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BRANIFF AIRWAYS, INC. V. NEBRASKA STATE BOARD OF EQUALIZATION AND
ASSESSMENT 347 U.S. 590 


NO. 476.  ARGUED MARCH 12, 1954- DECIDED JUNE 1, 1954 - 157 NEB. 425, 59
N.W.2D 746, AFFIRMED. 


PURSUANT TO A NEBRASKA TAX STATUTE, AN APPORTIONED AD VALOREM TAX WAS
LEVIED ON THE FLIGHT EQUIPMENT OF APPELLANT, AN INTERSTATE AIR
CARRIER.  APPELLANT IS NOT INCORPORATED IN NEBRASKA AND DOES NOT HAVE
ITS PRINCIPAL PLACE OF BUSINESS OR "HOME PORT" IN THAT STATE, BUT ITS
AIRCRAFT MAKE EIGHTEEN STOPS PER DAY REGULARLY IN NEBRASKA AND
APPROXIMATELY ONE-TENTH OF APPELLANT'S REVENUE IS DERIVED FROM THE
PICKUP AND DISCHARGE OF NEBRASKA FREIGHT AND PASSENGERS.  APPELLANT
CHALLENGED THE VALIDITY OF THE TAX UNDER THE FEDERAL CONSTITUTION, BUT
IT DID NOT CHALLENGE THE REASONABLENESS OF THE APPORTIONMENT TO ITS
PROPERTY.  HELD: APPELLANT'S FLIGHT EQUIPMENT IS NOT IMMUNE FROM
TAXATION BY NEBRASKA FOR WANT OF SITUS THERE OR BECAUSE REGULATION OF
AIR NAVIGATION BY THE FEDERAL GOVERNMENT PRECLUDES SUCH STATE
TAXATION.  PP. 591-602. 

1.  FEDERAL STATUTES GOVERNING AIR COMMERCE ENACTED UNDER THE
COMMERCE POWER DO NOT PRECLUDE THE CHALLENGED TAX.  PP. 594-597. 

2.  APPELLANT HAS NOT DEMONSTRATED THAT THE COMMERCE CLAUSE OTHERWISE
BARS THIS TAX AS A BURDEN ON INTERSTATE COMMERCE.  PP. 597-598. 

3.  WHETHER AN INSTRUMENTALITY OF COMMERCE HAS TAX SITUS IN A STATE
FOR THE PURPOSE OF SUBJECTION TO A PROPERTY TAX IS A QUESTION OF DUE
PROCESS; AND THAT QUESTION WAS SUFFICIENTLY PRESENTED BY APPELLANT IN
THIS CASE.  PP. 598-599. 

4.  EIGHTEEN STOPS PER DAY BY APPELLANT'S AIRCRAFT WAS SUFFICIENT
CONTACT WITH NEBRASKA TO SUSTAIN THAT STATE'S POWER TO LEVY AN
APPORTIONED AD VALOREM TAX ON SUCH AIRCRAFT, EVEN THOUGH THE SAME
AIRCRAFT DO NOT LAND EVERY DAY, AND EVEN THOUGH NONE OF THE AIRCRAFT IS
CONTINUOUSLY WITHIN THE STATE.  PP. 599-601. 

5.  THE POWER OF NEBRASKA TO LEVY THIS TAX IS NOT AFFECTED BY THE
FACT THAT THE ORIGINAL PLAINTIFF IN THIS CASE WAS DOMICILED IN
DELAWARE, THROUGH WHICH ITS PLANES DID NOT FLY, AND THAT APPELLANT
(WITH WHICH THE ORIGINAL PLAINTIFF WAS MERGED) IS DOMICILED IN
OKLAHOMA, THROUGH WHICH THE AIRCRAFT IN QUESTION MAKE REGULAR FLIGHTS. 
P. 601. 

6.  NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292, DOES NOT PRECLUDE
STATES OTHER THAN THOSE OF THE CORPORATE DOMICILE FROM TAXING
INSTRUMENTALITIES OF INTERSTATE COMMERCE ON THE APPORTIONMENT BASIS IN
ACCORDANCE WITH THEIR USE IN THE TAXING STATE.  PP. 601-602. 

BRANIFF AIRWAYS, INC. V. NEBRASKA STATE BOARD OF EQUALIZATION AND
ASSESSMENT ET AL. 

APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS APPEAL FROM THE SUPREME COURT OF
NEBRASKA IS WHETHER THE CONSTITUTION BARS THE STATE OF NEBRASKA FROM
LEVYING AN APPORTIONED AD VALOREM TAX ON THE FLIGHT EQUIPMENT OF
APPELLANT, AN INTERSTATE AIR CARRIER.  APPELLANT IS NOT INCORPORATED IN
NEBRASKA AND DOES NOT HAVE ITS PRINCIPAL PLACE OF BUSINESS OR HOME PORT
REGISTERED UNDER THE CIVIL AERONAUTICS ACT, 52 STAT. 973, 977, 49
U.S.C. SECS. 401-705, IN THAT STATE.  SUCH FLIGHT EQUIPMENT IS EMPLOYED
AS A PART OF A SYSTEM OF INTERSTATE AIR COMMERCE OPERATING OVER FIXED
ROUTES AND LANDING ON AND DEPARTING FROM AIRPORTS WITHIN NEBRASKA ON
REGULAR SCHEDULES.  APPELLANT DOES NOT CHALLENGE THE REASONABLENESS OF
THE APPORTIONMENT PRESCRIBED BY THE TAXING STATUTE OR THE APPLICATION
OF SUCH APPORTIONMENT TO ITS PROPERTY.  IT CONTENDS ONLY THAT ITS
FLIGHT EQUIPMENT USED IN INTERSTATE COMMERCE IS IMMUNE FROM TAXATION BY
NEBRASKA BECAUSE WITHOUT SITUS IN THAT STATE AND BECAUSE REGULATION OF
AIR NAVIGATION BY THE FEDERAL GOVERNMENT PRECLUDES SUCH STATE
TAXATION. 

THIS PETITION FOR A DECLARATORY JUDGMENT OF THE INVALIDITY OF SECS.
77-1244 TO 77-1250 OF THE STATE TAX STATUTE (FN1) AND AN INJUNCTION
AGAINST THE COLLECTION OF TAXES ASSESSED UNDER SUCH PROVISIONS FOR
PREVIOUS YEARS WAS FILED AS AN ORIGINAL ACTION IN THE COURT BELOW BY
MID-CONTINENTAL AIRLINES, INC., AND TRIED UPON STIPULATED FACTS. 
SUBSEQUENT TO FILING, BUT BEFORE THE DECISION, MID-CONTINENTAL AND
APPELLANT WERE MERGED ON AUGUST 1, 1952, AND APPELLANT WAS SUBSTITUTED
AS THE PARTY PLAINTIFF.  MID-CONTINENT HAD BEEN INCORPORATED IN
DELAWARE WITH ITS CORPORATE PLACE OF BUSINESS IN WILMINGTON IN THAT
STATE, AND BRANIFF IS INCORPORATED IN OKLAHOMA AND HAS ITS CORPORATE
PLACE OF BUSINESS IN OKLAHOMA CITY.  PURSUANT TO THE MERGER MID
CONTINENT'S MAIN EXECUTIVE OFFICES WERE MOVED FROM KANSAS CITY,
MISSOURI, AND MERGED WITH APPELLANT'S IN DALLAS, TEXAS.  THE NUMBER OF
REGULARLY SCHEDULED STOPS IN NEBRASKA, FOURTEEN PER DAY AT OMAHA AND
FOUR AT LINCOLN, WAS NOT AFFECTED BY THE MERGER. 

THE HOME PORT REGISTERED WITH THE CIVIL AERONAUTICS AUTHORITY AND THE
OVERHAUL BASE FOR THE AIRCRAFT IN QUESTION IS THE MINNEAPOLIS-ST. PAUL
AIRPORT, MINNESOTA.  ALL OF THE AIRCRAFT NOT UNDERGOING OVERHAUL FLY
REGULAR SCHEDULES UPON A CIRCUIT RANGING FROM MINOT, NORTH DAKOTA, TO
NEW ORLEANS, LOUISIANA, WITH STOPS IN FOURTEEN STATES INCLUDING
MINNESOTA, NEBRASKA AND OKLAHOMA.  NO STOPS WERE MADE IN DELAWARE.  THE
NEBRASKA STOPS ARE OF SHORT DURATION SINCE UTILIZED ONLY FOR THE
DISCHARGE AND LOADING OF PASSENGERS, MAIL, EXPRESS, AND FREIGHT, AND
SOMETIMES FOR REFUELING.  APPELLANT NEITHER OWNS NOR MAINTAINS
FACILITIES FOR REPAIRING, RECONDITIONING, OR STORING ITS FLIGHT
EQUIPMENT IN NEBRASKA, BUT RENTS DEPOT SPACE AND HIRES OTHER SERVICES
AS REQUIRED.  THE SUPREME COURT OF NEBRASKA MADE NO DISTINCTION AS TO
TAXABILITY BETWEEN THOSE YEARS WHEN NO FLIGHTS WERE MADE INTO THE STATE
OF DOMICILE (DELAWARE) AND THOSE WHEN FLIGHTS DID ENTER THE STATE OF
NEW DOMICILE (OKLAHOMA). 

