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Capitol Greyhound Lines v. Brice, 339 U.S. 542 (1950)

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Capitol Greyhound Lines v. Brice, 339 U.S. 542 (1950)
United States Supreme Court

From the U.S. Government Printing Office via GPO Access
 
Case:   CAPITOL GREYHOUND LINES V. BRICE

Case #: 339US542


NO. 118.  ARGUED DECEMBER 5, 1949.  - DECIDED MAY 15, 1950.  - MD. - ,
64 A.2D 284, AFFIRMED. 


SUPP.) IMPOSES A TAX OF 2% OF THE FAIR MARKET VALUE OF MOTOR VEHICLES
AS A CONDITION PRECEDENT TO THE ISSUANCE OF CERTIFICATES OF TITLE
THERETO AND TO THE OPERATION OF THE VEHICLES OVER MARYLAND ROADS.  THIS
TAX IS APPLIED INDISCRIMINATELY TO INTERSTATE AND INTRASTATE COMMON
CARRIERS TRANSPORTING PASSENGERS OVER MARYLAND ROADS AND THE PROCEEDS
ARE USED WHOLLY FOR ROAD PURPOSES.  FOR THE PRIVILEGE OF USING ITS
ROADS MARYLAND ALSO CHARGES COMMON CARRIERS A MILEAGE TAX FOR EACH
PASSENGER SEAT OF 1/30 OF A CENT PER MILE TRAVELED ON MARYLAND ROADS. 
HELD: 

1.  AS APPLIED GENERALLY TO INTERSTATE CARRIERS TRANSPORTING
PASSENGERS OVER MARYLAND ROADS, THE TITLE TAX OF 2% OF FAIR MARKET
VALUE DOES NOT VIOLATE THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  PP. 543-548. 

(A)  SUCH A TAX MUST BE JUDGED BY ITS RESULT, NOT BY ITS FORMULA, AND
MUST STAND UNLESS PROVEN TO BE IN EXCESS OF FAIR COMPENSATION FOR THE
PRIVILEGE OF USING THE ROADS.  PP. 544-547. 

(B)  THE TITLE TAX IS NOT INVALID ON THE GROUND THAT IT VARIES FOR
EACH CARRIER WITHOUT RELATION TO ROAD USE.  PP. 545-546. 

(C)  IF A NEW RULE PROHIBITING TAXES ON INTERSTATE CARRIERS MEASURED
BY VEHICLE VALUE IS TO BE DECLARED, IT SHOULD BE DECLARED BY CONGRESS,
NOT BY THIS COURT.  PP. 547-548. 

2.  THE RECORD IN THIS CASE IS INSUFFICIENT TO INVALIDATE THE TAX, AS
APPLIED TO APPELLANTS, ON THE GROUND THAT THE TAXES ACTUALLY LEVIED ARE
IN EXCESS OF A FAIR COMPENSATION FOR THE PRIVILEGE OF USING MARYLAND
ROADS.  P. 548. 

CAPITOL GREYHOUND LINES ET AL. V. BRICE, COMMISSIONER OF MOTOR
VEHICLES. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

THE CASE IS STATED IN THE FIRST TWO PARAGRAPHS OF THE OPINION.  THE
JUDGMENT BELOW IS AFFIRMED, P. 548. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE BASIC QUESTION PRESENTED IS WHETHER ONE OF TWO MARYLAND TAXES
IMPOSED ON ALL COMMON CARRIERS TRANSPORTING PASSENGERS OVER MARYLAND
ROADS CAN BE EXACTED FROM INTERSTATE CARRIERS CONSISTENTLY WITH THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  A SUBSIDIARY CONTENTION
IMPLIEDLY RAISED BY CARRIER APPELLANTS HERE IS THAT THE TAX IS INVALID
AS APPLIED TO THEM.  THE SUPREME COURT OF MARYLAND UPHELD THE TAX,  -
MD. - , 64 A.2D 284.  THE CASE IS HERE ON APPEAL UNDER 28 U.S.C. SEC.
1257(2). 

THE TAX CHALLENGED BY APPELLANTS IS PRESCRIBED BY SEC. 25A OF ART. 66
1/2 OF THE ANNOTATED CODE OF MARYLAND, 1947 CUM. SUPP.  IN THE LANGUAGE
OF APPELLANTS THAT SECTION IMPOSES "A TAX OF 2% UPON THE FAIR MARKET
VALUE OF MOTOR VEHICLES USED IN INTERSTATE COMMERCE AS A CONDITION
PRECEDENT TO THE ISSUANCE OF CERTIFICATES OF TITLE THERETO (THE
ISSUANCE OF SUCH CERTIFICATES BEING A FURTHER CONDITION PRECEDENT TO
THE REGISTRATION AND OPERATION OF SUCH VEHICLES IN THE STATE OF
MARYLAND) ..  "   FN1 

FIRST.  APPELLANTS DO NOT CONTEND THAT AS INTERSTATE CARRIERS THEY
ARE WHOLLY EXEMPT FROM STATE TAXATION.  THIS COURT AND OTHERS HAVE
CONSISTENTLY UPHELD TAXES ON INTERSTATE CARRIERS TO COMPENSATE A STATE
FAIRLY FOR THE PRIVILEGE OF USING ITS ROADS OR FOR THE COST OF
ADMINISTERING STATE TRAFFIC REGULATIONS.  FN2  COURTS HAVE INVOKED THE
COMMERCE CLAUSE TO INVALIDATE STATE TAXES ON INTERSTATE CARRIERS ONLY
UPON FINDING THAT:  (1) THE TAX DISCRIMINATED AGAINST INTERSTATE
COMMERCE IN FAVOR OF INTRASTATE COMMERCE; (2) THE TAX WAS IMPOSED ON
THE PRIVILEGE OF DOING AN INTERSTATE BUSINESS AS DISTINGUISHED FROM A
TAX EXACTING CONTRIBUTIONS FOR ROAD CONSTRUCTION AND MAINTENANCE OR FOR
ADMINISTRATION OF ROAD LAWS; OR (3) THE AMOUNT OF THE TAX EXCEEDED FAIR
COMPENSATION TO THE STATE.  FN3  THIS MARYLAND TAX APPLIES TO
INTERSTATE AND INTRASTATE COMMERCE WITHOUT DISCRIMINATION.  THE TAX
PROCEEDS ARE USED BY MARYLAND WHOLLY FOR ROAD PURPOSES, AND THE STATE
SUPREME COURT HELD THAT THE TAX WAS IMPOSED FOR THE PRIVILEGE OF ROAD
USE.  AND NEITHER IN THE MARYLAND COURTS NOR HERE HAVE APPELLANTS
SPECIFICALLY CHARGED THAT THE AMOUNT OF TAXES IMPOSED ON CARRIERS WILL
ALWAYS BE IN EXCESS OF FAIR COMPENSATION.  THEIR CHALLENGE IS LEVELED
AGAINST THE FORMULA, NOT THE AMOUNT. 

