378 HARVARD LAW REVIEW tax nominally on the privilege of exercising corporate franchises within the state. The theory of the majority was that the measure of the tax did not matter, as the state had absolute and arbitrary power over such privileges as it might in its discretion grant or withhold. In 1 910 this theory was abandoned,^^ so that the Maine case must now find some other leg to stand on or must fall. We shall see that the necessary prop was supplied ^^ two years before the original foundation was destroyed. At the same term in which the Maine case was decided, Ficklen v. Shelby County Taxing District ^' sustained a gross-receipts tax without the justification of arbitrary power over corporate privi- leges. The tax was not in terms on the gross receipts and thus was distinguished by the majority from taxes levied on receipts from interstate commerce "as such." Mr. Justice Harlan was the only one to dissent. He insisted that receipts from interstate commerce cannot be included in the measure of any tax on an occupation. He professed to believe that his eight colleagues would have agreed with him, had the Taxing District expressly required that a Hcense to do a general commission business should be withheld until the applicant had paid a percentage of his gross commissions from inter- state sales during the preceding year. The different method which had been adopted was characterized as "a very clever device to enable the Taxing District of Shelby County to sustain its govern- ment by taxation upon interstate commerce."^* This so-called "device" took the form of a requirement that all who desired to do business as general brokers, etc., should take out a license, pay a fee of .$50, and in addition pay ten cents for every $100 of capital invested in the business, or, in the absence of such invested capital, give a bond conditioned on the payment of two and one half per cent on the gross commissions during the year for which the license was desired. Complainants had no capital. They had given the required bond. It chanced that the business of Ficklen during the year 1887 had consisted entirely of negotiating interstate sales, and that nine-tenths of the sales and commissions 21 Western Union Telegraph Co. v. Kansas, 216 U. S. i, 30 Sup. Ct. Rep. 190 (1910); Pullman's Palace Car Co. v. Kansas, 216 U. S. 56, 30 Sup. Ct. Rep. 232 (1910). ^ In Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 28 Sup. Ct. Rep. 638 (1908), considered infra, 385, et seq. » i4i5 U. S. I, 12 Sup. Ct. Rep. 810 (1892). ^ Ibid., 28.
