Page:Harvard Law Review Volume 32.djvu/426

390 maximum of $3,000, in lieu of other taxes, as in substance a property tax; to the passage in McHenry v. Alford which is quoted on page 382, supra; and to a portion of the majority opinion in the Ficklen case which said that in the Maine case

"it was held that the reference by the statute to the transportation receipts and to a certain percentage of the same, in determining the amount of the excise tax, was simply to ascertain the value of the business done by the corporation, and thus to obtain a guide to a reasonable conclusion as to the amount of the excise tax which should be levied."

Attention should be called to the fact that Mr. Justice Holmes did not refer to the page in the opinion in the Ficklen case which suggested that the occupation tax might be regarded as a substitute for a property tax. As has already been pointed out, the tax imposed on Mr. Ficklen was rather in default of a property tax than in lieu of one, since he had no property devoted to his occupation and so escaped nothing else by paying the tax on gross receipts. The only distinction in this respect between the Ficklen case and the Galveston case is that the railroad did have property in Texas used in its occupation and that this property was taxed. On this ground the two cases may be distinguished, so that it cannot be said that the latter overrules the former; nor does the opinion in the latter attempt to reinterpret the former. The present health of the Ficklen case will be diagnosed later. If it is not yet moribund, the scope for gross-receipts taxes is somewhat wider than that plotted in Mr. Justice Holmes' reinterpretation of the Maine case. We shall inquire later whether, in order to impose a gross-receipts tax, there must be some other recognized subject of state taxation which is exempted from other burdens than the payment