THE TAXES UPHELD HAVE TAKEN MANY FORMS.  EXAMPLES ARE TAXES BASED ON
MILEAGE, CHASSIS WEIGHT, TONNAGE-CAPACITY, OR HORSEPOWER, SINGLY OR IN
COMBINATION - A LIST WHICH DOES NOT BEGIN TO EXHAUST THE INNUMERABLE
FACTORS BEARING ON THE FAIRNESS OF COMPENSATION BY EACH CARRIER TO A
STATE.  FN4 THE DIFFICULTY IN GEARING TAXES TO THESE FACTORS WAS
RECOGNIZED BY THIS COURT AS EARLY AS KANE V. NEW JERSEY, 242 U.S. 160,
168, WHERE IT SAID THAT SO LONG AS FEES ARE REASONABLE IN AMOUNT "IT IS
CLEARLY WITHIN THE DISCRETION OF THE STATE TO DETERMINE WHETHER THE
COMPENSATION FOR THE USE OF ITS HIGHWAYS BY AUTOMOBILES SHALL BE
DETERMINED BY WAY OF A FEE, PAYABLE ANNUALLY OR SEMIANNUALLY, OR BY A
TOLL BASED ON MILEAGE OR OTHERWISE."  FN5  LATER, IN REJECTING
CONTENTIONS THAT THE VALIDITY OF TAXES MUST BE DETERMINED BY FORMULA
RATHER THAN RESULT, THE COURT HELD THAT A FLAT FEE ON THE PRIVILEGE OF
USING STATE HIGHWAYS "IS NOT A FORBIDDEN BURDEN ON INTERSTATE COMMERCE"
UNLESS "UNREASONABLE IN AMOUNT."  MORF V. BINGAMAN, 298 U.S. 407, 412. 
SEE ALSO AERO TRANSIT CO. V. COMM'RS, 332 U.S. 495, AND ANNOTATION
THERETO, 92 L. ED. 109, 119-120.  YET CLEARLY A FLAT FEE IS NOT GEARED
TO MILEAGE, WEIGHT OR ANY OTHER FACTOR RELEVANT IN CONSIDERING THE
FAIRNESS OF COMPENSATION FOR ROAD USE.  THUS, UNLESS WE ARE TO DEPART
FROM PRIOR DECISIONS, THE MARYLAND TAX BASED ON THE COST OF THE
VEHICLES SHOULD BE JUDGED BY ITS RESULT, NOT ITS FORMULA, AND MUST
STAND UNLESS PROVEN TO BE UNREASONABLE IN AMOUNT FOR THE PRIVILEGE
GRANTED. 

APPELLANTS, HOWEVER, IN EFFECT URGE THAT WE MAKE AN EXCEPTION TO THE
GENERAL RULE AND STRIKE DOWN THIS TAX FORMULA REGARDLESS OF WHETHER THE
AMOUNT OF THE TAX IS WITHIN THE LIMITS OF FAIR COMPENSATION.  NO TAX
PRECISELY LIKE THIS HAS PREVIOUSLY BEEN BEFORE US.  APPELLANTS ARGUE
THAT A TAX ON VEHICLE VALUE SHOULD BE FORBIDDEN BY THE COMMERCE CLAUSE
BECAUSE IT VARIES FOR EACH CARRIER WITHOUT RELATION TO ROAD USE.  IN
SUPPORT OF THIS CONTENTION, THEY POINT TO THE FACTS SHOWN IN THIS
RECORD.  EACH OF THE APPELLANT CARRIERS, ACCORDING TO ADMITTED
ALLEGATIONS, BOUGHT A NEW PASSENGER-CARRYING VEHICLE AND DECLARED A
PURPOSE TO USE ITS VEHICLE ON ONE OF ITS MARYLAND ROUTES.  THE MARYLAND
PORTIONS OF THESE THREE ROUTES ARE 9, 41 AND 64 MILES RESPECTIVELY. 
THE STATE TAXES COMPUTED ON THE FAIR MARKET VALUE OF EACH VEHICLE ARE
$505.17, $580 AND $372.55, RESPECTIVELY.  THIS SHOWING DOES INDICATE
THAT THE TITLE TAX FALLS SHORT OF ACHIEVING UNIFORMITY AMONG CARRIERS
IN RELATION TO ROAD USE.  MOREOVER, AS ARGUED, IT MAY WELL BE UNWISE TO
SUBJECT CARRIERS TO THE MONETARY TEMPTATION INCIDENT TO THE APPLICATION
OF A TAX THAT HITS A CARRIER ONLY WHEN IT PURCHASES A BUS.  BUT THAT IS
NOT OUR ISSUE.  AND IT SHOULD BE NOTED THAT THE TOTAL CHARGE OF
MARYLAND FOR THE PRIVILEGE OF USING ITS ROADS WILL NOT SHOW THE SAME
DISPARITY AMONG CARRIERS.  FOR MARYLAND ALSO CHARGES A MILEAGE TAX,
FN6  AND THIS TAX ADDED TO THE TITLE TAX IS WHAT MARYLAND ACTUALLY
CHARGES FOR ITS ROAD PRIVILEGES.  THUS THE TOTAL CHARGE AS AMONG
CARRIERS DOES VARY SUBSTANTIALLY WITH THE MILEAGE TRAVELED. 