IT IS STIPULATED THAT THE TAX IN QUESTION IS ASSESSED ONLY AGAINST
REGULARLY SCHEDULED AIR CARRIERS AND IS NOT APPLIED TO CARRIERS WHO
OPERATE ONLY INTERMITTENTLY IN THE STATE.  THE STATUTE DEFINES "FLIGHT
EQUIPMENT" AS "AIRCRAFT FULLY EQUIPPED FOR FLIGHT," (FN2) AND PROVIDES
THAT "ANY TAX UPON OR MEASURED BY THE VALUE OF FLIGHT EQUIPMENT OF AIR
CARRIERS INCORPORATED OR DOING BUSINESS IN THIS STATE SHALL BE ASSESSED
AND COLLECTED BY THE TAX COMMISSIONER."  (FN3)  A FORMULA IS PRESCRIBED
FOR ARRIVING AT THE PROPORTION OF A CARRIER'S FLIGHT EQUIPMENT TO BE
ALLOCATED TO THE STATE.  (FN4) 

THE STATUTE USES THE ALLOCATION FORMULA OF THE "PROPOSED UNIFORM
STATUTE TO PROVIDE FOR AN EQUITABLE METHOD OF STATE TAXATION OF AIR
CARRIERS" ADOPTED BY THE COUNCIL OF STATE GOVERNMENTS UPON THE
RECOMMENDATION OF THE NATIONAL ASSOCIATION OF TAX ADMINISTRATORS IN
1947.  (FN5)  USE OF A UNIFORM ALLOCATION FORMULA TO APPORTION
AIRCARRIER TAXES AMONG THE STATES FOLLOWS THE RECOMMENDATION OF THE
CIVIL AERONAUTICS BOARD IN ITS REPORT TO CONGRESS.  (FN6)  THE NEBRASKA
STATUTE PROVIDES FOR REPORTS, LEVY, AND RATE OF TAX BY STATE AVERAGE. 
(FN7) 

REQUIRED REPORTS FILED BY MID-CONTINENTAL FOR 1950 SHOW THAT ABOUT 9%
OF ITS REVENUE AND 11 1/2% OF THE TOTAL SYSTEM TONNAGE ORIGINATED IN
NEBRASKA AND ABOUT 9% OF ITS TOTAL STOPS WERE MADE IN THAT STATE.  FROM
THESE FIGURES, USING THE STATUTORY FORMULA, THE TAX COMMISSIONER
ARRIVED AT A VALUATION OF $118,901 ALLOCABLE TO NEBRASKA, RESULTING IN
A TAX OF $4,280.44.  SINCE MID-CONTINENT FILED NO RETURN FOR 1951 THE
SAME VALUATION WAS USED AND AN INCREASED RATE RESULTED IN ASSESSMENT OF
$4,518.29.  THE SUPREME COURT OF NEBRASKA HELD THE STATUTE NOT
VIOLATIVE OF THE COMMERCE CLAUSE AND DISMISSED APPELLANT'S PETITION. 
(FN8) 

APPELLANT ARGUES THAT FEDERAL STATUTES GOVERNING AIR COMMERCE ENACTED
UNDER THE COMMERCE POWER PRE-EMPT THE FIELD OF REGULATION OF SUCH AIR
COMMERCE AND PRECLUDE THIS TAX.  CONGRESS, BY THE CIVIL AERONAUTICS ACT
OF 1938, 52 STAT. 973, 977, 1028, SEC. 1107(I)(3), 49 U.S.C.  SEC.
176(A), ENACTED: 

"THE UNITED STATES OF AMERICA IS DECLARED TO POSSESS AND EXERCISE
COMPLETE AND EXCLUSIVE NATIONAL SOVEREIGNTY IN THE AIR SPACE ABOVE THE
UNITED STATES, INCLUDING THE AIR SPACE ABOVE ALL INLAND WATERS AND THE
AIR SPACE ABOVE THOSE PORTIONS OF THE ADJACENT MARGINAL HIGH SEAS,
BAYS, AND LAKES, OVER WHICH BY INTERNATIONAL LAW OR TREATY OR
CONVENTION THE UNITED STATES EXERCISES NATIONAL JURISDICTION." 

THIS PROVISION ORIGINATED IN THE AIR COMMERCE ACT OF 1926, 44 STAT.
568, 572, SEC. 6.  THE 1938 ACT ALSO DECLARES "A PUBLIC RIGHT OF
FREEDOM OF TRANSIT" FOR AIR COMMERCE IN THE NAVIGABLE AIR SPACE TO
EXIST FOR ANY CITIZEN OF THE UNITED STATES.  52 STAT. 980, SEC. 3, 49
U.S.C. SEC. 403.  (FN9) 

