Page:Harvard Law Review Volume 32.djvu/430

394 394 HARVARD LAW REVIEW The absence of a sharp antithesis between the taxes that have been approved and those that have been condemned is frankly recognized : "As the property of companies engaged in such commerce may be taxed . • ., and may be taxed at its value as it is in its organic rela- tions, and not merely as a congeries of unrelated items, taxes on such property have been sustained that took account of the augmentation of value from the commerce in which it was engaged. . . . Since the com- mercial value of property consists in the expectation of income from it, and since taxes ultimately, at least in the long run, come out of income, obviously taxes called taxes on property and those called taxes on in- come or receipts tend to run into each other somewhat as fair value and anticipated profits run into each other in the law of damages. The difficulty of distinguishing them became greater when it was decided, not without much debate and difference of opinion, that interstate car- riers' property might be taxed as a going concern."^ Then follows the reinterpretation of the Maine case and a quota- tion from Postal Telegraph Cable Co. v. Adams :^ "By whatever name the exaction may be called, if it amounts to no more than the ordinary tax upon property or a just equivalent therefor, ascertained by reference thereto, it is not open to attack as inconsistent with the Constitution." " The question before the court is said to be " whether this is such a tax." ^^ Mr. Justice Holmes paves the way for an answer by the following recapitulation and analysis: " It appears sufficiently, perhaps from what has been said, that we are to look for a practical rather than a logical or philosophical distinction. The State must be allowed to tax the property and to tax it at its actual value as a going concern. On the other hand the State cannot tax the interstate business. The two necessities hardly admit of an absolute logical reconciliation. Yet the distinction is not without sense. When a 85 2IO U. S. 225-26, 28 Sup. Ct. Rep. 638 (1908). 8^ 155 U. S. 688, 697, 15 Sup. Ct. Rep. 268 (1895); quoted in 210 U. S. 217, 227, 28 Sup. Ct. Rep. 638 (1908). This same passage from the opinion in the Postal Telegraph case, together with what immediately precedes it, is quoted by Mr. Justice Day in United States Express Co. v. Minnesota, 223 U. S. 335, 347-48, 32 Sup. Ct. Rep. 211 (1912). See page 402, t»/ra. " 210 U. S. 217, 227, 28 Sup. Ct. Rep. 638 (1908).
 * Note 69, supra.