Page:Harvard Law Review Volume 32.djvu/688

652 652 HARVARD LAW REVIEW the tax upon the franchise granted by it shall be measured by the value of all its property, wherever situated, of whatever nature, or from whatever source derived. It is a sufficient answer to this suggestion to say that no such condition was prescribed in the charter of the ferry company when it was granted and accepted. Nor does the taxing statute in question make it a condition of the ferry company's continuing to exercise its corporate powers that it shall pay a tax for its property having a situs in another State. There is no suggestion in the com- pany's charter that the State would ever, in any form, tax its property having a situs in another State. We express no opinion as to the valid- ity of such a condition if it had been inserted in the company's charter, or if it were now, in terms, prescribed by any statute. We decide noth- ing more than it is not competent for Kentucky, tmder the charter granted by it, and under the Constitution of the United States, to tax the franchise which its corporation, the ferry company, lawfully ac- quired from Indiana, and which franchise or incorporeal hereditament has its situs, for purposes of taxation, in Indiana." * Owing to this disposition of the case, the court did not consider whether the tax complained of was an unlawful burden on inter- state commerce. Thus the court leaves open the question whether a state may tax domestic corporations as it pleases, provided it specifically bases its demand on its control over the continued existence of the corporation. This question was left open also by Kansas City, M. &" B. R. Co. V. Stiles,^'' which was careful to adduce in support of an excise measured by total capital stock the fact that the law was in force when the corporation begged for birth.®^ The Supreme Court is still free to apply the doctrine of the Western Union case to domestic corporations which are not under some fairly clear contractual disability to object to the demand complained of. Whether it will do so is still uncertain. WTiether it should do so is a question on which disagreement is not difficult. In the opin- ion of the writer, the less we have in our constitutional law of arbitrary power on the part of one state to deal as it will with affairs in other states, the better. If a tax is not constitutional by » 188 U. S. 38s, 23 Sup. Ct. Rep. 398 (1903). " Note 64, supra. ^ For example, the passage quoted in 31 Harv. L. Rev. 599: "The raikoads com- prising this consolidation entered upon it with the ^labama statute before them and under its conditions, and, subject to constitutional objections as to its enforcement, they cannot be heard to complain of the terms under which they voluntarily invoked and received the grant of corporate existence from the state of Alabama."