ollected from
the State treasury. * * * The other principle, exemplified by those
cases where the tax laid upon individuals affects the State only as the
burden is passed on to it by the taxpayer, forbids recognition of the
immunity when the burden on the State is so speculative and uncertain
that if allowed it would restrict the federal taxing power without
affording any corresponding tangible protection to the State government;
even though the function be thought important enough to demand immunity
from a tax upon the State itself, it is not necessarily protected from a
tax which well may be substantially or entirely absorbed by private
persons."[245]

CONFLICTING VIEWS ON THE COURT

The second attempt to formulate a general doctrine was made in New York
_v._ United States,[246] where, on review of a judgment affirming the
right of the United States to tax the sale of mineral waters taken from
property owned and operated by the State of New York, the Court was
asked to and did reconsider the right of Congress to tax business
enterprises carried on by the States. Justice Frankfurter, speaking for
himself and Justice Rutledge, made the question of discrimination _vel
non_ against State activities the test of the validity of such a tax.
They found "no restriction upon Congress to include the States in
levying a tax exacted equally from private persons upon the same subject
matter."[247] In a concurring opinion in which Justices Reed, Murphy,
and Burton joined, Chief Justice Stone rejected the criterion of
discrimination. He repeated what he had said in an earlier case to the
effect that "'* * * the limitation upon the taxing power of each, so far
as it affects the other, must receive a practical construction which
permits both to function with the minimum of interference each with the
other; and that limitation cannot be so varied or extended as seriously
to impair either the taxing power of the government imposing the tax
* * * or the appropriate exercise of the functions of the government
affected by it.'"[248] Justices Douglas and Black dissented in an
opinion written by the former on the ground that the decision
disregarded the Tenth Amendment, placed "the sovereign States on the
same plane as private citizens," and made them "pay the Federal
Government for the privilege of exercising powers of sovereignty
guaranteed them by the Constitution."[249] In the most recent case
dealing with State immunity the Court sus