330 U.S.

422
67 S.Ct. 815
91 L.Ed. 993

JOSEPH, Comptroller of City of New York, et al.

v.
CARTER & WEEKES STEVEDORING CO. SAME v. JOHN
T. CLARK & SON.
Nos. 29 and 30.
Reargued Nov. 12, 1946.
Decided March 10, 1947.

Mr. Isaac C. Donner, of New York City, for petitioners.

Mr. Samuel M. Lane, of New York City, for respondents.
Mr. Justice REED delivered the opinion of the Court.

These two writs of certiorari bring before this Court contentions in reg rd to the
application to the respective respondents, Carter & Weekes Stevedoring
Company and John T. Clark & Son, of New York City, of the general business
tax laws covering, when both cases are considered, the years 1937 to 1941,
inclusive.1 The character of the taxes in issue will appear from a section, set out
below, of a local law imposing the tax for 1939 and 1940.2 The respective
taxpayers are liable also for the general income and ad valorem taxes of the
State and City of New York. Both respondents are corporations engaged in the
business of general stevedoring. For these cases, the business of respondents
may be considered as consisting only of taking freight from a convenient place
on the pier or lighter wholly within the territorial limits of New York City and
storing it properly for safety and for handling in or on the outgoing vessel
alongside, or of similarly unloading a vessel on its arrival. The vessels moved
in interstate or foreign commerce, without a call at any other port of New York.
We do not find it necessary to consider separately interstate and foreign
commerce. The Commerce Clause covers both.

Through statutory proceedings unnecessary to particularize, the Comptroller of

the City of New York determined that the respondents were liable for

percentage taxes upon the entire gross receipts from the above activities for the
years in question under the provisions of the respective local laws to which
reference has been made. Review of these determinations was had by
respondents in the Supreme Court of New York County, Appellate Division.
The determinations of the Comptroller were annulled on the authority of Puget
Sound Stevedoring Company v. Tax Commission, 302 U.S. 90, 58 S.Ct. 72, 82
L.Ed. 68; Matter of Clark & Son v. McGoldrick, 269 App.Div. 685, 54
N.Y.S.2d 380, 383. These orders were affirmed by the Court of Appeals, Carter
& Weekes Stevedoring Co. v. McGoldrick, 294 N.Y. 906, 908, 63 N.E.2d 112,
and remittiturs issued stating that the Court of Appeals affirmed on the ground
that the local laws as applied in these cases were in violation of Article I, 8,
Clause 3, of the Constitution of the United States.3 Writs of certiorari to his
Court were sought and granted on the issue of whether or not this tax on these
respondents constituted an unconstitutional burden on commerce.
3

Petitioners recognize the force of the Puget Sound case as a precedent. Their
argument is that subsequent holdings of this Court have indicated that the
reasons which underlay the decision are no longer controlling in judicial
examination of the constitutionality of state taxation of the gross proceeds
derived from commerce, subject to federal regulation. They cite, among others,
these later decisions: Western Live Stock v. Bureau of Internal Revenue, 303
U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823, 115 A.L.R. 944; Southern Pacific Co. v.
Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586; McGoldrick v. BerwindWhite Coal Mining Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565, 128 A.L.R.
876; Department of Treasury of Indiana v. Wood Preserving Corporation, 313
U.S. 62, 61 S.Ct. 885, 85 L.Ed. 1188.

In the Puget Sound case a state tax on gross receipts, indistinguishable from
that laid by New York City in this case, was held invalid as applied to
stevedoring activities exactly like those with which we are here concerned. The
Puget Sound opinion pointed out, 302 U.S. at page 92 et seq., 58 S.Ct. at page
73, 82 L.Ed. 68, that transportation by water is impossible without loading and
unloading. Those incidents to transportation occupy the same relation to that
commerce whether performed by the crew or by stevedore, contracting
independently to handle the cargo. The movement of cargo off and on the ship
is substantially a continuation of the transportation. Cf. Baltimore & O.S.W.R.
Co. v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433.

It is trite to repeat that the want of power in the confederation to regulate

commerce was a principal reason for the adoption of the Constitution. The
Commerce Clause bears no limitation of power upon its face and, when the
Congress acts under it, interpretation has suggested none, except such as may

be prescribed by the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L.Ed.

23; United States v. Carolene Products Co., 304 U.S. 144, 147, 58 S.Ct. 778,
780, 781, 82 L.Ed. 1234; North American Co. v. Securities and Exchange
Commission, 327 U.S. 686, 704, 66 S.Ct. 785, 795, 796. On the other hand, the
Constitution, by words, places no limitation upon a state's power to tax the
things or activities or persons within its boundaries. What limitations there are
spring from applications to state tax situations of general clauses of the
Constitution. E.g., Art. I 10, Cl. 2 and 3; New York Indians, 5 Wall. 761, 18
L.Ed. 708; Board of County Commissioners v. United States, 308 U.S. 343, 60
S.Ct. 285, 84 L.Ed. 313; Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237,
10 S.Ct. 533, 535, 33 L.Ed. 892; Lawrence v. State Tax Commission, 286 U.S.
276, 284, 52 S.Ct. 556, 558, 559, 76 L.Ed. 1102, 87 A.L.R. 374; Henderson
Bridge Co. v. City of Henderson, 173 U.S. 592, 61415, 19 S.Ct. 553, 561,
562, 43 L.Ed. 823; New York Rapid Transit Corporation v. City of New York,
303 U.S. 573, 58182, 58 S.Ct. 721, 725, 726, 82 L.Ed. 1024. From the
Commerce Clause itself, there comes, also, an abridgment of the state's power
to tax within its territorial limits. This has arisen from long continued judicial
interpretation that, without congressional action, the words themselves of the
Commerce Clause forbid undue interferences by the states with interstate
commerce4 and that this rule applies in full force to an unapportioned5 tax on
the gross proceeds from interstate business,6 where the taxes were not in lieu of
ad valorem taxes on property. 7
6

We do not think that a tax on gross income from stevedoring, obviously a

'continuation of the transportation,' is a tax apportioned to income derived from
activities within the taxing state. The transportation in commerce, at the least,
begins with loading and ends with unloading. Loading and unloading has effect
on transportation outside the taxing state because those activities are not only
preliminary to but are an essential part of the safety and convenience of the
transportation itself.