THE PROVISION PERTINENT TO SOVEREIGNTY OVER THE NAVIGABLE AIR SPACE
IN THE AIR COMMERCE ACT OF 1926 WAS AN ASSERTION OF EXCLUSIVE NATIONAL
SOVEREIGNTY.  THE CONVENTION BETWEEN THE UNITED STATES AND OTHER
NATIONS RESPECTING INTERNATIONAL CIVIL AVIATION RATIFIED AUGUST 6,
1946, 61 STAT. 1180, ACCORDS.  THE ACT, HOWEVER, DID NOT EXPRESSLY
EXCLUDE THE SOVEREIGN POWERS OF THE STATES.  H.R. REP. NO. 572, 69TH
CONG., 1ST SESS., P. 10.  THE CIVIL AERONAUTICS ACT OF 1938 GIVES NO
SUPPORT TO A DIFFERENT VIEW.  (FN10)  AFTER THE ENACTMENT OF THE AIR
COMMERCE ACT, MORE THAN TWENTY STATES ADOPTED THE UNIFORM AERONAUTICS
ACT.  IT HAD THREE PROVISIONS INDICATING THAT THE STATES DID NOT
CONSIDER THEIR SOVEREIGNTY AFFECTED BY THE NATIONAL ACT EXCEPT TO THE
EXTENT THAT THE STATES HAD CEDED THAT SOVEREIGNTY BY CONSTITUTIONAL
GRANT.  (FN11)  THE RECOMMENDATION OF THE NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS TO THE STATES TO ENACT THIS ACT WAS
WITHDRAWN IN 1943.  (FN12)  WHERE ADOPTED, HOWEVER, IT CONTINUES IN
EFFECT.  SEE UNITED STATES V. PRAYLOU, 208 F.2D 291.  RECOGNIZING THIS
"EXCLUSIVE NATIONAL SOVEREIGNTY" AND RIGHT OF FREEDOM IN AIR TRANSIT,
THIS COURT IN UNITED STATES V. CAUSBY, 328 U.S. 256, 261, NEVERTHELESS
HELD THAT THE OWNER OF LAND MIGHT RECOVER FOR A TAKING BY NATIONAL USE
OF NAVIGABLE AIR SPACE, RESULTING IN DESTRUCTION IN WHOLE OR IN PART OF
THE USEFULNESS OF THE LAND PROPERTY. 

THESE FEDERAL ACTS REGULATING AIR COMMERCE ARE BOTTOMED ON THE
COMMERCE POWER OF CONGRESS, NOT ON NATIONAL OWNERSHIP OF THE NAVIGABLE
AIR SPACE, AS DISTINGUISHED FROM SOVEREIGNTY.  IN REPORTING THE BILL
WHICH BECAME THE AIR COMMERCE ACT, IT WAS SAID: 

"THE DECLARATION OF WHAT CONSTITUTES NAVIGABLE AIR SPACE IS AN
EXERCISE OF THE SAME SOURCE OF POWER, THE INTERSTATE COMMERCE CLAUSE,
AS THAT UNDER WHICH CONGRESS HAS LONG DECLARED IN MANY ACTS WHAT
CONSTITUTES NAVIGABLE OR NONNAVIGABLE WATERS.  THE PUBLIC RIGHT OF
FLIGHT IN THE NAVIGABLE AIR SPACE OWES ITS SOURCE TO THE SAME
CONSTITUTIONAL BASIS WHICH, UNDER DECISIONS OF THE SUPREME COURT, HAS
GIVEN RISE TO A PUBLIC EASEMENT OF NAVIGATION IN THE NAVIGABLE WATERS
OF THE ADJACENT OR SUBJACENT SOIL."  H.R. REP. NO. 572, 69TH CONG., 1ST
SESS., P. 10. 

THE COMMERCE POWER, SINCE GIBBONS V. OGDEN, 9 WHEAT.  1, 193, HAS
COMPREHENDED NAVIGATION OF STREAMS.  ITS BREADTH COVERS ALL COMMERCIAL
INTERCOURSE.  BUT THE FEDERAL COMMERCE POWER OVER NAVIGABLE STREAMS
DOES NOT PREVENT STATE ACTION CONSISTENT WITH THAT POWER.  GILMAN V.
PHILADELPHIA, 3 WALL.  713, 729.  SINCE, OVER STREAMS, CONGRESS ACTS BY
VIRTUE OF THE COMMERCE POWER, THE SOVEREIGNTY OF THE STATE IS NOT
IMPAIRED.  OKLAHOMA V. ATKINSON CO., 313 U.S. 508, 534.  THE TITLE TO
THE BEDS AND THE BANKS ARE IN THE STATES AND THE RIPARIAN OWNERS,
SUBJECT TO THE FEDERAL POWER OVER NAVIGATION.  (FN13)  FEDERAL
REGULATION OF INTERSTATE LAND AND WATER CARRIERS UNDER THE COMMERCE
POWER HAS NOT BEEN DEEMED TO DENY ALL STATE POWER TO TAX THE PROPERTY
OF SUCH CARRIERS.  WE CONCLUDE THAT EXISTENT FEDERAL AIR-CARRIER
REGULATION DOES NOT PRECLUDE THE NEBRASKA TAX CHALLENGED HERE. 

