648 HARVARD LAW REVIEW the privilege of carrying on . . . business." The net income is the "measure," and not the "subject," of the tax. Granting arguendo that the net income of all corporations from whatever source derived is a proper subject of state taxation, that is not the legal res which West Virginia has named as the object of its desire. The Supreme Court must rewrite the West Virginia stat- ute in order to escape from the decisions ^° which hold that inter- state commerce, whether done by individuals or by corporations, is not a legitimate subject of state taxation. The court has consistently declined to rewrite statutes or ordi- nances imposing specific taxes on the privilege of doing any business whatever,^^ even though the identical tax might be imposed on local business alone.^^ It has, however, held that the nominal subject of the tax was not the actual subject, when taxes purport- ing to be on the privilege of a foreign corporation to engage in local business have been discovered to be substantially taxes on extra-state property of the corporation because measured by total capital stock.^ The developments since 1910 show the waning of the once controlling influence of the formal distinction between the subject and the measure of the tax. Unless the court is to be more zealous to discover vice than virtue, it may as easily hold that a tax in substance laid on the net income of all corporations will be dealt with as such a tax, in spite of the fact that it is called by the statute an annual special excise for the privilege of carrying on business. Precedent for such action is not wanting. In Postal Telegraph Cable Co. v. Adams, ^* as we have seen, a tax described by the statute as a privilege tax was held to be a levy on the property of the com- pany and therefore a valid demand. Similar courtesies have been shown to other taxes found to be in lieu of property taxes.^ If a
- " Some of these decisions are cited in 32 Harv. L. Rev. 380, note 34.
" Cases cited in 32 Harv. L. Rev. 411, note 146.
- 2 Osbome v. Florida, 164 U. S. 650, 17 Sup. Ct. Rep. 214 (1897). See infra, pages
669-70. " 31 Harv. L. Rev. 584-618, considering the Western Union case and those fol- lowing it. " iSS U. S. 688, 15 Sup. Ct. Rep. 268 (1895); 32 Harv. L. Rev. 249. ^ See 32 Harv. L. Rev. 389. For an instance of judicial rewriting of a statute to relieve a tax of the charge of being an imposition on an instrimientality of the federal government, see Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. Rep. 961 (1888), 32 Harv. L. Rev. 239.