When we come to weigh the burden or interference of this tax on the gross
receipts from interstate commerce, the purposes of that portion of the
Commerce Clausethe freeing of business from unneighborly regulations that
inhibit the intercourse which supplies reciprocal wants by commerce8 is a
significant factor for consideration. An interpretation of the text to leave the
states free to tax commerce until Congress intervened would have permitted
intolerable discriminations. Nippert v. City of Richmond, 327 U.S. 416, 66
S.Ct. 586, 162 A.L.R. 844, and cases collected in notes 13, 14, 15 and 16.
Nevertheless, a proper regard for the authority of the states and their right to
require interstate commerce to contribute by taxes to the support of the state
governments which make their interstate commerce possible, has led Congress,

over a long period to leave intact the judicial rulings, referred to above, that
apportioned, non-discriminatory gross receipt taxes or those fairly levied in lieu
of property taxes conformed to the requirements of the Commerce Clause. As
the power lies in Congress under the Clause to make any desired adjustment in
the taxation area, its acquiescence in our former rulings on state taxation
indicates its agreement with the adjustments of the competing interests of
commerce and necessary state revenues.9 There is another reason that may be
the basis for the acceptance, almost complete, by Congress of the judicial
interpretations in this field. This is that a wide latitude exists for permissible
state taxation. This term, in an effort to show that the reach of the Circuit Court
did not destroy the state's power to make commerce pay its way, we elaborated
the fact that taxes on the commerce itself was not the sole source of state
revenue from that commerce. Freeman v. Hewit supra, 329 U.S. 249, 254, 67
S.Ct. 274, 277, see also Adams Mfg. Co. v. Storen, supra, 304 U.S. at page
310, 58 S.Ct. at page 915, 85 L.Ed. 1365.
8

A power in a state to tax interstate commerce or its gross proceeds, unhampered

by the Commerce Clause, would permit a multiple burden upon that commerce.
This has been noted as ground for their invalidation. Western Live Stock v.
Bureau of Revenue, 303 U.S. 250, 255, 58 S.Ct. 546, 548, 82 L.Ed. 823, 115
A.L.R. 944. The selection of an intrastate incident as the taxable event actually
carries a similar threat to the commerce but, where the taxable event is
considered sufficiently disjoined from the commerce, it is thought to be a
permissible state levy. 10 This result generally is reached because the local
incident selected is one that is essentially local and is not repeated in each
taxing unit. In the present case, the threat of a multiple burden, except in the
few instances in the record of interstate, in distinction to foreign, commerce, is
absent. The multiple burden on interstate transportation from taxation of the
gross receipts from stevedoring arises from the possibility of a similar tax for
unloading. The actual effect on the cost of carrying on the commerce does not
differ from that imposed by any other tax exactionad valorem, net income or
excise. Cf. Western Live Stock v. Bureau of Revenue, supra, 303 U.S. at page
254, 58 S.Ct. at page 548, 82 L.Ed. 823, 115 A.L.R. 944. We need consider
only whether or not the loading and unloading is distinct enough from the
commerce to permit the tax on the gross.

On precedent, the Puget Sound case is controlling. It was promptly and recently
cited with approval.11 It appears in Adams Mfg. Co. v. Storen 12 in support of
the possible double tax argument against levies on interstate commerce. In
Western Live Stock v. Bureau of Revenue, supra, 303 U.S. at page 258, 58
S.Ct. at page 549, 550, 82 L.Ed. 823, 115 A.L.R. 944, it was adverted to as a
case for comparison with a ruling that 'preparing, printing and publishing

magazine advertising is peculiarly local and distinct from its circulation

whether or not that circulation be interstate commerce.' The case was not
included in the Court's opinion in Gwin, White & Prince, Inc. v. Henneford,13
where a state gross receipts tax on income from marketing fruit interstate was
invalidated under the Commerce Clause, or in McGoldrick v. Berwind-White
Coal Mining Co.,14 though relied upon in the concurring opinion in the first 305
U.S. at page 442, 59 S.Ct. at page 329, 83 L.Ed. 272, and the dissent in the
second 309 U.S. at page 62, 60 S.Ct. at page 400, 84 L.Ed. 565, 128 A.L.R.
876. Upon examination this history gives an impression that there has been a
doubt as to the continued vitality of Puget Sound. We come now face to face
with the problem of overruling or approving the case.
10

Since Puget Sound there has been full consideration of how far a state may go
in taxing intrastate incidents closely related in time and movement to the
interstate commerce. The cases that lend strongest support to petitioners'
argument for overruling the Puget Sound decision have been referred to above.
We comment further upon them. The 2% excise tax levied by New Mexico on
the gross receipts of publishers from advertising, upheld in Western Live Stock,
was found to be an exaction for carrying on a local business.15 The Gallagher
case turns expressly on our conclusion that a use tax is validly levied on an
intrastate event, 'separate and apart from interstate commerce,' 306 U.S. at page
176, 59 S.Ct. at page 393, 83 L.Ed. 586, and the Wood Preserving case16
reached a similar result by reason of the fact that the taxpayer sold and
delivered its ties intrastate before transportation began, 313 U.S. at page 67, 61
S.Ct. at page 887, 888, 85 L.Ed. 1188. This is likewise true of American Mfg.
Co. v. City of St. Louis, 250 U.S. 459, 39 S.Ct. 522, 63 L.Ed. 1084, as
explained in the Storen case.17 When we examine the Berwind-White tax on
the purchasers of tangible personal property for consumption, there is the same
reliance upon the local character of the sale, 309 U.S. at pages 43, 47, 49, 58,
60 S.Ct. at pages 390, 392, 393, 394, 398, 84 L.Ed. 565, 128 A.L.R. 876.18 We
there said, 309 U.S. at page 48, 60 S.Ct. at page 393, 84 L.Ed. 565, 128 A.L.R.
876:

11

'Certain types of tax may, if permitted at all, so readily be made the instrument
of impeding or destroying interstate commerce as plainly to call for their
condemnation as forbidden regulations. Such are the taxes already noted which
are aimed at or discriminate against the commerce or impose a levy for the
privilege of doing it, or tax interstate transportation or communication or their
gross earnings, or levy an exaction on merchandise in the course of its interstate
journey.' Though all of these cases were closely related to transportation in
commerce both in time and movement, it will be noted that in each there can be
distinguished a definite separation between the taxable event and the commerce

itself. We have no reason to doubt the soundness of their conclusions.

