which being invalid as applying to interstate commerce, was claimed necessarily to fail as a local regulation. But the court said: "If the provisions of the act relating to interstate commerce can be disregarded and still leave a workable law, we see no reason why the act cannot be upheld so far as it applies to commerce within the state.""19 19 See also Oliver & Son v. Chicago, R. I. & P. R. Co., 89 Ark. 466, 117 S. W. 238; Southern R. Co. v. Melton, 133 Ga. 277, 65 S. E. 665; People v. Butter St. Fdry. & I. Co., 201 Ill. 236, 66 N. E. 349; Murphy v. Wheatley, 100 Md. 358, 59 Atl. 704. CHAPTER XXX. INDIRECT BURDEN ON INTERSTATE COMMERCE § 149. Preliminary. 150. Tax on interstate railroad. 151. State police power over interstate carrier. 152. Local facilities burden on interstate traffic. 153. Local rates working discrimination. § 149. Preliminary.-There is considered in this chapter only such a burden as arises out of interference with interstate commerce in that some local regulation of a railroad hinders the due performance of its duties as an instrumentality of commerce among the states. The larger question of interference with commerce in the imposition of a duty on an article of commerce or in some way to interrupt the free flow of commerce between the states, as has been extensively considered in liquor shipments is not considered. The claim of the right of the state to require of a railroad adequate facilities has sometimes raised questions between state commissions and a railroad doing an interstate and intrastate business, when if there were no interblending of service the questions would not exist. It must be conceded that the railroad must be left free to carry on its interstate business. Is it, then, reasonable to require of it to comply with the demands so far as local service is concerned? $150. Tax on Interstate Railroad. The general principle is affirmed by repeated decisions that the "state cannot lay a tax on interstate commerce 'in any form,' by imposing it either upon the business which constitutes such commerce or upon the receipts as such derived from it."" Also it is said in this case that: "In determining whether a tax has such direct relation to interstate commerce as to be an exercise of power prohibited by the commerce clause, our decision must regard the substance of the exaction-its operation and effect as enforced-and cannot depend upon the manner in which the taxing scheme has been characterized." The court reviews prior decision to the effect, that a tax upon the franchise of a corporation engaged in interstate and intrastate commerce is not opposed to the above principle. But there must be no tax upon the right of a corporation to do interstate business in a state.3 The court in the Botkin case, supra, said: "The tax is not laid upon transactions in interstate commerce, or upon the receipts from interstate commerce, either separately or intermingled with other receipts. It does not fluctuate with the volume of interstate business. It is not a tax imposed for the privilege of doing an interstate business. It is a franchise tax-on the privilege granted by the state of being a corporation." In a case decided on December 4, 1916, there was a question of imposing a tax on a railroad company consolidated under concurrent acts of three states. The 1 Kansas City, Ft. S. & M. R. Co. v. Botkin, 240 U. S. 227, 36 Sup. Ct. 261, 60 L. Ed. 617. 2 Cornell S. B. Co. v. Sohmer, 235 U. S. 549, 35 Sup. Ct. 162, 59 L. Ed. 355. 3 Western U. Telg. Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. Ed. 355. 4 Kansas City M. & B. R. R. Co. v. Stiles, 242 U. S. 111, 31 Sup. Ct. 58, 61 L. Ed. —. tax in Alabama, one of the states, was imposed on the entire capital stock of the consolidated company. It was contended that it should have been laid only "upon that part of the capital employed by the company in the State of Alabama." In overruling this contention it was said: "The state may not regulate interstate commerce or impose burdens upon it; but it is authorized to levy a tax within its authority, measured by capital in part used in the conduct of such commerce, where the circumstances are such as to indicate no purpose or necessary effect in the tax imposed to burden commerce of that character. In the present case, the franchise tax is imposed upon the capital stock of a corporation consolidated under the state law, and engaged in both interstate and intrastate commerce." This case cited a former opinion," which ruled that the right to the franchise of a consolidated corporation was, subject to the laws of a state for taxation not "affected by the fact that some of the constituent elements which entered into the consolidated company were corporations owning and operating property in another state. '' The general rule that congressional inaction leaves a state free in imposing an indirect or incidental burden on interstate commerce has been reaffirmed in very recent decisions. These cases affirmed the constitutionality of what are known as the "Blue Sky" laws. 5 Ashley v. Ryan, 153 U. S. 436, 14 Sup. Ct. 865, 38 L. Ed. 773. 6 See also Interstate Consol. St. R. Co. v. Massachusetts, 207 U. S. 79, 28 Sup. Ct. 26, 53 L. Ed. 111, 12 Ann. Cas. 555. 7 Caldwell v. Sioux Falls Stockyards Co. 242 U. S. 37 Sup. Ct. 224, 61 L. Ed.; Merrick v. N. W. Halsey & Co., 242 U. S. 568, 37 Sup. Ct. 227, 61 L. Ed. § 151. State Police Power Over Interstate Carrier. -The question of regulation of an interstate carrier by virtue of the state's police power, and not merely because of its being a public service company, appears to stand somewhat differently than does the right to tax such carrier on the franchise it has received to be a corporation. Not until 1895, and then only by a majority decision of seven to two, was it definitely declared that a state could intrude in the slightest degree upon the domain of Federal jurisdiction in the regulation of interstate commerce. It was then held, however, that a Georgia statute forbidding the running of freight trains on any railroad in the state on Sunday was not a needless intrusion on such regulation, so far as the hauling of interstate freight was concerned.8 The opinion in this case was by Justice Harlan, who, after citing many state cases to the effect that such a statute is "a mere municipal or police regulation," he then refers to Gibbons v. Ogden' as saying, that inspection laws though having "a remote and considerable influence on commerce" could be enforced by states, Congress not acting directly on the subject. In Wilson v. Blackbird Creek Marsh Company10 a state statute for placing a dam across a navigable creek was involved. This was upheld because of inaction by Congress. It was stated by Justice Harlan that though this case has been criticised it has never been overruled. He cites also a case about a statute authorizing a bridge which would prevent vessels with masts passing under 8 Hennington v. Georgia, 163 U. S. 299, 16 Sup. Ct. 1086, 41 L. Ed. 166. 922 U. S. (9 Wheat.) 1, 6 L. Ed. 23. |