*1 Respon- FREIGHTLINES, INC., Plaintiff GARRETT AND PUBLIC SERV- v. The MONTANA RAILROAD dent, Appellants. ICE COMMISSION al., et Defendants No. 12246. 25, 1973. Submitted Jan. 15, 1973. Decided March Rehearing April 1973. denied 507 P.2d 1040. *2 DALY MR. and JOHN C. HARRISON dissented JUSTICES Opinion. and filed Helena,

William for O’Leary, (argued), E. P. Atkins John appellants. defendants and Romine, (argued), Wil-

Bolkovatz & Walter II. Bolkovatz Helena, plaintiff respondent. (argued), liam Romine MR. T. HARRISON delivered CHIEF JUSTICE JAMES Opinion of the Court.

Plaintiff-respondent Freightlines, Inc., Garrett hereinafter Garrett, general designated a common carrier of commodi- commerce, oper- engaged ties in both intrastate and interstate ating pursuant authority granted by the Interstate Com- and the Public Service Commission of merce Commission of Montana. State brought this action the district court of the first

Garrett Clark, county of Lewis judicial district, in for the 8-127, 8-101 and seeking declaratory judgment that sections of a issuance and for the are unconstitutional R.C.M. enjoining Public Service Commission permanent injunction Garrett under sec- exacting gross revenue fee from from Commission,here- 1947. Public Service tion Commission, designated filed a motion dismiss inafter a claim grounds complaint failed to state that the granted. The district court dismissed which relief could be judgment complaint. appeal ordered to this Court the On with directions to obtain vacated and the cause was remanded Frt. pertinent to the issues. See Garrett further information Comm’n., 469. Ry. 153 Mont. 457 P.2d Lines v. Mont. n parties, interrogatories both filing of After the answers par- September 20, 1971. both to trial on After the cause came exhibits, through testimony oral ties submitted evidence findings fact, court, sitting jury, without a entered its plaintiff. judgment in favor of This conclusions of law and *3 appeal followed. statutory (h), 8-101 provisions herein are section involved exempts operation Mon- which from the of the

R.C.M. tana Motor Carrier Act:

* * carrying property used in consist- motor vehicles (not including manufactured ing agricultural of commodities carry- are not used in products thereof), if motor vehicles such compensation, property, passengers, for ing any * or other * * by transportation property motor ve- (and) the of town, village population with any city, or a within hicle * * * (500) persons, within than five hundred or of less board as determined commercial areas thereof yy ^ 8-127, Act in Motor Carrier R.C.M. The Montana 1947, provides: imposed licenses, fees and taxes

“In to all other addition and in consideration state upon this vehicles motor of n use holding state, every this motor carrier of of * * * necessity public certificate convenience * * * * ** shall with board statement file the. showing gross operating of such carrier for revenue preceding (3) operation, portion three months of thereofT pay seventy-five and shall to the board a fee of five hundred (.575) (1) per thousandths of one cent of the amount of such * * * gross operating revenue the event such operates commerce, carrier gross operating interstate revenue of such within this state shall be deemed to be all the beginning ending revenue received from business state, within proportion proportion and a based mileage of the. within mileage this state to the entire over which the. business done revenue on all passing business * * through, into or out of (Emphasis added). this state

On March 1968 Garrett with quar- filed the Commissionits report terly gross operating revenue, together with its cheek for $5,830.17,representing the amount due the State Mon- preceding quarter tana for the in accordance with section 8- By way 1947. accompanying letter gross; report check, revenue Garrett advised the Commission payment that such protest made under pursuant, 84-4501 sections R.C.M. 1947. Garrett has continued to quarterly remit its report gross, operating revenue to the Commission original since protest, parties stipulated date. Both July 21, 1968: “* * * payments all future protest made under gross tax, revenue hereinafter to become due and paid by Plain- tiff final before determination of Plaintiff’s cause of action, part of, shall become and be included in, complaint Plaintiff’s April 29, 1968, dated and that it will not be necessary for- *4 separate Plaintiff to file a action for the recovery of such fu-- payment.” ture complain,