12

Stevedoring is more a part of the commerce than any of the instances to which
reference has just been made. Although state laws do not discriminate against
interstate commerce or in actuality or by possibility subject it to the cumulative
burden of multiple levies, those laws may be unconstitutional because they
burden or interfere with commerce. See Southern Pacific Co. v. Arizona ex rel.
Sullivan, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915. Stevedoring,
we conclude, is essentially a part of the commerce itself and therefore a tax
upon its gross receipts or upon the privilege of conducting the business of
stevedoring for interstate and foreign commerce, measured by those gross
receipts, is invalid. We reaffirm the rule of Puget Sound Stevedoring Company.
'What makes the tax invalid is the fact that there is interference by a State with
the freedom of interstate commerce.' Freeman v. Hewit, supra, 329 U.S. 249,
256, 67 S.Ct. 274, 279. Such a rule may in practice prohibit a tax that adds no
more to the cost of commerce than a permissible use or sales tax. What lifts the
rule from formalism is that it is a recognition of the effects of state legislation
and its actual or probable consequences. Not only does it follow a line of
precedents outlawing taxes on the commerce itself but it has reason to support
it in the likelihood that such legislation will flourish more luxuriant y where the
most revenue will come from foreign or interstate commerce. Thus in port
cities and transportation or handling centers, without discrimination against outstate as compared with local business, larger proportions of necessary revenue
could be obtained from the flow of commerce. The avoidance of such a local
toll on the passage of commerce through a locality was one of the reasons for
the adoption of the Commerce Clause.

13

Affirmed.

14

Mr. Justice BLACK dissents.

15

Mr. Justice DOUGLAS, with whom Mr. Justice RUTLEDGE concurs,

dissenting in part.

16

First. I think the tax is valid insofar as it reaches the gross receipts from loading
and unloading vessels engaged in interstate commerce.

17

Puget Sound Stevedoring Co. v. Tax Commission, 302 U.S. 90, 58 S.Ct. 72, 82
L.Ed. 68, makes clear that respondents' activities in loading and unloading the
vessels are interstate commerce. That case followed a long line of decisions1
when it held in 1937 that a State could not tax the privilege of engaging in

interstate or foreign commerce by exacting a percentage of the gross receipts.

18

Those cases, like the present one, involved no exaction by the State of a license
to engage in interstate commerce on the payment of flat license tax or
otherwise. Cf. Leloup v. Port of Mobile, 127 U.S. 640, 8 S.Ct. 1380, 32 L.Ed.
311; Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649; Bowman
v. Continental Oil Co., 256 U.S. 642, 41 S.Ct. 606, 65 L.Ed. 1139; Cooney v.
Mountain States Telephone & Telegraph Co., 294 U.S. 384, 55 S.Ct. 477, 79
L.Ed. 934; Murdock v. Pennsylvania, 319 U.S. 105, 114, 63 S.Ct. 870, 875,
891, 87 L.Ed. 1292, 146 A.L.R. 81. Nor did they, any more than the present
case, concern legislation which expressed hostility to interstate commerce by
discriminating against it. Cf. Best & Co. v. Maxwell, 311 U.S. 454, 61 S.Ct.
334, 85 L.Ed. 275; Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586,
162 A.L.R. 844. Although all or like business of a local nature was subject to
the same tax, the interstate business was granted immunity. The theory, as
expressed in Philadelphia & S. M. Southern S. Co. v. Pennsylvania, 122 U.S.
326, 336, 7 S.Ct. 1118, 1119, 1120, 30 L.Ed. 1200, was that taxation was one
form of regulation and a tax on the gross receipts from interstate transportation
would be 'a regulation of the commerce, a restriction upon it, a burden upon it.
Clearly, this could not be done by the state without interfering with the power
of congress.'

19

The tax in that case was a tax on the gross receipts from fares and freight for
the transportation of persons and goods in interstate and foreign commerce. It
was unapportioned. As we shall see, the holding in the Philadelphia & S. M.
Southern S. Co. case has not been impaired. But the principle it announced
that a tax on the gross receipts was forbidden because it was a regulation of
interstate or foreign commercewas not given full scope. For soon gross
receipts taxes on businesses engaged in interstate commerce (including
transportation or communication) were sustained where they were not
discriminatory and where they were fairly apportioned to the commerce carried
on in the taxing state.2 Maine v. Grand Trunk R. Co., 142 U.S. 217, 12 S.Ct.
121, 163, 35 L.Ed. 994. Their validity was established whether they were
employed as a measure of the value of a local franchise (Maine v. Grand Trunk
R. Co., supra; Wisconsin & M.R. Co. v. Powers, 191 U.S. 379, 24 S.Ct. 107, 48
L.Ed. 229) or were used in lieu of all other property taxes to measure the value
of the property in the State. nited States Express Co. v. Minnesota, 223 U.S.
335, 32 S.Ct. 211, 56 L.Ed. 459; Cudahy Packing Co. v. Minnesota, 246 U.S.
450, 38 S.Ct. 373, 62 L.Ed. 827; Illinois Central R. Co. v. Minnesota, 309 U.S.
157, 60 S.Ct. 419, 84 L.Ed. 670.

