Page:Harvard Law Review Volume 32.djvu/422

386 386 HARVARD LAW REVIEW corporation." ^^ Then follows the indisputable assertion that "it cannot be doubted that the State may impose an occupation tax on one of its own corporations, provided such tax does not inter- fere with the exercise of some power belonging to the United States." The absence of such interference is predicated on the analysis that the receipts were not taxed as such, but were merely the measure of the tax. With Mr. Justice Harlan agreed Chief Justice Fuller and Justices White and McKenna.^^ The majority, who held the tax uncon- stitutional, consisted of Mr. Justice Holmes, who wrote the opinion, and Justices Brewer, Peckham, Day and Moody. At first glance this seems a strange ahgnment, for Mr. Justice Brewer had been foremost in sustaining property taxes measured more or less by income in part from interstate commerce; and Justices Harlan and White had most strenuously opposed such a measure. Occupation taxes measured by gross receipts seem to bear much more directly on interstate commerce than does a property tax which merely takes account of the value contributed by net earnings. The mystery may be thought to deepen when we compare the division in the Galveston case with that in the Western Union case ^ decided two years later. Here Justices Harlan and White return to their stand against allowing a state to do indirectly what it is forbidden to do directly. Justices Brewer, Day and Moody join them, al- though in the Galveston case they were in the opposite camp. Justices Holmes and Peckham favor an excise tax measured by total capital stock, but oppose an occupation tax measured by gross receipts. Only Chief Justice Fuller and Mr. Justice McKenna seem to be consistent throughout. They supported the state taxes in all the cases in which they sat. A closer analysis may resolve some of the perplexity. The op- position of Justices Harlan and White to Ohio's application of the unit rule to express companies and to the Kansas tax on total capital stock is based largely on the conviction that in each case the state was reaching after values not attributable to business or property within its borders. ^^ This opposition is not inconsistent " 2IO U. S. 228, 28 Sup. Ct. Rep. 638 (1908). " See 32 Harv. L. Rev. 254. Chief Justice Fuller and Justices Brewer and Day dissented in Fargo v. Hart, 193 U. S. 490, 24 Sup. Ct. Rep. 498 (1904), which upset an
 * Ibid., 228-29. ** Note 21, supra.