sed?
Is it, like the tax involved in the Spreckels case, the privilege of
doing the various kinds of business (manufacturing, mercantile, and the
rest) in which the corporations subject to the operation of the law are
engaged? Obviously not. No kind or kinds of business are specified in
the act. The tax falls not only on corporations doing every conceivable
kind of business, but also on the corporation that does no specific
business whatever--the corporation which, in the language of an eminent
judge, is merely "an incorporated gentleman of leisure."[1] Moreover, if
the tax were merely upon the privilege of doing business, it would seem
to be obnoxious to the cardinal principle of just taxation that taxes
should be uniform. In other words, if the privilege of doing a
business--say conducting a department store--were the thing taxed and
the only thing taxed, the rule of uniformity would seem to require that
a corporation and a copartnership conducting similar stores on opposite
corners of the street should both be taxed. Nothing inconsistent with
this view will be found in the Spreckels case. The party to that suit
was, to be sure, a corporation, but the act under which the tax was
imposed applied to individuals, firms, and corporations alike.

[Footnote 1: Vann, J., in _People ex rel. vs. Roberts_, 154 N.Y., 1.]

It must be concluded, therefore, that the tax is not upon the privilege
of doing the businesses in which the various corporations in the land
are engaged, but is rather a _tax upon the privilege of doing business
in a corporate capacity_, or, in other words, upon the exercise of the
corporate franchise. That this is so appears very clearly from the
message of President Taft. He says:

This is an excise tax upon the privilege of doing business as
an artificial entity and of freedom from a general partnership
liability enjoyed by those who own the stock.

Assuming, then, that this is the real nature of the tax, is it
constitutional?

Unquestionably Congress may tax corporations organized under federal
laws upon their franchises; any sovereignty may tax the creatures of its
creation for the privilege of exercising their franchises; but how about
corporations chartered by the states and doing purely an intrastate
business? A state confers on John Doe and his associates the privilege
or franchise of doing business in a corporate capacity. Can Congress
impose a tax on the exercise of that privileg