402 HARVARD LAW REVIEW not by the Constitution is evident from Cudahy Packing Co. v. Minnesota, ^^^ decided last April, in which the Supreme Court sus- tained a similar gross-receipts tax imposed by the same state on receipts earned within its borders from refrigerator cars which ran in and out of the state. The packing company which owned the cars received a "com- pensation or rental" ^°^ of one cent a mile from the railroads which transported them, and paid the railroads the usual tariff rates for the transportation of its own products, allowing the roads to carry the products of others on the return trip. Mr. Justice Van Devanter concluded his opinion by saying that, "we think the tax is not dis- tinguishable from that sustained in United States Express Co. v. Minnesota,^ "° without referring to the fact that in that case "the transportation in connection with such shipments outside of the state of Minnesota was performed by connecting companies other than the defendant." "^ Nor did the opinion refer to the possi- bility of applying the point made in Erie Railroad v. Pennsylvania "^ and Henderson Bridge Co. v. Kentticky^^^ that the receipts were from rental of property rather than from interstate carriage. It stated, however, that if the tax "is laid on the earnings as such, they being derived largely from interstate commerce, it is an un- constitutional restraint or burden on such commerce and void," "* thus abandoning the doctrine of the earlier cases without noticing that it had done so. Both of these Minnesota taxes were treated as property taxes measured by gross receipts. It appears, however, that from all "receipts for business done within the State by such company in connection with other companies" the United States Express Com- pany was allowed to deduct "the amounts paid for transportation to railroads within the State." "^ No mention of this concession was made in Mr. Justice Day's opinion. From the Cudahy Packing case it appears that the railroads were allowed to deduct their i« 246 U. S. 450, 38 Sup. Ct. Rep. 373 (1918). "» Ibid., 451. "0 Ibid., 456. "1 223 U. S. 335, 341, 32 Sup. Ct. Rep. 211 (1912). "* Note 6, supra. ^'* Note 7, supra. "* 246 U. S. 4SO, 453, 38 Sup. Ct. Rep. 373 (1918). 1" 223 U. S. 335, 339, 32 Sup. Ct. Rep. 211 (1912).
