Page:Harvard Law Review Volume 32.djvu/449

INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 413 consideration in Hopkins v. United States, 171 U. S. 578, 592. Or the business of a cotton broker dealing in futures or options. Ware v. Mobile County, 209 U. S. 405-" ^^^ The Hopkins case and the Ware case held that the acts in question were not acts of interstate commerce. The collocation suggests that the broker who is a mere intermediary is less intimately con- nected with commerce than a vendor or his regular drummers. It is not likely that the court would go so far as to hold that such a sales broker, Hke the broker who furnishes exchange/^^ is not him- self engaged in the commerce which he facilitates. But the passage above quoted has the aroma of the idea that Mr. Ficklen was a degree or two removed from direct participation in interstate com- merce, and that therefore the tax which was sustained against him must be subjected to more rigid tests, if ever it is sought to be im- posed on those whose receipts are from interstate commerce instead of being receipts from receipts from interstate commerce. To the extent that the Ficklen case is now sought to be explained or apologized for on any such notion, it is excluded from the class of cases with which we are concerned and, from the standpoint from which we are considering it, is abandoned. We hardly need, however, to enter upon such refinements to discern that, even if the Ficklen case still lives, its working days are over. Of the tax from which the Crew Levick Company was relieved, Mr. Justice Pitney says: "It operates to lay a direct burden upon every transaction in commerce by withholding, for the use of the State, a part of every dollar received in such transactions. That it applies to internal as well as to foreign commerce cannot save it; . . . That portion of the tax which is measured by the receipts from foreign commerce necessarily varies in proportion to the volume of that commerce, and hence is a direct burden upon it." ^^ This would be quite as applicable to a tax specifically imposed on a local occupation but measured by receipts from all sources. To sustain a tax on interstate receipts, something more is now needed than the declaration of the state that it is merely using the receipts as the measure of a tax on something else that is taxable. The "1 231 u. S. 399, 34 Sup. Ct. Rep. 122 (1913). "2 Nathan v. Louisiana, 8 How. (U. S.) 73 (1850). '" 245 U. S. 292, 297-98, 38 Sup. Ct. Rep. 122 (1917).