It is contended that the right secured to a foreign consul to appoint an executor under this act of 1865 is evidence of the fact that the Argentine Republic is carrying out the treaty in the sense contended for by the plaintiff in error; but in this law certainly no right of administration is given to the consul of a foreign country. It is true, he may appoint an executor, which appointment it is provided is to be at once communicated to the testamentary judge. In Art. VIII the same law provides that executors shall perform their charge in accordance with the laws of the country. Art. XIII declares that the rights granted by the law shall be only in favor of the nations which cede equal privileges to Argentine consuls and citizens. Our conclusion then is that, if it should be conceded for this purpose that the most favored nation clause in the Italian treaty carries the provisions of the Argentine treaty to the consuls of the Italian Government in the respect contended for, (a question unnecessary to decide in this case), yet there was no purpose in the Argentine treaty to take away from the States the right of local administration provided by their laws, upon the estates of deceased citizens of a foreign country, and to commit the same to the consuls of such foreign nation, to the exclusion of those entitled to administer as provided by the local laws of the State within which such foreigner resides and leaves property at the time of decease. We find no error in the judgment of the Supreme Court of the State of California, and the same is Affirmed. 223 U.S. Argument for Plaintiff in Error. UNITED STATES EXPRESS COMPANY v. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTĄ. No. 708. Argued January 16, 17, 1912.-Decided February 19, 1912. In determining whether a state tax on earnings is constitutional this court is bound by the decision of the state court as to what classes of earnings are included in estimating the earnings to be taxed. A State may tax property within the State although it is used in interstate commerce. A State may not burden interstate commerce by taxing its commerce, but it may measure the value of property of a corporation engaged in interstate commerce within the State by the gross receipts, and impose a tax thereon if the same is in lieu of all taxes upon the property of such corporation. Oklahoma v. Wells, Fargo & Co., ante, p. 298, distinguished. It is difficult, at times, to draw the line between state taxes that are unconstitutional as burdening interstate commerce and a legitimate property tax measured in part by income from interstate commerce. While the determination by the state court that a tax so measured is a property tax is not binding on this court, in this case, this court will not say that the conclusion is not well founded. The Minnesota statutes, Revised Laws, 1905, Chapter 11, taxing express companies on their property employed within the State six per cent of the gross receipts in lieu of all other taxes, is an exercise in good faith of legitimate taxing power, and is not an unconstitutional burden upon interstate commerce. THE facts, which involve the constitutionality of a statute of the State of Minnesota taxing express companies, are stated in the opinion. Mr. Robert E. Olds and Mr. Frank B. Kellogg, with whom Mr. C. A. Severance was on the brief, for plaintiff in error: The Minnesota statute, as construed by the courts of Argument for Plaintiff in Error. 223 U.S. that State, imposes a tax upon gross receipts arising from interstate commerce. The construction given the statute is not only unnecessary but erroneous. Pacific Express Co. v. Seibert, 142 U. S. 339. The earnings from interstate transfer business constitute receipts derived from interstate commerce. That the carrier operated a line wholly within the State is immaterial, so long as the function which it performed was a part of a continuous journey from one State to another, under a single, continuous contract of carriage. Whether carried on by one, or by two or more express companies, the commerce involved is itself interstate, and no part of it can be divested of its interstate character by the incidental circumstance that it may be carried on by one of the companies wholly within state lines. