greater sum for a foreign corporation than from a domestic corporation for the same purpose.1 This is restraint of interstate commerce and an assumption by the State of the power to deal out the privilege of doing business interstate or otherwise under general laws and an attempt to get a monopoly of the sale of such privilege. So far as the excess tax applies to corporations of another State the tax is absurd, for any corporation may evade it by reincorporating in the State. The true rule should be that among the States no American corporation is foreign but all indigenous in every part of the land. An examination of the cases defining corporation "property" as a basis of taxation shows that the fiction which makes the bare corporation contract valuable and taxable is unnecessary and falsifies the situation.

$36. THE STATES HAVE NO POWER TO REGULATE COMMERCE WHICH EXTENDS BEYOND THE STATE THROUGH TAXATION OR EXERCISE OF POLICE Power.

"The Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes." 2

The question when a transaction becomes a subject of interstate commerce was decided as follows:3

1 Ducat v. Chicago, 10 Wall. 410; Liverpool Ins. Co. v. Mass. 10 Wall. 566; Pembina Mining Co. v. Pa., 125 U. S. 181; Horn Silver Mining Co. v. New York, 143 U. S. 305; New York v. Roberts, 171 U. S. 658; Manchester Fire Ins. Co. v. Herriott, 91 Fed. 711. 2 Const. Art. I, sec. 8, cl. 3.

Coe v. Errol, 116 U. S. 517; see Ogilvie v. Crawford Co., 7 Fed. 745; Diamond Match Co. v. Ontonagon, 188 U. S. 824. A discriminating tax operating to the disadvantage of the products of other States when introduced for sale into the taxing State is unconstitutional as a regulation of interstate commerce, Walling v. Michigan, 116 U. S. 446.

"Goods, the product of a State, intended for exportation to another State, are liable to taxation as part of the general mass of property of the State of their origin, until actually started in course of transportation to the State of their destination, or delivered to a common carrier for that purpose; the carrying of them to, and depositing them at, a depot for the purpose of transportation is no part of that transportation. When goods, the product of a State, have begun to be transported from that State to another State, and not till then, they have become the subjects of interstate commerce, and, as such, are subject to national regulation, and cease to be taxable by the State of their origin.

"Goods on their way through a State from a place outside thereof to another place outside thereof, are in the course of interstate or foreign transportation, and are subjects of interstate or foreign commerce, and not taxable by the State through which they are passing, even though detained within that State by low water or other temporary cause.

"1

1 "The power to regulate the relative rights and duties of all persons and corporations within the limits of the State cannot extend so far as to regulate interstate commerce. The police power of the State does not give it the right to violate any provision of the Federal Constitution. Being of the opinion that the statute in question, when applied to an interstate shipment, is a regulation of interstate commerce, we must hold the statute as far as it affects such shipments, to be void on that account." Peckham, J., in Central Georgia, R. R. v. Murphey, Jan. 9, 1905. U. S. S. C. 196 U. S. 194. And property just imported from a foreign country is not taxable by a State so long as it is in the original package in which it was imported. Brown v. Maryland, 12 Wheat. 436; Waring v. Mayor, 8 Wall. 110; Low v. Austin, 13 Wall. 29: May v. New Orleans, 178 U. S. 496; People v. Barker, 155 N. Y. 330. But the rule was applied to that extent only to imports and not to interstate commerce. Woodruff v. Parham, 8 Wall. 123. Goods brought in from another State to remain until sold may be taxed as a part of the property in the State, i.e., coal in barges

"That a tax affects commerce among the States and impedes the transit of persons and property from one State to another just in the same way and no other that taxation of any kind necessarily increases the expenses attendant upon the use or possession of the thing taxed, constitutes, of itself, no objection to its constitutionality.”

This property, whether land and chattels,' rolling stock of a railroad, cabs used to facilitate its interstate commerce,' stock employed within the State by a foreign corporation whose business consists partly of domestic and partly of foreign commerce, may be taxed without involving a regulation of interstate

in Mississippi River, Brown v. Houston, 114 U. S. 622; Pittsburgh & S. Coal Co. v. Bates, 156 U. S. 577- In Leisy v. Hardin, 135 U. S. 100, and Lyng v. Michigan, 135 U. S. 161, the question was presented in a different aspect. The goods had reached their destination, and the question was not the power of the State to tax them, but its authority to treat the goods as not subjects of interstate commerce, and to prohibit their introduction and sale. This was held to be a regulation within the constitutional sense, and therefore void. The cases, therefore, did not decide that interstate commerce was to be considered as having completely terminated at one time for the purposes of import taxation, and at a different period for the purposes of interstate commerce. But both cases, while conceding that interstate commerce was completely terminated only after the sale at the point of destination in the original package, were rested upon the nature and operation of the particular exertion of State authority considered in the respective cases. White, J., in Am. S. & W. R. R. Co. v. Speed, 192

U. S. 500.

1 Field, J., in the Delaware Railroad Tax, 18 Wall. 206.

2 Morgan v. Parham, 16 Wall. 471; Transp. Co. v. Wheeling, 99 U. S. 273; Ferry Co. v. East St. Louis, 107 U. S. 365; Att. & Pac. Tel. Co. v. Philadelphia, 190 U. S. 160.

