Certain cases afterward occurred, in which he felt that the Court was taking retrograde steps on this subject, which he deemed of vital importance.

One of them was Pullman's Palace Car Company v. Commonwealth of Pennsylvania, 141 U. S. 101, decided May 11, 1891.

In this case the majority of the Court held, that "there is nothing in the Constitution or laws of the United States which prevents a State from taxing personal property within its jurisdiction, employed in interstate or foreign commerce," and that, "where the cars of a company within a State are employed in interstate commerce, their being so employed does not exempt them from being taxed by the State." The opinion of the Court was read by Mr. Justice Gray, and Justices Bradley, Field and Harlan dissented. Mr. Justice Bradley read the dissenting opinion, in which he asserted his well known views on the score of the commerce clause very strongly, saying that “A citizen of the United States, or any other person, in the performance of any duty, or in the exercise of any privilege, under the Constitution or laws of the United States, is absolutely free from State control in relation to such matters. So that the general proposition, that all persons and personal property within a State are subject to the laws of the State, unless materially modified, cannot be true." After a careful review of the cases he dissented emphatically from the result reached by the Court, and closed by saying: "The State can no more tax the capital stock of a foreign corporation than it can tax the capital of a foreign person. Pennsylvania cannot tax a citizen and resident of New York, either for the whole or any portion

of his general property or capital. It can only tax such property of that citizen as may be located and have a situs in Pennsylvania. And it is exactly the same with a foreign corporation. Its capital, as such, is not taxable. To hold otherwise, would lead to the most oppressive and unjust proceedings. It would lead to a course of spoliation and reprisals that would endanger the harmony of the union." The same dissent was filed in the case of Pullman's Car Co. v. Hayward, decided on the same day, in which it was held, that, "the cars of a company, let to railroad corporations, and employed exclusively in interstate commerce, may be taxed in a State, and the tax apportioned among the counties of the State according to mileage of the railroads in each county, and levied in those counties." Judge Bradley regarded these cases as indicating a divergence from the line of decision which he had long striven to maintain.

Another case was the one already alluded to in which he read his last opinion, dissenting from the views of the majority. It was the case of State of Maine v. Grand Trunk Railroad Company of Canada, 142 U. S., decided December 14, 1891.

Justice Field read the opinion of the Court, holding that a State can levy an excise tax on a railroad corporation for the privilege of exercising its franchise within the State; that the character of such a tax or its validity are not determined by the modes adopted in fixing its amount for any specific period of its payment; and that reference to the transportation receipts of a railroad company, and to a certain percentage of the same in determining the amount of an excise tax on the company is not in effect the imposition of a tax

on such receipts, nor an interference with interstate commerce, although the railroad lies partly within and partly without the State. Justice Bradley regarded this as an undue limitation of the power of Congress over interstate commerce, and read an adverse opinion. It may not take rank amongst "Great Dissenting Opinions," but it displays his mental characteristics in a striking manner, and shows the vigor and earnestness which he always brought to bear in dealing with this great subject. Three of his associates concurred with him. He said: "Justices Harlan, Lamar, Brown and myself, dissent from the judgment of the Court in this case. We do so both on principle and authority. On principle because, whilst the purpose of the law professes to be to lay a tax upon the foreign company for the privilege of exercising its franchise in the State of Maine, the mode of doing this is unconstitutional. The mode adopted is the laying of a tax on the gross receipts of the company, and these receipts, of course, include receipts for interstate and international transportation between other States and Maine, and between Canada and the United States. Now, if after the previous legislation, which has been adopted with regard to admitting the company to carry on business within the State, the Legislature has still the right to tax it for the exercise of its franchises, it should do so in a constitutional manner, and not (as it has done) by a tax on the receipts derived from interstate and international transportation. The power to regulate commerce among the several States (except as to matters merely local) is just as exclusive a power in Congress as is the power to regulate commerce with foreign nations and with the Indian tribes. It is given

in the same clause, and couched in the same phraseology; but if it may be exercised by the States, it might as well be expunged from the Constitution. We think it a power not only granted to be exercised, but that it is of first importance, being one of the principal moving causes of the adoption of the Constitution."

He then referred to disputes between States as to interstate facilities of intercourse, and the intolerable discriminations made, and said: "Passing this by, the decisions of this Court for a number of years past have settled the principle that taxation (which is a mode of regulation) of interstate commerce, or of the revenue derived therefrom (which is the same thing), is contrary to the Constitution."

He cited, Pickard v. Pullman Car Co., 117 U. S. 34,-annual tax on sleeping cars going through the State; Leloup v. Mobile, 127 U. S. 640,-telegraph receipts; Norfolk Co. v. Pennsylvania, 136 U. S., 114, -keeping a through railroad office in a State; Crutcher v. Kentucky, 141 U. S. 47,-taxation of express companies for doing business between the States.

And added: "A great many other cases might be referred to, showing that in the decisions and opinions of this Court this kind of taxation is unconstitutional and void. We think the present decision is a departure from the line of these decisions. The tax, it is true, is called a tax on a franchise. It is so called, but what is it in fact? It is a tax on the receipts of the company, derived from international transportation."

After speaking of the length to which State Courts and the Supreme Court have gone in sustaining various forms of taxes on corporations, he said: "I do not know that jealousy of corporate institutions could be

carried much further. The Supreme Court has held that taxation of Western Union stock in Massachusetts, graduated by the mileage of lines in that State compared with the lines in all other States, was only a tax upon its property, yet it was in terms a tax upon its capital stock, and might as well have been a tax upon its gross receipts. The present decision. holds that taxation may be imposed upon the gross receipts of the company for the exercise of the franchise within the State, if graduated according to the number of miles the road runs in the State." And he closed by saying: "Then it comes to this. A State may tax a railroad company upon its gross receipts, in proportion to the number of miles run within the State, as a tax on its property and may also lay a tax upon these same gross receipts in proportion to the same number of miles for the privilege of exercising its franchise in the State. I do not know what else it may not tax the gross receipts for. If the interstate commerce of the country is not, or will not be, handicapped by this course of decision, I do not understand the ordinary principles which govern human conduct."

Mr. Justice Bradley died on the 22d day of January, 1892, only a few weeks after reading this opinion. The great Chief Justice lived eight years after delivering his dissenting opinion in Ogden v. Saunders. Mr. Carson says that this opinion by Marshall has been termed his master effort; that "prior to that time the steadiness of the movement of the ship of state under the hand of her great helmsman, had been without wavering or shadow of turning;" and that "with the passing of Marshall, the school of strict constructionists marched to power, and the current of decision