*1 STATE NEBRASKA INC. AIRWAYS, BRANIFF AND EQUALIZATION OF BOARD ASSESSMENT al. et 1, 1954. June 12, 1954. Decided March Argued No. *2 William Hotz, J. argued Sr. appellant. cause for him With on the Hotz, brief were William J. Jr. and Roger J. Whitejord. Sheldon,
C. C. Assistant Attorney of Nebraska, General argued the appellees. cause for With him on the brief was Beck, Clarence S. Attorney General.
Me. Justice Reed delivered opinion of the Court. The question presented by this appeal from the Su- preme of Nebraska is whether the Constitution bars the Nebraska from levying apportioned an ad valorem on the flight equipment of an appellant, interstate air carrier. Appellant is incorporated in Nebraska and does not have its principal place of business or home port registered under the Civil Aeronautics Act, 52 Stat. 973, 977, 49 S.U. C. 401-705, §§ in that state. Such flight equipment employed a part as system of a interstate air commerce operating over fixed routes and landing on and departing from airports within Nebraska on regular schedules. Appellant does not challenge the reasonableness of apportionment prescribed by the taxing statute or the application of such its property. It contends only that flight its equipment used in interstate commerce is immune from taxation Nebraska because without situs in that state and because regulation of air navigation by the Federal Government precludes state such taxation. petition
This for a declaratory judgment of the in- validity of 77-1244 §§ to 77-1250 of the state tax statute1 Stat., Neb. Rev. seq. 77-1244 et § assessed taxes collection against injunction an and as filed was years for previous provisions under Air- Mid-Continent below in the court action original Subsequent facts. stipulated tried and Inc., lines, ap- and Mid-Continent decision, before but filing, appellant August merged were pellant Mid-Continent plaintiff. party substituted corporate its with Delaware in incorporated been had Braniff state, in that Wilmington business place place corporate Oklahoma incorporated merger to the Pursuant City. Oklahoma business moved were offices main executive Mid-Continent’s appellant’s with merged Missouri, City, Kansas stops scheduled regularly number Texas. Dallas, *3 at four and at Omaha day per fourteen Nebraska, in merger. by the affected not Lincoln, was Aeronautics Civil the with registered port home The in ques- the aircraft for base overhaul and the Authority All Minnesota. Airport, Paul Minneapolis-St. the is tion sched- regular fly overhaul undergoing not the aircraft Dakota, to North Minot, ranging a circuit upon ules states fourteen in stops with Louisiana, Orleans, New stops No and Oklahoma. Nebraska Minnesota, including stops are The in Delaware. made were and discharge the for only utilized since duration short and freight, express, mail, passengers, loading nor owns neither Appellant refueling. for sometimes stor- or reconditioning, repairing, for facilities maintains depot rents but Nebraska, equipment flight its ing Supreme required. services other hires space taxability toas distinction made no of Nebraska into made were flights no years when those between did flights those when (Delaware) domicile state (Oklahoma). domicile of new the state enter only is assessed question the tax stipulated It is applied air carriers scheduled regularly against to operate carriers who only intermittently in the state. The statute “flight defines equipment” fully as “aircraft equipped for flight,” and provides that “any upon or measured the value of flight equipment of air car- incorporated riers or doing business this state shall be assessed and collected by the Tax Commissioner.” A formula prescribed for arriving at proportion aof carrier’s flight equipment to be to allocated the state.4
The statute uses the allocation formula of “pro- posed uniform statute provide for an equitable method of state taxation of air adopted carriers” by the Council of State Governments the recommendation of the National Association of Tax Administrators in 1947.5 Use of a uniform allocation formula apportion air- carrier taxes among the states follows the recommendation of the Civil Aeronautics Board report Congress.6 2Id., (3). §77-1244
