“Our duty is to save, unless in saving we pervert.”
How later courts described this case
- “Our duty is to save, unless in saving we pervert.”
- “[WJhether the Legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether. The answer must be reached pragmatically, by the exercise of good sense and sound judgment, by considering how the statutory rule will function if the knife is laid to the branch instead of at the roots.”
- per Cardozo, J.: tax labeled a "franchise” tax and imposed "for the privilege of doing business,” but computed on net income, "must be held in practical operation to be a tax upon the income”
- consistency between tax base and apportionment fraction is constitutional requirement
Written by the judges who cited it.
The opinion
Pound, J. (dissenting).
I dissent. No reported case has gone so far as to hold, as we are about to hold in principle that a foreign corporation, if admitted to another state, may be assessed for the privilege of doing business in such state only on the earnings of the local business or on the capital employed therein. The license fee exacted by this state is in no sense a tax on the entire business or property, or the entire income of the relator. It does not come under the condemnation of such cases as
International Paper Co.
v.
Mass.
( 246 U. S. 135 ). It places no direct burden either upon interstate commerce or on
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property beyond the jurisdiction of the state. It aims to attach a value to the privilege of doing business in the state not based on the capital employed or the income produced in this state merely, but ascertained by a mode of measurement which considers the intrastate business as part of a going concern. The burden is indirect and generally speaking not unfair.
(Maine
v.
Grand Trunk Ry. Co.,
142 U. S. 217 ;
U. S. Glue Co.
v.
Town of Oak Creek,
247 U. S. 321 .)
The order appealed from should be reversed and the writ of certiorari dismissed, with costs in all courts.
Chase and Crane, JJ., concur with Cardozo, J.; Andrews, J., concurs in result in opinion; His cock, Ch. J., and Collin, J., dissent and vote for affirmance on ground that statute is unconstitutional; Pound, J., reads dissenting opinion.
Ordered accordingly.