FRANKFURTER. J, dissenting. tion. Difficulties in applying the test of reason to ot justify abandonment of reason for the impossible task of deciding fiscal fairness to each individual carrier. II. Since the basis of its imposition is fatally defective. the Maryland tax cannot be saved by its amount. But quite apart from its formula, there are serious questions relating to the amount of this tax which the Court disregards. There is a show of fairness in the Court's suggestion that the tax will be declared bad if the amount exacted exceeds "fair compensation" to the States. The term is not self-defining and no intimation is affordei regarding the standards by which excessiveness is to be determined. Reference is made to Ingeis v. Mori, 300 U.S. 290. Presumably, therefore, the Court is still committed to the view that a tax may not be so high that amounts collected by the State are clearly in excess of the costs of the special facilities or regulations for which the tax is professedly levied. Like other forms of interstate commerce, motor carriers should be required to contribute their fair share, broadly conceived, of the State's istinctive contribution for the carrying on of such commerce. Under the guise of a special compensatory tax. however, a State may not exact more than the value of the services to be compensateri. There is no showing that the tax levied here is excessive in this sense. But for the proper maintenance of our federal system. and more particularly for the rigorous safeguarding of the national interests in interstate commerce, it is not sufficient that a State exact no more than the value of what it gives with all the elusiveness of determining such value. A State must not play favorites in the operation of its taxing system between business confined within its borders and the common interests of the nation expressed through business conducted across State lines. Such favoritism is barred whether it is overtly designed or 542 FRANKFURTER, J., dissenting. results from the actual operation of a taxing scheme. The Maryland tax does not obviously discriminate against interstate commerce. But a tax for the privilege of road use may impose serious disadvantages upon that commerce. So long as a State bases its tax on a relevant measure of actual road use, obviously both interstate and intrastate carriers pay according to the facilities in fact provided by the State. But a tax levied for the privilege of using roads, and not their actual use, may, in the normal course of operations and not as a fanciful hypothesis, involve an undue burden on interstate carriers. While the privilege extended by a State is unlimited in form, and thus theoretically the same for all vehicles, whether interstate or intrastate, the intrastate vehicle can and will exercise the privilege whenever it is in operation, while the interstate vehicle must necessarily forego the privilege some of the time simply because of its interstate character, i. e., because it operates in other States as well. In the general average of instances, the privilege is not as valuable to the interstate as to the intrastate carrier. And because it operates in other States there is danger-and not a fanciful danger-that the interstate carrier will be subject to the privilege taxes of several States, even though his entire use of the highways is not significantly greater than that of intrastate operators who are subject to only one privilege tax. These dangers are heightened when the tax falls upon an interstate motor carrier authorized to operate only on a fixed route. Quite illustrative of the seriousness of the general problem are the facts concerning one of appellants here, Capitol Greyhound Lines, which is authorized by the I. C. C. to operate a bus line over a fixed route between Cincinnati, Ohio and Washington, D. C., a distance of about 496 miles, only nine of which are over Maryland's State roads. To say that Capitol has an unlimited privilege to use Mary FRANKFURTER, J., dissenting. 339 U.S. When a privilege tax is relatively small in amount, and therefore to be treated as a rough equivalent for what the State may exact with due regard to administrative practicalities, the danger of an unfair burden falling upon interstate commerce remains correspondingly small. Cf. Union Brokerage Co. v. Jensen, 322 U. S. 202, 210-11. But a large privilege tax presents dangers not unlike those arising from unapportioned gross receipts taxes on interstate transportation beyond a State's power to impose. Cf. Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653. These practical considerations prevailed against a State in Sprout v. South Bend, 277 U. S. 163: "A flat tax, substantial in amount and the same for busses plying the streets continuously in local service and for busses making, as do many interstate busses, only a single trip daily, could hardly have been designed as a measure of the cost or value of the use of the highways." 277 U. S. at 170.5 That the Court has at all times been aware of this problem is demonstrated by its reiteration throughout the relevant decisions that the charge must be "reasonable in amount." See especially Aero Mayflower Transit Co. v. Georgia Comm'n, 295 U. S. 285, 289: "The fee is moderate land's roads and is therefore being treated on a par with intrastate carriers is to ignore the admonition that "Regulation and commerce among the States both are practical rather than technical conceptions . . . ." Galveston, Harrisburg and San Antonio R. Co. v. Texas, 210 U. S. 217, 225. 5 Mr. Justice Brandeis' reference to a flat tax was not intended to exclude size or weight taxes, for the Sprout case involved a tax based upon seating capacity. Rather, he was referring to privilege, as distinguished from mileage, taxes. The potentiality of unfair burdens on interstate commerce was presented sharply in the Sprout case since the tax was levied by a municipality and there were 33 other cities along the route of the interstate carrier. See 277 U. S. at 164. 542 FRANKFURTER, J., dissenting. in amount," and Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U. S. 495, 507: ". . . the aggregate amount of both taxes combined is less than that of taxes heretofore sustained." The problem is inescapably one of determining how much is too much, in the total nature of the tax. Thus, it becomes important to see how the Maryland tax compares in amount with similar taxes in prior cases. This is done, not to test the tax as individually applied to appellants, but to determine whether general application of a tax of this magnitude may fairly be deemed to burden interstate commerce unduly. Examination of decided cases reveals that the largest flat tax heretofore sustained was $15 for six months or $30 per year, and the largest annual tax based upon size or weight was $75. See Appendix to this opinion, post, p. 561. The Maryland taxes on the three appellants amounted to $372, $505 and $580, but since the Maryland tax is not annual, these amounts are not comparable to amounts previously sustained. In order to equate them, information is needed as to the number of years typical motor carriers are likely to operate such busses over Maryland roads. Even taking the assumption of the Maryland Court of Appeals, not based on any evidence in the record, that five years was a fair estimate, the amounts are in excess of any sustained by 6 The statute in Clark v. Poor, 274 U. S. 554, provided for a range of taxation of from $20 to $200, and that in Hicklin v. Coney, 290 U. S. 169, a range of from $30 to $400. But in neither case was evidence introduced as to the amounts to which the particular vehicle owners would be subject, and so the Court was not faced with the question whether the amount was reasonable. See Appendix, n. 3, post, p. 561. The Maryland court estimated the "useful life" of the busses. It should have considered the probable period of use by a typical motor carrier since the tax is imposed upon any transfer of the vehicle to another. 874433 0-50 -40 339 U.S. FRANKFURTER. J., dissenting. this Court. Therefore, even if the Court were to accept the formula of the Maryland titling tax, the case should be remanded for a finding of the anticipated period of use in order to have some basis of appraising the validity of the amount. III. The Court's failure to treat the danger that large privilege taxes will unduly burden interstate commercequite apart from excessiveness in terms of State costsis not unlike its explicit rejection of the requirement that the taxing formula be reasonably related to the purpose which alone justifies the tax. Both problems involve the resolution of conflicting interests, which in application inevitably requires nice distinctions. In this case the Court attempts to avoid difficulties through what seems to me to be an exercise in absolutes. These problems involve questions of reasonableness and degree but their determination affects the harmonious functioning of our federal system. I do not believe they can be solved by disregarding the national interest merely because a State tax levied in a particular case does not on its face appear monstrous in amount. See Hudson County Water Co. v. McCarter, 209 U. S. 349, 355. I would reverse. |