3Id., §77-1245. 4Ibid. This provides section proportion flight “The equip ment allocated to this state for purposes of taxation shall arithmetical average of following (1) three ratios: The ratio which the aircraft arrivals and departures within this state scheduled air during carrier preceding year calendar bears total aircraft departures arrivals and within and without this state scheduled during such carrier period; the same Provided, that in the case of operations nonseheduled all departures arrivals and shall be substituted scheduled departures; (2) arrivals and *4 ratio which the by revenue tons airports handled such air carrier at during within this state the preceding year calendar bears to the total revenue tons handled airports such carrier at and within without this during state period; the (3) same and the ratio which such air originating carrier’s revenue within this preced state for the ing year calendar bears to the total originating revenue of such carrier within and period.” without this for state the same 5 Resolutions, Eighth The Assembly General States, of the 20 State Government 95. 6Multiple Taxation Commerce, of Air H. 141, R. Doc. No. 79th Cong., 1st Sess. Recommendations various interested groups as proper to the method of are report included that 594 and rate levy, for reports, provides statute
The Nebraska average.7 by state of tax 1950 show Mid-Continent filed reports
Required sys- total the of and revenue of its about that 11%% 9% itsof about and in Nebraska originated 9% tonnage tem figures, these From state. in that made were stops total Tax Commissioner formula, statutory using Nebraska, allocable $118,901 of a valuation at arrived Mid-Continent Since $4,280.44. of in a resulting and was used valuation the same for 1951 no return filed $4,518.29. in assessment resulted rate increased statute held of Nebraska Supreme The appel- and dismissed Clause Commerce violative petition.8 lant's air governing statutes federal argues
Appellant pre-empt the commerce under enacted commerce preclude and commerce air of such regulation field of 1938, ofAct Aeronautics by the Civil Congress, tax. C. 49 U. §1107(i)(3), 1028, 977, 52 Stat. (a), enacted: 176§ pos- is declared America United
“The national exclusive and complete exercise sess States, the United above space air in the sovereignty waters inland all space above the air including adjacent portions those above space air Taxation Local Arditto, State also See appendices. Kassell, In- 162; Com. Air L. & Airlines, 16 J. Local Scheduled Mr. Bulwinkle Airlines, 25 Taxes Cooperation and terstate B. C. A. recommendation with the accordance bills in introduced method prescribe should Government the National report adopted the Council bills carriers. of air taxation of state R.H. enacted. Neither by Nebraska. utilized formula Cong., 1st Sess. 1241, 80th Sess.; R. Cong., H. 1st 79th 77-1247, 77-1249. Stat., §§ Neb. Rev. Equaliza Board Airlines, Inc. Nebraska Mid-Continent 2d 746. 425, N. W. Assessment, Neb. tion and
595 marginal high seas, bays, lakes, over by which international law or treaty or convention the United States exercises jurisdiction.” national provision This originated in the Air Commerce Act of 1926, 44 Stat. 568, 572, 6.§ The 1938 Act also declares public “a right of freedom of transit” for air commerce in the navigable air space to exist for any citizen of the United 52 States. 980, 3,§ Stat. 49 U. S. C. § 403.9
