Page:Harvard Law Review Volume 32.djvu/709

673 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 673 and the other would not be subject to the tax, and m our view it makes no difference that the two branches of the business are carried on in the same estabhshment. The burden of proof was clearly upon the plaintiff to show that the domestic business was a mere incident to the interstate business." ^^ Later, in dismissing objections urged under the equal-protection clause, Mr. Justice Brown declared : " What the necessity is for such a tax, and upon what occupations it shall be imposed, as well as the amount of the imposition, are exclusively within the control of the State legislature. So long as there is no dis- crimination against citizens of other States, the amount and necessity of the tax are not open to criticism here." ^^ The Kehrer case was followed in Armour Packing Co. v. Lacy}'^'^ in which the tax was $100 in each county and the fact appeared that the company did a large local business. These cases undoubtedly justify the curiosity betrayed by Mr. Justice Holmes in his Western Union dissent. The opportunity to satisfy that curiosity was presented to the Supreme Court in Wil- liams V. Talladega}^^ but it was not grasped. A city ordinance imposing a tax of $100 was held void because it fell indiscriminately on all intra-state business including that done for the federal gov- ernment. With respect to the contention material to our present purpose, Mr. Justice Day declared: " It is further contended that the tax is unreasonable and unjust because of its effect upon interstate business. The reasonableness of the ordi- nance, unless some Federal right set up and claimed is violated, is a matter for the State to determine. It is contended that the result of the tax upon the intra-state business conducted at a loss is to impose a bur- den upon the other business of the company, and is therefore void. The Supreme Court of Alabama, however, reached the conclusion that the attempted test for eleven months, showing a loss of eighty-six cents, is not a sufficiently accurate representation of the business of the company conducted at Talladega to render the tax void. With this view we agree, and we are not satisfied that the tax is such as to impose a burden upon interstate commerce, and therefore make it subject to attack as a denial of Federal right." ^^s '^ 197 U. S. 60, 69, 25 Sup. Ct. Rep. 403 (1905). ^ Ihid., 70. ^'' 200 U. S. 226, 26 Sup. Ct. Rep. 232 (1906). "* 226 U. S. 404, 33 Sup. Ct. Rep. 116 (1912). »» IhU., 416-17.