A familiar illustration is the sale of a business and its goodwill, accompanied by a covenant on the part of the vendor not to compete. Such a covenant is collateral to the sale, and if not broader than is reasonably required for the protection of the vendee it will be upheld, although a similar agreement, standing alone and not collateral to a sale or other lawful transaction, would be in direct restraint of trade and unlawful.
So much for the alleged uncertainty of the law. Candid men must agree with President Taft that in the light of the Supreme Court decisions it is reasonably clear what the Sherman Law means. But the fact that "the business community now knows or ought to know where it stands" with respect to the law does not greatly help the business situation. The real difficulty lies, not in the uncertainty of the law, but in the fact that the law does not fit actual present-day conditions. This is partly because many of the trusts were organized with full knowledge that they involved a violation of law but in the belief that the law could not or would not be effectively enforced. The realization that this belief was mistaken has thrown a good many people into a state of very genuine bewilderment, but it is an uncertainty, not as to what is firm ground, but as to how to get out of a bog, once having gotten in. For the most part, however, the general feeling of insecurity is due not so much to having knowingly overstepped the law, as to a change in economic conditions. The spirit of the time is one of coöperation and combination. It is manifested in the churches and colleges as well as in the marketplace. In the industrial arena, the tendency has been intensified by the invention of new machines and the resulting aggregations of fixed capital in forms designed for particular uses and incapable of diversion into other channels. Such rules of the common or customary law as were the outgrowth of an era of mobile capital and free competition no longer fit the conditions under which we are living.
In a conflict between economic forces and legal enactment there can finally be but one outcome. The law must sooner or later adapt itself to life conditions. The real problem to-day is—how shall this adaptation be accomplished; how can statutes be framed which shall check abuses without falling under the wheels of social progress? Right here a swarm of half-informed theorizers are rushing in where trained economists fear to tread. It is difficult and dangerous ground, but there is at least one measure of legal reform—take away the right of one corporation to hold stock in another—which might be urged with confidence were it not for the existence of sundry oppressive and conflicting state laws.
The abolition by law of the holding-company device is no new suggestion. It was strongly urged years ago by the late Edward B. Whitney. It was the keystone of the famous "Seven Sisters" statutes,[1] enacted with loud acclaim in New Jersey at the behest of Governor Woodrow Wilson (but subsequently repealed and thrown into the discard). Such a measure would be more effective and far-reaching than the public supposes. Nearly all the so-called trusts have been organized and are being held together in whole or in part, by the holding-company device. In many cases this has been done merely as an innocent measure of convenience. The device, however, is a perversion of the corporate machine to uses not contemplated by its inventors and fraught with danger. It is too powerful a weapon in the hands of those alive to its possibilities, enabling a small group of men with a relatively insignificant investment of capital to control a country-wide industry. Take the simplest possible illustration: The industry of manufacturing a particular commodity is carried on by a number of corporations scattered throughout the country with an aggregate capitalization of, say, $10,000,000. A, B, and C form a holding company to acquire a bare majority of the stock of each corporation, say $5,100,000 in the aggregate. They dispose of 49 per cent. of the holding company's stock to the public, retaining a working majority. At one step they have secured absolute control of a $10,000,000 industry with an investment of little more than one-quarter of that amount, and by pursuing the same process further they can reduce the investment necessary for controlling the industry almost to the vanishing point.
[Footnote 1: Laws of New Jersey of 1913, chaps. 13-19.]
It is needless to enlarge on the possible abuses of the holding-company device. They are coming to light more and more. The remedy, however, is not so simple as it seems at first blush. A summary abolition of the holding-company device would result in great injury and hardship to industry. In the present condition of the corporation laws of certain of the states, the right of large corporations to operate through local subsidiary corporations is a practical necessity. Otherwise they would be subjected to well-nigh intolerable exactions and interference. It has been the policy in some states in dealing with foreign corporations to attempt to impose, under the guise of fees for the privilege of doing business in the state, a tax on all their property and business wherever situated. Some of the attempts have been nullified by the Supreme Court as violative of the prohibition of the Fourteenth Amendment against taking property without due process of law, but these decisions have not wholly remedied the evil or checked the ingenuity of state legislators. In some jurisdictions great corporations seem to be regarded as fair game for which there is no closed season.
Right here the scheme of federal incorporation brought forward during President Taft's administration has many attractions to offer. It would do away with the principal excuse for the holding-company device, and pave the way for its abolition. It should satisfy the general public because it would clothe the Government with enormously increased powers of regulation and control; it should be attractive to the corporations because it would afford relief from many of the intolerable restrictions, not always fair or intelligent, imposed by state legislatures. Under present conditions the right of a corporation of one state to do business in another (other than business of an interstate character) rests merely upon comity and may be granted or refused upon such terms as interest or prejudice may dictate. The right of a federal corporation to do business in the several states, on the other hand, rests upon the powers conferred on Congress by the Constitution and is not subject to the whims of state lawmakers. Such a corporation is not "foreign" in the states into which its activity extends and state laws aimed at foreign corporations will not hit it. Moreover a corporation with a federal charter can always take its controversies into the federal courts (except when Congress expressly forbids)[1]—a right of extreme practical value where anti-corporation feeling or local prejudice is strong.
[Footnote 1: The Act of Jan. 28, 1915, took away this right in the case of railroad companies incorporated under federal charter (38 Stat. 804).]
The scheme of federal incorporation presents some constitutional questions. As pointed out in a previous chapter, the Constitution nowhere expressly confers on Congress the right to grant corporate charters. Under Chief Justice Marshall's doctrine of "Implied Powers," however, it has become well settled that Congress has implied power to charter a corporation whenever that is an appropriate means of exercising one of the powers expressly conferred, for example, the power to regulate interstate commerce. The most serious constitutional question appears to be whether Congress can authorize such a corporation to manufacture, the process of manufacturing not being an activity of an interstate character. In any event, the difficulty could be surmounted by a constitutional amendment. In these days of facile amendment such a thing seems quite within the range of possibility.
The scheme of federal incorporation is by no means new. In the Convention of 1787 which framed the Constitution, Mr. Madison advocated giving Congress the power to grant charters of incorporation. The proposition, however, did not find favor, Mr. King suggesting that it might foster the creation of mercantile monopolies.[1]