The provision pertinent to sovereignty over the navi- gable air space in the Air Commerce Act of was an assertion of exclusive national sovereignty. The conven- tion between the United States and other nations re- specting international civil aviation ratified August 6, 1946, 61 Stat. 1180, accords. The Act, however, did not expressly exclude the sovereign powers of the states. H. R. Rep. No. 572, 69th Cong., 1st Sess., p. 10. The Civil Aeronautics Act of gives no support to a different view.10 After the enactment of the Air Act, Commerce more than twenty adopted states the Uniform Aeronau- tics Act. It had provisions three indicating that states did not consider their sovereignty affected National Act except to the extent the states had ceded that sovereignty by grant.11 constitutional space That was defined in 10 of the Air § Commerce Act and freedom navigation for its declared. This was continued Civil Act, Aeronautics 180, S. C. U. “airspace § above the minimum safe prescribed altitudes of flight by the Civil Aeronautics Authority.” 10 Rep. 1661, No. Cong., 75th Sess.; 3d H. Rep. R. No. 75th Cong., Sess.; 3d H. R. Rep. Conf. No. Cong., 75th 3d Sess. 11 11Uniform Laws Annotated 160: Sovereignty 2. “§ Space. Sovereignty space in the above the — lands and waters of State declared to rest in the State, except granted where and assumed pursuant United States grant constitutional people from the of this State. Ownership Space. “§ ownership space above the —The lands and waters of this declared to be vested in the several *6 596 of Commis- Conference National the of
recommendation this enact to states the Laws on Uniform sioners however, adopted, 1943.12 Where in withdrawn Act Praylou, 208 v. States United See in effect. it continues sover- national “exclusive this Recognizing 291. F. 2d transit, air in freedom of right eignty” neverthe- U. S. Causby, v. United in taking for a recover might of land owner the held less in de- resulting space, air navigable of national use land of the usefulness of the part inor in whole struction property. bot- are commerce air regulating Acts Federal
These on Congress, of commerce the on tomed dis- as space, air navigable the of ownership national bill which the reporting In sovereignty. tinguished said: it was Act, Air Commerce became air navigable constitutes of what declaration “The power, of source of same an exercise is space which under as clause, commerce interstate con- what many acts declared long has Congress The waters. nonnavigable or navigable stitutes space owes air navigable flight right public flight described right of subject to the beneath, the surface owners in Section the lands over aircraft Flight. Flight 4. Lawfulness "§ — toas altitude low lawful, at unless of this State waters water, or or the land which existing use to then with interfere owner, unless or water, put by the or the land space over persons or dangerous imminently as be so conducted landing aircraft of an beneath. water or lawfully the land unlawful, consent, is another, his without or lands waters on the by a caused damages landing. For of a forced except in the case or the aircraft of the or lessee however, the owner landing, forced 5.” Section liable, provided in shall aeronaut continue 1943, pp. Efforts 66-67. Handbook, Conference See Con See Code. Aeronautical Uniform acceptable State draft 1948, p. 147. Handbook, ference its source to the same constitutional which, basis under decisions the Supreme Court, given has rise public to a easement of navigation navigable waters States, regardless United of the owner- ship adjacent or subjacent soil.” H. Rep. R. No. 572, 69th Cong., 1st Sess., p. 10.
The commerce power, since
Ogden,
Gibbons
Wheat. 1,
comprehended
navigation
of streams.
Its
breadth covers all commercial intercourse. But the fed-
*7
eral
power
commerce
over navigable streams does not
prevent state action consistent
power.
with that
Gilman
Philadelphia,
v.
Nor appellant has demonstrated that the Commerce Clause otherwise bars this tax as a burden on interstate commerce.14 We have reiterated frequently that the
