delivered the opinion of. the court.
By Chаpter 135 of the Laws of 1913, of Kansas, every domestic corporation is required to- pay to the Secretary of State ah annual fee which is graduated according tо the amount of its paid-up capital stock. When this capital stock does not-exceed $10,000, the fee is $10; when it exceeds $10,000 but is not over $25,000, the fee is $25’; and there áre further incrеases, graduated as stated, until the maximum fee of $2,500 is reached, that sum *231 being payable in all cases where the paid-up capital stock exceeds $5,000,000. The plaintiff in errоr , is a railroad corporation organized under the laws of Kansas, and its road extends into several States. It has a paid-up capital stock of $31,660,000. On March 31, 1914, it paid to thе Secretary of State, under protest, the required fee of $2,500 and brought this action to recover the amount, insisting that the tax is a direct burden upon interstate commerce аnd is laid upon property outside the State, and hence is invalid under the Federal Constitution. The Supreme Court of Kansas sustained the tax, thus defining its nature: “The fee collected is a tax upon the right of corporate existence — the franchise granted by the State to be, a corporation — to do business with the advantages associated with that fоrm of organization.” 95 Kansas, 261. •
It must be assumed, in accordance with repeated decisions, that the State cannot lay a tax on. mterstate commerce 'in any form,’ by imposing it either upon the business which constitutes such commerce, or the. privilege of engaging in it, or upon the receipts as such' derived from it.
State Freight Tax Cases,
15 Wall,
232;. Philadelphia & Southern S. Co. v. Pennsylvania,
Examining thе statute in the present case, we see no reason to doubt the accuracy of the description of the tax by the state court. We take it to be simply a tax on thе privilege of being a corporation, — on the primary corporate franchise, granted by the State. The authority of the State to tax this privilege, or franchise," has аlways been recognized and it is well settled that a tax of this sort is not necessarily rendered invalid because it is measured by capital stock which in part may represent prоperty not subject to the State’s taxing power. Thus, in
Society for Savings
v.
Coite,
In
Philadelphia & Southern S. S. Co.
v.
Pennsylvania, supra,
the State had laid “a tax of eight-tenths of one per centum upon the gross receipts of said company for tolls and transportation.’ ’ As the court said: ‘ ‘ The tax was levied directly upon the receipts derived by the company from its fares and freights for the transportation of persons and goods between different States, and between States' and foreign countries, and from the charter of its vessels which was for the same purpose.” It was necessarily concluded that the tax was imposed upon interstate commerce. In
Galveston, Harrisburg &c. Ry.
v.
Texas, supra,
the tax upon the railroad company was “equal to one per centum of its gross receipts.” The court held that this was “merely an effort to reach the gross receipts, not even disguised by the name of an occupation tax, and in no way helped by the words ‘equal to.’ ” By the statute which was under review in
West Un. Tel. Co.
v.
Kansas, supra,
— as was said in
Flint
v.
Stone Tracy Co.,
220 U. S., p. 163, summаrizing that case — the State “undertook to levy a graded'charter fee upon-the entire capital stock of one hundred millions of dollars of the Western Union Tele- , graрh Company, a foreign. corporation, and engaged in
*234
commerce among the States, as a condition of doing local business within the State of Kansas.- This court held, looking through forms and reaching the substance of the thing, that the tax thus imposed was in reality a tax upon the right to do interstate business within the State, and an undertaking to tax property beyond the limits of the State; that whatever the declared purpose, when reasonably interpreted, the necessary operation and effect of the act in question was tо burden interstate commerce and to tax property beyond the jurisdiction of the State, and it was therefore invalid.” To the sanie effect were
Pullman Co.
v.
Kansas, supra,
and
Ludwig
v.
West Un. Tel. Co.,
In the present case, the tax is not laid upon transactions in interstate' commerce, or uрon receipts from interstate commerce either separately or intermingled with other'receipts. It does not fluctuate with the volume of interstate business. It is not a tax imposed for the privi-,' lege of doing an interstate business. It is a franchise tax — oh the privilege granted- by the State of being a corporation — and while it is graduated according' tо the amount of paid-up capital stock the maximum charge is $2,500 in the case of all corporations having a paid-up capital of $5,000,000, or more. This is the amount imposed in the present case,, where the corporation has a capital of $31,660,000.. We find no ground for saying that a tax of this character, thus limited, is in any sense a tax imposed uрon interstate commerce.
For similar reasons, the contention cannot be sustained that the tax was one on property beyond the jurisdiction of the State: Undoubtedly, a tax may be in form a privilege tax and yet, in substance, may be a tax on property. But the present tax cannot be regarded as a property tax at'all.
Judgment affirmed.