4

3 Marye v. B. & O. Ry., 127 U. S. 117.

Pennsylvania R. R. Co. v. Knight, 192 U. S. 21; People v. Knight, 171 U. S. 354.

New York v. Roberts, 171 U. S. 658.

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2

commerce. So of such cab service as a business, if done entirely within the State.' But steamboats, carrying on an interstate business, do not become, by entering port, property in the State within the taxing power. This principle was applied in early cases to railroad cars running in and out of and through the State, but the objection was thought to be overcome by apportionment, on the basis of miles of railroad traversed within the State by the cars of the Palace Car Company, although no single car was permanently in the State; and so of a telegraph company or an express company upon a fair proportion of its capital stock; but passengers or freight carried, or messages sent or received beyond the limits of the State, were not a basis for apportionment of property, but, like a statute requiring a bond for every passenger brought into the State by a vessel, was directed at commerce and was unconstitutional. So of a car tax for the privilege of running through the State," a tax upon an agency of a corporation engaged in interstate com

P. R. R. v. Knight, 192 U. S. 21.

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8

2 Hays v. S. S. Co., 17 How. 596; St. Louis v. Terry Co., 11 Wall. 423; Morgan v. Parham, 16 Wall. 471; Transportation Co. v. Wheeling, 99 U. S. 273; N. Y. etc. R. R. v. Miller, May 28th, 1906, U.S.S.C. 3 Pickard v. Car Co., 117 U. S. 34; Marye v. Railroad, 127 U.

S. 117.

Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18; American Ref. Trans. Co. v. Hall, 174 U. S. 70; Union Ref. Transit Co. v. Lynch, 177 U. S. 149.

W. U. Tel. Co. v. Massachusetts, 125 U. S. 530.

• Adams Express Co. v. Ohio, 165 U. S. 194, 166 U. S. 185. The Passenger Cases, 7 How. 283; Crandall v. Nevada, 6 Wall.

35; Case of State Freight Tax, 15 Wall. 232.

› Telegraph Co. v. Texas, 105 U. S. 460.

• Henderson v. Mayor of New York, 92 U. S. 259.

10 Pickard v. Car Co., 117 U. S. 34.

merce,' or a fee for license to do express business in and out of the State or certification of amount of capital.2 But where, a tax being laid upon all telegraph companies, domestic as well as foreign, for the privilege of carrying on their business, graduated in each case upon the amount of property in miles and its value, the companies are exempted from all other taxation and the burden of the tax is less than the ordinary tax on the same amount of property, though in form a franchise tax it is really a tax on property; even though the basis is in part intangible property; proportioned between the whole property and that within the State, but if the tax exceeds the burden based

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1 McCall v. Cal., 136 U. S. 104; Norfolk & W. R. R. v. Pa., 136 U. S. 114.

2 Crutcher v. Kentucky, 141 U. S. 47; Leloup v. Mobile, 127 U. S. 640; Lyng v. Michigan, 135 U. S. 161; A. &. P. Tel. Co. v. Philadelphia, 190 U. S. 160; Osborne v. Mobile, 16 Wall. 479, was overruled by later cases. See also Horn Silver Mining Co. v. New York 143 N. Y. 305; Postal Tel. Cable Co. v. Adams, 155 U. S. 688; Pullman's Palace Car v. Adams, 189 U. S. 420; Allen v. Pullman's Palace Car Co., 191 U. S. 171; Osborne v. Florida, 164 U. S. 650; Ficklen v. Shelby Co., 145 U. S. 1; Stockard v. Morgan, 185 U. S. 27; Caldwell v. North Carolina, 187 U. S. 622; N. & W. Ry. Co. v. Sims, 191 U. S. 44; Louisville & N. R. R. v. Eubank, 184 U. S. 27; New York v. Roberts, 171 U. S. 658; Adams Express v. Ohio State Auditor, 165 U. S. 194; Oakland Sugar Mill Co., 118 Fed. 239; R. R. Co. v. Pa., 136 U. S. 114.

3 Postal Tel. Cable Co. v. Adams, 155 U. S. 688, 695, 700; W. U. Tel. Co. v. Taggart, 163 U. S. 1; Adams Express Co. v. Ohio State Auditor, 165 U. S. 194.

Adams Express Co. v. Kentucky, 166 U. S. 171; Adams Express Co. v. Ohio State Auditor, 166 U. S. 185; Coulter v. Weir, 127 Fed. 897.

• Adams Express Co. v. Ohio State Auditor, 165 U. S. 194, 220; W. U. Tel. Co. v. Mass., 125 U. S. 530; Mass. v. W. U. Tel. Co., 141 U. S. 40; Maine v. Grand Trunk Ry., 142 U. S. 217; Pittsburgh, C. etc. Ry. v. Backus, 154 U. S. 421; Cleveland, C. etc. Ry. v. Backus, 154 U. S. 439; W. U. Tel. Co. v. Taggart, 163 U. S. 1; Pullman's Palace Car Co. v. Pa., 141 U. S. 18.