13United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 60; United City States v. Kansas Co., 799, 808; Ins. 339 U. S. Federal Niagara Power Comm’n v. Power Corp., Mohawk 347 U. S. 239, seq. 246 et original In its petition appellant alleged also that the Nebraska statute is 9, invalid under cl. el. 3 of § Art. I of the § Constitution. noting While that such apparently contentions were “abandoned in the brief argument,” and oral the court below held provisions such of the Constitution not appellant violated. Since did preserve not such contentions in its Statement as Jurisdiction, we do not consider such issues. instru- interstate immunize not does Clause Commerce that taxation, but state all from mentalities nondiscriminatory a pay required may commerce allege not does appellant And tax burden.15 share nor, as it against discriminates statute Nebraska this that reasonableness challenge it does above, noted statute.16 prescribed ulti- depends appellant which upon argument a “attained never aircraft its however, is mately, argues it which Nebraska” within situs taxable com- interstate on burden imposes tax Clause Commerce relying In merce. under claiming protection specifically issue Amendment, Fourteenth Clause Process Due sup- clause constitutional wrong names the appellant a com- whether question While position. port in a state settled sufficiently market route to en modity deter- been to a subjection purpose question,17 Clause aas Commerce by this mined Michigan- 254; Bureau, 303 U. Stock Live Western *8 157, 165. Calvert, U. S. 347 v. Pipe Line Co. Wisconsin 18; 16 Ford Pennsylvania, U. S. 141 Co. v. Car Palace Pullman’s See L. R. Co. Nashville, St. C. & 331; Beauchamp, S.U. 308 v.Co. Motor 653, S. Mealey, 334 v. U. Greyhound Lines 362; Browning, U. S. 310 v. Co., S.U. Barge 336 Valley Line Mississippi 663; v. 662, Ott 654, 514-516; Multiple 511, Rogan, S. 340 v. U. R. Co. 174; Canton Sess.; Cong., 1st 141, 79th No. Commerce, R. Doc. H. of Air Taxation Airlines, 16 Local of Scheduled Local Taxation Arditto, and State in Airplanes Howard, Taxation 162; L. & Com. Air J. Taxation 195; Welch, L. Rev. Commerce, 10 Mo. Interstate Green, 584; The War Contemp. Prob. & Carriers, 11 Law Air and 835; Sutherland L. Rev. Aviation, Ya. 31 in Against 161; Q. L. Cornell Airplane, 32 The Octroi Vinciguerra, Airlines, Cornell 31 Taxation the State Saxe, Control Federal Note, 23; 57 B. J. S. Taxation, 25 Mich. Ternes, Aviation Q. 228; L. L. Rev. 1097. Harv. 70, 72; Scheele, 17 U. S. 331 v. Warehouses Independent g., See, e. Realty Champlain 95; S. Vial, 279 U. v. Co. Petroleum Carson
599 instrumentality whether an of com- question the bare purpose subjection tax situs a state for the merce has However, property process.18 to a tax is one of due its contention that appellant timely preserved raised property was not taxable because such had its inex- Though attained no taxable situs Nebraska. plicit, process we consider the due issue within the clear intendment of such contention and hold such issue v. sufficiently presented. Bryant See New York ex rel. Zimmerman, 278 and cases Robertson cited; U. Kirkham, Supreme Jurisdiction of the Court of the (Wolfson and Kurland 149 et ed.), seq. United States Appellant involving ocean-going relies cases ves- sels to support contention that its aircraft attained no tax See, g., Hays situs Nebraska. e. v. Pacific Brattleboro, 366; Crain, Co. v. 260 U. S. General Oil Co. v. 209 Errol, 211; 517; Houston, v. U. S. Coe 116 U. S. Brown v. 114 U. S. 622; Powell, Things Transit, 167, 245, Taxation of 7 Va. L. Rev. 429, 497. 18See, g., Rfg. Oklahoma, 158; e. Johnson Co. v. Oil 290 U. S. Frick Pennsylvania, 473; Refrigerator v. 268 U. S. Union Transit Co. v. Kentucky, 194; Delaware, Pennsylvania, 199 U. S. L. & W. R. Co. v. 341; Beale, Laws, seq.; Moore, 198 U. S. Conflict of et Taxation Amendment, of Movables and the 309; Fourteenth 7 Col. L. Rev. Page, Tangible Movables, Jurisdiction to Tax 1945 Wis. L. Rev. 125. concept recognized by
While the common-law
of situs was
tangible
Court as a
personalty prior
limitation on state
to tax
to invocation of the Fourteenth Amendment as a defense to such
taxation,
bases
such decisions varied
no
consistent con
principle
applied. Compare
following
Hays
stitutional
cases:
Co.,
596; Morgan
v.
Mail
Parham,
S. S.
17 How.
16 Wall.
Pacific
471;
Ferry Co.,
Marye
423;
St. Louis v. The
11 Wall.
v. Baltimore &
Co.,
117;
R.
Pennsylvania,
O.
127 U. S.
Pullman’s Palace Car Co. v.