WE RECOGNIZE THAT IN THE ABSENCE OF CONGRESSIONAL ACTION THIS COURT
HAS PRESCRIBED THE RULES WHICH DETERMINE THE POWER OF STATES TO TAX
INTERSTATE TRAFFIC, AND THEREFORE SHOULD AFTER THESE RULES IF NECESSARY
TO PROTECT INTERSTATE COMMERCE FROM OBSTRUCTIVE BARRIERS.  BUT WITH
FULL APPRECIATION OF CONGENITAL INFIRMITIES OF THE MARYLAND FORMULA -
AND INDEED OF ANY FORMULA IN THIS FIELD - AS WELL AS OF OUR PRESENT
RULES TO TEST ITS VALIDITY, WE ARE BY NO MEANS SURE THAT THE REMEDY
SUGGESTED BY APPELLANTS WOULD NOT BRING ABOUT GREATER ILLS.  COMPLETE
FAIRNESS WOULD REQUIRE THAT A STATE TAX FORMULA VARY WITH EVERY FACTOR
AFFECTING APPROPRIATE COMPENSATION FOR ROAD USE.  THESE FACTORS, LIKE
THOSE RELEVANT IN CONSIDERING THE CONSTITUTIONALITY OF OTHER STATE
TAXES, ARE SO COUNTLESS THAT WE MUST BE CONTENT WITH "ROUGH
APPROXIMATION RATHER THAN PRECISION."  HARVESTER CO. V. EVATT, 329 U.S.
416, 422-423.  EACH ADDITIONAL FACTOR ADDS TO ADMINISTRATIVE BURDENS OF
ENFORCEMENT,  FN7  WHICH FALL ALIKE ON TAXPAYERS AND GOVERNMENT.  WE
HAVE RECOGNIZED THAT SUCH BURDENS MAY BE SUFFICIENT TO JUSTIFY STATES
IN IGNORING EVEN SUCH A KEY FACTOR AS MILEAGE, ALTHOUGH THE RESULT MAY
BE A TAX WHICH ON ITS FACE APPEARS TO BEAR WITH UNEQUAL WEIGHT UPON
DIFFERENT CARRIERS.  AERO TRANSIT CO. V. GEORGIA COMM'N, 295 U.S. 285,
289.  UPON THIS TYPE OF REASONING RESTS OUR GENERAL RULE THAT TAXES
LIKE THAT OF MARYLAND HERE ARE VALID UNLESS THE AMOUNT IS SHOWN TO BE
IN EXCESS OF FAIR COMPENSATION FOR THE PRIVILEGE OF USING STATE ROADS. 

OUR ADHERENCE TO EXISTING RULES DOES NOT MEAN THAT ANY GROUP OF
CARRIERS IS REMEDILESS IF THE TOTAL MARYLAND TAXES ARE OUT OF LINE WITH
FAIR COMPENSATION DUE TO MARYLAND.  UNDER THE RULES WE HAVE PREVIOUSLY
PRESCRIBED, SUCH CARRIERS MAY CHALLENGE THE TAXES AS APPLIED, AND UPON
PROPER PROOF OTAIN A JUDICIAL DECLARATION OF THEIR INVALIDITY AS
APPLIED.  INGELS V. MORF, 300 U.S. 290.  CF. CLARK V. PAUL GRAY, INC.,
306 U.S. 583. 

IF A NEW RULE PROHIBITING TAXES MEASURED BY VEHICLE VALUE IS TO BE
DECLARED, WE THINK CONGRESS SHOULD DO IT.  FN8  WE DECLINE TO HOLD THAT
THIS MARYLAND TITLE TAX LAW IS WHOLLY INVALID HOWEVER APPLIED. 

SECOND.  LITTLE NEED BE SAID AS TO THE FAINT CONTENTION HERE THAT THE
TAXES ACTUALLY LEVIED AGAINST APPELLANTS ARE IN EXCESS OF A FAIR
COMPENSATION FOR THE PRIVILEGE OF USING MARYLAND ROADS.  WHILE THE
STATE SUPREME COURT DID PASS ON THIS QUESTION, HOLDING THAT APPELLANTS
HAD FAILED TO PROVE EXCESSIVENESS, THE ASSIGNMENTS OF ERROR HERE DID
NOT SPECIFICALLY MENTION SUCH A CHALLENGE.  THAT COURT SATISFACTORILY
DISPOSED OF ANY QUESTION OF THE SIZE OF THE FEES IN RELATIONSHIP TO THE
ROAD PRIVILEGES GRANTED.  THE BURDEN OF PROOF IN THIS RESPECT IS ON A
CARRIER WHO CHALLENGES A STATE LAW.  CLARK V. PAUL GRAY, INC., 306 U.S.
583, 598-600.  WE AGREE WITH THE SUPREME COURT OF MARYLAND THAT HERE
THERE IS A COMPLETE AND UTTER LACK OF PROOF SUFFICIENT TO INVALIDATE
THE STATE LAW ON THIS GROUND.  SEE DIXIE OHIO CO. V. COMMISSION, 306
U.S. 72, 77-78.  AFFIRMED. 

