Page:Harvard Law Review Volume 9.djvu/356

328 328 HARVARD LAW REVIEW. And the court, by Fuller, C. J., answered the proposition in the negative, and held the tax to be constitutional. The reason given for the decision is not wholly satisfactory, and furnishes no sufficient explanation of the result. An effort was made by the court to distinguish the case from the principle of Coe V, Errol ^ and Lord v. Steamship Co. ,2 but with questionable success. In the former case the court, by Bradley, J., said : — " This question does not present the predicament of goods in course of transportation through a State, though detained for a time within the State by low water or other causes of delay, as was the case of the logs cut in the State of Maine, the tax on which was abated by the Supreme Court of New Hampshire. Such goods are already in the course of com- mercial transportation and are clearly under the protection of the Con- stitution." (p. 525.) The court, in Lehigh Valley Railroad Company v, Pennsylvania, supra, commenting upon the statement just quoted, observed: — "These logs were also in course of transportation from the place of cutting to another place likewise in Maine, and, as that transportation required them to arrive and remain for a time in New Hampshire, the predicament in that regard was referred to in the opinion by way of argu- ment, as being such that New Hampshire could not impose a burden on that transportation. But the right of Maine to tax them was not disputed." (pp. 202, 203.) It is difficult to understand why, if it was not disputed, it was therefore necessarily admitted, for the question was not discussed at all in the opinion, and the whole reasoning of the case would seem to indicate that Maine had not such a right. The theory which the court had in mind when it said that New Hampshire could not tax Maine logs passing through New Hampshire on the way from one point in Maine to another was, that they became part of interstate commerce from the date that they started in course of transportation; Coe v. Errol, supra; and if they had be- come such, it would follow of course that, while in course of transit, they were as much under protection from the laws of Maine as they were from those of New Hampshire. In any event, the effect of the dictum is to hold them to be unquestionably removed, after starting upon their journey, from the general mass of prop- 1 116 U. S. 517. 3 102 U. S. 541.