NOR HAS APPELLANT DEMONSTRATED THAT THE COMMERCE CLAUSE OTHERWISE
BARS THIS TAX AS A BURDEN ON INTERSTATE COMMERCE.  (FN14)  WE HAVE
FREQUENTLY REITERATED THAT THE COMMERCE CLAUSE DOES NOT IMMUNIZE
INTERSTATE INSTRUMENTALITIES FROM ALL STATE TAXATION, BUT THAT SUCH
COMMERCE MAY BE REQUIRED TO PAY A NONDISCRIMINATORY SHARE OF THE TAX
BURDEN.  (FN15)  AND APPELLANT DOES NOT ALLEGE THAT THIS NEBRASKA
STATUTE DISCRIMINATES AGAINST IT NOR, AS NOTED ABOVE, DOES IT CHALLENGE
THE REASONABLENESS OF THE APPORTIONMENT PRESCRIBED BY THE STATUTE. 
(FN16) 

THE ARGUMENT UPON WHICH APPELLANT DEPENDS ULTIMATELY, HOWEVER, IS
THAT ITS AIRCRAFT NEVER "ATTAINED A TAXABLE SITUS WITHIN NEBRASKA" FROM
WHICH IT ARGUES THAT THE NEBRASKA TAX IMPOSES A BURDEN ON INTERSTATE
COMMERCE.  IN RELYING UPON THE COMMERCE CLAUSE ON THIS ISSUE AND IN NOT
SPECIFICALLY CLAIMING PROTECTION UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, APPELLANT NAMES THE WRONG CONSTITUTIONAL CLAUSE
TO SUPPORT ITS POSITION.  WHILE THE QUESTION OF WHETHER A COMMODITY EN
ROUTE TO MARKET IS SUFFICIENTLY SETTLED IN A STATE FOR PURPOSE OF
SUBJECTION TO A PROPERTY TAX HAS BEEN DETERMINED BY THIS COURT AS A
COMMERCE CLAUSE QUESTION, (FN17) THE BARE QUESTION WHETHER AN
INSTRUMENTALITY OF COMMERCE HAS TAX SITUS IN A STATE FOR THE PURPOSE OF
SUBJECTION TO A PROPERTY TAX IS ONE OF DUE PROCESS.  (FN18)  HOWEVER,
APPELLANT TIMELY RAISED AND PRESERVED ITS CONTENTION THAT ITS PROPERTY
WAS NOT TAXABLE BECAUSE SUCH PROPERTY HAD ATTAINED NO TAXABLE SITUS IN
NEBRASKA.  THOUGH INEXPLICIT, WE CONSIDER THE DUE PROCESS ISSUE WITHIN
THE CLEAR INTENDMENT OF SUCH CONTENTION AND HOLD SUCH ISSUE
SUFFICIENTLY PRESENTED.  SEE NEW YORK EX REL. BRYANT V. ZIMMERMAN, 278
U.S. 63, 67, AND CASES CITED; ROBERTSON AND KIRKHAM, JURISDICTION OF
THE SUPREME COURT OF THE UNITED STATES (WOLFSON AND KURLAND ED.), 149
ET SEQ. 

APPELLANT RELIES UPON CASES INVOLVING OCEAN-GOING VESSELS TO SUPPORT
ITS CONTENTION THAT ITS AIRCRAFT ATTAINED NO TAX SITUS IN NEBRASKA. 
SEE, E.G., HAYS V. PACIFIC MAIL S.S. CO., 17 HOW.  596; MORGAN V.
PARHAM, 16 WALL.  471; SOUTHERN PACIFIC CO. V. KENTUCKY, 222 U.S. 63. 
THE FIRST TWO CASES WERE EFFORTS TO TAX THE ENTIRE VALUE OF THE SHIPS
AS OTHER LOCAL PROPERTY, WITHOUT APPORTIONMENT, WHEN THEY WERE USED TO
PLOW THE OPEN SEAS.  THE LAST CASE HOLDS THAT STATE OF CORPORATE
DOMICILE HAS POWER TO TAX VESSELS THAT ARE NOT TAXABLE ELSEWHERE.  A
CLOSER ANALOGY EXISTS BETWEEN PLANES FLYING INTERSTATE AND BOATS THAT
PLY THE INLAND WATERS.  WE PERCEIVE NO LOGICAL BASIS FOR DISTINGUISHING
THE CONSTITUTIONAL POWER TO IMPOSE A TAX ON SUCH AIRCRAFT FROM THE
POWER TO IMPOSE TAXES ON RIVER BOATS.  OTT V. MISSISSIPPI VALLEY BARGE
LINE CO., 336 U.S. 169; STANDARD OIL CO. V. PECK, 342 U.S. 382.  THE
LIMITATION IMPOSED BY THE DUE PROCESS CLAUSE UPON STATE POWER TO IMPOSE
TAXES UPON SUCH INSTRUMENTALITIES WAS SUCCINCTLY STATED IN THE OTT
CASE:  "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."  336 U.S., AT
174.  IN CURRY V. MCCANLESS, 307 U.S. 357, THE EVOLUTION OF SUCH
RESTRICTION ON STATE POWER WAS REVIEWED AND THE RULE STATED THUSLY: 

"WHEN WE SPEAK OF THE JURISDICTION TO TAX LAND OR CHATTELS AS BEING
EXCLUSIVELY IN THE STATE WHERE THEY ARE PHYSICALLY LOCATED, WE MEAN NO
MORE THAN THAT THE BENEFIT AND PROTECTION OF LAWS ENABLING THE OWNER TO
ENJOY THE FRUITS OF HIS OWNERSHIP AND THE POWER TO REACH EFFECTIVELY
THE INTERESTS PROTECTED, FOR THE PURPOSE OF SUBJECTING THEM TO PAYMENT
OF A TAX, ARE SO NARROWLY RESTRICTED TO THE STATE IN WHOSE TERRITORY
THE PHYSICAL PROPERTY IS LOCATED AS TO SET PRACTICAL LIMITS TO TAXATION
BY OTHERS."  ID., AT 364. 

