Page:Harvard Law Review Volume 32.djvu/450

414 414 HARVARD LAW REVIEW court now demands that behind that declaration there must be something more substantial than words. The verbal distinction on which Maine v. Grand Trunk Railway Co}^'^ originally rested has been replaced by substance. The Ficklen case, which leaned strongly on the Maine case for support, must be similarly reinter- preted before its foundations are solid, unless the court is willing to preserve an anomaly out of respect for stare decisis. The only possible reinterpretation of the Ficklen case which can make it applicable to all kinds of interstate commerce is one which treats it as sanctioning the use of gross receipts to measure the "intangible property" of the taxpayer and thus to estimate values not reached by any other tax. This possibiHty finds some recog- nition in Mr. Justice Pitney's comment on the Pennsylvania tax to the effect that "it bears no semblance of a property tax, or a franchise tax in the proper sense; nor is it an occupation tax except as it is imposed upon the very carrying on of the business of ex- porting merchandise." ^^^ The Shelby County tax was not one that could be regarded as "on" a franchise or "on" property, imless a gainful occupation is to be deemed "intangible property." This notion of "intangible property" has not been entertained by the court except where the intangible has inhered in or been conceptu- ally fused with something that was tangible. If pushed further and applied where nothing tangible is present, the so-called "intangible property" becomes so patently nothing but the value of an occupa- tion or business that the court must inevitably recognize it as such. Such recognition still leaves a loophole for the Ficklen case. It might conceivably squeeze through the opening left by the state- ment in the Crew Levick case that the tax there in issue is not "an occupation tax except as it is imposed upon the very carrying on of the business of exporting merchandise." ^^^ This leaves room for the notion that an occupation tax imposed on carrying on local business might be measured by receipts from all business, subject to the restriction that the expedient taxes but once and without dis- crimination the values contributed by interstate commerce. There is no reason, as we have seen,^^^ why such values should go com- "* Note s, supra. "* 24s U. S. 292, 297, 38 Sup. Ct. Rep. 122 (1917). 1" Cited in note 155, supra. "^32 Harv. L. Rev. 260-62, and Ibid., 398.