Page:Harvard Law Review Volume 32.djvu/416

380 HARVARD LAW REVIEW "Since a railroad company engaged in interstate commerce is liable to pay an excise tax according to the value of the business done in the State, ascertained as above stated, it is diflBicult to see why a citizen doing a general business at the place of his domicil should escape pay- ' ment of his share of the burdens of municipal government because the amount of his tax is arrived at by reference to his profits. "^^ The Chief Justice insists that "this tax is not on the goods or on the proceeds of the goods, nor is it a tax on nonresident mer- chants," ^^ and then invokes the familiar and convenient slogan that "if it can be said to affect interstate commerce in any way it is incidentally, and so remotely as not to amount to a regulation of such commerce."^' By this decision Shelby Coimty appears to have achieved in- directly what it would be forbidden to attain directly. It used receipts on which it could not impose a tax as the measure of a tax on something else. It was on the nature of that something else that the court fixed its attention. Had the county declared that no business at all might be done without a license, a broker would then come within the fangs of the law by doing interstate commerce alone, and the tax would have been held to be one on a subject that is interstate commerce itself .^^ But here it was the broker, and not county, that wrapped interstate and local commerce in the same package. The Chief Justice admonishes Mr. Ficklen that he has only himself to blame for his predicament, since he asked for a license to do a "general" business, and did not restrict his pro- fessions to interstate business. "The tax was not laid on the occupation or business of carrying on interstate commerce, or exacted as a condition of doing any particular commission business; and complainants volimtarily subjected themselves thereto in order to do a general business."^ " 14s U. S. I, 24, 12 Sup. Ct. Rep. 810 (1892). ^ Ibid., 24. » Ibid., 24. " Robbins v. Shelby County Taxing District, 120 U. S. 489, 7 Sup. Ct. Rep. 592 (1887); Leloup V. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. Rep. 1380 (1888); Cnitcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. Rep. 851 (1891); Williams v. Talladega, 226 U. S. 404, 33 Sup. Ct. Rep. 116 (1912); Barrett v. New York, 232 U. S. 14, 34 Sup. Ct. Rep. 203 (1914). In all but the first of these the complainant was engaged in local as well as interstate commerce, and was therefore taxable under a statute or ordinance properly drawn. » I4S U. S. I, 22, 12 Sup. Ct. Rep. 810 (1892).