Page:Harvard Law Review Volume 32.djvu/944

9o8 HARVARD LAW REVIEW of state taxation of the economic enterprise which in 1827 was re- lieved of a $50 license fee. It still forbids specific impositions on the business of selling imports, but this goes, not so much to the existence of state power, as to the manner of wielding it. The famous decision would have been more impregnable against the assaults of time if it had been confined to discriminatory taxation. Though the Supreme Court has never relaxed its doctrine that no license fee can be imposed on foreign or interstate commerce, all the license fees with which it has had to deal have been imposed on selected enterprises and have therefore had in them the seeds of discrimination. Two years after Brown v. Maryland ^® came Weston v. City Council of Charleston} Here, too, there was discrimination, for the tax in question was one imposed, not on all property, but on certain selected species, among which " six and seven per cent stock of the United States " was included. In holding the levy on United States stock an invalid interference with the borrowing power of the na- tional government, Marshall made no mention of the fact that such stock was taxed while certain other property went free. Mr. Justice Johnson in his dissent assumed also that there was no discrimination against United States bonds, as is evident • from the concluding paragraphs of his opinion : "Why should not the stock of the United States, when it becomes mixed up with the capital of its citizens become subject to taxation in common with other capital? Or why should one who enjoys all the advantages of a society purchased at a heavy expense, and lives in affluence upon an income derived exclusively from interest on government stock, be exempted from taxation? " No one imagines that it is to be singled out and marked as an object of persecution, and that a law professing to tax, will be permitted to destroy; this subject was sufficiently explained in McCulloch's case. But why should the states be held to confer a bonus or bounty on the loans made by the general government? The question is not whether their stock is to be exposed to peculiar burdens; but whether it shall enjoy privileges and exemptions, directly interfering with the power of the states to tax or to borrow. " I can see no reason for the exemption, and certainly cannot acquiesce m it." « ^ « Note 6, supra. " 2 Pet. (U. S.) 449 (1829), 31 Harv. L. Rev. 327-29. " 2 Pet. (U. S.) 449, 473 (1829),