388 HARVARD LAW REVIEW Messrs. Garwood and Everts devote considerable attention. They insist that the excise there sustained was like that considered in Postal Telegraph Cable Co. v. Adams ^^ and McHenry v. Aljord;^^ "that is to say, it was what this court calls a commutation tax levied in lieu of all other taxes; and therefore, in its essential nature, a property tax, or a means resorted to by the state for ascertaining the entire value of the property situated in the state and not otherwise taxed." ^^ As distinguished from such a tax, "in the case at bar the state has aheady assessed and equalized for purposes of taxation the properties of the plaintiff in error, and at the time of the levy of this tax, and for long years prior thereto, they had paid taxes, and were paying taxes, to the state upon the fuU value thus ascertained." ^^ Counsel later seek to restrict the Maine case on grounds which apply also to the Ficklen case, though that inconvenient decision is not mentioned. They argue as follows : "It never was the intention of the justices who concurred in the decision in Maine v. Grand Trunk R. Co. ... to hold that a state could levy an occupation tax on a corporation engaged in the transporta- tion of interstate commerce, or could levy a so-called occupation tax on such corporation, and ascertain the amount thereof by a percentage on the gross receipts of the interstate and foreign commerce; but in fact the tax was there sustained as a property or commutation tax in lieu of all other taxation." ^ It is clear that the Maine case did not sanction an occupation tax where the element of an exercise of arbitrary power over the en- joyment of corporate privileges was lacking or not relied on. But the Ficklen case appeared to do exactly this. In the Ficklen case, the opinion was flavored slightly with the thought that the tax was sort of a substitute for a property tax; but in the Maine case the
- ' Note 2, supra. In February, 1904, Professor Joseph H. Beale, in criticising the
ground on which the main case was placed by the court, suggested that a " more ten- able ground . . . will probably be found in the later case of Postal Telegraph Cable Co. V. Adams." See his article on "The Taxation of Foreign Corporations," 17 Harv. L. Rev. 248, 263.
- " Note 38, supra.
" 52 L. Ed. 1032. •2 Ibid. «* Ibid., 1033. These excerpts from the briefs are not contained in the abstract printed in the oflBcial edition of the reports.
