Page:Harvard Law Review Volume 32.djvu/301

265 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 265 Brewer estimates it, is a conception that embraces the economic value of all the elements from which it is distinguished. For all his professed practicaHty, Mr. Justice Brewer reaches his goal by- arbitrary categories and by distinctions in nomenclature which are not distinctions in reality. In escaping from the difficulties in- herent in the notion that chattels are necessarily worth a capitaliza- tion of what may be earned by their use, even though they are easily divorced from that use and though substitutes for the use are readily available, the learned justice gets into new difficulties by insisting that a tax on the value of an interstate business is any the less a tax on that business because it is called a tax on intangible property. Had the Supreme Court recognized the Ohio tax on express com- panies for what it really was, and held that Ohio could not apply this method of assessment to any interstate business unless it also appHed similar methods to all other businesses, we might not have had to wait so long for the beginnings of the fiscal reform that dis- regards intangibles as a subject of taxation and looks to income as the best expression of the values thus disregarded, and therefore as the most satisfactory and equitable subject from which to derive the necessary funds for governmental purposes. ij'o be continued.) Thomas Reed Powell. Columbia University.