Page:Harvard Law Review Volume 32.djvu/448

412 412 HARVARD LAW REVIEW line." ^*^ One distinction which he draws is so frail that a breath of thought would disintegrate it. "Besides," he says, " the tax imposed in the Ficklen Case was not directly upon the business itself or upon the volume thereof, but upon the amount of commissions earned by the brokers, which, although probably corresponding with the volume of the transactions, was not necessarily proportionate thereto. For these and other reasons the case has been deemed exceptional." ^^^ This assumed distinction is no more than that the Crew Levick Com- pany sold their own products, while Mr. Ficklen was a somewhat independent intermediary between seller and purchaser. It is the distinction between receipts from commissions on sales and receipts from sales. One is quite as likely not to be necessarily proportional to the volume of the transactions, if this means the quantity of goods sold, as is the other. Even if by "volume of the transactions" Mr. Justice Pitney means the volume as measured by gross receipts, it cannot be important that the broker's commissions were not exactly proportional to the prices paid the seller. If the broker's part in the transaction is regarded as interstate commerce, his receipts are from interstate commerce, and whether he were paid by the day or the deal or by a percentage can hardly matter. In so far as there is any validity to the distinction suggested, it re- lates to the nature of the business involved in the different cases and not to the character of the statutes. It is not unlikely that it is a distinction between the businesses that the learned Justice has in mind. This can hardly be gathered from the opinion in the Crew Levick case, but it finds support in an earlier opinion of the same Justice in United States Fidelity &* Guaranty Co. v. Kentucky ^^^ which sustained a specific tax upon a mercantile agency engaged in reporting the financial responsibility of merchants who bought goods from without as weU as from within the state. In that opinion Mr. Justice Pitney says: " The present case has no clbse parallel in former decisions, but in some of its aspects it bears a resemblance to the case of a tax imposed upon a resident citizen engaged in a general business that happens to include a considerable share of interstate business. Ficklen v. Taxing District, 145 U. S. I. Or the business of the live stock exchange that was under "* 245 U. S. 292, 296, 38 Sup. Ct. Rep. 126 (191 7). "» Ibid., 297. »» 231 U. S. 394, 34 Sup. Ct. Rep. 122 (1913).