In alleged its Garrett has Chapter 1 of 8,. Title 1947, deprived R.C.M. has it of process due equal and protec-(cid:127) Montana,

tion Ill, of the law in Art. 27 of the violation of Sec. Constitution and Fourteenth to the Constitu- Amendment States; tion also, of the statutes United and that said are violation of the Commerce Clause. findings

The district court and conclusions to the made ef- allegations fect of Garrett correct and entered were judgment many thereon. with While the district court dealt by necessary matters raised Garrett we do find it discuss disposed by deciding all of them since the cause can be by whether the Public Service revenue collected Commis- 8-127, section an 1947, sion under R.C.M. constitutes unconstitu- levy III, Montana tional under Article Sec. of the Constitu- tion and the Amendment of the Constitution of Fourteenth levy uniformity of' States in that said denies Garrett United taxation, discriminatory, confiscatory, prohibitive, arbitrary, is doing privilege business. tax on the is compute Secondly, the formula used revenue whether

. 8-127, under R.C.M. is the State of Montana due unreasonable, indefinite, precision. arbitrary, and lacks issue, finds that the regard In the first this Court sec Public Service Commissionunder collected revenue levy 8-127, constitutes an unconstitutional R.C.M. tion 27, of III, the Montana Constitution Article Section under of the Constitution of United Amendment the Fourteenth uniformity taxation, levy denies Garrett in that said States prohibitive, arbitrary, confiscatory, is discriminatory, doing privilege of business. tax on private does not include R.C.M. Section carrying gross revenue tax when own their payment the State Montana. Sec- commodities 1947, exempts provisions (h), from all 8-101 tion carrying property motor vehicles used Act Motor Carrier agricultural commodities, ordinary livestock consisting of for construction and maintenance of and materials supplies logging op- supplies mining materials for highways,

487 newspaper newspapers, transportation «rations, for holds, This Court periodicals magazines. supplements, exemptions and ex- found, that these and the district court so uniformity in taxa- deprived right of Garrett of the clusions company’sinterstate tion, discriminating against in the Garrett any lacking reason- classifications, operation, being arbitrary unreasonably discrimi- determination, being able basis nating exempt motor vehicles. and the Garrett Smith, Hayes 306, 314, v. 58 Mont. in the

This Court case 617, 615, 192 the formula for classification as follows: P. set proper authority of classification the state make “The property purpose beyond of taxation is con- for the settled troversy jurisdiction. (Citation omitted). proper But a implies that there real classification exist differences as be- subjects constituting classes, tween the. the different and ex- arbitrary cludes the idea of selection.” subject

On the of classification State v. Sunburst Refin ing Co., 428, 235 73 Mont. P. this Court held the classi reasonable, fication in that it must be must be based sub different, really stantial distinctions which make one class In from another. State ex rel. v. Griffin 104 Mont. Greene, A.L.R. 770, P.2d this Court arbitrary held that permissible. and unreasonable classifications are not with, operations The record here discloses that chain store large warehouses, their which being have come into in recent years, advantage have received the private- the exclusion of paying gross carriers from revenue tax. These business acquired concerns have their own accomplished vehicles and hauling paying any tax, their own without resulting in an un- reasonable discrimination in favor of such carriers, since the- plaintiff competitive price cannot be gross, because of the revenue tax.

