to charter all corporations engaged in inter-state commerce can it also include in the charter the right to do business which is domestic in its character? This is a difficult question.

Congress possesses only delegated powers. It is not like a State Legislature, possessing all powers of legislation not prohibited to it. If it has power to incorporate for the doing of domestic business, it must be because such power is implied from the grant of power specifically given. Hamilton said, "Where the

authority of the government is general, it can create corporations in all cases; where it is confined to certain branches of legislation it can create corporations only in those cases." Under the doctrine of implied powers Congress can grant a franchise to a corporation which will enable it to engage in those things which are necessarily incidental to the carrying on of inter-state commerce. The case of McCall v. California, 136 U. S. 104, hereinbefore referred to is one wherein the city of San Francisco undertook to collect a license tax from an agent of a railroad line running from New York to Chicago. His business was to solicit passengers for the road, and it was held that his business was so connected with inter-state commerce as to be protected by the Federal Constitution. It was claimed that the connection with such commerce was too remote to give him such protection from the payment of the tax, and Justice Lamar said: "The reply to this proposition is that the essentiality of the business of the plaintiff in error to the commerce of the road he represented is not the test as to whether that business was a part of inter-state commerce. It may readily be admitted, without prejudicing his defense, that the road would continue to carry passengers between Chicago and New York, even if the agent had been prohibited altogether from pursuing his business in California. The test is:

Was this business a part of the commerce of the road? Did it assist, or was it carried on with the purpose to assist, in increasing the amount of passenger traffic on

the road? If it did, the power to tax involves the lessening of the commerce of the road to an extent commensurate with the amount of business done by the agent."

Applying this doctrine to the case in hand we may fairly conclude that Congress can incorporate business enterprises which are an essential part of, or where they may be auxiliary to the carrying on of inter-state business. Certainly the necessary things attendant on inter-state trade are within it, and it would seem from the reasoning of Justice Lamar in this case that the things which are reasonably a part of or connected with it can be brought within its influence and made to receive the protection of the commerce clause of the constitution. As to the corporations engaged in both domestic and inter-state commerce Congress might require them to submit their domestic business to its control as a condition of being permitted to engage in inter-state trade at all.

But what of the many purely non-commercial corporations? What of the domestic trusts? In the Sugar Trust case the Supreme Court decided that a combination to monopolize the production of sugar was not within the reach of the Sherman Anti-Trust Law, because the sole purpose of the Combination was to monopolize the manufacture, and in no way to interfere with trade. In the Addystone Pipe and Steel case it decided that a combination to control the price of commodities to be shipped into the several states, though wholly manufactured in one State was within the law. In the Beef Trust case it has held that the business of that trust was within the law because a part of its purpose is to sell as well as to manufacture beef. Judge Grosscup in an address delivered before the Ohio Bar Association last July seems to think that this last decision settles the question of the power of Congress to take control of business as well as commerce affirmatively. While Congress can not say what act shall constitute commerce, since this matter

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is determined by the usages of trade and not by legislative declaration, it possibly can declare that where a corporation is engaged in manufacture with the purpose to sell the manufactured article in the markets of the several States, and does so, that all its business shall be held to be commerce within the constitutional provision. Take the Sugar Trust case: Mr. Justice Harlan very reasonably held in his dissenting opinion that since it was manufacturing for the purpose of selling that the manufacture should be held to be a part of commerce. It would seem that it would have been competent for Congress to so declare. Whether or not it can take under its control, by virtue of its power over inter-state commerce, the great Insurance corporations I shall not consider, as I understand this subject is to be discussed in a paper to be read at this meeting. The question might be asked, in passing, why are not insurance contracts subjects of commerce as much as lottery tickets, bills of lading, and telegraph dispatches? But for the case of Paul v. Virginia decided nearly forty years ago when conditions were different, the answer to the question would very likely come from most lawyers, they are. 188 U. S. 321, 96 U. S. 1 and 8 Wall. 123.

Most of the laws which have been enacted for the control of corporations have been those attempting to control rates for transportation of persons and things. It is now well settled that the power to fix a rate is a legislative one, while the power to decide as to its reasonableness, (and rates must be reasonable to be valid) is a judicial one. The Federal Government assumes the right to determine the reasonableness of a rate fixed for inter-state commerce and for domestic commerce as well where the latter is incident to the former. 169 U. S. 466. The machinery for determining what the rate shall be has usually been a legislative commission. Sometimes it has had power only to investigate the subject of transportation for the purpose of reporting to the legislature needed legislation; sometimes it has

had power to fix rates on complaint, and sometimes on its own motion; but the rate fixed is always subject to review and to be set aside by the courts as unreasonable. The courts possessing, as they do, only judicial powers have no power to fix a rate but only to decide as to its reasonableness. When they find a rate fixed by a commission to be unreasonable, all they can do is to set it aside and remand the matter to the commission to fix a new one.

Because of this condition rate making has been of little practical benefit as conditions might change as rapidly as the rate could be fixed. The State of Virginia has adopted a new and wholly unique plan looking to a solution of the rate-making problem. Three years ago it adopted a new constitution. Article twelve of that constitution comprises some seven thousand words and is devoted wholly to the subject of corporations. It creates a Corporation Commission which possesses full power over the creation and control of corporations. To this Commission is given all the powers of government, Legislative, Judicial and Executive. The constitution makes it the duty of this Commission to fix rates of transportation of all domestic commerce, after giving due notice to all parties interested of the time when it will proceed to do so. The corporations are given the power of the State to bring before the Commission their witnesses on the hearing. From the decision of the Commission they can appeal, but only to the Supreme Court of the State. The case on appeal is given precedence in the Supreme Court over all other cases except criminal ones. The case is heard in the Supreme Court on the evidence heard before the Commission, no new evidence being allowed to come in, and if the rate fixed by the Commission is found to be unreasonable, the Court must find what is a reasonable one and this is substituted for it.

Thus it will be seen that the court is given the legislative function of declaring the rate, as well as the

judicial one of declaring its reasonableness. If the corporation wishes to continue in force the rate fixed by it, pending the appeal, it must file a bond, in a penalty fixed by the Commission conditioned that it will pay to all shippers, and others interested, the excess it may collect pending the appeal if the Commission's rate is affirmed by the Supreme Court, or if the Court shall fix a rate less than that fixed by the Corporation. This bond may be increased by order of the Court pending the appeal. If necessary the excess due and secured by the bond is collected and distributed by the State. The names and address of all persons from whom charges are collected must be recorded by the Company, and all books and records of the Corporation must at all times be subject to the inspection of the public interested. One of the best features of the law is that all the descriptive terms used in the law are defined, and their meaning declared by the law itself. This leaves no room for the courts to construe away the meaning of the law as intended by the people in adopting it.

All courts are prohibited by the provisions of the constitution from interferring in any way with the operation of the rate fixed by the Commission, except the Supreme Court on appeal. The Commission is required to make findings of fact in their investigation and determination of rates, and to file a written opinion in deciding upon them. This opinion becomes a part of the record on appeal, which the Supreme Court is required to consider. The great value of the law is that it cannot be overthrown as unconstitutional because it is a part of the constitution itself. Of course it can apply only to domestic commerce and business, and specially exempts interstate commerce from its operation; but within its jurisdiction it can operate with great benefit to the shipping interests. This constitutional law has been held valid by the Supreme Court of Virginia in the demurrage case of The Atlantic Coast Line R'y. Co. et al. v. Commonwealth and