Page:Harvard Law Review Volume 32.djvu/277

241 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 241 total property located in Massachusetts. The fact that the valua- tion took account of earnings from interstate commerce was neglected. It is also neglected in the Pullman case. Mr. Justice Gray's opinion for the majority notes that the company had about one hundred cars in the state all the time, but does not suggest that the value of that number of cars might readily be estimated without adopting a method that reaches the business as well as the property of the company. Nor do the minority protest on this point. True, Mr. Justice Bradley questions whether a proper method of appor- tionment has been adopted, and shows that, since Illinois, the state in which the corporation was chartered, might tax it on the value of its total capital stock, the supposed equitable quality of the tax discovered by the majority depends upon an assumption not likely to be true. But this protest is one 'against inequitable and double taxation, and is not tied up to the commerce clause. Yet this tax had a more direct effect on interstate commerce than those pre- viously considered, for its amount varied more directly with receipts. Under several of the Pennsylvania statutes the taxes on the Pullman Company were measured directly by dividends; under another they were measured by dividends when the dividends were six per cent or more on the par value of the capital, and by a valua- tion of the capital when the dividends were less. But the opinions do not refer to the fact that the result of Pennsylvania's method was to reap income from the interstate commerce in which the cars were engaged, in excess of a levy on the value of the cars as in- dependent chattels. Seven months later, however, in Maine v. Grand Trunk Ry. Co.^^ the subject receives more direct attention. This case has already been considered in the section dealing with taxes on privileges,^^ but it has a bearing on the present topic on account of the inter- pretation subsequently put upon it.'*" The majority sustained a tax measured by gross receipts estimated to have been earned from business within the state, on the ground that the subject taxed was a privilege over which the state had complete control and which it '* 142 U. S. 217, 12 Sup. Ct. Rep. 121 (1891). " 31 Harv. L. Rev. 579-80. 638 (1908).
 * > See Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 226, 28 Sup. Ct. Rep.