FN1  MARYLAND ALSO IMPOSES A TAX FOR EACH PASSENGER SEAT OF ONE
THIRTIETH OF A CENT PER MILE TRAVELED ON MARYLAND ROADS.  MARYLAND ANN.
CODE (1947 CUM. SUPP.), ART. 81, SEC. 218.  PRIOR TO 1947 THE MILEAGE
TAX APPLIED BOTH TO INTERSTATE AND INTRASTATE CARRIERS; THE 2% "TITLING
TAX" HERE CHALLENGED APPLIED TO INTRASTATE CARRIERS ONLY.  AT THAT TIME
THE STATE LEGISLATURE MADE SIGNIFICANT CHANGES.  IT MADE THE TITLING
TAX APPLICABLE TO INTERSTATE AS WELL AS TO INTRASTATE CARRIERS AND
REDUCED THE SEAT-MILE TAX FROM ONE-EIGHTEENTH CENT TO ONE-THIRTIETH
CENT.  CHAPTERS 560 AND 326, 1947 LAWS OF THE GENERAL ASSEMBLY OF
MARYLAND. 

FN2  SEE CASES COLLECTED IN NOTES, 75 L. ED. 953 AND 92 L. ED. 109. 

FN3  SPROUT V. SOUTH BEND, 277 U.S. 163; INTERSTATE TRANSIT, INC. V.
LINDSEY, 283 U.S. 183; INGELS V. MORF, 300 U.S. 290.  AND SEE CASE
COLLECTIONS CITED IN NOTE 2, SUPRA. 

FN4  FOR EXAMPLES OF THE MANY FACTORS ON WHICH TAXES HAVE BEEN
HINGED, SEE NOTE, 92 L. ED. 109, 119-123. 

FN5  THIS STATEMENT WAS MADE IN A CASE WHERE FLAT LICENSE FEES WERE
BASED ON A VEHICLE'S RATED HORSEPOWER.  IN THAT CASE THE PERSON HELD
LIABLE FOR THE STATE TAX WAS A NONRESIDENT DRIVING THROUGH THE STATE. 
BY CITATION OF THIS CASE WE DO NOT MEAN TO IMPLY THAT THE
CONSTITUTIONAL RULE RELATING TO A STATE'S POWER TO COLLECT FOR THE USE
OF ITS ROADS BY OCCASIONAL TRAVELERS IS AS BROAD AS WHERE ROAD USE BY
CARRIERS IS INVOLVED.  SEE AERO TRANSIT CO. V. COMM'RS, 332 U.S. 495,
503.  SEE ALSO THE OPINIONS IN EDWARDS V. CALIFORNIA, 314 U.S. 160. 

FN6  SEE NOTE 1, SUPRA. 

FN7  ONE EXAMPLE OF THE COMPLEXITIES SPRINGING FROM STATE ATTEMPTS TO
WEIGH NUMEROUS FACTORS WAS THE INDIANA TAX UPHELD IN EAVEY CO. V.
DEPARTMENT OF TREASURY, 216 IND. 255, 264, 24 N.E.2D 268, 272, WHICH
WAS "  ..  BAASED UPON THE CARRYING CAPACITY, NUMBER OF WHEELS PER
AXLE, LOAD PER AXLE, SIZE OF TIRES USED, WEIGHT, AND OTHER ELEMENTS
DESCRIBED IN THE ACT, ALL OF WHICH BEAR A DIRECT RELATION TO THE
HAZARDS OF THE HIGHWAYS." 

FN8  CONGRESS HAS PASSED COMPREHENSIVE LEGISLATION REGULATING
INTERSTATE CARRIERS IN WHICH IT IS DECLARED THAT "NOTHING IN THIS
CHAPTER SHALL BE CONSTRUED TO AFFECT THE POWERS OF TAXATION OF THE
SEVERAL STATES  ..  "   49 U.S.C. SEC. 302(B).  SEE BRASHEAR FREIGHT
LINES V. PUBLIC SERV. COMM'N, 23 F.SUPP.  865; SEE ALSO MAURER V.
HAMILTON, 309 U.S. 598.  IT IS INTERESTING TO NOTE THAT THE INTERSTATE
COMMERCE COMMISSION CHARGED WITH THE DUTY OF FIXING RATES AND
ADMINISTERING THE MOTOR CARRIER ACT REQUIRES CARRIERS TO KEEP ACCOUNTS
SHOWING THE "COST OF ALL TAXES, LICENSES AND FEES ASSESSED FOR THE
PRIVILEGE OF OPERATING REVENUE VEHICLES OVER THE HIGHWAYS, SUCH AS
REGISTRATION FEES, LICENSE PLATE FEES,  ..  CEERTIFICATES OF TITLE FEES
..  ANND SIMILAR ITEMS ..  "   49 CFR, 1947 SUPP., SEC. 182.5220. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

ONCE MORE WE ARE CALLED UPON TO SUBJECT A STATE TAX ON INTERSTATE
MOTOR TRAFFIC TO THE SCRUTINY WHICH THE COMMERCE CLAUSE REQUIRES SO
THAT INTERSTATE COMMERCE MAY ENJOY FREEDOM FROM STATE TAXATION OUTSIDE
OF THOSE NARROW LIMITS WITHIN WHICH STATES ARE FREE TO BURDEN SUCH
COMMERCE. 

THE ESSENTIAL FACTS ARE EASILY STATED.  BY VARIOUS PROVISIONS OF
MARYLAND LAW, AN INTERSTATE MOTOR CARRIER MAY NOT OPERATE ITS VEHICLES
WITHIN THE STATE UNTIL IT HAS REGISTERED THEM.  AS A PREREQUISITE TO
REGISTRATION THE CARRIER MUST OBTAIN A CERTIFICATE OF TITLE FOR EACH
VEHICLE.  SECTION 25A OF ARTICLE 66 1/2 OF THE ANNOTATED CODE OF
MARYLAND, 1947 CUM. SUPP., IMPOSES A SO-CALLED TITLING TAX OF 2% OF THE
"FAIR MARKET VALUE" OF EACH MOTOR VEHICLE "FOR THE ISSUANCE OF EVERY
ORIGINAL CERTIFICATE OF TITLE  ..  ANND  ..  EVVERY SUBSEQUENT
CERTIFICATE OF TITLE  ..  INN THE CASE OF SALES OR RESALES  ..  "   FN1
THUS, THE TAX DOES NOT STRIKE AT PERIODIC INTERVALS BUT ONLY WHEN A
PURCHASE HAS BEEN MADE OF A MOTOR VEHICLE WHICH IS TO BE OPERATED IN
WHOLE OR PART ON MARYLAND HIGHWAYS, WHETHER THE VEHICLE BE NEW OR OLD. 
THE ENTIRE PROCEEDS OF THE TAX ARE DEVOTED TO ROAD PURPOSES. 

