Page:Harvard Law Review Volume 32.djvu/437

401 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 401 question "is simply whether, in the carriage of freight and passen- gers between two points in one State, the mere passage over the soil of another State renders that business foreign, which is domes- tic," ^°^ and he answered that, "we do not think such a view can reasonably be entertained." ^^ The remaining receipts levied on by Minnesota, to which the United States Express Company objected, were from that part of in- terstate commerce which it carried on within Minnesota, including carriage to or from points within the state and carriage through the state between termini in other states. All this business was received by the complainant at a point within the state, either from the shipper or from connecting carriers in other states, and was delivered within the state either to the consignee or to a connect- ing carrier. For some reason Minnesota did not claim taxes upon such interstate receipts "where the same express company per- forms the transportation service both within and without the State. "/°^ That this self-denial was imposed by benevolence and merce were made up in New Jersey. Whether there was any distinction in this respect between transportation over water and that over land was not considered. In the case of land transportation, the state of termini has been forbidden to regulate the rates of carriage which traverses an intervening state. Hanley v. Kansas, etc. Ry., 187 U. S. 617, 23 Sup. Ct. Rep. 214 (1903). The state is also forbidden to direct that a carrier shall ship between two points in the state by a route which is wholly within the state rather than by one which dips into another state. Northern Pacific Ry. Co. :;. Solum, 247 U. S. 477, 38 Sup. Ct. Rep. 550 (1918). On the other hand, California was allowed to regulate rates for carriage between two points in the state traversing the high seas en route. Wilmington Transportation Co. v. Railroad Com- mission, 236 U. S. 151, 35 Sup. Ct. Rep. 276 (1915). See editorial notes in 27 Harv. L. Rev. 686, and 28 Harv. L. Rev. 634. Here of course there was no intervening state whose jurisdiction was in any way interfered with. The Cornell Steamboat case, supra, if applicable to land transportation, would allow a state to extract revenue from receipts from transit which is not within its own police protection and which is likely to cause expense to its neighbor within whose borders it takes place. In the Lehigh Valley case, Chief Justice FuUer thought it important to say that "it should be remembered that the question does not arise as to the power of any other State than the State of the termini " (page 202). This carries the possible implication that the transit in the intervening state is interstate commerce, so far as its powers of taxation are concerned. Quite aside from the commerce clause, a grave question arises whether a state should tax receipts from extra-territorial transit. The difference between land and water transportation seems sufficient to warrant the restriction of the Cornell Steamboat case to the particular kind of trans- portation there before the court. 1"* 145 U. S. 192, 202, 12 Sup. Ct. Rep. 806 (1892). 1"* Ihid., 202. 1"^ 223 U. S. 335, 341, 32 Sup. Ct. Rep. 211 (1912).