Page:Harvard Law Review Volume 32.djvu/677

641 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 641 with or hamper, directly or by indirection, interstate or foreign com- merce, or any other matter exclusively within the jurisdiction of the Federal government." ^^ Previously Mr. Justice Pitney says that the subject of considera- tion in the Philadelphia case was "the distinction between direct and indirect burdens, with particular reference to a comparison between a tax upon the gross returns of carriers in interstate com- merce and a general income tax imposed upon all inhabitants incidentally affecting carriers engaged in such commerce. . . ."^^ From this Mr. Justice Pitney proceeds to point out "the correct line of distinction," as illustrated in Crew Levick Co. v. Pennsyl- vania'^^ and Peck b° Co. v. Lowe.^ Between these two cases there was a double distinction. One involved a tax on gross receipts imposed on selected enterprises; the other, a tax on net income imposed generally on all enter- prises and individuals. When Mr. Justice Bradley made "partic- ular reference to a comparison between a tax upon the gross re- turns of carriers engaged in interstate commerce and a general income tax imposed on all inhabitants," ^^ he appears to have had in mind only the distinction between generality and partiality. There is no indication that he thought it material whether a gen- eral income tax was on gross, or on net, income. The pertinent paragraph of his opinion is the one immediately preceding that from which Mr. Justice Pitney quotes. After saying that "there is another point, however, which may properly deserve some con- sideration," Mr. Justice Bradley continues: "Can the tax in this case be regarded as an income tax? And, if it can, does that make any difference as to its constitutionality? We do not think that it can properly be regarded as an income tax. It is not a general tax on the incomes of all the inhabitants of the state, but a special tax on transportation companies. Conceding, however, that an income tax may be imposed on certain classes in the community, dis- tinguished by the character of their occupations, this is not an income tax on the class to which it refers, but a tax on their receipts for trans- ^* 122 U. S. 326, 345, 7 Sup. Ct. Rep. 1118 (1887); quoted in 247 U. S. 321, 327, 38 Sup. Ct. Rep. 499 (1918). ^ 247 U. S. 321, 327, 38 Sup. Ct. Rep. 499 (1918). ^ 24s U. S. 292, 38 Sup. Ct. Rep. 126 (1917), 32 Harv. L. Rev. 409 ff. ^ Note 16, supra. ® Note 23, supra.