Page:Harvard Law Review Volume 32.djvu/294

258 2SS HARVARD LAW REVIEW ment. They concede the propriety of assessing raihroad, telephone and telegraph companies by the unit rule, for the reason that there is no other feasible method of finding the value of property of this nature. But horses and wagons, they say, have an easily ascer- tainable pecuniary value. They are worth no more to an express company than to anyone else. It is improper to impute to them the earnings of the business in which they are used, for they might be dispensed with and the earnings still continue. By hiring others to care for local deliveries, and by renting furniture, etc., instead of owning it, the express companies might divest themselves of all that Ohio purported to tax, and could still carry on the business with substantially equal success. The small amount of the tangible property in Ohio contributes almost nothing to the values which Ohio has assessed against it.^**^ To this, Mr. Justice Brewer, in denying the motion for a re- argument,^"^ answers that what Ohio was taxing was not alone the tangible property of the company in Ohio, but the intangible as well.^"^ He does not appear to insist that the Ohio legislature •o* The petition for a rehearing is printed, apparently in full, in i66 U. S. 185, 186-2 1 7 and 41 L. Ed. 966-76. !<» Adams Express Co. v. Ohio State Auditor, i66 U. S. 185, 17 Sup. Ct. Rep. 604 (1897). ^°* Mr. Justice Miller had previously regarded taxes assessed by the unit rule as taxes on intangible property in State Railroad Tax Cases, note 23, supra. See page 238, 239, supra. In these cases, however, the interstate commerce question was not raised. On the same day that the opinion denying a rehearing in the Adams Express case was handed down, the court rendered two other decisions involving the same point. Adams Express Co. v. Kentucky, 166 U. S. 171, 17 Sup. Ct. Rep. 527 (1897) sus- tained what purported to be a tax on the franchises of the company, measured in the same way as the Ohio taxes. Since the Adams Express Co. was a joint-stock com- pany without any corporate franchise, the minority contended that, even if the doc- trine of the Ohio cases were accepted, it did not apply here, because the only franchise that could be conceived of as the subject of taxation was one to be inferred from the proposition that the right to do interstate commerce in Kentucky resulted frpm the assent of the state, and that such a proposition was obviously opposed to the settled course of decision. Some reliance, too, was placed on the fact that the Ohio tax was at the rate of $250 per mile while the Kentucky tax was at the rate of $764 per mile. The majority, however, called the tax in effect one on intangible property, Chief Justice Fuller observing: "We agree with the Circuit Court that it is evident that the word 'franchise' was not employed in a technical sense, and that the legislative inten- tion is plain that the entire property, tangible and intangible, of all foreign and domestic corporations, and all foreign and domestic companies possessing no franchise, should be valued as an entirety, the value of the tangible property be deducted, and the value