Also the record shows is dis- criminatory in that freight railroads haul into by- their stations which then must be train delivered common carrier on Mon- highways. wholly trucking tana owned subsidiaries railroads make these deliveries. There is no statute or board regulating rule agreement between the railroads and their wholly trucking charge owned subsidiaries as to the or alloca- tion of trucking revenue subsidiary made between the parent trucking subsidiary only pay railroad. The has to gross charges revenue tax on amount it for its railroad services, competitive whether such amount is fair and to other common carriers not. regulations or There no or rules *6 ,law-providing a for charges, the amount of such the situation in against Garrett, results carrier, discrimination a common in trucking favor of railroad subsidiaries who are also holders public of necessity. certificates convenience and

Counsel for Public capably Service Commission and .the exten- argue sively that .the revenue collected under section levy is not an unconstitutional III, under Article 27, of the Montana and Sec. Constitution the Fourteenth Amend- States, levy ment to the of the in Constitution United that the deny uniformity taxation, not is does Garrett nondiscrimina- tory, nonconfiscatory, prohibitive, is not arbitrary, is is not doing tax privilege is not a on the business. The crux argument Rwy. on the Mayflower centers case of Com. v. Aero 118, 131, Tran., 119 Mont. 172 P.2d affirmed 332 U.S. 167, 92 99. 69 S.Ct. L.Ed. Therein Court stated: * *jn addition the exactions must such as are rea- be necessary (i.e. sonably purposes building mentioned maintaining highways), discriminatory and must not be be- as appears carriers. It further tween state interstate to be require the federal courts the interstate established rule of impose challenges right of state to such li- carrier who affirmatively show that de- and taxes to the exactions censes necessary purposes for the mentioned are are manded discriminatory. In other words the burden is on the carrier to are unlawful as him.” the exactions wherein show stated: This also Court

* * their to substitute authorized The courts are not leg- only legislature. We can consider views for those its neces- whether or no had, and determine that has been islation unjust discrimination sary operation results an has that the state enough It is charged with burdens. parties its burdens, that no distribution of reasonably fair secured nonresidents.” against has been made intentional discrimination passages, this finds Garrett Relying these two Court discriminatory. levy was showing burden of has met the place has taken an discrimination find that invidious We also against Garrett. testimony num- that the witnesses their indicate

Garrett’s gross tax is subject revenue carriers not private ber of yearly. further The witnesses substantial, and on the increase competition with own customers. its that Garrett showed private in an are to become carriers electing These customers gross cases, subject alarming they are not number revenue tax. grave importance is the that such equal and of use

Of concern highways. private make the Montana Testimony witness and exhibits from the records of Garrett’s Weight Department Vehicle of the State of Mon- of the Gross *7 164,176 vehicles, including tana, are a total of show there vehicles, vehicles, loggers and and farm livestock commercial highways. interrogatories pro- Answer using Montana to vehicles plaintiff pounded by the defendant shows that are the to there permits the 17,015 issued from Montana Railroad Com- vehicles 147,161 using makes a net of commercial vehicles

mission. This which exempt the of Montana are from highways of State the the the any gross revenue tax. The size of vehicles and paying by comparable the vehicles used weight by them is carried plaintiff. the only small, partial Exhibit 12 is a list of some of

Garrett’s 166 this exhibit lists tractors and private carriers and known the up. records the State 26,000 pounds and The 157 trailers of Department Revenue, Division, Motor Fuels show miles by travelled all subject vehicles to the fuel tax. From these it records is shown that the exempt vehicles and privately owned vehicles highways travel millions of miles on the of the State of Montana. A few such carriers’ travel is as follows: Associated Stores, 640,550 Food miles; Buttrey’s Food, 918,969 miles; Bea- Foods, 295,661 miles; Oil, 872,657 trice Continental miles; Safe- way Stores, 1,853,779 miles; Supply, 343,604 Petrolane miles; Company, 1,553,207 American miles; Ryan Grocery, Oil 190,730 miles; Royal Logging, 379,817 and miles.