18;
Express
Auditor,
U. S.
Adams
Co. v. Ohio State
Mail 63. The S.U. Kentucky, Co. v. 471; Southern Pacific the entire value the to tax efforts were two cases first apportionment, without property, local as other ships The last open seas. the plow to were used they when to tax power has domicile corporate the state holds case analogy A closer elsewhere. not taxable are that vessels ply that and boats interstate planes flying between exists for distin- basis logical no perceive waters. We inland the on such impose a to power constitutional the guishing river boats. taxes impose to power the aircraft 169; Co., S. 336 U. Barge Line Valley Mississippi v.Ott limitation Peck, S. 382. 342 U. Oil Co. Standard to power state upon Clause Process the Due imposed succinctly was such instrumentalities taxes impose concerned process as due “So far Ott case: stated operation practical tax in is whether only question con- protection or benefits, opportunities, to relation S., at 336 U. taxing State.” or afforded ferred evolution 357, the McCanless, 307 U. Curry v. In and the reviewed power on state of such restriction thusly: rule stated or tax land to jurisdiction speak we
“When they where state in the exclusively being chattels than no more mean we located, physically are the owner enabling of laws protection the benefit and ownership and his fruits of enjoy for the protected, the interests effectively reach tax, are of a payment them subjecting purpose territory in whose the state restricted to narrowly so practical as to set is located physical property Id., at 364. others.” to taxation limits question into devolves issue Thus the situs aircraft appellant’s per day by stops eighteen whether state’s sustain with Nebraska contact sufficient *10 air- tax on such apportioned an ad valorem levy to power to estab- contact is sufficient regular think such craft. We aircraft though the same power lish Nebraska’s to even none of the aircraft day though and even every do not land the juris- “The basis of continuously within the state. employment diction is the habitual 19 Appellant ground rents its facilities within State.” This leaves purchases fuel it Nebraska. pays and rails, boats and position in the of other carriers such as it to have for the use of local facilities so as pay motors that and commerce, traffic, opportunity exploit Approxi- originates trade that or reaches Nebraska. mately appellant’s produced- one-tenth of revenue is pas- freight of Nebraska pickup discharge during sengers. certainly protection affords a stops regular landings clearly and these are benefit appellant. levy think that this Nor do we Nebraska’s with merger tax was affected of Mid-Continent two permits Braniff. “the rule which taxation Since taxa- precludes or more states on basis domicile,” property by tion of all of the the state of the Peck, at we it imma- supra, Standard Oil Co. v. deem merger Mid-Continent was domi- terial that before Delaware, through planes a did ciled state which merger and after the Braniff is domiciled fly, aircraft make Oklahoma, through a state which these regular flights. Minnesota,
Appellant urges that Northwest Airlines v. to be 292, precludes U. S. this tax unless that case is In Minnesota, overruled. that case as the domicile of the air to tax port,” permitted carrier its “home was although ranged the entire value of the fleet ad valorem it Rfg. Oklahoma, supra, Johnson Oil Co. v. at 162. See also Mississippi Pennsylvania, supra; Pullman’s Palace Car Co. v. v.Ott Valley Barge Co., supra. Line view one no While eight states.20 through routes
by fixed say fair it Court, seems majority mustered Conclusion in the stated position without Court, of this the decision announced which Judgment position That the reverse. been have would result *11 domicil- of the part a defined “that not shown was it that e., i. a tax- location, permanent a acquired iary corpus recognized That opinion 295. P. elsewhere.” situs, ing instrumentalities for apportionment tax of “doctrine the it inap- held but p. commerce,” 297, interstate in engaged fungible portion a “property (or no plicable because the than other a State in situated units) permanently v.Co. Oil Standard 298. P. When domiciliary State.” interpreted the here, 382, 384, Peck, 342 U. than other states permit case Airlines Northwest the in interstate tax boats corporate domicile those in accordance basis apportionment commerce to that adhere We taxing state. in the use their with interpretation.
