646 HARVARD LAW REVIEW that he would have decided differently had the tax been measured by gross, rather than by net, income. But the distinction between the two, elaborated and relied on by the Supreme Court in the Oak Creek case, may be found sufficient to support the West Vir- ginia excise, even though it falls only on corporations and is in addition to other demands. ' As to corporations engaged partly in local business, there is no question of taxability, and the measure of the tax may be forgiven on the ground of its indirect effect on interstate commerce and the remnant of arbitrar>^ power over domestic corporations and over the local business of foreign corporations. Where this arbitrary power has thus far been curbed, the complaint was against the extra- territorial incidence of the tax.^^ In view of the decision in the Oak Creek case that a general tax on net income does not regulate interstate commerce by including income from that commerce, an excise on all corporations may be deemed to have sufficient gener- ality to be accorded similar recognition. Some weight, however, should be given to the probability that the exemption of farmers, merchants and others conducting business as individuals from burdens borne by corporations will tend to reHeve a considerable proportion of local business from demands that few engaged in interstate commerce will escape. Here is a fighting chance for the contention that an income tax applicable only to corporations must by and large bear more heavily on interstate business than on local business, and therefore amounts to an unconstitutional regulation of interstate commerce. Foreign corporations engaged exclusively in interstate commerce have still a stronger ground on which to resist the West Virginia tax. For anything thus far decided, such corporations would seem still to have the shield that they are not subject to an excise tax, no matter how it is measured. The subject selected for taxation has long been regarded as immune from the jurisdiction of the state. If the Cheney Brothers Company ^ and the York Manu- facturing Company *^ were permitted to disregard the corporation laws of Massachusetts and of Texas respectively, because they •" See 32 Harv. L. Rev. 384-417. See also Henderson, "The Position of Foreign Corporations in American Constitutional Law," 2 Harvard Stxidies in Jurispru- dence, chapters VII, VIII, and IX.
- • Cheney Brothers Co. v. Massachusetts, note 12, supra.
^ York Manxifacturing Co. v. Colley, note 12, supra.