It exempt cannot be denied that private and vehicles car- riers make as as much and arduous use of highways do as plaintiff and similar carriers. There is just no distinction or exempt private classification of the and they carriers as engaged are all in profit for a business use the in appears of the State of Montana such business. It that the exemptions private exclusion of carriers is a result of any lobbying successful and not because real classification “ classify group segre- distinctions. To has been defined as To systematic gate (Webster’s in have classes which relations.” New Collegiate Dictionary, Edition). Second From such definition exempt private vehicles and carriers seem to be excluded on arbitrary an rather than systematic basis on a classification of relations. in legislature exemptions

The its session added to the transportation newspapers, newspaper supplements, periodi- tow magazines, cals or or those trucks wreckers designated abandoned, in exclusively towing wrecked or vehicles, disabled appear and ambulances. Tow trucks and ambulances have they as benefit of the public classification are valid However, usually emergency exemption used situations. supplements again newspapers appears arbitrary. be passed legislature providing a new section ex- transportation by of livestock motor emption for the carrier rancher or raiser farmer or fide livestock his own bona provides farmer or rancher vehicles, or when such or raiser trans- *8 or raiser farmer, rancher of another for the livestock portation pasture ranch, farm, ranch farm of livestock to similar All activities are point. a of such pasture, to the highways of using profit Garrett, a business those of of Montana. State here in fact situation difference goes show the vast

All this to Equaliza- v. State Board of Co. Kiewit from that in Peter Sons’ complaint was In that ease 505 P.2d 102. tion, 161 Mont. being unconstitu- license act public raised as contractors’ discriminatory. levy and was not uniform was tional because public all contractors appeared it since there held that We treated of the class were tax, that all members pay had be- we also held that distinction facts there alike. Under arbitrary and private public and contractors tween public from the record con- capricious; it clear ’ operate as a enforc- was intended to revenue license act tractors a like opinion in the situation ing pointed out measure as private contractors. appear as to did not compute formula is whether the used to issue

The second 8-127,R.C.M. of Montana under section State the revenue due the unreasonable, precision. arbitrary, indefinite and lacks 1947, is question is: formula operating per (1%) gross .575 of cent one Intrastate: = due) revenue, (G.O.R. .00575 amount X (1% gross operating per cent .575 of one Interstate: as, operating revenue is defined revenue. Gross proportion proportion of the “A based mileage mileage state to the entire within this * * business is done which the over = due) .00575 amount gross total revenue miles Montana X X formula and provisions Garrett, under gross Railroad report Commission 1947, must pay a tax No thereon. carrier revenue of such operating provide state, does the Commission nor in this provision exists included for deductions of items regulations, rules and through high- relation to the use that have no gross revenue in the *9 way by Garrett. These items loading include unloading the and costs, arising such items Montana, intercity outside the of State pickup delivery and charges, many outside the Mon- State of tana, intercity cost pickup delivery of and charges, collect on delivery fees, storage charges, delivery charges, return and ve- demurrage charges. hicle detention or any None charges, by of these reasoning, formula or can be said to highways relate to the use of the of the State Montana of by they Garrett, gross and in are included the for the revenue purpose of tax provision determination. No of the statute or regulations of provide the Railroad adjustment Commission an where Garrett has made a refund a shipper. The taxes are paid upon originally amount reported, the and no credit is al- for a lowed refund. paid upon

A having tax to be items relationship which have no highways to the use of Montana is a tax commerce, on interstate a burden on commerce interstate violation of the Com- merce the Clause of United States Constitution. by imposed

The exaction section R.C.M. highway, related the only to the use of is a tax on the income producing ability vehicle, confiscatory, of a it is and the statute profit take does not into consideration Garrett’s or loss from trucking operations. Garrett, according the record, ex- pends sum for dollar produced $1.24 of each of revenue in if operation. Obviously intrastate the formula computing for tax items which eliminated those have no relationship to the producing ability such, revenue the vehicle as the loss ratio in operation State of Montana of Garrett’s intrastate would be less. gross relationship

We hold revenue formula has no traveling in use made Garrett’s vehicles Montana and the tax varies according the State of to the volume Supreme Rwy. interstate business. The Montana Court Mayflower Tran., 119 Aero Mont. Com. v. P.2d stated: fixing company that in imposed contends exactions

