State of Maine v. Grand Trunk Railway Company of Canada/Dissent Bradley

Justices HARLAN, LAMAR, BROWN, and myself dissent from the judgment of the court in this case. We do so both on principle and authority. On principle, because, while the purpose of the law professes to be to lay a tax upon the foreign company for the privilege of exercising its franchise in the state of Maine, the mode of doing this is unconstitutional. The mode adopted is the laying of a tax on the gross receipts of the company, and these receipts of course include receipts for interstate and international transportation between other states and Maine, and between Canada and the United States. Now, if, after the previous legislation which has been adopted with regard to admitting the company to carry on business within the state, the legislature has still the right to tax it for the exercise of its franchises, it should do so in a constitutional manner, and not (as it has done) by a tax on the receipts derived from interstate and international transportation. The power to regulate commerce among the several states (except as to matters merely local) is just as exclusive a power in congress as is the power to regulate commerce with foreign nations and with the Indian tribes. It is given in the same clause, and couched in the same phraseology; but if it may be exercised by the states it might as well be expunged from the constitution. We think it a power not only granted to be exercised, but that it is of first importance, being one of the principal moving causes of the adoption of the constitution. The disputes between the different states in reference to interstate state facilities of intercourse, and the discriminations adopted to favor each their own maritime cities, produced a state of things almost intolerable to be borne. But, passing this by, the decisions of this court for a number of years past have settled the principle that taxation (which is a mode of regulation) of interstate commerce, or of the revenues derived therefrom, (which is the same thing,) is contrary to the constitution. Going no further back than Pickard v. Car Co., 117 U.S. 34, 6 Sup. Ct. Rep. 635, we find that principle laid down. There a privilege tax was imposed upon Pullman's Palace Car Company, by general legislation, it is true, but applied to the company, of $50 per annum on every sleeping-car going through the state. It was well known, and appeared by the record, that every sleeping-car going through the state carried passengers from Ohio and other northern states to Alabama, and vice versa, and we held that Tennessee had no right to tax those cars. It was the same thing as if they had taxed the amount derived from the passengers in the cars. So, also, in the case of Leloup v. Port of Mobile, 127 U.S. 640, 8 Sup. Ct. Rep. 1380, we held that the receipts derived by the telegraph company from messages sent from one state to another could not be taxed. So in the case of Railroad Co. v. Pennsylvania, 136 U.S. 114, 10 Sup. Ct. Rep. 958, where the railroad was a link in a through line by which passengers and freight were carried into other states, the company was held to be engaged in the business of interstate commerce, and could not be taxed for the privilege of keeping an office in the state. And in the case of Crutcher v. Kentucky, 141 U.S. 47, 11 Sup. Ct. Rep. 851, we held that the taxation of an express company for doing an express business between different states was unconstitutional and void. And in the case of Steam-Ship Co. v. Pennsylvania, 122 U.S. 326, 7 Sup. Ct. Rep. 1118, we held that a tax upon the gross receipts of the company was void, because they were derived from interstate and foreign commerce. A great many other cases might be referred to showing that in the decisions and opinions of this court this kind of taxation is unconstitutional and void. We think that the present decision is a departure from the line of these decisions. The tax, it is true, is called a 'tax on a franchise.' It is so called, but what is it in fact? It is a tax on the receipts of the company derived from international transportation. This court and some of the state courts have gone a great length in sustaining various forms of taxes upon corporations. The train of reasoning upon which it is founded may be questionable. A corporation, according to this class of decisions, may be taxed several times over. It may be taxed for its charter, for its franchises, for the privilege of carrying on its business; it may be taxed on its capital, and it may be taxed on its property. Each of these taxations may be carried to the full amount of the property of the company. I do not know that jealousy of corporate institutions could be carried much further. This court held that the taxation of the capital stock of the Western Union Telegraph Company in Massachusetts, graduated according to the mileage of lines in that state compared with the lines in all the states, was nothing but a taxation upon the property of the company; yet it was in terms a tax upon its capital stock, and might as well have been a tax upon its gross receipts. By the present decision it is held that taxation may be imposed upon the gross receipts of the company for the exercise of its franchise within the state, if graduated according to the number of miles that the road runs in the state. Then it comes to this: A state may tax a railroad company upon its gross receipts in proportion to the number of miles run within the state as a tax on its property, and may also lay a tax upon these same gross receipts in proportion to the same number of miles for the privilege of exercising its franchise in the state! I do not know what else it may not tax the gross receipts for. If the interstate commerce of the country is not or will not be handicapped by this course of decision, I do not understand the ordinary principles which govern human conduct. We dissent from the opinion of the court.