650 HARVARD LAW REVIEW is still law, it would seem that such foreign corporations may be subjected to an excise measured by their total income as readily as to one measured by their total capital stock. The possi- bility of the early demise of the Horn case has already been sug- gested.^^ Mr. Henderson in his admirable study of The Position of Foreign Corporations in American Constitutional Law^^ argues forcibly for the view that the decision must be regarded as already abandoned.^^ This is a legitimate inference from the opinion of Mr. Justice Van Devanter in International Paper Co. v. Massa- chusetts,^^ in which the due-process objections to an excise measured by extra-territorial values appear to be treated as entirely inde- pendent of the commerce clause. The opinion of Mr. Justice Holmes in Equitable Life Assurance Society v. Pennsylvania ®^ may also be taken as an impHed obituary of the Horn case. This case sustained a tax on a foreign insurance company which included a percentage of premiums paid in other states on pohcies on the lives of residents of the taxing state, notwithstanding the ruling that such premiums, separately considered, afford no basis for a tax on a company that has ceased to solicit business or to collect premi- ums in the taxing state.^^ Though the Equitable case came within the doctrine of arbitrary power declared in the Horn case, it was not put on that ground by the court. Instead, Mr. Justice Holmes pointed out that many incidents of the contracts insuring the lives of residents were likely to be attended to in Pennyslvania, such as the payment of dividends and the adjustment of claims, and added : "It is not imnatural to take the policy holders residing in the State as a measure without going into nicer if not impracticable details. Taxa- tion has to be determined by general principles, and it seems to us impossible to say that the rule adopted in Pennsylvania goes beyond what the Constitution allows." ^ " 31 Harv. L. Rev. 613, 758, 759.
- Henderson, "The Position of Foreign Coiporations in American Constitutional
Law," 2 Harvakd Stxtoies in Jurisprudence, Cambridge, Harvard University Press, 1918. '* For a statement of Mr. Henderson's argimient, and a presentation of considera- tions against its validity as an expression of the present state of the law, see 33 Polit- ical Science Quarterly, 558-65. ^° 246 U. S. 135, 38 Sup. Ct. Rep. 292 (1918). " 238 U. S. 143, 35 Sup. Ct. Rep. 829 (1915).
- 2 Provident Savings Life Assurance Society v. Kentucky, 239 U. S. 103, 36 Sup.
Ct. Rep. 34 (1915). « 238 U. S. 143, 147, 35 Sup. Ct. Rep. 829 (1915).