20

The distinction between an apportioned gross receipts tax and a tax on all the

gross receipts of an interstate business, such as was involved in Philadelphia &

S. M. Southern S. Co. v. Pennsylvania, supra, 122 U.S. at pages 335336, 7
S.Ct. at pages 1119, 1120, 30 L.Ed. 1200, was explained in Western Live Stock
v. Bureau of Revenue, 303 U.S. 250, 256, 58 S.Ct. 546, 549, 82 L.Ed. 823, 115
A.L.R. 944, which was decided in 1938. The Court stated that the latter type of
tax could be imposed or added to 'with equal right by every state which the
commerce touches, merely because interstate commerce is being done, so that
without the protection of the commerce clause it would bear cumulative
burdens not imposed on local commerce. * * * The multiplication of state taxes
measured by the gross receipts from interstate transactions would spell the
destruction of interstate commerce and renew the barriers to interstate trade
which it was the object of the commerce clause to remove.' This explanation of
the vice of the unapportioned gross receipts tax had been earlier suggested in
Case of the State Freight Tax, 15 Wall. 232, 280, 21 L.Ed. 146, and has been
accepted by our decisions since the Western Live Stock case. Adams Mfg. Co.
v. Storen, 304 U.S. 307, 311, 58 S.Ct. 913, 915, 916, 82 L.Ed. 1365; Gwin,
White & Prince, Inc. v. Henneford, 305 U.S. 434, 438-440, 59 S.Ct. 325, at
pages 327, 328, 83 L.Ed. 272; McGoldrick v. Berwind-White Coal Mining Co.,
309 U.S. 33, 4546, 60 S.Ct. 388, at pages 391, 392, 84 L.Ed. 565, 128 A.L.R.
876. In both Adams Mfg. Co. v. Storen, supra, and Gwin, White & Prince Inc.
v. Henneford, supra, unapportioned gross receipts taxes as applied to the
receipts from interstate sales were held invalid. It was said that the vice of such
a tax was that interstate commerce would be subjected 'to the risk of a double
tax burden to which intrastate commerce is not exposed * * *.' Adams Mfg. Co.
v. Storen, supra, 304 U.S. at page 311, 58 S.Ct. at page 915, 916, 82 L.Ed.
1365. Or as stated in Gwin, White & Prince, Inc. v. Henneford, supra, 305 U.S.
at page 439, 59 S.Ct. at page 327, 328, 83 L.Ed. 272:
21

'Here the tax, measured by the entire volume of the interstate commerce in
which appellant participates, is not apportioned to its activities within the state.
If Washington is free to exact such a tax, other states to which the commerce
extends may, with equal right, lay a tax similarly measured for the privilege of
conducting within their respective territorial limits the activities there which
contribute to the service. The present tax, though nominally local, thus in its
practical operation discriminates against interstate commerce, since it imposes
upon it, merely because interstate commerce is being done, the risk of a
multiple burden to which local commerce is not exposed.'

22

As was later stated in Southern Pacific Co. v. Gallagher, 306 U.S. 167, 175, 59
S.Ct. 389, 392, 83 L.Ed. 586, as respects taxes on gross receipts from interstate
transactions or interstate transportation, 'The measurement of a tax by gross
receipts where it cannot result in a multiplication of the levies is upheld.'

23

Under that view the Philadelphia & S. M. Southern S. Co. case would be
decided one way and the Puget Sound Stevedoring Co. case the other. As we
have noted, the tax in the Philadelphia & S. M. Southern S. Co. case was a
gross receipts tax on fares and freight for the transportation of persons and
goods in interstate and foreign commerce. It was unapportioned. And there was
the risk of multiple taxation to which local transportation, though also taxed,
was not subjected. The same was true of Ratterman v. Western Union Tel. Co.,
127 U.S. 411, 8 S.Ct. 1127, 32 L.Ed. 229; Western Union Telegraph Co. v.
Alabama, 132 U.S. 472, 10 S.Ct. 161, 33 L.Ed. 409; and Meyer v. Wells Fargo
& Co., 223 U.S. 298, 32 S.Ct. 218, 56 L.Ed. 445.

24

But in the Puget Sound case any risk of multiple taxation was absent. The same
is true of the present case. For in each the activity of loading and unloading was
confined exclusively to the State that imposed the tax. No other State could tax
the same activity.3 The tax therefore is in its application nothing more than a
gross receipts tax apportioned to reach only income derived from activities
within the taxing State. The gross receipts reflect values attributed to the
business or property wholly within the taxing state. Under the test of our recent
decisions (Western Live Stock v. Bureau of Revenue, supra; Adams Mfg. Co.
v. Storen, supra; Gwin, White & Prince, Inc. v. Henneford, supra), the tax
would therefore seem to be unobjectionable.

25

It is true, however, that taxes on gross receipts of transportation companies and

other interstate enterprises were held invalid in cases prior to the Puget Sound
case, even though all of the activities were confined to the taxing state and
could not be taxed by any other state. Galveston, Harrisburg & S.A. Ry. Co. v.
Texas, 210 U.S. 217, 28 S.Ct. 638, 52 L.Ed. 1031; New Jersey Bell Tel. Co. v.
State Board of Texes and Assessment 280 U.S. 338, 50 S.Ct. 111, 74 L.Ed. 463.
Cf. Fargo v. Michigan, 121 U.S. 230, 7 S.Ct. 857, 30 L.Ed. 888. The
explanation given in the Galveston case was that a tax on the gross receipts
was a regulation of commerce, as the Philadelphia & S. M. Southern S. Co.
case held. It distinguished Maine v. Grand Trunk R. Co., supra, and the other
apportionment cases on the ground that they involved taxes on property, the
gross receipts being taken as the measure of the value of the property. The
Court said (210 U.S. at page 227, 28 S.Ct. at page 640, 52 L.Ed. 1031):

26

'It appears sufficiently, perhaps from what has been said, that we are to look for
a practical rather than a logical or philosophical distinction. The state must be
allowed to tax the property, and to tax it at its actual value as a going concern.
On the other hand, the state cannot tax the interstate business. The two
necessities hardly admit of an absolute logical reconciliation. Yet the
distinction is not without sense. When a legislature is trying simply to value

property it is less likely to attempt to or effect injurious regulation than when it

is aiming directly at the receipts from interstate commerce. A practical line can
be drawn by taking the whole scheme of taxation into account. That must be
done by this court as best it can. Neither the state courts nor the legislatures, by
giving the tax a particular name or by the use of some form of words, can take
away our duty to consider its nature and effect. If it bears upon commerce
among the states so directly as to amount to a regulation in a relatively
immediate way, it will not be saved by name or form.'
27

The Galveston case, like the Philadelphia & S. M. Southern S. Co. case,
involved a tax applicable to transportation companies alone. 4 Whatever may be
said for the proposition that a gross receipts tax, applicable only to
transportation companies, may readily become the instrument for impeding or
destroying interstate commerce, that consideration has no relevancy here. For
in the present case, as in the Puget Sound case, all businesses are taxed alike.
There is equality throughout; and interstate commerce is taxed no heavier than
local business. Political restraints, perhaps lacking when a particular type of
business is singled out for special taxation, would not be absent here.

