Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc./Dissent Douglas

[p722] MR. JUSTICE DOUGLAS, dissenting.

These cases are governed by Crandall v. Nevada, 6 Wall. 35, which must be overruled if we are to sustain the instant taxes.

One case involves an Indiana tax of $1 on every enplaning commercial airline passenger at the Evansville Airport. The other involves a New Hampshire $1 tax on every passenger enplaning a scheduled commercial aircraft with a gross weight of 12,500 pounds of more and a 50¢ tax on every passenger enplaning such aircraft with a gross weight of less than 12,500 pounds.

The carriers are made responsible for paying, accounting for, and remitting the fee to the local authority.

Crandall v. Nevada, decided before the Fourteenth Amendment, struck down a state law which levied a [p723] $1 tax on every person leaving the State by rail, stage coach, or other common carrier. Mr. Justice Miller, speaking for the Court, said the citizen had rights which the tax abridged: "'He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.' Id., at 44." And he quoted with approval from the dissenting opinion in the Passenger Cases, 7 How. 283, 492: "For all the great purposes for which the Federal government was formed we are one people, with one common country. We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State, for entering its territories or harbors, is inconsistent with the rights which belong to citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it. 6 Wall., at 48-49."

Usually the right to travel has been founded on the Commerce Clause. See United States v. Guest, 383 U.S. 745, 758-759. Some, including myself, have thought the right to travel was a privilege and immunity of national [p724] citizenship. Edwards v. California, 314 U.S. 160, 177 (DOUGLAS, J., concurring). Whatever the source, the right exists. See Graham v. Richardson, 403 U.S. 365; [p725] Griffin v. Breckinridge, 403 U.S. 88, 105-106; Oregon v. Mitchell, 400 U.S. 112, 237-238 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.); Shapiro v. Thompson, 394 U.S. 618, 630-631; United States v. Guest, 383 U.S., at 757-758.

Heretofore, we have held that a tax imposed on a carrier but measured by the number of passengers is no different from a direct exaction upon the passengers themselves, whether or not the carrier is authorized to collect the tax from the passengers. Pickard v. Pullman Southern Car Co.117 U.S. 34, 46; State Freight Tax Case, 15 Wall. 232, 281. To be sure, getting onto a plane is an intrastate act. But a tax imposed on a local activity that is related to interstate commerce is valid only if the local activity is not such an integral part of interstate commerce that it cannot be realistically separated from it. Michigan-Wisconsin Pipe Line Co. v. [p726] Calvert, 347 U.S. 157, 166. In that case the tax struck down was the tax on gas that had been processed for interstate use—and a tax "on the exit of the gas from the State." Id., at 167. We held that that exit was "a part of interstate commerce itself." Id., at 168.

The same is true here, for the step of the passenger enplaning the aircraft is but an instant away from and an inseparable part of an interstate flight.

Of course interstate commerce can be made to pay its fair share of the cost of the local government whose protection it enjoys. But though a local resident can be made to pay taxes to support his community, he cannot be required to pay a fee for making a speech or exercising any other First Amendment right. Like prohibitions obtain when licensing is exacted for exercising constitutional rights. Lovell v. Griffin, 303 U.S. 444, 451-452; Thomas v. Collins, 323 U.S. 516, 540-541; Harman v. Forssenius, 380 U.S. 528, 542. Heretofore we have treated the right to participate in interstate commerce in precisely the same way on the theory that the "power to tax the exercise of a privilege is the power to control or suppress its enjoyment." Murdock v. Pennsylvania, 319 U.S. 105, 112. I adhere to that view; federal constitutional rights should neither be "chilled" nor "suffocated."

Are we now to assume that Calvert and Murdock are no longer the law?

I would affirm the Indiana judgment and reverse New Hampshire's.