deavored to show that in effect these organizations are concerns operating under a special statute. If we are correct in this diagnosis of the aspect of the legal situation which has developed as the result of the novel provisions and phraseology of this statute, it follows that each "association" has upon it the distinctive mark and imprint of the Export Trade Act; and this is so, regardless. of what language is employed by the framers of this corporate constitution or by-laws; for, as was held in well-known decisions -these powers are not confined to the list enumerated in the charter or articles of incorporation, but embrace all those powers conferred by the statute itself. In case of conflict, however, the provisions of the statute outweigh those of the charter. (See Westport Stone Co. v. Thomas, 175 Ind. 319; and David Bradley Manufacturing Co. v. Chicago, etc., Ry. Co., 229 Ill. 170.)

Incorporators under General Law Take Full Powers.

This right to proceed under the general powers conferred by the enabling statute is especially valuable here; for numerous concerns doubtless will proceed quite informally as to the manner of their entrance into export trade, and reasonable compliance with the requirements of the act presumably will be accepted by the Federal Trade Commission and the courts as declaratory of an intent to claim the benefits of the Act. will thus readily be seen how advantageous it is for the framers of the organization to have all statutory grants of power conferred upon it without expressly enumerating them in the charter.

We must not be drawn into loose ways of thought, however, merely because under the modern method of authorizing the organization of corporations in groups, i. e., granting the right to organize under a general law-very extensive powers are conferred; for there are strict limits beyond which corporations. may not act. Thus, while an individual may engage in any course of business not prohibited by law, a corporation (upon the contrary) is prohibited from exercising powers not granted to it by statute-see Seattle Gas & Electric Co. v. Citizens, etc. Co., 123 Fed. 588.

Implied Powers Conferred.

As appears herein at pages 204, 227, there are, however, powers implied from powers expressly granted. Some efforts have been made by courts and text writers to draw a distinguishing line between incidental and implied powers; but the exceptions crowd so hard upon the rule that we will be safest when we concede that the two terms are practically synonymous-distinctio sine differentia-and abandon all efforts to discover a difference in their several meanings.

The resultant rule has been variously expressed in authoritative quarters; but we think the principle is nowhere more clearly set forth than by the Missouri Supreme Court in the leading case, Blair v. Perpetual Insurance Co., 10 Mo. 559:

"The incidental powers may be, and are, frequently restrained by the terms of the charter. When they are not thus restricted, they can only be exercised for the purpose of carrying into effect the ends for which the corporation was designed. It is a well-settled principle that a corporation has no other powers than those which are specifically conferred upon it, and those which are necessary to carry into effect the powers expressly delegated."

Implied Powers Classified.

In way of insuring a clearer understanding of the subject, we shall endeavor in a general way to classify these implied or incidental powers; admitting, however, that each group of powers is capable of enlargement to fit exceptional cases, since no list can be all-inclusive.

First: Acts in the usual course of business. This group authorizes executing notes and borrowing money; making ordinary contracts; and in short performing all such acts as are essential to carrying on a going enterprise.

Second: Acts to protect debts owing to the corporation. Courts have been very liberal in extending considerate treatment where conservation of corporation assets is concerned; and this includes collecting in outstanding accounts. Purchase

of property or running a business temporarily are acts which are frequently marked with judicial approval, even though these things ordinarily would be beyond the scope of its chartered powers.

Third: Embarking in a new business. In general, corporations may do this in single instances as to advance some interest, or to collect a debt; but it is probable that avoidance of all acts tending to connect the export trade corporation with statutory prohibited trade-areas such as import trade or domestic trade should be scrupulously observed. The basic authorizing statute upon certain specified conditions confers the right to combine in export trade; and no implied or incidental power can operate to extend the particular field which Congress has allotted to export associations.

Fourth: Acts in part or in whole to protect or aid employees. There has been some wabbling by the courts as to the correct application of the doctrines and principles of corporation law when questions of this description have been before them for determination; but it is agreeable to note how the later and better-considered decisions favor such acts as building homes, places of amusement, hospitals, etc., as among the things corporations may do.

Fifth: Acts to increase business. In general, corporate managers must draw a line between what is merely convenient and what is indispensable or at least reasonably necessary. The general tendency of the courts is to broaden the scope of the implied powers; but in the case of export "associations" there are obvious boundaries which no favorable judicial construction could remove. Since it is the purpose of the Act to quicken and extend American trade abroad, there will no doubt be as broad treatment accorded to our exporters as the situation permits, when the statutory limitations and other provisions are passed upon and construed by our courts; but, as has been said, the law as framed confines the "associations" to a somewhat limited area of activity, and it is beyond the judicial function to assume to itself legislative powers by undertaking to extend that prescribed area. In corporations considered generally, however,

it must be admitted most of the litigated cases turn upon points arising by reason of the corporation's desire to increase its business; hence it may well be that a somewhat similar condition will arise under the Export Trade Act, as matters develop. While the rules laid down in these five divisions are, in general, well settled, and have in fact ceased to be seriously questioned by courts or law writers, still there is great difficulty in applying those rules. Many cases come close to the dividing line. In instances of that description, reference must be had to the best authorities and latest rulings. Perhaps most exhaustive and most useful of all is Fletcher Encyclopedia Corporations. See Vol 2, chapter on "Powers in General;" also, Vol. 3, chapter dealing with "Ultra Vires."

Ultra Vires Principle Limits Corporate Powers.

It is not worth our while to go into the questions involved in a study of the ultra vires principle as applied to export "associations;" for no subsequent ratification by stockholders could legalize corporate action reaching outside the scope of the empowering Act; and in many other directions the ultra vires doctrine as it restricts or otherwise concerns the broad grants of power conferred by a general corporation act does not at all apply here; and consequently it is useless to determine whether, measured by those prescribed tests, the export "association" has exceeded its powers. Where the "association" is itself a corporation acting under some state-granted franchise, enquiry whether the usual rules as to management and procedure would apply per se as to its corporate acts is an attractive-even alluring-topic for discussion; but we are here concerned only with those principles and regulations which are applicable to "associations" (whether incorporated or not) organized under the Export Trade Law; and those rules of statutory construction which govern corporations generally and can have at most only a limited application, are not really pertinent in a sphere where the activities of the organization are strictly confined to matters connected with export trade. This conclusion is surely justified

as to the application of ultra vires rules to export "associations;" and with regard to the general proposition of their application to corporations in general, we think a plain suggestion has been made in this Chapter as to the tendencies of the courts when defining the boundaries of corporate powers. More than this treatment would not be appropriate here; and somewhat reluctantly we must refer the reader desiring an enlarged study of this theme, to Brice on Ultra Vires (Eng.), Third Edition, 1893; also, Rees on Ultra Vires, 1897; and, ad abundantiorem cautelam, the enquiring student should also go afield among the general text writers upon corporation law. In almost every instance a chapter will be found dedicated to this subject; although the preface to Morawetz on Corporations states "the expression ‘ultra vires' has not been used in the text, partly because it is too vague to serve any useful purpose, and partly because the variety of meanings attributed to it lead to inevitable confusion of thought." This resembles cutting down the tree to effect a cure of the fruit; and some measure less radical can doubtless be devised for discounting the looseness with which the term is applied without entirely discarding its employment. Whatever the word or words utilized to express the idea-it cannot be denied that the doctrine of Ultra Vires exists; and no well-equipped student of corporate affairs can afford to pass the subject by and to default in giving it his earnest attention, even though it has only a limited application in affairs pertaining to "associations" operating under the somewhat technical and narrow limits of the Webb-Pomerene Export Trade Act.