Affirmed. in the result. Black concurs Mr. Justice reasons stated for dissents Jackson Mr. Justice Minne- Airlines in Northwest opinion concurring his in sota, 322 S.U. concurring. Douglas,
Mr. Justice power challenging Airways, Braniff planes that only tax, claims valorem this ad lay claim It does State. situs in no taxable have basis, apportioned an aircraft, on of the fraction no enacted a ease, Minnesota Airlines Northwest to the Subsequent for allocation formula apportionment incorporating an statute tax Minn. to Minnesota. carriers of air property the valuation 1953, c. amended, Minn. Laws 270.071-270.079, as Stat., §§ 2-3. §§ attack this does it in the State. Nor permanently n formula. apportionment is that understanding of our decisions My of the permanency an ad tax turns on the lay valorem there be property may All the State. whether transit, Property of it. only or a fraction refueling, or an automobile discharging passengers a plane in transit Property tax. subject to an ad valorem is not continuously part and so may regularly move so more, but no fraction, Then the always the State. it is may be taxed ad valorem. explicitly reserve points to
I mention these elemental that serves formula validity pre- The formula used ad tax. the basis of this valorem adequate might be questions. What sents substantial inadequate receipts might gross formula for a faced with Moreover, when we are an ad valorem tax. *12 may we problem have a we process question, due Congress. to delegate to contrary position takes a
I not think the Court do opinion in the passages are I But there what have said. are blurred they as issues which blur the constitutional Civil Aero- interesting report in and confused Sess., Cong., 79th 1st H. Doc. Board, R. No. nautics I Hence Air Taxation of Commerce. Multiple entitled not in the the Court but in of judgment joined have opinion. Frankfurter, dissenting.
Mr. Justice legal in reason- tendencies treacherous of the most One developed for one generalizations of the transfer ing is essentially analogous, yet seemingly to of situations set evolved The doctrines situations. different, very property to tax the States as between adjusting rights States, a number to relation bearing some from the freedom against power of the States taxing Clause, the Commerce secured interferences it is that to what relation course, practical bear, adjust- make this to time a considerable It took taxed. rail- property of railroad to taxation regard ment wholly are when the decide road income —to when an ad taxes, valorem certain levying excluded deemed reasonably railroad levied on may be basis and on what State, given in a permanently be may fairly railroad business from interstate income rail- Even as to States. among different apportioned making and the to be made had nice distinctions roads, been concluded. has not of them differences between the drastic to reason that It stands airplanes flight bird-like trains and slow-moving to the claims law’s response in the reflected would be of the Commerce the limitations States and the different in result The differences those claims. Clause result agreed those who among conflict even Minnesota, demon- U. Airlines Northwest minds of different caprice or the contrariness strate not adjustment law’s perplexities but the inherent the taxing as the exercise problems novel The system. in a federal aviation over commercial unprecedented, were in that case problems canvassed that was there thing decided most perhaps important transportation to air apply the refusal of the Court with regard been the doctrines that had enunciated transportation. land and water novel these of the case—that plain intimation *13 power of States taxing affecting problems, powers legisla- comprehensive Nation, call for the in a resolu- response Congress possessed by tion —found Board Aeronautics directing the Civil Congress tion avoiding, as eliminating develop the “means persons engaged multiple taxation far practicable, unduly the effect of . . has in air commerce . which of air development unduly impeding or burdening 723. The thus set afoot inquiry 58 Stat. commerce.” H. R. Doc. No. illuminating report. See an produced analyzed the difficulties Sess., which Cong., 79th 1st The of these proposals.1 gist made concrete and also apportionment Congress make was that proposals air based fly, over which carriers among the States taxes The appropriate factors and ratios. upon relevant review, here under sub- Nebraska, by basis of taxation Aeronautics the factors which the Civil stantially reflects thing, It is one Congress. to the Board recommended States to determine what however, for the individual they into account and how should factors should be taken Congress devise, another for weighted. quite It is should, Board recommended it as the Civil Aeronautics on all the apportionment binding a scheme of States. may rely on one scheme of time, Until other on other schemes. And apportionment; modify may, time, each State time relevant factors.2 taxing power by
The exercise of the
one of the States
formula,
tonnage,
means of
based on such criteria as
revenue,
departures, may,
isolation,
and arrivals and
impose
adop-
no unfair
burden on commerce. And
tion
all
which
taxation,
the States of such a basis for
only congressional
ensure,
action could
would not offend
It
fluctuating
the Commerce Clause.
diverse and
proposal
Report
of this
there be a uniform allocation
—that
apportion
among
adopted
formula
taxes
the States —was
Council
State Governments. See 20 State Government 95. How
legislation
yet
ever no federal
resulted.
problem In addition to the
conflict between
States,
schemes of various
it must be borne in mind that these schemes
regarded
formulas,
hence
cannot be
mathematical
as abstract
they
applied
closely
their fairness as
must be
scrutinized to ensure
given
Hines,
to a
Wallace v.