28

Moreover, the difference between a tax on property measured by gross receipts

and a tax on the gross receipts does not appear significant in constitutional
terms when the issue is one of undue burden on interstate commerce. Either
might be an instrument to that end. The apportioned gross receipts tax in Maine
v. Grand Trunk R. Co., supra, was in terms 'an annual excise tax for the
privilege of exercising' the corporation's franchises in the State. 142 U.S. at
page 219, 12 S.Ct. at page 121, 163, 35 L.Ed. 994. The Court stated, 142 U.S.
at page 228, 12 S.Ct. at page 122, 163, 35 L.Ed. 994, 'a resort to those receipts
was simply to ascertain the value of the business done by the corporation, and
thus obtain a guide to a reasonable conclusion as to the amount of the excise tax
which should be levied * * *.' As much can be said of the present case and of
the Puget Sound case. While the tax is in terms one on the privilege of doing
business, resort is made to the gross receipts merely to ascertain the value of
the business. No vice of extraterritoriality or multiple taxation is involved. The
value taxed is attributable to business within the taxing State and may not be
reached by any other State. That value is, of course, augmented by the
interstate character of the business. But the same is true in any apportionment
case. Galveston, Harrisburg & S.A.R. Co. v. Texas, supra, 210 U.S. at page
225, 28 S.Ct. at page 639, 52 L.Ed. 1031; Cudahy Packing Co. v. Minnesota,
supra, 246 U.S. at pages 455456, 38 S.Ct. at pages 375, 376, 62 L.Ed. 827.

29

Respondents pay other taxes to New York City, including the usual property
taxes. But so long as a tax does not discriminate against interstate commerce

and is fairly apportioned to the activities in the taxing state, taxing the business
twice is for constitutional purposes no different than doubling a single tax. If
the whole scheme of taxation adopted by a particular State were taken into
account, it might be that a case of discrimination against interstate commerce
could be made out. But there is no suggestion that this is such a case. Nor can
we say that the system which has been adopted here bids fair to be more
harmful to interstate commerce than a system designed to raise the same
amount of revenue by the use of a gross receipts tax in lieu of property taxes.
30

Moreover, as noted in Gwin, White & Prince, Inc. v. Henneford, supra, 305
U.S. at page 438, 59 S.Ct. at page 327, 83 L.Ed. 272, and in Adams Mfg. Co. v.
Storen, supra, 304 U.S. at pages 312-313, 58 S.Ct. at pages 916, 917, 82 L.Ed.
1365, there have been other cases sustaining a gross receipts tax on interstate
enterprises where the gross receipts tax fairly measured the value of a local
privilege or franchise and all risk of multiple taxation was absent. Ficklen v.
Taxing District of Shelby Co., 145 U.S. 1, 12 S.Ct. 810, 36 L.Ed. 601, upheld a
state license tax imposed upon the privilege of doing a brokerage business
within the State and measured by the gross receipts from sales of merchandise
shipped into the State for delivery after sales were made. American Mfg. Co. v.
St. Louis, 250 U.S. 459, 39 S.Ct. 522, 63 L.Ed. 1084, upheld a municipal
license tax on the gross receipts of a manufacturer who was producing goods
for interstate commerce. The tax was sustained as an excise upon the conduct
of a manufacturing enterprise. Those taxes, like property taxes or taxes on
activities confined solely to the taxing state (New York, Lake Erie & W.R. Co.
v. Pennsylvania, 158 U.S. 431, 15 S.Ct. 896, 39 L.Ed. 1043; Utah Power &
Light Co. v. Pfost, 286 U.S. 165, 52 S.Ct. 548, 76 L.Ed. 1038; Coverdale v.
Arkansas-Louisiana Pipe Line Co., 303 U.S. 604, 58 S.Ct. 736, 82 L.Ed. 1043)
have no cumulative effect caused by the interstate character of the business.
They are apportioned to the activities taxed, all of which are intrastate. Plainly
the loading and unloading involved in the present case are activities as local in
character as the brokerage activities in the Ficklen case or the manufacturing
business in the American Mfg. Co. case. One has as close and as immediate a
relationship to interstate commerce as the other. Cf. United States v. Darby,
312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430. If one gives
rise to a taxable event for which the State may exact a portion of the gross
receipts, it is difficult to see why the other does not. The practical effect on
interstate commerce is the same in each.

31

In McGoldrick v. Berwind-White Coal Mining Co., supra, 309 U.S. at page 52,
60 S.Ct. at pages 395, 396, 84 L.Ed. 565, 128 A.L.R. 876, we held that a sales
tax on the purchase of property at the end of its interstate journey was not to be
distinguished from a tax on the property itself. For taxation of the sale was

merely taxation of the exercise of one of the constituent elements of the

property. Unless formal doctrine is to be restored to this field, the label which
the tax bears should not be controlling; and the tax should be sustained unless
it evinces hostility to interstate commerce or in practical operation obstructs or
impedes it. Either result may obtain whether the tax be called a property tax or
a gross receipts tax. As McGoldrick v. Berwind-White Coal Mining Co., supra,
309 U.S. at page 48, 60 S.Ct. at page 393, 84 L.Ed. 565, 128 A.L.R. 876, states:
32

'Certain types of tax may, if permitted at all, so readily be made the instrument
of impeding or destroying interstate commerce as plainly to call for their
condemnation as forbidden regulations. Such are the taxes already noted which
are aimed at or discriminate against the commerce or impose a levy for the
privilege of doing it, or tax interstate transportation or communication or their
gross earnings, or levy an exaction on merchandise in the course of its interstate
journey. Each imposes a burden which intrastate commerce does not b ar, and
merely because interstate commerce is being done places it at a disadvantage in
comparison with intrastate business or property in circumstances such that if
the asserted power to tax were sustained, the states would be left free to exert it
to the detriment of the national commerce.'