APPELLANTS OPERATE INTERSTATE BUS LINES, IN PART OVER MARYLAND
ROADS.  FN2  EACH PURCHASED A BUS, BUT REFUSED TO PAY THE TAX ON THE
GROUND THAT SEC. 25A WAS INVALID UNDER THE COMMERCE CLAUSE AS APPLIED
TO INTERSTATE CARRIERS.  THEY WERE DENIED CERTIFICATES OF TITLE BY THE
STATE AND THEREUPON FILED PETITIONS FOR MANDAMUS TO SECURE THEM.  THE
MARYLAND COURT OF APPEALS SUSTAINED THE LEVY, 64 A.2D 284, AND THE CASE
IS HERE ON APPEAL.  28 U.S.C. SEC. 1257(2).    I. SINCE "A STATE MAY
NOT LAY A TAX ON THE PRIVILEGE OF ENGAGING IN INTERSTATE COMMERCE," THE
TITLING TAX CAN BE SUSTAINED ONLY IF IT BE A FAIR IMPOSITION FOR THE
USE OF HIGHWAYS CONSTRUCTED AND MAINTAINED BY MARYLAND OR FOR THE COST
OF TRAFFIC REGULATION.  INTERSTATE TRANSIT, INC. V. LINDSEY, 283 U.S.
183, 185; SEE ALSO DIXIE OHIO EXPRESS CO. V. STATE REVENUE COMM'N, 306
U.S. 72, 76.  THE RIGHT OF A STATE TO LEVY SUCH A COMPENSATORY TAX ALSO
AS TO INTERSTATE COMMERCE FOR SPECIAL BENEFITS IS WELL SETTLED.  THE
SUBJECTION OF INTERSTATE MOTOR TRAFFIC TO SUCH STATE POWER IS ONLY A
PARTICULAR APPLICATION OF A GENERAL PRINCIPLE.  CLYDE MALLORY LINES V.
ALABAMA, 296 U.S. 261, 267-68, AND CASES CITED.  BUT WHETHER THE TAX
NOW UNDER REVIEW COMES WITHIN THE SCOPE OF THE PRINCIPLE MUST BE TESTED
BY THE CONSIDERATIONS WHICH HAVE GUIDED PRIOR ADJUDICATION.  (ALL OF
THE CASES IN WHICH THIS COURT HAS DEALT WITH OUR SPECIFIC PROBLEM ARE
LISTED, AND THEIR RELEVANT FACTS DESCRIBED, IN AN APPENDIX TO THIS
OPINION, POST, P. 561.)  IF A NEW PRINCIPLE IS TO BE ANNOUNCED, IT,
TOO, MUST STAND THE TEST OF REASON IN RELATION TO THE COMMERCE CLAUSE. 

SINCE THE LEVY IS UPON COMMERCE EXCLUSIVELY INTERSTATE, AND THEREFORE
INEVITABLY AN INROAD UPON ITS NORMAL FREEDOM FROM STATE BURDENS,
MARYLAND MUST JUSTIFY IT AS A MEANS OF SECURING COMPENSATION FOR THE
ROAD USE WHICH THE STATE AFFORDS AND FOR WHICH IT MAY EXACT A RETURN. 
INTERSTATE TRANSIT, INC. V. LINDSEY, 283 U.S. 183.  THIS REQUIREMENT IS
NOT A CLOSE ACCOUNTING RESPONSIBILITY, HOWEVER, FOR THE STATES ARE FREE
TO EXERCISE A LOOSE JUDGMENT IN FIXING A QUID PRO QUO.  THUS, TAX
FORMULAS DEPENDENT ON ACTUAL USE OF THE STATE'S HIGHWAYS SATISFY THE
CONSTITUTIONAL TEST, WITHOUT MORE, SINCE THEY REFLECT AN OBVIOUS
RELATIONSHIP BETWEEN WHAT IS DEMANDED AND WHAT IS GIVEN BY THE STATE. 
TAXES BASED ON MILES OR TON-MILES HAVE ENCOUNTERED NO DIFFICULTY HERE. 
INTERSTATE BUSSES CORP. V. BLODGETT, 276 U.S. 245; CONTINENTAL BAKING
CO. V. WOODRING, 286 U.S. 352. 

AGAIN, IF THE STATE MAKES CLEAR BY DISPOSITION OF THE TAX PROCEEDS OR
BY STATUTORY DECLARATION THAT THE TAX IS LEVIED TO SECURE COMPENSATION
FOR ROAD USE, THE TAX CLASSIFICATION WILL BE SUSTAINED IF IT MAY FAIRLY
BE ATTRIBUTED TO THE PRIVILEGE OF ROAD USE, AS DISTINGUISHED FROM
ACTUAL USE.  COMPARE INTERSTATE TRANSIT, INC. V. LINDSEY, 283 U.S.
183(NO ALLOCATION OF PROCEEDS) WITH CLARK V. POOR, 274 U.S.
554(ALLOCATION); SEE APPENDIX, POST, P. 561.  THUS, MILEAGE MAY BE
IGNORED AND AN ANNUAL TAX MAY BE BASED ON HORSEPOWER, HENDRICK V.
MARYLAND, 235 U.S. 610, AND KANE V. NEW JERSEY, 242 U.S. 160; ON
CARRYING CAPACITY, CLARK V. POOR, 274 U.S. 554, AND HICKLIN V. CONEY,
290 U.S. 169; AND ON MANUFACTURER'S RATED CAPACITY, DIXIE OHIO EXPRESS
CO. V. STATE REVENUE COMM'N, 306 U.S. 72.  AND THE COURT HAS UPHELD
FLAT FEES IMPOSED WITHOUT REGARD TO SIZE OR WEIGHT FACTORS.  AERO
MAYFLOWER TRANSIT CO. V. GEORGIA PUBLIC SERVICE COMM'N, 295 U.S. 285;
MORF V. BINGAMAN, 298 U.S. 407; CLARK V. PAUL GRAY, INC., 306 U.S. 583;
AERO MAYFLOWER TRANSIT CO. V. BOARD OF RAILROAD COMM'RS, 332 U.S. 495. 

