, and $25 on each additional $100,000 or fractional part thereof (Id. sec. 5).

8. Filing and Recording Fees. To the probate judge for recording certificate of incorporation, 15 cents for each one hundred words; for examining the certificate, $2.50; for issuing statement of incorporation, $1. To the Secretary of State for filing in his office the statement of incorporation issued by the probate judge, 50 cents; for copies of papers filed with him, 15 cents per hundred words; for any certificate and annexation of scal