33

Measured by that test, the present tax is not invalid. 'Even interstate business
must pay its way * * *.' Postal Telegraph-Cable Co. v. City of Richmond, 249
U.S. 252, 259, 39 S.Ct. 265, 266, 63 L.Ed. 590. A non-discriminatory gross
receipts tax, apportioned to local activity in the taxing state, is to be judged by
its practical effect. As we stated in Wisconsin v. J. C. Penney Co., 311 U.S.
435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267, 130 A.L.R. 1229:

34

'The Constitution is not a formulary. It does not demand of states strict

observance of rigid categories nor precision of technical phrasing in their
exercise of the most basic power of government, that of taxation. For
constitutional purposes the decisive issue turns on the operating incidence of a
challenged tax. A state is free to pursue its own fiscal policies, unembarrassed
by the Constitution, if by the practical operation of a tax the state has exerted its
power in relation to opportunities which it has given, to protection which it has
afforded, to benefits which it has conferred by the fact of being an orderly,
civilized society.'

35

All local taxes on interstate businesses affect to some degree the commerce and
increase the cost of doing it. Matters of form should not be decisive if the tax
threatens no harm to interstate commerce.

36

Prior to McGoldrick v. Berwind-White Coal Mining Co., supra, it had long

36

Prior to McGoldrick v. Berwind-White Coal Mining Co., supra, it had long

been said that 'Interstate commerce cannot be taxed at all, even though the
same amount of tax should be laid on domestic commerce, or that which is
carried on solely within the state.' Robbins v. Taxing District of Shelby Co.,
120 U.S. 489, 497, 7 S.Ct. 592, 596, 30 L.Ed. 694. That was the philosophy of
the Philadelphia & S. M. Southern S. Co. case. And see Fargo v. Michigan,
supra, 121 U.S. at pages 246247, 7 S.Ct. at page 864, 30 L.Ed. 888. But
McGoldrick v. Berwind-White Coal Mining Co., supra, did not adhere to that
formal doctrine. It followed Wiloil Corporation v. Pennsylvania, 294 U.S. 169,
55 S.Ct. 358, 79 L.Ed. 838, and upheld a 'non-discriminatory tax on the sale to
a buyer within the taxing state of a commodity shipped interstate in
performance of the sales contract, not upon the ground that the delivery was not
a part of interstate commerce * * * but because the tax was not a prohibited
regulation of or burden on that commerce.' Illinois Natural Gas Co. v. Central
Illinois Public Service Co., 314 U.S. 498, 505, 62 S.Ct. 384, 386, 387, 86 L.Ed.
371. The test adopted was whether the tax on the local activity as a practical
matter was being used to place interstate commerce at a competitive
disadvantage or obstruct or impede it. That should be the approach here; 'the
logic of words should yield to the logic of realities.' Mr. Justice Brandeis
dissenting, Di Santo v. Pennsylvania, 273 U.S. 34, 43, 47 S.Ct. 267, 270, 271,
71 L.Ed. 524. The failure of the Court to adhere to the philosophy of our recent
cases corroborates the impression which some of us had that Freeman v. Hewit,
329 U.S. 249, 67 S.Ct. 274, marked the end of one cycle under the Commerce
Clause and the beginning of another.

37

Second. I think the tax is unconstitutional insofar as it reaches the gross

receipts from loading and unloading vessels engaged in foreign commerce.
Such a tax is repugnant to Article I, 10, Clause 2 of the Constitution which
provides that 'No State shall, without the Consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except what may be absolutely
necessary for executing it's inspection Laws * * *.

38

Loading and unloading are a part of 'the exporting process' which the ImportExport Clause protects from state taxation. See Thames & Mersey Marine Ins.
Co. v. United States, 237 U. . 19, 27, 35 S.Ct. 496, 499, 59 L.Ed. 821,
Ann.Cas.1915D, 1087. Activity which is a 'step in exportation' has that
immunity. Spalding & Bros. v. Edwards, 262 U.S. 66, 68, 43 S.Ct. 485, 486, 67
L.Ed. 865. As the Court says, loading and unloading cargo are 'a 'continuation
of the transportation." Indeed, the commencement of exportation would occur
no later. See Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67
S.Ct. 156. And the gross receipts tax is an impost on an export within the
meaning of the Clause, since the incident 'which gave rise to the accrual of the
tax was a step in the export process.' Richfield Oil Corp. v. State Board of

Equalization, supra.
39

As we pointed out in that case, the Commerce Clause and the Import-Export
Clause 'though complementary, serve different ends.' Since the Commerce
Clause does not expressly forbid any tax, the Court has been free to balance
local and national interests. Taxes designed to make interstate commerce bear a
fair share of the cost of local government from which it receives benefits have
been upheld; taxes which discriminate against interstate commerce, which
impose a levy for the privilege of doing it, or which place an undue burden on it
have been invalidated. But the Import-Export Clause is written in terms which
admit of no exception but the single one it contains. Accordingly a state tax
might survive the tests of validity under the Commerce Clause and fail to
survive the Import-Export Clause. For me the present tax is a good example.

40

Mr. Justice MURPHY joins in this dissent except as to the second part, as to
which he is of the opinion that the tax in relation to the gross receipts from
loading and unloading vessels engaged in foreign commerce is constitutional.

The taxes in question were levied by the City of New York by a series of local
laws, No. 22 of 1937, p. 255, No. 20 of 1938, p. 253, No. 103 of 1939, p. 240,
No. 78 of 1940, p. 342, No. 47 of 1941. The local laws were passed pursuant to
anthorization by the State of New York. See Laws of New York 1940, Ch. 245.
There is no dispute as to the general validity of the local laws. See McGoldrick
v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565,
128 A.L.R. 876, and New York Rapid Transit Corporation v. City of New
York, 303 U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024. These cases involved other
phases of these local laws.
Certiorari granted McGoldrick v. Carter & Weekes Stevedoring Co., 326 U.S.
713, 66 S.Ct. 177.

Local Laws of the City of New York 1940, No. 78: R41 2.0. Imposition of
tax. a. For the privilege of carrying on or exercising for gain or profit within the
city any trade, business, profession, vocation or commercial activity other than
a financial business, or of making sales to persons within such city, for each of
the periods of one year, or any part thereof, beginning on July first of the years
nineteen hundred thirty-nine and nineteen hundred forty, every person shall pay
an excise tax which shall be equal to one-tenth of one per centum upon all
receipts received in and/or allocable to the city from such profession, vocation,
trade, business or commercial activity exercised or carried on by him during the
calendar year in which such period shall commence, * * *'.