“The immunities in the Commerce Clause taxing power hardly and the of a State can potential practical affairs, made in the world of depend, be to shifting varying incidence of the laws of the various States at a moment. Courts particular possessed are not of determination so instruments delicate as enable them weigh the various fac- complicated tors setting which, economic application tax, might mitigate isolated of a State generally the obvious burden by created a direct tax Hewit, on commerce.” Freeman S.U. thought clearly be Lest it one formula of appropriate one, Report it should noted that the Board’s sets forth proposed responsible groups, three formulas addition adopted recommended the Board. And while Nebraska the fac Board, give tors recommended it did not them the same weight proposed which the Board’s formula did. See H. R. Doc. No. Cong., 79th 1st-Sess. 58.
This would not be the only instance in which a con *15 adjustment structive of competing requires considerations congressional legislation beyond scope judicial process. See, Davis v. Department Labor, 317 249, 259; U. United Co., Standard Oil Halcyon U. S. 301; Lines v. Haenn Ceiling Ship & Refit ting Corp., 342 S. 282; U. Gilman, United States v. U. S. 507.
It was not too difficult in Northwest Airlines to allow Minnesota to levy a personal property tax on the entire fleet airplanes owned by corporation a of its creation, the principal place of business of which was also Min- nesota. State of Minnesota, as we said, was the only that State had such a hold on planes. In the case us, before Nebraska has no such relation with the airplanes on which it seeks impose an ad valorem tax.
This Court has held that a State may levy an ad
valorem tax on the basis of
showing
a
that the total time
spent in a
different units of a carrier’s property
is such that a certain proportion of that property
bemay
said
permanent
to have a
location
that State. Such a
doctrine of apportionment, as the basis of property taxa-
tion, was adopted by Pullman’s Car
v.Co.
Pennsylvania,
The appealing phrase that “interstate business must pay way” its can be only invoked when we know what the “way” is for which interstate business pay. must Of course, the appellant must pay for the use of air- ports and other services it enjoys in It Nebraska. located permanently property on all taxa pay must a gasoline pay must it else everyone Like
in Nebraska. year a $22,000 approximately pays it fact In tax. taxes, gasoline year a $14,000 airport, use equipment, on office taxes appropriate in Nebraska. permanently items other trucks substantial sufficiently have who those only But be said fairly may they to Nebraska relation unspe- impalpable though benefits, partake because be taxed may society, an ordered gives it cific, course, then, And even benefits. those partake they Not commerce. be cast must not undue burden airplanes appellant show can unless in Ne- presence *16 permament substantially a that have pres- on their taxing exert Nebraska can braska for a pause which planes that believe I do ence. exercise for basis made can be moments few tie, such tax without can Nebraska If power.4 such inor planes fly which through State other every Surely this tax. can minutes a few for alight they which Clause the Commerce inroad obvious an the Constitution. barred regularly flying airplanes, for that said It cannot time short for a stop over alight, flights, scheduled that Nebraska related tenuously so off is then take on these to seize for process deny due would it But tax. ad- valorem anof basis as the stopovers short Clause, Commerce may offend a tax incidence Clause. Process the Due satisfy may it though even night, between a bare time called theWith spent on all assertion for to five exception establish Company’s twenty ground flight one minutes by planes which equipment is requisite planes remain plane which each permanence day. “permanently” remains stop Considering transit, in Nebraska taxing purposes. for in Nebraska more periods of this over brief than I am not unaware that there is an air imprecision about I what have written. Such is the intention. Until Congress acts, the vital for the thing new and subtle field is to focus process on the of interstate protect commerce and it from inroads of taxation by a State beyond “opportunities which it has . . . given, protection which it has . afforded, . . benefits which it conferred the fact of being orderly, civilized society.” Wisconsin v. J. C. Penney Co., U. S.