“The it, large vehicles, is and small no distinction made light numbers miles travelled heavy loads, nor the in this The heavier There merit contention. highways. over greater travelled the greater the load the number of miles and the tax roadway. that the set the wear tear on It is obvious up (section 8-127, 1947) 3847.27 light load purpose trip A short and a meeting situation. the heavier would carrier but little revenue whereas bring the and re- produce hauls revenue longer traffic would more * * *” supplied). quire (Emphasis more taxes. testimony and exhibits has shown Garrett’s witnesses always produce heavy hauls more revenue. long do not loads transaction, depicting an actual shows two Plaintiff’s Exhibit with similar shipments travelling the same miles Montana *10 weights but distances commodities similar travelled different produced more revenue outside of Montana. Load of the State A produced paid but tax than Load less revenue and less B which paid tax. This resulted from the number miles travelled more of ship- by in the an Load A outside State of Montana interstate amount testimony ment. also that the This exhibit confirms proportion of tax in the volume of interstate business varies to and is a interstate commerce. burden on shipments travelling the that two same

Exhibit demonstrates having and' different Montana, weights miles in but different by pounds 11,000 pro- in results the heavier load commodities with ducing lighter than loaded vehicle. The one the less revenue lighter the one with load. paid less than the the heavier load tax weight determine the the load does not This exhibit shows that of the load paid tax to since heavier had a the amount of the be lighter than the load. lower revenue rate carrying approximately the depicts two Exhibit vehicles miles, products, but one Montana different weight, same same other a revenue producing a revenue $347.60 vehicle of than being vehicle less $172.80, resulting in tax on one higher rate one com- again because of other. This the use The was not related to modity than another. tax highway. There effect, were other to exhibits like and it was apparent from them heavy that trucks with always loads do not produce more revenue lighter major than trucks with A loads. factor is the commodity being shipped. rate Garrett’s expert witness important testified as to the factors determin- ing density product being shipped a rate. The aof im- is more portant space weight carrying because of the limited cubic capacity operating highways. of the carrier trailers over the The products higher less dense would higher have a rate than the density products.

From testimony witnesses, Garrett’s exhibits and of its appears it proper that a conclusion is that therein, and the tax exaction is based the income producing ability of the vehicle commerce rather interstate n than the highway. inequities use of the are obvious and numerous and the tax not highway the use of the must privilege be doing business, for the placing burden on inter contrary state commerce Commerce Clause of the United State compensation Constitution. To be valid tax must be reasonably related to the use made of the of the state. appears present It that under the act the amount of taxes is dependent upon such use. It rise with an does not increase mileage weight vehicle, only upon travelled or but ability producing income vehicle. The tax does not relate degree of wear tear incident to use the motor ve highway different weights, except hicles of the sizes and as ability. producing solely The tax proportioned the income *11 earning capacity of the vehicle and not to the use of highway, and thus has It no reasonable relation. is the income taxed, is show that and Garrett’s exhibits this results in very computation grave inequities in of the tax. noted herein

As have the revenue collected we under section 1947, levy III, is an unconstitutional under Article 27, Montana and Fourteenth See. Constitution Amend- Constitution; and, further, States ment to the United the for- arbitrary, compute mula thereunder is used to the revenue due precision. unreasonable, indefinite and lacks is As to both situations heretofore shown revenue collected tax rather a not in but consideration of the use of the privilege doing business. necessity issues For these reasons exists to discuss other no appeal judgment is affirmed. raised on CASTLES, concur. MR. JUSTICES HASWELL and (dis- HARRISON, DALY JOHN C. MR. JUSTICE senting) : respectfully dissent, having in the burden that must mind

We plaintiff a constitutional at- by be carried when he launches legislature approved tack a statute Montana as enacted Commission, in Service Great Northern Co. v. Public Utilities 220, 294, 304, language: in this Mont. 293 P. “ legislative assembly passed by ‘In the ease of statutes it unconstitutional, question as is not whether assailed possible condemn, possible uphold. but whether it We is is that a will not stand the rule statute be declared committed nullity judgment, in placed, our unconstitutional unless its ” beyond reasonable doubt.’ in Court, part, in this before this problems here were The Board of in Kiewit Sons’ Co. v. State ruling Peter Court’s January decided Equalization, 161 505 P.2d Mont. in Kiewit tax central was discrimination based