No problem of allocation or apportionment is involved. See subd. b. No

question is raised by petitioner that any part of the tax is allocable to receipts
properly attributable to doing business in New York City, if all of the receipts
are not subject to the local act. R413.0.
3

'The Congress shall have Power * * * To regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes; * * *'.

Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 76769, 65
S.Ct. 1515, 1519, 1520, 89 L.Ed. 1915, and cases cited; Morgan v.
Commonwealth of Virginia, 328 U.S. 373, 379, 66 S.Ct. 050, 1054, and cases
cited n. 17; Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274; Richfield Oil Corp.
v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156.

Compare Maine v. Grand Trunk R. Co., 142 U.S. 217, 12 S.Ct. 121, 163, 35
L.Ed. 994; Meyer v. Wells, Fargo & Co., 223 U.S. 298, 301, 32 S.Ct. 218, 219,
56 L.Ed. 445; Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41
S.Ct. 45, 65 L.Ed. 165; Hans Rees' Sons v. North Carolina ex rel. Maxwell, 283
U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879; Illinois Central R. Co. v. Minnesota, 309
U.S. 157, 60 S.Ct. 419, 84 L.Ed. 670.

Fargo v. Michigan, 121 U.S. 230, 7 S.Ct. 857, 30 L.Ed. 888; Ratterman v.
Western Union Telegraph Co., 127 U.S. 411, 428, 8 S.Ct. 1127, 1132, 32 L.Ed.
229; Leloup v. Port of Mobile, 127 U.S. 640, 8 S.Ct. 1380, 32 L.Ed. 311;
Western Union Telegraph Co. v. Alabama, 132 U.S. 472, 10 S.Ct. 161, 33
L.Ed. 409; Galveston, Harrisburg & San Antonio R. Co. v. Texas, 210 U.S.
217, 28 S.Ct. 638, 52 L.Ed. 1031; Meyer v. Wells, Fargo & Co., 223 U.S. 298,
300, 32 S.Ct. 218, 219, 56 L.Ed. 445; Minnesota Rate Cases (Simpson v.
Shepard), 230 U.S. 352, 400, 33 S.Ct. 729, 740, 57 L.Ed. 1511, 48 L.R.A.,
N.S., 1151, Ann.Cas.1916A, 18; Crew Levick Co. v. Pennsylvania, 245 U.S.
292, 295, 38 S.Ct. 126, 127, 62 L.Ed. 295; Fisher's Blend Station v. Tax
Commission, 297 U.S. 650, 655, 56 S.Ct. 608, 610, 80 L.Ed. 956; Adams Mfg.
Co. v. Storen, 304 U.S. 307, 312, 58 S.Ct. 913, 916, 82 L.Ed. 1365; Freeman v.
Hewit, supra.

Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 698, 15 S.Ct. 268, 270,
360, 39 L.Ed. 311; United States Express Co. v. Minnesota, 223 U.S. 335, 346
48, 32 S.Ct. 211, 215, 216, 56 L.Ed. 459.

Federalist 7, 22, 42; Baldwin v. G. A. F. Seelig, 294 U.S. 511, 523, 55 S.Ct.
497, 500, 79 L.Ed. 1032, 101 A.L.R. 55.

See Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 326, 37
S.Ct. 180, 185, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845;

United States v. Hill, 248 U.S. 420, 39 S.Ct. 143, 63 L.Ed. 337; Whitfield v.
Ohio, 297 U.S. 431, 56 S.Ct. 532, 80 L.Ed. 778; Kentucky Whip & Collar Co.
v. Illinois Central R. Co., 299 U.S. 334, 57 S.Ct. 277, 81 L.Ed. 270; Prudential
Ins. Co. v. Benjamin, 328 U.S. 408, 430, 66 S.Ct. 1142, 1155; Southern Pacific
Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769, 65 S.Ct. 1515, 1520, 89
L.Ed. 1915; Freeman v. Hewit, 329 U.S. 249, 253, 67 S.Ct. 274, 277.
10

Western Live Stock v. Bureau of Revenue, supra, 303 U.S. at pages 258260,
58 S.Ct. at pages 549, 550, 551, 82 L.Ed. 823, 115 A.L.R. 944; Southern
Pacific Co. v. Gallagher, 306 U.S. 167, 176, 59 S.Ct. 389, 393, 83 L.Ed. 586;
McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 48, 60 S.Ct. 388,
393, 84 L.Ed. 565, 128 A.L.R. 876; Department of Treasury v. Wood
Preserving Corporation, 313 U.S. 62, 61 S.Ct. 885, 85 L.Ed. 1188.

11

Coverdale v. Arkansas-Louisiana Pipe Line Co., 303 U.S. 604, 609, 58 S.Ct.
736, 738, 739, 82 L.Ed. 1043; Southern Pacific Co. v. Gallagher, 306 U.S. 167,
178, 59 S.Ct. 389, 394, 83 L.Ed. 586; Freeman v. Hewit, supra, 329 U.S. 249,
257, 67 S.Ct. 274, 279.

12

304 U.S. 307, 312, 58 S.Ct. 913, 916, 82 L.Ed. 1365.

13

305 U.S. 434, 59 S.Ct. 325, 83 L.Ed. 272.

14

309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565, 128 A.L.R. 876.

15

303 U.S. at page 257, 58 S.Ct. at page 549, 82 L.Ed. 823, 115 A.L.R. 944. 'All
the events upon which the tax is conditioned the preparation, printing and
publication of the advertising matter, and the receipt of the sums paid for it
occur in New Mexico and not elsewhere,' 303 U.S. at page 260, 58 S.Ct. at
page 550, 551. 'So far as the advertising rates reflect a value attributable to the
maintenance of a circulation of the magazine interstate, we think the burden on
the interstate business is too remote and too attenuated to call for a rigidly
logical application of the doctrine that gross receipts from interstate commerce
may not be made the measure of a tax. * * * Practical rather than logical
distinctions must be sought.' 303 U.S. at page 259, 58 S.Ct. at page 550.
The alternate ground, 303 U.S. at page 260, 58 S.Ct. at page 550, 551, that such
a local tax cannot be taxed elsewhere is inapposite in such a foreign commerce
situation as this.

