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more refined taste and a more intelligent sentiment among

its patrons.

(Applause.)

J. Newton Fiero, of Albany:

Mr. President, we are denied the pleasure of following the usual custom of electing the speaker of the evening an honorary member of this Association, for the reason that on this occasion he is already an honorary member, owing to his being one of the Associate Justices of the Supreme Court of the United States. It is our privilege, however, to extend to the distinguished gentleman a vote of thanks, which I now move, for the very able address, to which, I am sure, we have listened with interest and pleasure.

The motion was seconded and adopted unanimously.

At the close of the address a reception was given to Mr. Justice Brown at the Fort Orange Club. Among the guests were Governor Roosevelt, the Chief Judge and Judges of the Court of Appeals, several of the Justices of the Supreme Court, a number of other distinguished guests and many members of the Association.

Albany, N. Y., Wednesday, Jan. 17, 1900, 1O A. M.

The Association met at the Common Council Chamber, City Hall, President Logan in the chair.

The President:

The members of the Association will please come to order. This morning we are to have the pleasure of listening to Professor E. W. Huffcut, of the College of Law, Cornell University, on "Constitutional Aspects of the Federal Control of Corporations."

CONSTITUTIONAL ASPECTS OF THE FEDERAL CONTROL OF CORPORATIONS.

It seems to be generally conceded that there is need of a stricter control than now exists of the large corporate combinations, monopolistic in tendency and dominating in fact, which are the most striking feature of our present industrial and commercial development. How this stricter control shall be attained is partly a question of constitutional power and partly a question of political and economic expediency. The problem concerns itself with two classes of corporations those engaged in interstate commerce and those not engaged in interstate commerce. Most of the corporations, of both classes, are the creations of State legislation, and, normally, would be within the control of the State that created them. But most corporations having any considerable business pass beyond the borders of their own State and into the territory of sister States, and when within the territory of another State they become subject to the laws of that State, or of the United States, so far as those laws may constitutionally operate upon and affect them and their business undertakings.

Thus, the problem of corporate control may involve three

factors

the State that creates the corporation, the State into which it goes, and the United States.

Briefly stated, the result is this: If the corporation is not engaged in interstate commerce, it is subject to control by the State of its creation, whose absolute power to regulate its affairs is limited only by the constitutional prohibitions against impairing the obligation of contracts, and depriving it of its property without due process of law; it becomes subject to the laws of any other State into which it goes, and that State may regulate its operations even to the extent of prohibiting it from doing any business there whatever. What a State may do with corporations of its own creation, it may do with such foreign corporations admitted within its territory. (Hooper v. California, 155 U. S., 648; New York State v. Roberts, 171 U. S., 658; Orient Ins. Co. v. Daggs, 172 U. S., 557.) If, on the other hand, it be engaged in interstate commerce, then the third factor- the United States must be introduced, for since the Federal Constitution gives to Congress the power to regulate commerce, no State may usurp that power, either by denying to the corporation the right to conduct business in the State (Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S., 1; Crutcher v. Kentucky, 141 U. S., 47), or by regulating or taxing such interstate trade. (Brown v. Maryland, 12 Wheat., 419; State Freight Tax, 15 Wall., 232; Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196.)

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If the corporation be one employed by the National Government for some end of its own, still less may the State deny to it necessary privileges or regulate its busi

ness.

(Stockton v. Baltimore & N. Y. R. Co., 32 Fed. Rep., 9; Horn Silver Mining Co. v. New York State, 143 U. S., 305.)

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The result of this distribution of powers under the Federal Constitution has been to leave the States largely helpless to remedy evils which are thought by the people of the States, or of some of them, to be a menace to their welfare. In yielding control of interstate commerce to the Federal Government there has been naturally some serious loss to the States in general governmental power quite distinct from the mere inability to regulate commerce. In the desire to avoid the evils of separate and antagonistic control of trade and commerce, the States have deprived themselves of the power to control their own internal affairs, whenever those affairs are connected. in any direct way with commerce between the States or with foreign nations.

In this conflict of authority, the question naturally arises, what is the appropriate remedy? Laying aside all suggestions of change in the organic law, it would seem that there are three possible solutions:

First. The present system of dual control may be maintained with an increased harmony of action among the States and between the States and the National Government, such harmony of action being directed toward the stricter control of monopolistic combinations.

Second. The National Government may, by Congressional action, give to the States a larger, perhaps an exclusive, control of corporations engaged in interstate

commerce.

Third. The National Government may take to itself a larger, perhaps an exclusive, control of corporations engaged in interstate commerce.

The first proposition demands an examination of the constitutional provisions by which the relative powers of

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the State and Federal Governments are determined, and of the effect given to these provisions by judicial decisions. Three provisions of the Federal Constitution confer upon Congress these extensive powers: (1) Art. I, 8, 3, regulate commerce with foreign nations, and among the several States, and with the Indian tribes; " (2) Art. I, 8, I, "to lay and collect taxes, duties, imposts and excises;" (3) Art. I, 8, 7, " to establish post-offices and post-roads."

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The exercise to these comprehensive powers may be said to be subject to these limitations: (4) Art. I, 2, 3, direct taxes shall be apportioned among the several States * * according to their respective numbers;" (5) Art. I, 9, 4, “no capitation, or other direct tax, shall be laid, unless in proportion to the census or other enumeration hereinbefore directed to be taken;" (6) Art. I, 9, 5, "no tax or duty shall be laid on articles exported from any State;" (7) Art. I, 9, 6, "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another;" (8) Amend. V, "no person shall * * * be deprived of life, liberty, or property without due process of law;" (9) Art. IV, 2, 1, "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."

The above powers and limitations have been the subject of a very large number of decisions by the Supreme Court. As thus interpreted, the provisions may be said to measure the power of Congress over interstate commerce, and the extent to which such control has been taken from the States. The conclusions may be stated first in general terms, and afterwards in the form of specific applications. In general terms these conclusions are warranted: In the

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