Page:Harvard Law Review Volume 32.djvu/205

169 NOTES 169 The imposition of a tax upon incomes derived from property situated or from business carried on within the state seems hardly open to ques- tion. Whether we regard the tax as an excise duty, or as a property tax, it is equally true that the state which protects the property and business and permits the owner to enjoy it is entitled to tax the income arising from it. In a recent case, Shaffer v. Howard,'' a tax was levied in Oklahoma upon the income from an oil well there situated, and operated under lease by a resident of Illinois. The proceeds of the sale of oil were actually received by the owner in Illinois. The majority of the court (Stone, Circuit Judge, and Cotteral, District Judge) held that the last fact made no difference, and that the tax was valid. Camp- bell, District Judge, dissented, upon the ground that in taxing the income of all residents, from whatever source, as the act did, the state was creat- ing a tax based upon personal jurisdiction, and it was not permissible in the same act to impose a tax upon income derived by a nonresident from property in the state, which must be supported upon the ground of jurisdiction over the property. Thegroimd of dissent seems unsound; if a tax is valid on any ground, it cannot be invalidated by classifying it as a particular kind of tax, and then alleging its invalidity because it is so classified.* The decision of the majority, affirming the power of the state to tax income derived from property within its territory, no matter where the income may chance to be received by the owner, seems unassailable. What Constitutes a Public Use. — From the time of Magna Charta, the property of A could not be taken and given to B. A's property could only be taken for a public purpose, and then only after compensation. But when A in the use of his property had "affected it with a public interest, it ceased to he juris privati only,"^ and it was because in the voluntary use of his property he had so affected it with a pubUc interest that his use of it was subjected to public control. This was the common law whence come the rights our Constitution protects. Legislation cannot change it,^ property cannot become affected with a public interest by mere legislative fiat. It is the voluntary use of one's property in such a manner as to make it of public consequence that gives the public the right to control its use.' Looking again at the common law, certain businesses and professions were as early as the thirteenth century subject to regulation.* From the nature of things practically every business and every profession was ^ 250 Fed. 873 (Okla.) (1918). ^ I Harg. Law Tracts, 78. 36 (Mo.) (1918); Associated Pipe Line Co. v. The Railroad Commission, 169 Pac. 62 (Cal.) (1917); Munn v. Illinois, 94 U. S. 113 (1876). See Producers' Transportation Co. V. The Railroad Commission, 169 Pac. 59, 61 (Cal.) (191 7) : "It is not the ipse dixit of the law, but the fact that the petitioner has voluntarily devoted its property to a public use, which justifies the control assumed by the Railroad Commission." Public Service Corporations, § 200.
 * Holmes, J., in New York Central R. R. Co. v. Miller, 202 U. S. 584, 596 (1906).
 * State ex rel. M. O. Danciger & Co. v. The Public Service Commission, 205 S. W.
 * Producers' Transp)crtation Co. v. The Railroad Commission, supra; i Wyman,
 * I Wyman, §§ 1-15; 17 Harv. L. Rev. 156.