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POLITICAL SCIENCE

QUARTERLY.

'While the pendulum of public opinion has swung with much force away from the extreme point of states-rights doctrine, there may be danger of its reaching an extreme point on the other side." This idea may have been suggested by a perusal of some recent opinions rendered by the Supreme Court of the United States. Five opinions, rendered during the last four terms of the court, give some indication of the motion of the pendulum so far as determined by the influence of that body.

I.

Questions relating to commerce between the states are now coming with frequency before the tribunal of last resort, and naturally the movement of the pendulum is most apparent here. The right of a state to tax interstate commerce indirectly by taxing an undivided mass of commerce, state and interstate, was for some years settled by two decisions rendered in 1872. In what is commonly called the State Freight Tax Case,1 the court held that Pennsylvania had no right to levy a tax of a certain amount per ton on merchandise hauled from a point within the state to a point without, or from a point outside to a point within; this was interstate commerce, the tax was a regu

1 15 Wallace, 232.

lation thereof, and Congress had the exclusive right of such regu lation. But in the Railway Gross Receipts Case,1 the court held that Pennsylvania might levy a tax on the earnings of a railroad, though a part was derived from interstate commerce; the money had lost its connection with the merchandise and had become, with other moneys, the property of the company within the state. In a dissenting opinion, in which Justices Field and Hunt concurred, Justice Miller declared the doctrine which has since been made the doctrine of the court. He laid down the broad proposition

that by no device or evasion, by no form of statutory words, can a state compel citizens of other states to pay to it a tax, contribution or toll, for the privilege of having their goods transported through that state by the ordinary channels of commerce.

In process of time the Philadelphia and Southern Mail Steamship Company resisted the collection of a tax on its gross receipts, and the issue thus raised was determined by the Supreme Court in May, 1887.2 There was no dissenting opinion filed, but this does not indicate unanimity on the bench so much as that the justices who were disposed to dissent from the position taken by the majority felt that they had sufficiently defined their views in dissenting opinions filed earlier in the same term. Justice Bradley, in reading the opinion of the court, referred to the action of the court in 1872, and combatted its reasoning. The foundation of the decision in the Gross Receipts Case, he stated, was that the tax was laid upon a fund which had become incorporated into the general mass of the company's property. Just as imported goods, after their original packages have been broken, are taxable, so the proceeds of interstate transportation, when they lose their specific identity, are under the authority of the states. This analogy, however, seemed to the learned justice unsound. For, he argued, when the imported goods.

become mingled with the general mass of property in the state, they are not followed and singled out for taxation as imported goods, and by 2 122 U. S. 326.

115 Wallace, 284.