Page:Harvard Law Review Volume 32.djvu/291

255 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 255 at by adding to the property in the State the value of property situated outside thereof." ^^ This neglect, however, is logically legitimatized in Mr. Justice White's opinion, because of his insistence that the tangible property of the express companies in Ohio is not part of anything that can be regarded as a unit. If what you add from without the state "is unrelated to what you are taxing within the state, the subsequent division, though it may lessen, does not obliterate the evil. The souhdness of the dissenting position that Ohio is taxing values in other jurisdictions depends upon the assumption that the Ohio property of express companies is not part of a unit, or upon the fact that more of the whole is assigned to Ohio than rightly belongs to it. Both positions are relied on by the minority. With the second we are not here concerned. ^^ The majority recognize fully that there may be an unjustifiable apportionment which serves to draw to Ohio values domesticated elsewhere. Certain kinds of property are not distributable. But the existence of such property, they say, is not to be assumed. "It is for the companies to present any special circumstances which may exist, and, failing their doing so, the presumption is that all their property is directly devoted to their business, which being so, a fair distribution of its aggregate value would be upon the mileage basis." ^^ The majority opinion concludes by saying: "We have said nothing in relation to the contention that these valua- tions were excessive. The method of appraisement prescribed by the law was pursued and there were no specific charges of fraud. The general rule is well settled that 'whenever a question of fact is thus submitted to the determination of a special tribunal, its decision creates something more than a mere presumption of fact, and if such determination comes into inquiry before the courtsTit cannot be overthrown by evidence going only to show that the fact was otherwise than as so found and deter- mined.'" ^^ ^ 165 U. S. 194, 248, 17 Sup. Ct. Rep. 305 (1897). ^ This is considered in 31 Harv. L. Rev. 772-75. For cases requiring the state to amend the apportionment of interstate values, see Fargo v. Hart, 193 U. S. 490, 24 Sup. Ct. Rep. 498 (1904); Louisville & N. R. Co. v. Greene, 244 U. S. 522, 37 Sup. Ct. Rep. 683 (1917), and Illinois Central R. Co. v. Greene, 244 U. S. 555, 37 Sup. Ct. Rep. 697 (191 7). " 165 U. S. 194, 227, 17 Sup. Ct. Rep. 305 (1897). ^ Ibid., 194, 229.