Page:Harvard Law Review Volume 32.djvu/423

INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 387 with approval of the Texas tax on gross receipts from business within the state, where the evil of extraterritoriality is absent. Justices Holmes and Peckham based their approval of the Kansas tax on the theory of the absolute and unlimited power of a state over the local business of a foreign corporation/^ which precludes inquiry into the efifect on interstate commerce of an exercise of that absolute power. They are at Uberty to question the Texas tax, since it does not purport to be an excise tax on a privilege completely within the power of the state. The remaining apparent shifts of opinion demand further ex- planation. It may be frankly recognized that the only conceivable consistency between Mr. Justice Harlan's disapproval of the Maine excise tax and the Shelby County occupation tax, both of which were measured by gross receipts, and his approval of the Texas occupation tax, similarly measured, is the consistency of dissent. Since Mr. Justice Brewer opposed him in all three cases, these two jurists may appear to be exemplars of the famous political leader who was said to have caught his opponents in bathing and run off with their clothes. We hasten to add that the parallel is at most an intellectual, and not a moral, one; for such change of habili- ments as was effected by the wearers of the ermine was not a theft but a swap which appears to have given mutual satisfaction. Mr. Justice Brewer's approval of the Maine excise on gross receipts and his disapproval of the Texas occupation tax on such receipts may be reconciled on the ground that the former had the ostensible justification of a tax on a privilege within complete state control. But this justification the learned justice withheld from the Kansas excise on total capital stock, so that he invites us to seek further for his line of thought. This quest leads us to the arguments of counsel against the Texas occupation tax and to the acceptance of those arguments in the majority opinion in the Galveston case. Coimsel for the railroad apparently make no effort to distinguish the Ficklen case from that before the court. This case is naturally rehed on by the state, but it is not mentioned in the available ab- stract of the brief for the road. To the Maine case, however, application of the imit nile on the ground that the total capital stock taken as a base included the value of a large amount of personal property in other states not used in the express business and therefore not contributing to any values located in the state. See 31 Harv. L. Rev. 772. " See ibid., 585-88.