THUS THE SITUS ISSUE DEVOLVES INTO THE QUESTION OF WHETHER EIGHTEEN
STOPS PER DAY BY APPELLANT'S AIRCRAFT IS SUFFICIENT CONTACT WITH
NEBRASKA TO SUSTAIN THAT STATE'S POWER TO LEVY AN APPORTIONED AD
VALOREM TAX ON SUCH AIRCRAFT.  WE THINK SUCH REGULAR CONTACT IS
SUFFICIENT TO ESTABLISH NEBRASKA'S POWER TO TAX EVEN THOUGH THE SAME
AIRCRAFT DOES NOT LAND EVERY DAY AND EVEN THOUGH NONE OF THE AIRCRAFT
IS CONTINUOUSLY WITHIN THE STATE.  "THE BASIS OF THE JURISDICTION IS
THE HABITUAL EMPLOYMENT OF THE PROPERTY WITHIN THE STATE."  (FN19)
APPELLANT RENTS ITS GROUND FACILITIES AND PAYS FOR FUEL IT PURCHASES IN
NEBRASKA.  THIS LEAVES IT IN THE POSITION OF OTHER CARRIERS SUCH AS
RAILS, BOATS, AND MOTORS THAT PAY FOR THE USE OF LOCAL FACILITIES SO AS
TO HAVE THE OPPORTUNITY TO EXPLOIT THE COMMERCE, TRAFFIC, AND TRADE
THAT ORIGINATES IN OR REACHES NEBRASKA.  APPROXIMATELY ONE-TENTH OF
APPELLANT'S REVENUE IS PRODUCED BY THE PICKUP AND DISCHARGE OF NEBRASKA
FREIGHT AND PASSENGERS.  NEBRASKA CERTAINLY AFFORDS PROTECTION DURING
SUCH STOPS AND THESE REGULAR LANDINGS ARE CLEARLY A BENEFIT TO
APPELLANT. 

NOR DO WE THINK THE NEBRASKA'S POWER TO LEVY THIS TAX WAS AFFECTED BY
THE MERGER OF MID-CONTINENT WITH BRANIFF.  SINCE "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," STANDARD OIL CO. V. PECK, SUPRA, AT 384, WE DEEM IT
IMMATERIAL THAT BEFORE THE MERGER MID-CONTINENT WAS DOMICILED IN
DELAWARE, A STATE THROUGH WHICH ITS PLANES DID NOT FLY, AND AFTER THE
MERGER BRANIFF IS DOMICILED IN OKLAHOMA, A STATE THROUGH WHICH THESE
AIRCRAFT MAKE REGULAR FLIGHTS. 

APPELLANT URGES THAT NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292,
PRECLUDES THIS TAX UNLESS THAT CASE IS TO BE OVERRULED.  IN THAT CASE
MINNESOTA, AS THE DOMICILE OF THE AIR CARRIER AND ITS "HOME PORT," WAS
PERMITTED TO TAX THE ENTIRE VALUE OF THE FLEET AD VALOREM ALTHOUGH IT
RANGED BY FIXED ROUTES THROUGH EIGHT STATES.  (FN20)  WHILE NO ONE VIEW
MUSTERED A MAJORITY OF THIS COURT, IT SEEMS FAIR TO SAY THAT WITHOUT
THE POSITION STATED IN THE CONCLUSION AND JUDGMENT WHICH ANNOUNCED THE
DECISION OF THIS COURT, THE RESULT WOULD HAVE BEEN THE REVERSE.  THAT
POSITION WAS THAT IT WAS NOT SHOWN "THAT A DEFINED PART OF THE
DOMICILIARY CORPUS HAD ACQUIRED A PERMANENT LOCATION, I.E., A TAXING
SITUS, ELSEWHERE."  P. 295.  THAT OPINION RECOGNIZED THE "DOCTRINE OF
TAX APPORTIONMENT FOR INSTRUMENTALITIES ENGAGED IN INTERSTATE
COMMERCE," P. 297, BUT HELD IT INAPPLICABLE BECAUSE NO "PROPERTY (OR A
PORTION OF FUNGIBLE UNITS) IS PERMANENTLY SITUATED IN A STATE OTHER
THAN THE DOMICILIARY STATE."  P. 298.  WHEN STANDARD OIL CO. V. PECK,
342 U.S. 382, 384, WAS HERE, THE COURT INTERPRETED THE NORTHWEST
AIRLINES CASE TO PERMIT STATES OTHER THAN THOSE OF THE CORPORATE
DOMICILE TO TAX BOATS IN INTERSTATE COMMERCE ON THE APPORTIONMENT BASIS
IN ACCORDANCE WITH THEIR USE IN THE TAXING STATE.  WE ADHERE TO THAT
INTERPRETATION.  AFFIRMED. 

