376 HARVARD LAW REVIEW the corporation was engaged partly in interstate commerce and the tax was graduated according to the annual dividends. Mr. Justice White did not sit, and Justices Harlan and Brown dissented; but their objections were confined to what they regarded as a dis- crimination against interstate commerce because the tax was im- posed only on corporations not "wholly engaged" in business within the state.^^ In 1900 the court unanimously sustained a tax on the total capi- tal stock of a domestic corporation owning an interstate bridge, which was in addition to a tax on its tangible property .^^ Three years later Western Union Telegraph Co. v. Missouri ^^ sanctioned Missouri's application of the unit rule to the property of the West- ern Union within the state. Mr. Justice Brewer concurred only in the result, and Justices White and Peckham dissented; but whether on the main point of the case or on the subordinate one that a complaint against discriminatory overvaluation cannot be raised in an action at law, does not appear, as there is no dissenting opinion. Meanwhile other cases had sanctioned assessments of property employed in interstate commerce, which did not take account of " The majority recognized that "if the object of the law in question was to impose a tax upon products of other States while exempting similar domestic goods from taxa- tion, there might be room to contend that such a distinction was constitutionally objectionable as tending to affect or regulate commerce between the States" (171 U. S. 658, 662, 19 Sup. Ct. Rep. 58). But the tax was said not to be directly on the articles brought into the state or on their sale, nor on property in other states. It was conceded that the tendency of the law might be " to encourage manufacturing corpora- tions which seek to do business in that State to bring their plants into New York" {Ibid., 665); but the absence of any distinction between domestic and foreign cor- porations was thought to cure any evil lurking in this design. The majority cannot be said to have dealt satisfactorily with the contentions of the minority. Mr. Justice Shiras refers to the Ohio Express cases and others to show "the distinction between corporations organized to carry on interstate commerce, and having a quasi-public character, and corporations organized to conduct strictly private business" (Ibid.). The drug concern before the court was said to come within the doctrine of Paul v. Virginia, 8 Wall. (U. S.) 168 (1869), and Horn Silver Mining Co. v. New York, 143 U. S. 305, 12 Sup. Ct. Rep. 403 (1892), and therefore to be subject to the arbitrary power of the state with respect to any exaction on its local business. This ground of the decision is now completely undermined by Looney v. Crane Co., 245 U. S. 178, 38 Sup. Ct. Rep. 85 (191 7), 31 Harv. L. Rev. 601-18. ^ Keokuk & Hamilton Bridge Co. v. Illinois, 175 U. S. 626, 20 Sup. Ct. Rep. 205 (1900). " 190 U. S. 412, 23 Sup. Ct. Rep. 730 (1903).
