Central Railroad Company Of Pennsylvania v. Commonwealth Of Pennsylvania/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting in part.

The stipulations of fact in this case show that an average of 158 freight cars (of the value of $525,765.71) run on fixed routes and regular schedules over railroad lines outside of Pennsylvania. The Court properly holds that they are beyond the constitutional reach of Pennsylvania.

The stipulations of fact also show that an average of 2189.30 freight cars (of the value of $7,282,773) run regularly, habitually, and continuously on the lines of other railroads outside of Pennsylvania, though not on fixed schedules. The Pennsylvania tax on these cars is sustained on the authority of New York Central & H.R.R. Co. v. Miller, 202 U.S. 584, 26 S.Ct. 714, 50 L.Ed. 1155; and if that case is still intact the Court is correct in denying the exemption claimed.

With all deference we cannot, however, allow Pennsylvania to lay this tax and adhere to our recent decisions. In Ott v. Mississippi Barge Line, 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585, we allowed Louisiana and the City of New Orleans to levy ad valorem taxes on barges of foreign corporations even though the barges were not permanently in those jurisdictions nor operated there on fixed routes and regular schedules. The assessments sustained were 'based on the ratio between the total number of miles of appellees' lines in Louisiana and the total number of miles of the entire line.' Id., at 171, 69 S.Ct. at 433. We adopted for barge lines the rule applicable to railroads, saying that we saw 'no practical difference so far as either the Due Process Clause or the Commerce Clause is concerned whether it is vessels or railroad cars that are moving in interstate commerce.' Id., at 174, 69 S.Ct. at 434. We went on to say:

'The problem under the Commerce Clause is to determine 'what     portion of an interstate organism may appropriately be      attributed to each of the various states in which it      functions.' Nashville, C. & St. L.R. Co. v. Browning, 310      U.S. 362, 365, 60 S.Ct. 968, 970, 84 L.Ed. 1254. So far as     due process is concerned the only question is whether the tax      in practical operation has relation to opportunities,      benefits, or protection conferred or afforded by the taxing      State. See Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444,     61 S.Ct. 246, 249, 85 L.Ed. 267. Those requirements are     satisfied if the tax is fairly apportioned to the commerce      carried on within the State.' Ibid.

We applied the decision in Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613, to barges, even though the Pullman's Car case, as noted in the Miller case (202 U.S. at 597, 26 S.Ct. at 717), sustained a tax on capital stock where the 'same cars were continuously receiving the protection' of the nondomiciliary taxing State. Nonetheless, in the Ott decision we allowed the tax by the nondomiciliary State to be levied on 'an average portion of property permanently within the State.' 336 U.S. at 175, 69 S.Ct. at 435.

In Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427, we completed the redefinition of the holding in the Miller decision which was implicit in what we wrote in Ott. In the Peck case the domiciliary State was held to have no power to tax barges, except on a formula 'which fairly apportioned the tax to the commerce carried on within the state' (id., at 383, 72 S.Ct. at 310), as a result of which 'inland water transportation' was placed 'on the same constitutional footing as other interstate enterprises.' Id., at 384, 72 S.Ct. at 310. We distinguished the Miller case by saying that there 'it did not appear that 'any specific cars or any average of cars' was so continuously in another state as to be taxable there.' Id., at 384, 72 S.Ct. at 310. And we went on to say:

'No one vessel may have been continuously in another state     during the taxable year. But we do know that most, if not     all, of them were operating in other waters and therefore      under Ott v. Mississippi Barge Line Co., supra, could be      taxed by the several states on an apportionment basis. The     rule which permits taxation by two or more states on an      apportionment basis precludes taxation of all of the property      by the state of the domicile. See Union Refrigerator Transit     Co. v. Kentucky, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150.     Otherwise there would be multiple taxation of interstate      operations and the tax would have no relation to the      opportunities, benefits, or protection which the taxing state      gives those operations.' Id., at 384-385, 72 S.Ct. at 310.

In Braniff Airways, Inc., v. Nebraska State Board, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967, we allowed a nondomiciliary State to levy an apportioned ad valorem tax on aircraft making 18 stops per day in that State. We said, 'We think such regular contact is sufficient to establish Nebraska's power to tax even though the same aircraft do not land every day and even though none of the aircraft is continuously within the state.' Id., at 601, 74 S.Ct. at 764.

As a result of the Ott, Peck and Braniff cases the average of 2189.30 freight cars that run regularly, habitually, and continuously on lines of other railroads outside Pennsylvania could be taxed by other States, even though no State can identify the precise cars within its borders and even though the complement of cars is constantly changing. Since that average of freight cars is regularly, habitually, and continuously outside Pennsylvania, those cars are taxable elsewhere and thus beyond Pennsylvania's reach. The fact that we do not know the average annual number of cars in any given State does not help Pennsylvania's case. Whatever the average in any one State, the total outside Pennsylvania and taxable elsewhere is known and definite. Since that is true, we sanction double taxation when we sustain this tax. We would not allow it in the case of any other interstate business; and, as I read the Constitution, no exception is made that puts the railroad business at a disadvantage.