Page:Harvard Law Review Volume 32.djvu/440

404 HARVARD LAW REVIEW Mr Justice Day then adds : " We think the tax here in question comes within this principle. There is no suggestion in the present record, as was shown in Fargo v. Hart, 193 U. S. 490, that the amount of the tax is unduly great, having refer- ence to the real value of the property of the company within the State and the assessment made." ^^ The evil that appeared in Fargo v. Hart ^^^ was necessarily absent in the United States Express case, for it consisted of including in the total value of property assessed by the unit rule a large amount of property outside the state not used in the express business and therefore not properly distributable on a mileage basis among the various states in which the express business was carried on. The unit rule was not used in taxing the United States Express Company, since its transportation in question was confined to the limits of the state. The only objection open to the company was that the rate of six per cent on the gross receipts made the tax rela- tively high as compared with general property taxation. This objection does not appear to have been made. The point was, however, urged by the Cudahy Packing Company. It appeared that the average number of cars in the state per day ranged from ten to twelve and that "the cash value of each car, as a separate article of tangible property, is from $700 to $900." ^^ The contention of the complainant and its dismissal is stated by Mr. Justice Van Devanter as follows: "Because the usual tax rate if applied to the cash value of the cars taken separately, would result in an appreciably lower tax, it is insisted that the tax imposed is in excess of what would be legitimate as an ordinary tax on the property. But the contention proceeds on an Day in the United States Express case) bears on the same point: "But property in a State belonging to a corporation, whether foreign or domestic, engaged in foreign or interstate commerce, may be taxed, or a tax may be imposed on the corporation on accomit of its property within a State, and may take the form of a tax for the privi- lege of exercising its franchises within the State, if the ascertainment of the amount is made dependent in fact on the value of its property situated within the State {the exaction, therefore, not being susceptible of exceeding the sum which might be leviable directly thereon), and if pajonent be not made a condition precedent to the right to carry on the bus- iness, but its enforcement left to the ordinary means devised for the collection of taxes." 15s U. S. 688, 696. Italics are writer's. »» 223 U. S. 335, 348, 32 Sup. Ct. Rep. 211 (1912). •21 Note 57, supra. ^ 246 U. S. 450, 452, 38 Sup. Ct. Rep. 373 (1918).