252 HARVARD LAW REVIEW made by tjie board to Ohio is not disclosed; it was evidently hap-hazard and arbitrary." '* Or, as was argued later, "the assessments, while purporting to be upon the property of the plaintiffs within the State, are, in fact, levied upon the plaintiffs' business (which is largely interstate com- merce), by placing a fictitious and artificial value upon that prop- erty." ^° The result was that wagons, horses, pouches, etc., which one of the companies valued at $23,400, were assessed at $499,- 377.60, if that was the property being taxed. It is difficult to escape from the characterizations of the tax presented in the briefs against its constitutionality. Certainly the value of the horses, wagons, etc., "would be precisely the same" and they "could be bought for the same price — be sold for the same price — be produced and reproduced for the same price — whether the capital stock of the company was 50 per cent below par or 100 per cent above par." ^^ It is true also that "under this method of valuation, whether the horses were lame or sound, or old or young, whether the wagons and harness were old or new, was of little consequence." ^^ Nor does there seem any valid answer to the position that: "To say that this sort of detached and fugitive property, simply be- cause it is employed in the business of an organized express company, is unit property, like a railroad or a telegraph, is only another way of at- tempting to justify an assessment against the business of a company, under the pretense of assessing its property." ^ As the brief of Mr. James C. Carter puts it: "The property which, according to the notion imder criticism, is taxed, is a pure abstrac- tion having no situs, no existence, even, save in intellectual con- ception, something which can nowhere be seer^ or handled or made the subject of action." ^^ Later Mr. Carter enimierates the ele- ments which determine the market value of the shares, and con- tends that a tax on those elements is a tax on the occupation itself. " 165 U. S. 194, 204-05, 41 L. Ed. 686-687 (1897). '° Ibid., 194, 205, Ibid., 687. " Ibid., 194, 215, Ibid., 692. » Ibid. " 41 L. Ed. 687 (1897). This excerpt is not contained in the abstract of Mr. Max- well's brief given in the official reports. " 41 L. Ed. 693 (1897). Not in the official reports.
