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shall in a general way investigate and supervise the marketing ” of the grain with a view of "preventing various things deemed unjust or fraudulent, including "unreasonable margins of profit” and “confiscation of valuable dockage;" and, to the end that this and other provisions may be made effective, the Act invests him with authority to make and enforce such orders, rules and regulations as may be necessary to carry out all of its provisions.

We think it plain that, in subjecting the buying for interstate shipment to the conditions and measure of control just shown, the Act directly interferes with and burdens interstate commerce, and is an attempt by the State to prescribe rules under which an important part of such commerce shall be conducted. This no State can do consistently with the commerce clause.

The defendants cite several cases as making for a different conclusion, but we do not so read them. In some the commerce clause was in no way involved, and those in which it was involved give no support to what is attempted in the Act now before us. In Munn v. Illinois, 94 U. S. 113, 123, 135, the question was whether, as respects an elevator devoted to storing grain for hire, the State could regulate the storage charge where part of the grain reached the elevator, or was destined to leave it, through the channels of interstate commerce. The Court held such a regulation admissible because of the public character of the elevator and because interstate commerce was affected only incidentally and remotely. No restriction on buying or shipping was involved. In Cargill Co. v. Minnesota, 180 U. S. 452, the Court had before it a state statute, much of which had been pronounced unconstitutional by the state court. In sustaining a provision which remained, the Court said, p. 470: The statute puts no obstacle in the way of the purchase by the defendant company of grain in the State or the ship

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merce.

ment out of the State of such grain as it purchased.” Plainly the case is not in point here. In Merchants Exchange v. Missouri, 248 U. S. 365, the statute involved required that public weighers appointed for the purpose should do the weighing and issue weight certificates at elevators used for storing or transferring grain for hire, and prohibited any other person from issuing weight certificates at an elevator where a public weigher was stationed. Objection was made to the prohibition on the ground that as applied to grain received from or shipped to points without the State it burdened interstate com

Of course the objection was overruled, the statute being an admissible regulation of the business of conducting an elevator for hire, like the statute considered in Munn v. Illinois.

The defendants make the contention that we should assume the existence of evils justifying the people of the State in adopting the Act. The answer is that there can be no justification for the exercise of a power that is not possessed. If the evils suggested are real, the power of correction does not rest with North Dakota but with Congress, where the Constitution intends that it shall be exercised with impartial regard for the interests of the people of all the States that are affected.

The defendants further contend that the Act is simply an attempt on the part of the State, through inspection regulations, to assist in carrying out the purposes of the United States Grain Standards Act. We think the Act discloses an attempt to do much more. To require that dockage be separated by the buyer and be returned to the producer unless it be distinctly valued and paid for is not inspection. Nor does the federal Act contain or give support to such a requirement. To exclude one from buying by grade unless he secures a grading license for himself or his agent is apart from what usually is comprehended in inspection. Nothing like this is found in the federal Act.

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On the contrary, it declares that persons licensed to grade under it shall not be interested in any grain elevator or in buying or selling grain, or be in the employ of any owner or operator of a grain elevator. Equally unrelated to inspection are the provisions exacting a bond to pay for all wheat bought on credit; requiring that a record be kept of the price paid in buying at the local elevator and the price received in selling at the terminal market; and authorizing the State Supervisor to investigate and supervise the marketing with a view to preventing unreasonable margins of profit. None of these finds any example in the federal Act; and their presence in the state Act makes it a very different measure from what it would be without them. Aside from the adoption of the grades established and promulgated under the federal Act, we find little in the state Act to support and much to refute the assertion that it is merely an attempt to carry out the purposes of the federal Act.

For the reasons here given we hold that the Act is a direct regulation of the buying of grain in interstate commerce, and therefore invalid, and that the District Court rightly granted the injunction.

Decree affirmed. MR. JUSTICE BRANDEIS dissents.

