Page:Harvard Law Review Volume 32.djvu/727

POWERS OF CORPORATIONS CREATED BY CONGRESS 691 to the purposes of government without, as with this faculty, there will be much difficulty in sustaining that essential part of the charter. If it cannot, then this faculty is necessary to the legitimate operations of government and was constitutionally and rightfully engrafted on the institution. It is, in that view of the subject, the vital part of the cor- poration: it is its soul; and the right to preserve it originates in the same principle with the right to the skeleton or body which it animates." These decisions declare the principles upon which rests the power of Congress under the Constitution to create corporations and indicate the extent of the powers that may be conferred upon them. In view of these principles Congress created the national banks under the act of June 3, 1864.'^ Of this act the Supreme Court said in 1875,^ "The constitutionality of the act of 1864 is not questioned. It rests on the same principle as the act creating the second bank of the United States. The reasoning of Secretary Hamilton and of this court in M'Culloch V. Maryland (4 Wheat. 316) and in shorn v. Bank of the United States, (9 id., 708) therefore, applies. The national banks organized under the act are instruments designed to be used to aid the government in the administration of an important branch of the public service. They are a means appropriate to that end. Of the degree of necessity which existed for creating them Congress is the sole judge." Victor Morawetz, in an article in the Harvard Law Review for June, 19 13, suggested that although the court was right in sustaining the constitutionality of the national bank act, it seemed little more than a pretense to assert that an unlimited number of banks, some of them small and intended only to give local banking facilities, were incorporated to serve the fiscal operations of the government and. that a sounder and better ground was the power to regulate commerce among the states; but it is to be noted that the consolidation of some of these banks under the National Reserve Bank Act has now proved their usefulness for serving the fiscal operations of the government and the transportation of armies in time of war. When Congress in 1913^ conferred on the Federal Reserve Board power to license such national banks as should apply for it, ^ 13 Stat, at L. 99. ' Farmers' & Mechanics' National Bank v. Dearing, 91 U. S. 29-33 (1875). » 38 Stat, at L. 262.