Weir v. Norman/Dissent White
Mr. Justice WHITE, with whom concur Mr. Justice FIELD, Mr. Justice HARLAN, and Mr. Justice BROWN, dissenting.

In its ultimate analysis, the legal principles by which this case should, in our opinion, be controlled, are those which were by us deemed decisive in Sanford v. Poe, 17 Sup. Ct. 305. It follows that the reasons for our dissent stated in that case are pertinent to this, and we reiterate them as expressing the grounds for our dissent from the conclusions reached by the court in this case. The facts here, however, so pointedly exemplify the force of the reasons for our dissent in Sanford v. Poe that we briefly state them. The actual value of all the tangible property owned by the express company in Kentucky was $36,614.53. This property was assessed by the local authorities for that amount, and the taxes duly paid. In addition, the value of the franchise was assessed at $1,463,040, a disproportion enormously in excess of the amount imposed by the state of Ohio, great as was that disproportion. The operation of the tax is additionally illustrated by a further fact. The tax imposed in Ohio, and held to be valid in Sanford v. Poe, considered with reference to the routes traveled by the agents of the express company, was at the rate of $250 per mile, while in this case the tax levied is at the rate of $764 per mile.

Although the fundamental legal principles which, in our opinion, should have controlled Sanford v. Poe are the same in this case, there are yet material differences between the Kentucky and the Ohio statutes, which we think should take this case out of the ruling in the former case, even conceding that case to have been correctly decided. The tax here levied is a franchise tax. This is fully demonstrated by the dissenting opinion in Henderson Bridge Co. v. Kentucky (this day decided) infra. The levy here sought to be sustained, then, is a franchise tax, assessed on a joint-stock company which has no franchise, for the bill alleges that the express company is a partnership, and the demurrer concedes it. Under this state of law and fact, therefore, the effect of holding the tax now in question valid is to decide that a franchise can be taxed when there is no franchise on which to levy the tax. This can only be escaped by contending that the right of the express company to do interstate commerce business in Kentucky resulted from the assent of the state, and therefore the doing of such business was equivalent to accepting a franchise from the state. But to announce this proposition would overthrow the settled rule, so necessary for the perpetuity of our institutions and the free intercourse between the states, that the right to transact interstate commerce business by a person or corporation is protected by the constitution of the United States, and does not depend upon the mere grace of one of the states of the Union.

In addition to the clear distinctions, already noted, between Sanford v. Poe and this case, there are others resulting from the difference between the Ohio and the Kentucky statutes. The Ohio statute considered in Sanford v. Poe purported only to tax the tangible property within the state, but empowered the assessing board to consider its value as augmented by the use to which such property might be put. In other words, the Ohio law, as construed by the supreme court of the state, taxed only tangible property within the state enhanced in value by intangible elements outside the state. We considered, in dissenting in the Ohio case, that this was a mere disguise, a distinction without a difference; but the court held otherwise. In this case, by the law in question, the mask is thrown off, and what we conceive to be logically the thin disguise under which the courts of Ohio supported its statute is not asserted to exist; but the Kentucky statute, in unambiguous and unmistakable language, imposes the imperative duty upon the assessing board to assess property both in and out of the state; that is to say, it leaves nothing to implication or to evasion, but declares in plain English that property in and out of the state shall be assessed. 

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