Page:Harvard Law Review Volume 32.djvu/415

379 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 379 of the other complainant had been interstate. Both sought a license for the ensuing year without fulfilling the obligation as- sumed in the bond given the preceding year. The court found that the subject taxed was the privilege of doing a general brokerage business, including intra-state as well as interstate, and that it was therefore taxable. It recognized that a different question would have arisen if the complainants "had not undertaken to do a general commission business, and had taken out no licenses therefore, but had simply transacted business for non-resident principals." ^^ Here obviously is the simple case of a tax on local business, measured by gross receipts from all business, with the only addi- tional element that this measure of receipts was to be used only in case the business was done without capital. Had the complainants seen fit to employ $100 of capital, they would have paid ten cents each instead of a percentage of their receipts. This element in the case was accorded weight, for Chief Justice Fuller remarked: "We presume it would not be doubted that, if the complainants had been taxed on capital invested in the business, such taxation would not have been obnoxious to constitutional objection; but because they had no capital invested, the tax was ascertained by reference to the amount of their commissions, which when received were no less their property than their capital would have been."^^ It is to be noted, however, that this observation appears in the final paragraph of the opinion, and that the preceding discussion conveys no hint that the tax on the gross receipts would not have been quite as proper if it had not been the alternative of a tax on capital. After quoting from Mr. Justice Bradley's opinion in Philadelphia &• Southern M. S. S. Co. v. Pennsylvania ^^ that "the corporate franchises, the property, the business, the income of corporations created by a State may undoubtedly be taxed by the State," 2^ Chief Justice Fuller adds that "this of course is equally true of the property, the business, and the income of individual citizens of a State." ^^ And later, after discussing Maine v. Grand Trunk Railway Co., ^ he declares: » 145 U. S. 24, 12 Sup. Ct. Rep. 810 (1892). 28 Ibid., 24. " Note 19, supra. ^ 122 U. S. 326, 345, 7 Sup. Ct. Rep. 1118 (1887), quoted in 145 U. S. i, 22, 12 Sup. Ct. Rep. 810 (1892). "^ Ibid. »o Note 20, supra.