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Fargo v. Michigan, 121 U. S. 20; Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326, 343, 344; Norfolk & Western R. R. Co. v. Pennsylvania, 136 U. S. 114, 119; New York v. Knight, 192 U. S. 21; Galveston & San Ant. Ry. Co. v. Texas, 210 U. S. 217; Southern Pacific Terminal Co. v. Int. Com. Comm., 219 U. S. 498; People v. Miller, 178 N. Y. 194. The tax upon the receipts from "interstate transfer business" is invalid as an attempt by the State to impose a direct burden upon interstate commerce. State Freight Tax, 15 Wall. 232; while in State Tax on Railway Gross Receipts, 15 Wall. 284; Railroad Co. v. Maryland, 21 Wall. 456; Peik v. Chic. & N. W. Ry. Co., 94 U. S. 164; Munn v. Illinois, 94 U. S. 113; C., B. & Q. Ry. Co. v. Iowa, 94 U. S. 155; the rate making power of the State was sustained, in Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557, the power of the States over interstate rates was definitely denied; and see cases supra and Ratterman v. West. Un. Tel. Co., 127 U. S. 411; Leloup v. Port of Mobile, 127 U. S. 640; overruling Osborne v. Mobile, 16 Wall. 479; Western Union Telegraph Co. v. Pennsylvania, 128 U. S. 39; Western Union 223 U.S. Argument for Plaintiff in Error. Telegraph Co. v. Alabama, 132 U. S. 472; Lyng v. Michigan, 135 U. S. 161, 166; Crutcher v. Kentucky, 141 U. S. 47. The cases of Maine v. Grand Trunk Ry. Co., 142 U. S. 217; Postal Telegraph Co. v. Adams, 155 U. S. 688; Erie Railroad v. Pennsylvania, 158 U. S. 431; Louis. & Nashv. R. R. v. Kentucky, 161 U. S. 677, were sustained only because laid on intrastate receipts. By the latest announcement of this court, in Galveston, Harrisburg & San Antonio R. R. Co. v. Texas, 210 U. S. 217, an act was held unconstitutional because it laid a tax directly upon the gross receipts. The Supreme Court of Minnesota has sustained the tax at bar on the theory that it is a tax upon the property of the company and not upon the earnings. It has been held, however, that property outside of the State cannot be taxed by the State. Fargo v. Hart, 193 U. S. 490. The lieu of other taxes clause does not make the act constitutional. The State of Minnesota cannot, by merely refraining from levying the ordinary property taxes against a company engaged in interstate commerce, acquire the right to tax the interstate commerce carried on by that company. If this could be done then all restraints upon state action in this respect could be released by mere non-action, and it would become a perfectly simple matter for States to acquire a free hand in taxing such commerce. There is hardly any branch of interstate commerce which can be carried on without the use of property in some form. On the hypothesis under discussion, all that any State need do, under such circumstances, is to neglect to tax the tangible property and then impose a direct tax upon the gross receipts arising from the business. Fargo v. Michigan, 121 U. S. 230; Western Union Telegraph Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56. Transportation between two points within the same State but passing out of the State intermediately is interVOL. CCXXIII-22 Opinion of the Court. 223 U.S. state commerce. Lehigh Valley Ry. Co. v, Pennsylvania, 145 U. S. 192; Hanley v. Kansas Southern Rd. Co., 187 U. S. 617. Mr. Lyndon A. Smith, Attorney General of Minnesota, and Mr. William J. Stevenson, with whom Mr. George T. Simpson was on the brief, for defendant in error. MR. JUSTICE DAY delivered the opinion of the court. This is a writ of error to the Supreme Court of the State of Minnesota, bringing in review a judgment of that court sustaining a tax assessed against the United States Express Company. 114 Minnesota, 346. The Express Company is an unincorporated association, with its principal office in the State of New York, engaged in the express business in the United States. The business is carried on under contracts between the Company and railroads for the transportation by the railroad companies of goods forwarded by the Express Company, upon the payment by the Express Company, as compensation for such service, of a certain percentage of the gross receipts of the Express Company derived from the business carried over the lines of the railroads. Under such contracts the Company is engaged in carrying on express business over many lines of railroads in the United States, amounting in the aggregate to some 30,000 miles of road. It carries on express business in this manner in the State of Minnesota upon the Chicago, Rock Island & Pacific Railway, Duluth & Iron Range Railroad and, for a time, the Chicago, Milwaukee & St. Paul Railway. The Company has offices in many States, the District of Columbia and Canada and in various European countries. It has about fifty offices in the State of Minnesota. The law in question (Revised Laws of Minnesota, 1905, Chapter 11), provides for the taxation of express companies. Section 1013 of the act requires every ex |