1973. The issue The private contractors. public and on classification between motor public instant problem case same arises purposes reasons private motor carriers. problem alleged may underlying but the of an for differ the tax resulting tax discrimination unconstitutional classification same. remains the depth including most there an Kiewit,

In discussion question classifica- and federal citations on the the Montana work doing public taxing between contractors purposes tion *12 496 doing private contractors work. said, There the quot- court

ing approval with from language Schultz-Lindsay State ex rel. v. Board Equalization, of 380, Mont. 403 P.2d 635. that

“Since point the same raised in Schultz-Lindsay, a review of that give decision will us a view of Montana law the issue of tax There, discrimination. legislature we stated that the may impose a license tax occupations on certain and not on ‘ ’ others, long arbitrary as as and unreasonable classifications are permitted. Schultz-Lindsay, p. 398, 403 P.2d 640.

“In Shultz-Lindsay p. at 390, 403 p. 640, P.2d at the Court citing State v. Sunburst Refining Co., 73 235 P. Mont. stated in making that such classifications:

“ ‘ protection “Equal seldom, of the law ever, obtained; is if very frailty because of the agencies, of human the authorities recognize right all legislative government branch of make reasonable subjects, property classifications of or occu- * * * pation taxes reasonable, is classification if subjects all given within a class are accorded the if same treatment, legislation cannot be deny anyone said to within protection such equal class the law, though even imposed upon may burden him be more onerous than that imposed upon a member of another class. [Citing But to cases] justify discriminatory such legislation, and avoid the condemna- tion the Fourteenth Amendment to the Constitution, federal must is, be reasonable —that must be based classification upon really substantial distinctions which make one class differ- ” ’ ent from another. [Citing (Emphasis ours.) ease]

“Later in opinion p. 392, the same at p. 403 P.2d at 641, the Court said:

“ ‘ safeguard unjust “The constitutional against discrimina- legislation tion type of this well defined the decisions everywhere, is, must be reason- classification able, not arbitrary, ground and must rest some differ- having ence and substantial relation object fair legislation, persons similarly that all so circumstanced shall be treated alike. v. Mont. Equalization, Mills State Board ” 31, 33 P.2d (Emphasis ours.)’ 563.” operation

Applying then, the language, above fact that the of section creates the class motor *13 hauling nonexempt for hire highways, commodities over Montana class, per does se render the If the statute unconstitutional. really is based aon substantial that class distinction makes one another, different above, from as set is. forth the classification appear reasonable and that there is as constitutional. It would sound, sounder, if not factual basis for the between distinction public private carriers for hire and carriers not for hire than public private contractors. exempt

The 8-101, commodities contained in section R.C.M. 1947, merely exemptions granted conform to those to interstate- for Act, 303(b), hire under the Interstate Commerce § preempted and are regulation moving thus from in state when interstate commerce. Baltimore & Ship. Reciv. Ass’n. v. Public Cal., (D.C.Cal. 1967), 268 F.Supp.

Util. Com’n. of 836 affirmed. 583, 694, 389 U.S. 88 19 S.Ct. L.Ed.2d 783.