FROM THIS BODY OF DECISIONS, THE COURT NOW EXTRACTS THE PRINCIPLE
THAT, SO LONG AS A TAX IS LEVIED FOR HIGHWAY PURPOSES AND DOES NOT
FORMALLY DISCRIMINATE AGAINST INTERSTATE COMMERCE, IT CANNOT BE
ATTACKED FOR ITS TAX FORMULA OR CLASSIFICATION, BUT ONLY FOR
"EXCESSIVENESS" OF AMOUNT.  SUCH A VIEW COLLIDES WITH THE GUIDING
LIMITATION UPON STATE POWER ANNOUNCED IN INTERSTATE TRANSIT, INC. V.
LINDSEY, 283 U.S. 183, 186, THAT A TAX INTENDED TO COMPENSATE FOR ROAD
USE "WILL BE SUSTAINED UNLESS THE TAXPAYER SHOWS THAT IT BEARS NO
REASONABLE RELATION TO THE PRIVILEGE OF USING THE HIGHWAYS OR IS
DISCRIMINATORY."  THIS WARY QUALIFICATION WAS FORMULATED FOR THE COURT
BY MR. JUSTICE BRANDEIS, WHO WAS MOST ALERT NOT TO DENY TO STATES THE
RIGHT TO MAKE INTERSTATE COMMERCE PAY ITS WAY.  LIKEWISE, TODAY'S
OPINION DISREGARDS MCCARROLL V. DIXIE GREYHOUND LINES, INC., 309 U.S.
176, HOLDING A TAX INVALID SIMPLY BECAUSE THE STANDARD OF MEASUREMENT
WAS FOUND TO BE UNRELATED TO WHAT THE STATE GAVE.  IN THAT CASE, THE
TAX WAS DECLARED TO BE IMPOSED UPON THE PRIVILEGE OF HIGHWAY USE AND
THE PROCEEDS WERE ALLOCATED, AND, AS HERE, IT WAS SOUGHT TO JUSTIFY THE
TAX AS LEVIED FOR THAT PURPOSE.  THERE WAS NO SHOWING THAT THE STATE
WAS COLLECTING SUMS IN EXCESS OF ITS NEEDS OR THAT THE CARRIER WAS
BEING SUBJECTED TO SEVERE ECONOMIC STRAIN.  THE DEFECT LAY IN THE
CAPRICIOUS TAX FORMULA. 

IN NO PRIOR CASE HAS THE COURT UPHELD A TAX FORMULA BEARING NO
REASONABLE RELATIONSHIP TO THE PRIVILEGE OF ROAD USE.  NO SUPPORT TO
THE RESULT NOW REACHED IS LENT BY THE FACT THAT STATE TAX FORMULAS NEED
NOT BE LIMITED TO FACTORS REFLECTING ACTUAL ROAD USE, SUCH AS MILEAGE,
BUT MAY BE MEASURED BY THE PRIVILEGE OF HIGHWAY USE EXTENDED TO ALL
ALIKE.  IN A CASE INVOLVING A FLAT TAX CHARACTERIZED AS "MODERATE," THE
MATTER WAS ILLUMINATINGLY PUT FOR THE COURT BY MR. JUSTICE CARDOZO: 

"THERE WOULD BE ADMINISTRATIVE DIFFICULTIES IN COLLECTING ON THAT
BASIS (I.E., MILEAGE).  THE FEE IS FOR THE PRIVILEGE OF A USE AS
EXTENSIVE AS THE CARRIER WILLS THAT IT SHALL BE.  THERE IS NOTHING
UNREASONABLE OR OPPRESSIVE IN A BURDEN SO IMPOSED.  ..  ONNE WHO
RECEIVES A PRIVILEGE WITHOUT LIMIT IS NOT WRONGED BY HIS OWN REFUSAL TO
ENJOY IT AS FREELY AS HE MAY."  AERO MAYFLOWER TRANSIT CO. V. GEORGIA
PUBLIC SERVICE COMM'N, 295 U.S. 285, 289. 

SYSTEMS OF TAXATION NEED NOT ACHIEVE THE IDEAL.  BUT THE FACT THAT
THE CONSTITUTION DOES NOT DEMAND PURE REASON AND IS SATISFIED BY
PRACTICAL REASON DOES NOT JUSTIFY UNREASON.  THOUGH A STATE MAY LEVY A
TAX BASED UPON THE PRIVILEGE GRANTED, AS DISTINGUISHED FROM ITS
EXERCISE, THIS DOES NOT SANCTION A TAX THE MEASURE OF WHICH HAS NO
REASONABLE RELATION TO THE PRIVILEGE.  REASON PRECLUDES THE NOTION THAT
A TAX FOR A PRIVILEGE MAY DISREGARD THE ABSENCE OF A NEXUS BETWEEN
PRIVILEGE AND TAX.  OUR DECISIONS REFLECT THAT REASON.  A STATE
NATURALLY MAY DEEM FACTORS OF SIZE OR WEIGHT TO BE RELEVANT.  HICKLIN
V. CONEY, 290 U.S. 169, 173.  SINCE THE RELATIONSHIP OF THESE FACTORS
TO HIGHWAY CONSTRUCTION AND MAINTENANCE COSTS CANNOT BE MEASURED WITH
EVEN PROXIMATE ACCURACY, THE STATES ARE NOT HOBBLED IN EXERCISING ROUGH
JUDGMENT IN DEVISING TAX FORMULAS, GIVING TO SIZE, WEIGHT AND OTHER
RELEVANT FACTORS SUCH RESPECT AS IS FAIRLY WITHIN THE RESTRAINTS OF
DECENCY.  CF. CLARK V. PAUL GRAY, INC., 306 U.S. 583, 594.  AND A
STATE, WITH AN EYE TO THE PROBLEMS OF TAX ADMINISTRATION, MAY ALSO
REASONABLY CONCLUDE THAT UNDER SOME CIRCUMSTANCES SUCH FACTORS ARE NOT
SUFFICIENTLY SIGNIFICANT OR MATERIAL TO CALL FOR INSISTENCE UPON
IMPRACTICAL DETAILS, AND THAT A FLAT TAX IS PROPER.  IN THE CASES
INVOLVING FLAT TAXES, THE COURT CAREFULLY POINTED OUT THAT THE
CLASSIFICATION WAS REASONABLE ON THE FACTS BEFORE IT.  MORF V.
BINGAMAN, 298 U.S. 407, 410; CLARK V. PAUL GRAY, INC., 306 U.S. 583,
600; AERO MAYFLOWER TRANSIT CO. V. BOARD OF RAILROAD COMM'RS, 332 U.S.
495, 506. 

