Page:Harvard Law Review Volume 32.djvu/425

389 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 389 point was not mentioned by either the majority or the minority. When we turn, however, to the Maine statute, as printed in the margin of the report of the decision,^^ we find that counsel have correctly analyzed the nature of the tax imposed. From this it appears that all buildings of the road and all land and fixtures out- side of its located right of way were taxed locally, and that this tax and the excise measured by gross receipts were "in lieu of all taxes upon such railroad, its property and stock." ^^ The gross-receipts tax was the only one levied on account of the rolhng stock, the land, ties and rails on the right of way, the capital or intangible property of the company and the economic interests of the shareholders. From the amount thus received by the state, each town in which stock of the road was held was to receive an amount equal to one per cent on the par value of such stock. This view of the Maine case presented by counsel is accepted by the majority of the court. Mr. Justice Holmes concedes that the case "seems at first sight like a reaction from the Philadelphia and Southern Mail Steamship Company case."^^ He adds not over- confidently: "But it may not have been."^^ Then he proceeds to reinterpret it: "The estimated gross receipts per mile may be said to have been made a measure of the value of the property per mile. That the effort of the State was to reach that value, and not to fasten on the receipts from transportation as such was shown by the fact that the scheme of the statute was to establish a system. The buildings of the railroad and its lands and fixtures outside of its right of way were to be taxed locally, as other property was taxed, and this excise with the local taxes were to be in lieu of all taxes. The language shows that the local tax was not expected to include the additional value gained by the property being part of a going concern. That idea came in later. The excise was an attempt to reach that additional value. The two taxes together may fairly be called a commutation tax." "^ Then follow references to Postal Telegraph Cable Co. v. Adams ^^ which sustained a privilege tax, assessed at $1 per mile with a «* 142 U. S. 217, 218, 12 Sup. Ct. Rep. 121 (1891). « Ihid. « 210 U. S. 217, 226, 28 Sup. Ct. Rep. 638 (1908). " Ibid. " Ihid. 8« iSS U. S. 688, 15 Sup. Ct. Rep. 268 (1895). See 32 Harv. L. Rev. 249.