FN1  NEB. REV. STAT., 1943, SEC. 77-1244 ET SEQ. 

FN2 ID., SEC. 77-1244(3). 

FN3  ID., SEC. 77-1245. 

FN4  IBID.  THIS SECTION PROVIDES THAT "THE PROPORTION OF FLIGHT
EQUIPMENT ALLOCATED TO THIS STATE FOR PURPOSES OF TAXATION SHALL BE THE
ARITHMETICAL AVERAGE OF THE FOLLOWING THREE RATIOS:  (1) THE RATIO
WHICH THE AIRCRAFT ARRIVALS AND DEPARTURES WITHIN THE STATE SCHEDULED
BY SUCH AIR CARRIER DURING THE PRECEDING CALENDAR YEAR BEARS TO THE
TOTAL AIRCRAFT ARRIVALS AND DEPARTURES WITHIN AND WITHOUT THE STATE
SCHEDULED BY SUCH CARRIER DURING THE SAME PERIOD; PROVIDED, THAT IN THE
CASE OF NONSCHEDULED OPERATIONS ALL ARRIVALS AND DEPARTURES SHALL BE
SUBSTITUTED FOR SCHEDULED ARRIVALS AND DEPARTURES; (2) THE RATIO WHICH
THE REVENUE TONS HANDLED BY SUCH AIR CARRIER AT AIRPORTS WITHIN THIS
STATE DURING THE PRECEDING CALENDAR YEAR BEARS TO THE TOTAL REVENUE
TONS HANDLED BY SUCH CARRIER AT AIRPORTS WITHIN AND WITHOUT THIS STATE
DURING THE SAME PERIOD; AND (3) THE RATIO WHICH SUCH AIR CARRIER'S
ORIGINATING REVENUE WITHIN THIS STATE FOR THE PRECEDING CALENDAR YEAR
BEARS TO THE TOTAL ORIGINATING REVENUE OF SUCH CARRIER WITHIN AND
WITHOUT THIS STATE FOR THE SAME PERIOD." 

FN5  RESOLUTIONS, THE EIGHTH GENERAL ASSEMBLY OF THE STATES, 20 STAT.
GOVERNMENT 95. 

FN6  MULTIPLE TAXATION OF AIR COMMERCE, H.R. DOC. NO. 141, 79TH
CONG., 1ST SESS.  RECOMMENDATIONS BY VARIOUS INTERESTED GROUPS AS TO
THE PROPER METHOD OF APPORTIONMENT ARE INCLUDED IN THAT REPORT AND ITS
APPENDICES.  SEE ALSO ARDITTO, STATE AND LOCAL TAXATION OF SCHEDULED
LOCAL AIRLINES, 16 J. AIR L. & COM. 162; KASSELL, INTERSTATE
COOPERATION AND AIRLINES, 25 TAXES 302.  MR. BULWINKLE INTRODUCED BILLS
IN ACCORDANCE WITH THE RECOMMENDATION OF THE C.A.B. REPORT THAT THE
NATIONAL GOVERNMENT SHOULD PRESCRIBE THE METHOD OF STATE TAXATION OF
AIR CARRIERS.  THE BILLS ADOPTED THE COUNCIL FORMULA UTILIZED BY
NEBRASKA.  NEITHER WAS ENACTED.  H.R. 3446, 79TH CONG., 1ST SESS.; H.R.
1241, 80TH CONG., 1ST SESS. 

FN7  NEB. REV. STAT., 1943, SECS. 77-1247, 77-1249. 

FN8  MID-CONTINENT AIRLINES, INC.V. NEBRASKA STATE BOARD OF
EQUALIZATION AND ASSESSMENT, 157 NEB. 425, 59 N.W.2D 746. 

FN9  THAT SPACE WAS DEFINED IN SEC. 10 OF THE AIR COMMERCE ACT AND
FREEDOM FOR ITS NAVIGATION DECLARED.  THIS WAS CONTINUED BY THE CIVIL
AERONAUTICS ACT, 49 U.S.C. SEC. 180, IN "AIRSPACE ABOVE THE MINIMUM
SAFE ALTITUDES OF FLIGHT PRESCRIBED BY THE CIVIL AERONAUTICS
AUTHORITY." 

FN10  S. REP. NO. 1661, 75TH CONG., 3D SESS.; H.R. REP. NO. 2254,
75TH CONG., 3D SESS.; H.R. CONF. REP. NO. 2635, 75TH CONG., 3D SESS.

