City of Chicago v. Willett Company/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

If a carrier had two trucks, one engaged exclusively in intrastate commerce and the other engaged exclusively in interstate commerce, I think this tax could not constitutionally be levied on the latter. Like the tax in Sprout v. City of South Bend, 277 U.S. 163, 170, 48 S.Ct. 502, 504, 72 L.Ed. 833, it is not designed 'as a measure of the cost or value of the use of the highways.' As the Supreme Court of Illinois said, it is an occupational tax. 406 Ill. 286, 290, 94 N.E.2d 195. It therefore could not be exacted for the privilege of engaging in interstate commerce. Sprout v. City of South Bend, supra, 277 U.S. at page 171, 48 S.Ct. at page 504, 72 L.Ed. 833; Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573.

The incidence of the tax in the present case is no different. It is a flat fee per truck. Respondent does not segregate its intrastate from its interstate business; nor is it possible for it to do so; nor could respondent continue in business if there were a segregation. 406 Ill. 286, 291-293, 94 N.E.2d 195. One truck often makes both intrastate and interstate deliveries. The interstate business, by increasing the number of trucks operated by respondent, therefore increases the amount of the tax. That for me is enough to establish an unconstitutional burden on interstate commerce. This case therefore is not controlled by Pacific Telephone & Telegraph Co. v. Tax Comm., 297 U.S. 403, 414, 56 S.Ct. 522, 525, 80 L.Ed. 760, where the interstate business did not increase the amount of the tax.

The burden on commerce is as great whether the tax on the interstate carrier is imposed by the state of its incorporation or by another state. That is implicit in Sprout v. South Bend, supra, a case which it seems to me is faithful to the constitutional scheme.