16

See International Harvester Co. v. Department of Treasury, 322 U.S. 340, 348,
64 S.Ct. 1019, 1023, 88 L.Ed. 1313.

17

304 U.S. at pages 31213, 58 S.Ct. at pages 916, 917, 82 L.Ed. 1365:

'The State court and the appellees rely strongly upon American Mfg. Co. v.
(City of) St. Louis, 250 U.S. 459, 39 S.Ct. 522, 63 L.Ed. 1084, as supporting
the tax on appellant's total gross receipts derived from commerce with citizens
of the State and those of other states or foreign countries. But that case dealt
with a municipal license fee for pursuing the occupation of a manufacturer in
St. Louis. The exaction was not an excise laid upon the taxpayer's sales or upon
the income derived from sales. The tax on the privilege for the ensuing year
was measured by a percentage of the past year's sales. The taxpayer had during
the preceding year removed some of the goods manufactured to a warehouse in
another state and, upon sale, delivered them from the warehouse. It contended
that the city was without power to include these sales in the measure of the tax
for the coming year. The court held, however, that the tax was upon the
privilege of manufacturing within the state and it was permissible to measure
the tax by the sales price of the goods produced rather than by their value at the
date of manufacture. If the tax there under consideration had been a sales tax
the city could not have measured it by sales consummated in another state.'
Cf. Freeman v. Hewit, 329 U.S. 249, 252, 67 S.Ct. 274, 276.
18

309 U.S. at page 49, 60 S.Ct. at pages 393, 394, 84 L.Ed. 565, 128 A.L.R. 876:
'Its only relation to the commerce arises from the fact that immediately
preceding transfer of possession to the purchaser within the state, which is the
taxable event regardless of the time and place of passing title, the merchandise
has been transported in interstate commerce and brought to its journey's end.
Such a tax has no different effect upon interstate commerce than a tax on the
'use' of property which has just been moved in interstate commerce, sustained
in Monamotor Oil Co. v. Johnson, 292 U.S. 86, 54 S.Ct. 575, 78 L.Ed. 1141;
Henneford v. Silas Mason Co., supra, (300 U.S. 577, 57 S.Ct. 524, 81 L.Ed.
814); Felt & Tarrant Mfg. Co. v. Gallagher, 306 U.S. 62, 59 S.Ct. 376, 83 L.Ed.
488; Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed.
586, or the tax on storage or withdrawal for use by the consignee of gasoline,
similarly sustained in Gregg Dyeing Co. v. Query, 286 U.S. 472, 52 S.Ct. 631,
76 L.Ed. 1232, 84 A.L.R. 831; Nashville, C. & St. L. Ry. Co. v. Wallace, 288
U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191; Edelman v. Boeing Air
Transport Co., 289 U.S. 249, 53 S.Ct. 591, 77 L.Ed. 1155, or the familiar
property tax on goods by the state of destination at the conclusion of their
interstate journey. Brown v. Houston, supra, (114 U.S. 622, 5 S.Ct. 1091, 29
L.Ed. 257); American Steel & Wire Co. v. Speed, 192 U.S. 500, 24 S.Ct. 365,
48 L.Ed. 538.

Philadelphia & S. M. Southern S. Co. v. Pennsylvania, 122 U.S. 326, 7 S.Ct.

1118, 30 L.Ed. 1200; Ratterman v. Western Union Tel. Co., 127 U.S. 411, 8
S.Ct. 1127, 32 L.Ed. 229; Western Union Tel. Co. v. Alabama, 132 U.S. 472,

10 S.Ct. 161, 33 L.Ed. 409; Galveston, Harrisburg & S.A.R. Co. v. Texas, 210
U.S. 217, 28 S.Ct. 638, 52 L.Ed. 1031; Meyer v. Wells Fargo & Co., 223 U.S.
298, 32 S.Ct. 218, 56 L.Ed. 445.
2

In Baltimore & O. Railroad Co. v. Maryland, 21 Wall. 456, 22 L.Ed. 678, the
payment of a percentage of gross receipts was upheld as a condition of the
corporate franchise.

The Court suggests that the fact that similar stevedoring activity will be
required at the destination creates a risk of multiple taxation, since the State of
destination would be as free to tax the unloading as New York to tax the
loading. This is only multiple in the sense that each State taxes what occurs
within its borders; the two taxes would not be on the same activity. It is no
more relevant that stevedoring is involved in both cases, than is the fact that
two States may impose property taxes on terminals or trackage within their
respective borders.

Moreover, the tax in the Philadelphia & S. M. Southern S. Co. case was
restricted not only to transportation companies but also to receipts from
transportation. Those facts were emphasized by Mr. Justice Bradley (122 U.S.
at pages 344345, 7 S.Ct. at pages 1124, 1125, 30 L.Ed. 1200): 'Can the tax in
this case be regarded as an income tax? and, if it can, does that make any
difference as to its constitutionality? We do not think that it can properly be
regarded as an income tax. It is not a general tax on the incomes of all the
inhabitants of the state, but a special tax on transportation companies.
Conceding, however, that an income tax may be imposed on certain classes of
the community, distinguished by the character of their occupations, this is not
an income tax on the class to which it refers, but a tax on their receipts for
transportation only. Many of the companies included in it may and undoubtedly
do have incomes from other sources, such as rents of houses, wharves, stores,
and water-power, and interest on moneyed investments. As a tax on
transportation, we have already seen from the quotations from the State Freight
Tax Case that it cannot be supported where that transportation is an ingredient
of interstate or foreign commerce, even though the law imposing the tax be
expressed in such general terms as to include receipts from transportation which
are properly taxable. It is unnecessary, therefore, to discuss the question which
would arise if the tax were properly a tax on income. It is clearly not such, but a
tax on transportation only.' Cf. United States Glue Co. v. Town of Oak Creek,
247 U.S. 321, 38 S.Ct. 499, 62 L.Ed. 1135, Ann.Cas.1918E, 748, which
sustained as against an interstate enterprise a net income tax of general
application.