Page:Harvard Law Review Volume 32.djvu/289

253 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 253 These contentions of attorneys for the companies seem incon- trovertible. Any reaUstic approach to the genuine issue must con- cede their validity. If such a tax is to be sustained, it must be because the states can tax interstate commerce, provided they do it in approved ways. But the majority position seems poetical rather than realistic. "Doubtless there is a distinction," says Chief Justice Fuller, "between the property of railroad and tele- graph companies and that of express companies." ^^ The learned justice recognizes that "the physical unity existing in the former is lacking in the latter"; but he discounts the importance of this difference by saying that "there is the same unity in the use of the entire property for the specific purpose, and there are the same elements of value arising from such use." ^^ After pointing out that "the cars of the Pullman Company did not constitute a physi- cal unity, and their value as separate cars did not bear a direct relation to the valuation which was sustained in that case," ^^ he continues: "No more reason is perceived for limiting the valuation of the prop- erty of express companies to horses, wagons and furniture, than that of railroad, telegraph and sleeping car companies, to roadbed, rails and ties, poles and wires, or cars. The unit is a unit of use and management, and the horses, wagons, safes, pouches and furniture, the contracts for transportation facilities, the capital necessary to carry on the business, whether represented in tangible or intangible property, in Ohio, pos- sessed a value in combination and from use in connection with the prop- erty and capital elsewhere, which could as rightfully be recognized in the assessment for taxation in the instance of these companies as the others." ^^ That such value exists is clear. Whether it should rightfully be recognized as a basis for the assessment of state taxes is a question of policy. No criticism is here directed against the judgment that ■"the States through which the companies operate ought not to be compelled to content themselves with a valuation of separate pieces of property disconnected from the plant as an entirety, to the proportionate part of which they extend protection, and to the dividends of whose owners their citizens contribute." ^^ But when ^ 165 U. S. 194, 221, 17 Sup. Ct. Rep. 305 (1897). «> Ibid. 8^ Ibid. «« Ibid. " Ibid., i94,'227.