ALPHA PORTLAND CEMENT COMPANY v. COM

MONWEALTH OF MASSACHUSETTS.

ERROR TO THE SUPREME JUDICIAL COURT OF THE STATE OF

MASSACHUSETTS.

Nos. 103 and 327. Argued October 23, 1924.—Decided May 4, 1925.

1. A State may not impose upon a foreign corporation which trans

acts only interstate business within her borders an excise tax measured by a combination of the total value of capital shares attributed to transactions therein, and the proportion of net income attributed to such transactions. Mass. Gen. Ls. c. 63. P. 216.

Argument for Massachusetts.

268 U.S.

2. Any excise laid on account of interstate commerce is invalid,

without regard to measure or amount. P. 217. 3. Under the Commerce Clause and the Fourteenth Amendment, a

State may not burden interstate commerce or tax property beyond her borders under the guise of regulating or taxing intrastate business; the amount demanded is unimportant, and payment as a condition precedent to doing business is not a controlling element. Baltic Mining Co. v. Massachusetts 231 U. S. 68, 87, in

part disapproved. P. 218. 248 Mass. 156; 244 Id, 530, reversed.

ERROR to judgments of the Supreme Judicial Court of Massachusetts sustaining excise taxes imposed on the plaintiff in error corporation.

Mr. Louis H. Porter, with whom Messrs. F. Carroll Taylor and John G. Palfrey were on the brief, for plaintiff in error.

Mr. Alexander Lincoln, Assistant Attorney General of Massachusetts, with whom Mr. Jay R. Benton, Attorney General, was on the brief, for the defendant in error.

The tax, so far as measured by the value of the corporate excess employed within the Commonwealth, is valid as to foreign corporations engåged solely in interstate commerce. It is well established that property of a non-resident located within a State is subject to taxation by it, although the property is used exclusively in interstate commerce, except when it is actually in the course of an interstate journey, if the tax is laid without discrimination. Apparently the petitioner concedes the application of this rule to tangible personal property, but contends that the rule is otherwise with respect to intangible assets such as a corporate franchise and credits due from residents. So far as the franchise is concerned, the point seems to be concluded by the decisions of this court. Atlantic & Pac. Tel. Co. v. Philadelphia, 190 U. S. 160; Horn Silver Mining Co. v. New York, 143

203

Argument for Massachusetts.

U. S. 305; Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 696.

The objection to a tax on credits due from residents to non-residents may be based upon the contention either that intangible property is not subject to the foregoing rule or that a tax on such credits is in violation of the Fourteenth Amendment. As to the second point it is submitted that the petitioner is concluded by numerous decisions sustaining state taxation of credits due to nonresidents. New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington County, 177 U. S. 133; Board of Assessors v. Comptoir National D’Escompte, 191 U. S. 388; Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395; Liverpool, etc., Ins. Co. v. Orleans Assessors, 221 U. S. 346, 354; Shaffer v. Carter, 252 U. S. 37, 52.

The fact that such credits arise from and are used exclusively in interstate commerce, it is submitted, makes no difference. The rule with respect to the taxation of property used in interstate cominerce does not distinguish between tangible and intangible property. The validity of the tax does not depend on the connection of the property with some local business but on the remoteness of any burden or effect upon interstate commerce. See Western Union Tel. Co. v. Massachusetts, 125 U. S. 530; Postal Telegraph Cable Co. v. Adams, 155 U. S. 688; Adams Express Co. v. Ohio State Auditor, 165 U. S. 194, 222; Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 456; Pullman Co. v. Richardson, 261 U. S. 330.

If a tax on tangible and intangible assets, including the corporate franchise of a foreign corporation, employed in a State, although employed exclusively in interstate commerce, is valid, an excise tax measured by such property should also be valid. A tax measured by property may be valid when a tax on the property itself would be invalid. Flint v. Stone Tracy Co. 220 U. S. 107, 165; Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 87. But the

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