MARYLAND'S TITLING TAX FAILS TO MEET THE JUSTIFICATIONS THAT SUSTAIN
A STATE'S POWER TO LEVY A TAX ON WHAT IS EXCLUSIVELY THE CARRYING ON OF
INTERSTATE COMMERCE.  GIVING THE STATE COURT'S JUDGMENT EVERY
INDULGENCE FOR SUPPORTING ITS VALIDITY, ONE CANNOT FIND ANY FAIR
RELATIONSHIP BETWEEN THE TAX AND ACTUAL ROAD USE OR THE PRIVILEGE OF
SUCH USE.  THE VALUE OF A VEHICLE IS NOT A PRACTICAL FUNCTION OF WHAT
THE STATE AFFORDS.  IT HAS AT BEST A MOST TENUOUS RELATIONSHIP TO THE
PRIVILEGE OF USING THE ROADS, SINCE DIFFERENCES IN VALUE ARE DUE TO A
VEHICLE'S APPOINTMENTS OR ITS AGE OR TO OTHER FACTORS WHICH HAVE NO
BEARING ON HIGHWAY USE.  DIFFERENCES IN THE COST OF VEHICLES BASED ON
SUCH FACTORS, REFLECTING IN LARGE MEASURE THE FINANCIAL CONDITION OF
OWNERS OR THEIR INVESTMENT POLICIES, CAN HARDLY FURNISH A STANDARD BY
WHICH A RETURN FOR ROAD USE MAY BE MEASURED. 

THIS IRRELEVANCE IN THE BASIS OF THE TAX IS REINFORCED BY THE
IRRELEVANCE OF ITS INCIDENCE.  FOR THE TAX IS EXACTED NOT ONLY ON THE
ORIGINAL PURCHASE OF THE VEHICLE BUT UPON ITS SUBSEQUENT TRANSFER TO A
NEW OWNER.  IF THE TAX BE TREATED AS ONE ON THE VEHICLE, THEN IT IS
ATTRIBUTABLE NOT TO THE PRIVILEGE OF ROAD USE BUT TO A SHIFT IN ITS
OWNERSHIP.  IF THE TAX IS DEEMED TO BE UPON THE OWNER, THEN IT DEPENDS
NOT UPON THE PRIVILEGE OF ROAD USE BUT UPON THE FREQUENCY OF TURNOVER
OF HIS EQUIPMENT.  UNLIKE ALL THE COMPARABLE TAXES HERETOFORE
SUSTAINED, THE MARYLAND TAX IS MEASURED BY CONSIDERATIONS EXTRANEOUS TO
THE STATE'S RIGHT TO IMPOSE IT. 

THE COURT IN EFFECT CONCEDES THIS, BUT PROCEEDS ON THE THEORY THAT
THE BASIS OF SUCH A ROAD TAX NEED NOT BE INTRINSICALLY REASONABLE. 
VALIDITY IS TREATED AS A QUESTION OF DOLLARS AND CENTS; ONLY THE AMOUNT
OF THE TAX MAY BE QUESTIONED.  IT SHOULD OCCASION NO SURPRISE THAT SUCH
A TEST BREAKS WHOLLY NEW GROUND.  AMOUNT HAS OF COURSE PLAYED A PART IN
THE TOTAL CONTEXT OF PRIOR DECISIONS AND IT RAISES ISSUES TO WHICH I
SHALL SHORTLY ADVERT.  BUT A TEST OF AMOUNT HAS NEVER BEEN REGARDED AS
IN ITSELF A SUBSTITUTE FOR A REASONABLE TAX CLASSIFICATION.  WHILE
NOVELTY OF DOCTRINE DOES NOT PROVE UNCONSTITUTIONALITY, NEITHER DOES IT
ESTABLISH CONSTITUTIONALITY.  IF NO PRIOR DECISION GIVES ANY WARRANT
FOR DETERMINING THE VALIDITY OF A STATE TAX ON COMMERCE GOING THROUGH
IT MERELY BY THE SIZE OF THE FINANCIAL BURDEN WHICH SUCH A TAX ENTAILS,
THE REASON IS OBVIOUS ENOUGH.  IT WOULD CAST WHAT IS SURELY NOT A
JUDICIAL FUNCTION UPON THIS COURT TO DECIDE HOW BIG AN AMOUNT,
ABSTRACTLY CONSIDERED, CAN ECONOMICALLY BE ABSORBED BY A CARRIER
ENGAGED EXCLUSIVELY IN INTERSTATE COMMERCE AS AN EXACTION BY EACH STATE
THROUGH WHICH THE CARRIER PASSES.  FN3  CONTRARIWISE, IT IS WITHIN THE
COMPETENCE OF JUDGES TO DETERMINE THE FAIR RELEVANCE OF CRITERIA IN
ACHIEVING ALLOWABLE ENDS.  HOW CRITERIA WORK IN SPECIFIC CASES INVOLVES
FAMILIAR PRACTICALITIES IN THE ADMINISTRATION OF LAW. 

