Oliver Wendell Holmes, Jr.

“ If it is a tax on any franchise which the state of New York gave, and the same state could take away, it stands at least no worse. The relator's argument assumes that it must be regarded as a tax of a particular kind, in order to invalidate it, although it might be valid if regarded as the state court regards it.
Suppose, then, that the state of New York had taxed the property directly, there was nothing to hinder its taxing the whole of it. It is true that it has been decided that property, even of a domestic corporation, cannot be taxed if it is permanently out of the state. ”

“ We must assume, further, that no part of the corporate property in question was outside of the state during the whole tax year. The proposition really was conceded, as we have said, and the evidence that was offered had no tendency to prove the contrary. If we are to suppose that the reports offered in evidence were accepted as competent to establish the facts which they set forth, still it would be going a very great way to infer from car mileage the average number or proportion of cars absent from the state. ”

“ The car mileage within the state and that upon other lines without the state affords a basis of apportionment of the average total of cars continuously employed by other corporations without the state, and the relator's road mileage within and without the state affords a basis of apportionment of its average total equipment continuously employed by it respectively within and without the state. To tax on the total value within and without is beyond the jurisdiction of the state, a taking of property without due process of law, and an unconstitutional interference with commerce among the states. ”