384 HARVARD LAW REVIEW merce, provided there is no exemption of intra-state receipts and provided further that the tax is in substitution for and not in addi- tion to other taxes. This would have been a more direct and realistic solution of the issue. It is of course but another way of stating the solution actually reached. Whichever way the doctrine is stated, there still remains the question whether a gross-receipts tax, where there is no property to exempt, would be constitutional provided it can be called something else than a tax on receipts from interstate commerce "as such," Ficklen v. Shelby County Taxing District ^^ may be thought to answer the question in the affirmative, provided the gross-earnings tax may be called a tax on a local "occupation." But the tax sustained in that case, though not in lieu of a property tax, was in default of one. We shall consider later whether this makes a difference. Though the Dakota cases did not definitely pass on the constitu- tional question, its final settlement was not long delayed. Wisconsin imposed a gross-receipts tax in lieu of other taxes on railroads and its demand was sustained in Wisconsin &• M. Ry. Co. v. Powers,'^^ decided in 1903, The opinion of the court by Mr. Justice Holmes was devoted almost entirely to denying the contention that the tax violated contract rights of the complainant. The commerce question was given this terse answer: "We need say but a word in answer to the suggestion that the tax is an unconstitutional interference with interstate commerce. In form the tax is a tax on 'the property and business of such railroad corpora- tion operated within the State,' computed upon certain percentages of gross income. The prima facie measure of the plaintiff's gross income is substantially that which was approved in Maine v. Grand Trunk Railway Co., 142 U. S. 217, 228. See also Western Union Telegraph Co. v. Taggart, 163 U. S. 1." * The Taggart case was one sustaining a tax measured by the value of total capital stock. The Maine case proceeded on a theory of absolute power over privileges enjoyed by foreign corporations. Neither case is so direct an authority in support of the Wisconsin tax as is the decision in the Ficklen case and the strong dictum in McHenry v. Alford.^^ ' * Note 23, supra.
- 191 U. S. 379, 24 Sup. Ct. Rep. 107 (1903).
- Ibid., 387-88. « Note 42, supra.
