Page:Harvard Law Review Volume 32.djvu/279

243 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 243 hold could not be a regulation of interstate commerce, no matter how it was measured. Mr. Justice Bradley's position that the measure by which the amount of the tax is determined is the controlling test of what is actually being taxed is of course as applicable to taxes nominally on property as to those nominally on privileges. Indeed, since there has never been ascription to the state of arbitrary power over property, there is more reason for scrutinizing assessments of property than assessments of franchises, Mr. Justice Bradley does not seem to make any distinction between the two, Yet it is possi- ble that his objections are leveled chiefly against the cumulation of taxes in fact measured by the contributions of interstate com- merce, and that he would have acquiesced in the solution of the vexed problem that the Supreme Court at the present time seems to be working towards. The learned justice concludes his opinion as follows: "Then it comes to this: A State may tax a railroad company upon its gross receipts, in proportion to the number of miles run within the State, as a tax on its property; and may also lay a tax on these same gross re- ceipts in proportion to the same number of miles, for the privilege of exercising its franchise in the State. I do not know what else it may not tax the gross receipts for. If the interstate commerce of the country is not, or will not be, handicapped by this course of decision, I do not un- derstand the ordinary principles which govern human conduct." *^ And earlier, in describing the situation resulting from the case and its predecessors, he had said : "A corporation, according to this class of decisions, may be taxed several times over. It may be taxed for its charter; for its franchises; for the privilege of carrying on its business; it may be taxed on its capital, and it may be taxed on its property. Each of these taxations may be carried to the full amount of the property of the company. I do not know that jealousy of corporate institutions could be carried much further." "s This dissenting note of lament and sympathy deserves attention from those who love to insist that the Supreme Court has been overzealous in shielding corporations from their just burdens. Its interest for our immediate purpose, however, lies in its indication
 * '' 142 U. S. 217, 235-236, 12 Sup. Ct. Rep. 121 (1891).
 * 8 Ibid.