NO DOUBT DIFFICULTIES ARE ENCOUNTERED BY THE STATES IN FORMULATING
CLASSIFICATIONS FOR TAX PURPOSES WHICH EXPRESS THE NEEDED ACCOMMODATION
IN OUR FEDERALISM BETWEEN DUE REGARD FOR THE SPECIAL FACILITIES
AFFORDED BY STATES TO INTERSTATE COMMERCE FOR WHICH THEY REQUIRE
COMPENSATION, AND THAT FREEDOM OF COMMERCE ACROSS STATE LINES THE
DESIRE FOR WHICH WAS ONE OF THE PROPELLING FORCES FOR THE ESTABLISHMENT
OF THIS NATION AND THE BENEFITS OF WHICH ARE ONE OF ITS GREATEST
SOURCES OF STRENGTH.  OF COURSE THIS COURT MUST NOT UNDULY REIN IN
STATES.  PRACTICAL, NOT IDEAL, LINES MUST BE DRAWN, WHICH MEANS THAT
WITHIN THE BROADEST REACH OF POLICY RELEVANT TO THE STATES' BASIS OF
TAXATION A WIDE CHOICE MUST BE ALLOWED TO THE STATES OF POSSIBLE TAXES
ON MOTOR VEHICLES TRAVELING IN INTERSTATE COMMERCE.  CLARK V. PAUL
GRAY, INC., 306 U.S. 583.  BUT SIMPLY BECAUSE MANY TAX FORMULAS MAY BE
DEVISED DOES NOT MEAN THAT ANY FORMULA WILL DO.  OF COURSE, THE PROBLEM
INVOLVES MATTERS OF DEGREE.  DRAWING LINES, RECOGNITION OF DIFFERENCES
OF DEGREE, IS PERHAPS THE CHIEF CHARACTERISTIC OF THE PROCESS OF
CONSTITUTIONAL ADJUDICATION.  DIFFICULTIES IN APPLYING THE TEST OF
REASON DO NOT 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 AFFORDED REGARDING THE STANDARDS BY WHICH
EXCESSIVENESS IS TO BE DETERMINED.  REFERENCE IS MADE TO INGELS V.
MORF, 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 DISTINCTIVE 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 COMPENSATED.  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 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.  FN4    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.  FN5 

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 IN AMOUNT," AND AERO MAYFLOWER TRANSIT CO. V. BOARD OF
RAILROAD COMM'RS, 332 U.S. 495, 507:  "  ..  THHE 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.  FN6  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,  FN7  THE AMOUNTS ARE IN EXCESS OF
ANY SUSTAINED BY 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 COMMERCE - QUITE APART FROM
EXCESSIVENESS IN TERMS OF STATE COSTS - IS 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. 

FN1  THE RELEVANT PORTION OF SEC. 25A READS MORE FULLY AS FOLLOWS: 

"IN ADDITION TO THE CHARGES PRESCRIBED BY THIS ARTICLE THERE IS
HEREBY LEVIED AND IMPOSED AN EXCISE TAX FOR THE ISSUANCE OF EVERY
ORIGINAL CERTIFICATE OF TITLE FOR MOTOR VEHICLES IN THIS STATE AND FOR
THE ISSUANCE OF EVERY SUBSEQUENT CERTIFICATE OF TITLE FOR MOTOR
VEHICLES IN THIS STATE IN THE CASE OF SALES OR RESALES THEREOF, AND ON
AND AFTER JULY 1, 1947, THE DEPARTMENT OF MOTOR VEHICLES SHALL COLLECT
SAID TAX UPON THE ISSUANCE OF EVERY SUCH CERTIFICATE OF TITLE OF A
MOTOR VEHICLE AT THE RATE OF TWO PER CENTUM OF THE FAIR MARKET VALUE OF
EVERY MOTOR VEHICLE FOR WHICH SUCH CERTIFICATE OF TITLE IS APPLIED FOR
AND ISSUED." 

FN2  ALTHOUGH TWO OF THE APPELLANTS ALSO ENGAGE TO SOME EXTENT IN
INTRASTATE TRANSPORTATION, IT WAS NOT ARGUED EITHER HERE OR BELOW THAT
THIS HAS ANY BEARING ON THE CASE.  CF. SPROUT V. SOUTH BEND, 277 U.S.
163, 170-71. 

FN3  THE COURT, TO BE SURE, DOES NOT AVOW THAT THE VALIDITY OF THE
TAX DEPENDS ON THE RELATION OF ITS SIZE TO THE FINANCIAL CONDITION OF
THE CARRIER.  BUT SUCH IS THE EFFECTIVE CONSEQUENCE OF THE
CONSIDERATIONS BY WHICH IT DETERMINES VALIDITY.  ONCE THE COURT
ABANDONS, AS IT DOES, AN INQUIRY INTO THE REASONABLENESS OF THE TAX
BASIS IN RELATION TO THE ALLOWABLE PURPOSES OF THE TAX, THERE IS
NOTHING BY WHICH THE VALIDITY OF THE IMPOSITION CAN BE JUDGED EXCEPT
ITS EFFECT UPON THE FINANCES OF THE CARRIER, UNLESS PERCHANCE THE
MATTER IS TO BE LEFT WHOLLY AT LARGE.  EVEN IN THAT EVENT, THE COURT IS
BOUND TO MAKE AD HOC JUDGMENTS THAT THE PARTICULAR AMOUNT A STATE ASKS
OF A CARRIER IS NOT GOING TO HURT IT. 

FN4  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 MARYLAND'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. 

FN5  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. 

FN6  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. 

FN7  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. 

                   APPENDIX

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