Plaintiff-respondent presented convincing Garrett has case haulers, compared “onerous” burden on it private when Buttreys Safeway private such as all etc., the outside probably true, classification. This is but our case law above cited distinctly and squarely states this makes no difference so- given as those long within the class are accorded same treat- the So, argument ment. would be irrelevant when directed to- constitutionality, the matter of not so leg- but if directed the islature. subsidiary

This leaves matter of the railroad and its car- subsidiary to be carrier riers considered. of the railroad that, argument within under the class consideration. The subsidiary arrangement for hire with carrier has an the rail- pay tax to “fix” rates and thus less on for- road its the same fail mula must obvious reason R.C.M. fee, 1947, authorizes tax or does not authorize or con- which parties complained situation this kind and if of' template then this is a “loophole” fixing, “rate” through have found a au- proper Montana attention of the brought .matter to be constitutionality 8- bearing of section thirty. has on the It no 127, 1947. by the “dis imposed burden statute is

We whether the believe “confiscatory” this Court criminatory” was decided 136, Mayflower Co., 118, 119 Mont. Rwy. Transit Com. v. Aero majority opinion, when 452, 461, the Court 172 P.2d cited 182 P. 477 and Trav Moore, 56 Mont. citing Hilger from v. Connecticut, 185 U.S. S.Ct. elers’ Ins. Co. v. L.Ed. said: * *

“* depend validity legislation does not of this form of may see some other whether the courts question n assessment great- apparently would result and taxation which substi- not authorized to courts are equality er of burden. The only con- legislature. We can their views for those of ute whether legislation had, determine that has been sider unjust in an discrimination necessary operation results its or no *14 its burdens.” parties charged the with Supreme Mayflower affirmed the United States was Aero 171, There 167, 92 L.Ed. 99. 495, 502, 68 Court, 332 S.Ct. U.S. “prohibitive” in this concerning statute as spoke the that court language:

“ * * * validity either tax it is not material registration imposes and collects the vehicle also the state in Mon- gasoline purchased tax on gasoline fee and the license tana.

“ ‘Common ^[*] ^[*] hire, who make highways their such charged tax for an extra properly business, may be place of use.” Clark v. Poor, supra, 274 U.S. ^[554] at page 47 557, S.Ct. ^[702] at page 703, 71 L.Ed. 1199.” been treated tax has kind of “arbitrary” feature of The cent tax of Jersey a flat rate New In jurisdictions. in other % Trails, Fur Safeway Inc. v. held constitutional mile per

4991 man, 467, 376, citing Capitol Grey 41 366, N.J. 197 A.2d from Brice, 542, 806, hound 1053: Lines v. 94 U.S. S.Ct. L.Ed. prima mileage normally “A tax is considered to be com- facie pensatory directly proportional because it use. But to road a formula upheld not related road will to use be unless the chal- lenger shows that the result of tax is an unreasonable burden on interstate carriers.” privilege doing

Garrett’s claim that this is “tax on the again directly Mayflower by business” was answered Aero pointing out “in provides that the act itself consideration highways use of the of this state” motor carriers for hire will required pay gross be revenue fee. challenge “arbitrary”, to the tax formula itself as being

“unreasonable”, precision” “indefinite” and “lacks does not Garrett’s, square with the record or decided cases this area. comptroller, Hawkins, Mr. testified on cross-examination that he had any applying never had By trouble the formula. Garrett’s- “ ” admission, own it would seem the formula is neither indefinite precision”. nor does it “lack As to the issue of being “unreason- ’’,

able logic point on that is difficult follow. It is claimed relationship tax “bears no to the use of Montana high- ways”. An examination of formula itself seems make the relationship between the two obvious.

In the New York Freight case of Lines, Mid-States v. Inc. Bates, 200 Misc. 568, 573, N.Y.S.2d cert. den. 345 U.S. 73 S.Ct. 97 L.Ed. 1344, upheld validity court a taxing challenged formula truly as not compensatory for use, stating: road employed by formula

“The a state to exact reasonable com- pensation using from carriers for privilege its importance. is not of recognized crucial has prac- The court *15 in_ impossibility devising ticable a formula which will result precision equating exact or mathematical the tax privi- lege Rough approximation, precision conferred. rather than wilL ’ ’ suffice and tax is not upheld. if the unreasonable it will be be carried opinion that the burden to therefore,

It is our challenge has constitutional plaintiff-respondent a successful should be re- the trial court judgment of met and the not been rersed.