ent
transmitted a message to Congress[2] recommending a constitutional
amendment, and proposing, in order to meet the present need for more
revenue, an excise tax on corporations. The proposal, coupled as it was
with a suggestion that such an act might be made to serve for purposes
of federal supervision and control as well as revenue, met with favor
and was enacted into law.

[Footnote 1: _Pollock vs. Farmers' Loan & Trust Co._, 157 U.S., 429.]

[Footnote 2: _Congressional Record_, June 16, 1909, p. 3450.]

President Taft, himself an eminent constitutional lawyer, in his message
recommending the law expressed full confidence in its constitutionality.
The same view was taken by able lawyers who surrounded him in the
capacity of advisers. The act is understood to have been drafted by Mr.
Wickersham, the Attorney General, and vouched for by Senator Elihu Root
and others of scarcely less authority in the domain of constitutional
law.

Against opinions from such sources one takes the field with diffidence.
I venture, however, to outline briefly some reasons for doubting the
constitutionality of the act.

At the outset it is essential to determine the exact nature of the tax.
Obviously it is not a tax upon income _as income_. If it were, it would
be obnoxious to the decision in the Pollock case as imposing a direct
tax without apportionment among the states. The language of the act, as
well as the declarations of its sponsors, clearly indicate that it is
intended, not as a direct tax on property, but as an excise tax on
privilege. The phraseology of the act itself is--"A special excise tax
with respect to the carrying on or doing business by such corporation,"
etc. Undoubtedly Congress has power to impose an excise tax upon
occupation or business. This was expressly decided, in the case of the
businesses of refining petroleum and refining sugar, by the Spreckels
case,[1] referred to in President Taft's message. The message says:

The decision of the Supreme Court in the case of Spreckels
Sugar Refining Company against McClain (192 U.S., 397) seems
clearly to establish the principle that such a tax as this is
an excise tax upon privilege and not a direct tax on property,
and is within the federal power without apportionment
according to population.

[Footnote 1: _Spreckels Sugar Refining Co. vs. McClain_, 192 U.S., 397.]

What, then, is the privilege with respect to which the tax is impo