Page:Harvard Law Review Volume 32.djvu/949

INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 913 lays emphasis on this point in the succeeding paragraph of his opinion : "There is and must always be a considerable latitude of discretion in every wise Government in the exercise of the taxing power, both as to the objects and the amount, and of discrimination in respect to both. Property invested in religious institutions, seminaries of learning, chari- table institutions, and the like, are examples. Can any Court say that these are discriminations which, upon the argument that seeks to distin- guish the present from the case of Weston vs. The City of Charleston, would or would not take it out of that case?" ^^ Such difficulties have had to be solved in dealing with taxes on shares of stock in national banks, but a court may well hesitate to invite them when not required so to do. If United States bonds were taxable as property, investors would undoubtedly find ways to use their funds for purchase of other securities on which the tax burden was actually or apparently lighter. An apparent exemption which was not an actual one would nevertheless affect the market for other securities unfavorably. But these considerations, which might justify a court in refusing to allow United States bonds to be subject to a property tax, are not pertinent to the issue whether they may be included in the assessment of a tax on the capital of a corporation. If the corporation must pay the same tax whatever the rank or title of its investments, it is denied access to places of untaxed refuge which may be open to an individual. It can reduce its tax only by the Samson-like method of diminishing its assets. Mr. Justice Nelson's remarks on the difficulty of applying the test of discrimination may justify a refusal to limit Weston v. City Council of Charleston ^° to a tax that is patently discriminatory, since the tax there involved was directly on property; but the diffi- culties which the learned justice suggested were absent from the case before him. If we put to one side the question of discrimination, we can readily agree that a tax on the capital of a corporation is a tax on the property in which that capital is invested. To tax United States bonds through a tax on corporate capital may have a different effect on the federal borrowing power than to tax them directly, but none the less it is the bonds that are taxed. In Bank Tax Case,^^ " 2 Black (U. S.) 620, 631 (1862). »o Note 17, supra. « 2 Wall. (U. S.) 200 (1864), 31 Harv. L. Rev. 330.