Oliver Wendell Holmes, Jr.

“ We take it to be almost undisputed that, if the warehouses were in Kentucky, the state would not and could not tax both the whisky and the receipts, even when issued in Kentucky form, and that it would recognize that the only taxable object was the whisky. The relation of the paper to the goods is not changed by their being abroad, and the only question in the case is whether the paper can be treated as property equivalent in value to the goods, because in some way it represents them. ”

“ The tax is imposed on the theory that the receipts are the equivalents of the goods, and are taxable on that footing, although the goods cannot be taxed. Assuming, as the court of appeals assumed, that the whisky is exempt under the Constitution of the United States, we are of opinion that the protection of the Constitution extends to warehouse receipts locally present within the state. ”

“ But it cannot be assumed on this record that the receipts contained it, and, if they did, even then the value of the instrument would be due rather to the assumption that the bailee would not give up the goods without a return of it than to the promise. The value of the promise would vary with the promisor. As a key to the goods, a receipt no more can be called a second property of equal value than could a key to an adamantine safe that could not be opened without it be called a second property of a value distinct from but equal to that of the money that the safe contained. ”