Page:Harvard Law Review Volume 32.djvu/431

395 I INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 395 legislature is trying simply to value property, it is less likely to attempt to or effect injurious regulation than when it is aiming directly at the receipts from interstate commerce. A practical line can be drawn by taking the whole scheme of taxation into account. That must be done by this court as best it can. Neither the state courts nor the legislatures, by giving the tax a particular name or by the use of some form of words, can take away our duty to consider its nature and effect. If it bears upon commerce among the States so directly as to amount to a regu- lation in a relatively immediate way, it will not be saved by name or form." 89 These canons were not difficult to apply to the Texas tax before the court. The value of the property as a going concern had al- ready been reached by other taxes. To the argument of counsel for the state that "'equal' implies, not identity, but duality," ^° Mr. Justice Holmes replied : "The distinction between a tax 'equal to' one per cent of gross receipts and a tax of one per cent of the same, seems to us nothing, except where the former phrase is the index of an actual attempt to reach the property and to let the interstate trafl5c and the receipts from it alone. We find no such attempt or anything to qualify the plain inference from the statute taken by itself." ^^ The tax in question was said to be "merely an effort to reach the gross receipts, not even disguised by the name of an occupation tax, and in no way helped by the words 'equal to.'" ^^ It was added that "of course, it does not matter that the plaintiffs in error are do- mestic corporations or that the tax embraces indiscriminately gross receipts from commerce within as well as outside of the State." ^^ 8» 210 U. S. 227, 28 Sup. Ct. Rep. 638 (1908). '" Ibid., 223. ' " Ibid., 227. « Ibid., 228. " Ibid., 228. Mr. Justice Harlan, on behalf of the minority, implied that it did matter that the corporation was a domestic one, for he says: "The plaintiff in error is a Texas corporation, and it cannot be doubted that the State may impose an oc- cupation tax on one of its own corporations, provided such tax does not interfere with the exercise of some power belonging to the United States" {Ibid., 229-30). The proviso of course weakens the statement in logic, if not in judicial psychology; but later on page 229 in the passage quoted on page 385, supra, the dissenting opin- ion invokes the supposition that the state might impose on railroad corporations "of its own creation" an income tax, thus again implying that the domesticity of the corporation was a material element in the case. It will be remembered that one of the grounds on which State Tax on Railway