4o6 HARVARD LAW REVIEW effect on interstate commerce because the local commerce was un- remimerative. The contention was rejected on the ground that the companies were free to abandon the intra-state commerce and thus avoid the tax. This ground of decision was later discountenanced in Western Union Telegraph Co. v. Kansas,^^^ and Looney v. Crane CoP^ at least in its application to taxes in substance on extraterri- torial values. It does not appear that it was open to the companies before the court in the Ohio State casesP^ Presumably they were not, like the Pullman companies in Mississippi and Tennessee, expressly reUeved from the common-law duty to serve all, and therefore could not abandon the local commerce unless they with- drew from the business entirely .^^^ It would seem that counsel for the railroads in Ohio raised a point of undoubted merit, provided it was supported by the facts. The rates on other pubUc utilities less likely to be engaged in inter- state comnierce were less than half of those on railroads and pipe lines. Plainly there was evidence of a process of artificial selection which, if carried far enough, might effectively impose discriminatory burdens on interstate commerce. The court's treatment of the issue thus raised seems somewhat evasive. Mr. Justice Pitney contents himself with saying: "The present act does not on its face manifest a purpose to inter- fere with interstate commerce, and we are unable to accept the historical "« Note 21, supra. "» 245 U. S. 178, 38 Sup. Ct. Rep. 85 (191 7).
- '" Note 124, supra.
"^ For a different view on this point see Northern Pacific Railway Co. v. Gifford, 25 Idaho, 196, 136 Pac. 1131 (1913), 31 Harv. L. Rev. 737. See also '31 Harv. L. Rev. 762, note 156. Even though a carrier might be permitted by a state to abandon a local business that excessive taxation made unprofitable, such economically enforced abandonment ought on the doctrine of the Western Union case and the Looney case (notes 21 and 129, supra) to be held an unconstitutional burden on interstate commerce. Those were cases in which a state had measured its tax by extraterritorial values, but the same unpleasant effect on interstate commerce may be produced by picking for exceptionally high taxation on local business those corporations that are engaged also in the kind of interstate commerce that can be economically conducted only by being carried on in connection with local commerce. For an able discussion of this point see Gerard Carl Henderson, "The Position of Foreign Corporations in American Con- stitutional Law," 2 Harvard Studies in Jurisprudence, Cambridge, Harvard Uni- versity Press, 1918, chapter 7, especially pages 130-31. Mr. Henderson's contribu- tion is of exceptional merit and importance. Its consideration of the struggle between the "restrictive" and the "liberal" theories of the nature of corporations at home and abroad, and of their shifting fortunes, throws a most helpful light on the cases in this series of articles which deal with state excises on domestic or foreign corporations.
