238 HARVARD LAW REVIEW merce that amounts to a regulation of it, within the meaning of the Constitution."^^ Of course the majonty judges in the Gross Receipts case could find no fault with taxing property employed in interstate commerce. That case, it will be remembered, sustained a tax levied directly, on gross receipts. One of the grounds adduced by the majority was that the receipts were a fund actually in the hands of the corporation, disassociated from the source whence they were derived. The artificiality of this conception was exposed by the minority at the time, and fourteen years later was recognized by a unanimous court.^° But while the doctrine prevailed, there could be no doubt that a state might effectively tax interstate commerce, provided it was careful not to impose the tax formally on the commerce itself. It is significant, however, that the judges who dissented in State Tax on Railway Gross Receipts ^^ interposed no objection to the statement in The Delaware Railroad Tax ^^ that the property of an interstate carrier was taxable at its full value. The only quahfication suggested was that this value must not be inflated by the inclusion of elements not local to the taxing state. It ^eemed to be assumed that the valuation could take the form of a capitalization of earnings, including those from interstate bom- meree, for the value of the entire road was fixed by the cash value of the shares of capital, which would of course be determined in large measure by some estimate of earnings. Three years later, in the State Railroad Tax Cases, ^ the propriety of this mode of assessment was distinctly affirmed, so far as the Fourteenth Amendment was concerned. Mr. Justice Miller pointed out that "the visible or tangible property of the corporation . . . may or may not include all its wealth." ^^ "There may be other property of a class not visible or tangible which ought to respond to taxation, and which the State has a right to subject to taxa- tion. "^^ And the method of assessment adopted by Illinois was indicated and approved as follows: " 15 WaU. (U. S.) 293 (1872); quoted in 18 WaU. (U. S.) 206, 232 (1873). ^° Philadelphia & Southern Mail S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. Rep. 1 1 18 (1887). ^ Note 18, supra. « Note 8, supra. » 92 U. S. 575 (1876). ** Ibid., 602. » Ibid.
