Page:Harvard Law Review Volume 32.djvu/701

665 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 665 In further elaboration of the problem of bi-state income, the learned judge continues : "Both the property in Oklahoma and the intelligence in Illinois con- tributed to this income. Each was necessary to the result. Each had protection from the state in which it was. It is impossible to separate the two elements for taxation purposes. It is impossible, if material, to determine which was most potent in the result. Can either state be told it cannot be compensated for its protection of a necessary com- ponent element of this income, or that it cannot measure such compensa- tion by that income? If, through accident or design, an individual dwells in one state, while his business is in part or wholly located in other states, so that he needs, commands, and receives the protection of several states, can his income therefrom escape imposition? It may be true that the state which protects the person of the one who creates, receives or enjoys an income may require of him therefor a tax measured by his ability to pay from his entire income. That is no reason why the state which protects the business which contributes to his income may not also demand, as pay for that protection, a tax measured by that part of his income which came from that business. If in the one case the state of residence can tax the right to create, receive, and enjoy an income, why cannot another state tax his right to create and receive an income from business within its borders? " ^°' This seems to be said by way of answer to the complainant's argument rather than as the analysis put upon an income tax by the writer of the opinion. For Judge Stone follows it with the paragraph : "A tax upon an income of the instant character (from a business) is directed at neither the person who receives nor the property from which the income arises, but at the privilege of making, producing, creating, receiving, and enjoying the income itself. The right to lay such tax depends upon the protection of the person who receives or of the busi- ness which helps create that income." ^^ Here seems to be a dual conception of an income tax, though the writer insists that even upon the complainant's conception that the tax is on the recipient, there is jurisdiction over an absent re- cipient based on the protection of interests of the recipient even if these interests be not those of his body or his castle. It is pointed 9ut that the statute does not seek to create a personal liability i<« 250 Fed. 876 (1918). iM Ibid.