FN11  11 UNIFORM LAWS ANNOTATED 159, 160: 

"SEC. 2.  SOVEREIGNTY IN SPACE.  - SOVEREIGNTY IN THE SPACE ABOVE THE
LANDS AND WATERS OF THIS STATE IS DECLARED TO REST IN THE STATE, EXCEPT
WHERE GRANTED TO AND ASSUMED BY THE UNITED STATES PURSUANT TO A
CONSTITUTIONAL GRANT FROM THE PEOPLE OF THIS STATE. 

"SEC. 3.  OWNERSHIP OF SPACE.  - THE OWNERSHIP OF THE SPACE ABOVE THE
LANDS AND WATERS OF THIS STATE IS DECLARED TO BE VESTED IN THE SEVERAL
OWNERS OF THE SURFACE BENEATH, SUBJECT TO THE RIGHT OF FLIGHT DESCRIBED
IN SECTION 4. 

"SEC. 4.  LAWFULNESS OF FLIGHT.  - FLIGHT IN AIRCRAFT OVER THE LANDS
AND WATERS OF THIS STATE IS LAWFUL, UNLESS AT SUCH A LOW ALTITUDE AS TO
INTERFERE WITH THE THEN EXISTING USE TO WHICH THE LAND OR WATER, OR THE
SPACE OVER THE LAND OR WATER, IS PUT BY THE OWNER, OR UNLESS SO
CONDUCTED AS TO BE IMMINENTLY DANGEROUS TO PERSONS OR PROPERTY LAWFULLY
ON THE LAND OR WATER BENEATH.  THE LANDING OF AN AIRCRAFT ON THE LANDS
OR WATERS OF ANOTHER, WITHOUT HIS CONSENT, IS UNLAWFUL, EXCEPT IN THE
CASE OF A FORCED LANDING.  FOR DAMAGES CAUSED BY A FORCED LANDING,
HOWEVER, THE OWNER OR LESSEE OF THE AIRCRAFT OR THE AERONAUT SHALL BE
LIABLE, AS PROVIDED IN SECTION 5." 

FN12  SEE CONFERENCE HANDBOOK, 1943, PP. 66-67.  EFFORTS CONTINUE TO
DRAFT AN ACCEPTABLE STATE UNIFORM AERONAUTICAL CODE.  SEE CONFERENCE
HANDBOOK, 1948, P. 147. 

FN13  UNITED STATES V. CHANDLER-DUNBAR WATER POWER CO., 229 U.S. 53,
60; UNITED STATES V. KANSAS CITY INS. CO., 339 U.S. 799, 808; FEDERAL
POWER COMM'N V. NIAGARA MOHAWK POWER CORP., 347 U.S. 239, 246 ET SEQ. 

FN14  IN ITS ORIGINAL PETITION APPELLANT ALSO ALLEGED THAT THE
NEBRASKA STATUTE IS INVALID UNDER SEC. 9, CL. 6, AND SEC. 10, CL. 3 OF
ART. I OF THE CONSTITUTION.  WHILE NOTING THAT SUCH CONTENTIONS WERE
APPARENTLY "ABANDONED IN THE BRIEF AND ORAL ARGUMENT," THE COURT BELOW
HELD SUCH PROVISIONS OF THE CONSTITUTION NOT VIOLATED.  SINCE APPELLANT
DID NOT PRESERVE SUCH CONTENTIONS IN ITS STATEMENT AS TO JURISDICTION,
WE DO NOT CONSIDER SUCH ISSUES. 

FN15  WESTERN LIVE STOCK V. BUREAU, 303 U.S. 250, 254; MICHIGAN
WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S. 157, 165. 

FN16  SEE PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141 U.S. 18; FORD
MOTOR CO. V. BEAUCHAMP, 308 U.S. 331; NASHVILLE, C. & ST. L.R. CO. V.
BROWNING, 310 U.S. 362; GREYHOUND LINES V. MEALEY, 334 U.S. 653, 654,
662, 663; OTT V. MISSISSIPPI VALLEY BARGE LINE CO., 336 U.S. 169, 174;
CANTON R. CO. V. ROGAN, 340 U.S. 511, 514-516; MULTIPLE TAXATION OF AIR
COMMERCE, H.R. DOC. NO. 141, 79TH CONG., 1ST SESS.; ARDITTO, STATE AND
LOCAL TAXATION OF SCHEDULED LOCAL AIRLINES, 16 J. AIR L. & COMM. 162;
HOWARD, STATE TAXATION OF AIRPLANES IN INTERSTATE COMMERCE, 10 MO. L.
REV. 195; WELCH, THE TAXATION OF AIR CARRIERS, 11 LAW & CONTEMP. 
PROB.  584; GREEN, THE WAR AGAINST THE STATES IN AVIATION, 31 VA. L.
REV. 835; SUTHERLAND AND VINCIGUERRA, THE OCTROI AND THE AIRPLANE, 32
CORNELL L.Q. 161; SAXE, FEDERAL CONTROL OF THE STATE TAXATION OF
AIRLINES, 31 CORNELL L.Q. 228; TERNES, AVIATION TAXATION, 25 MICH.
S.B.J. 23; NOTE, 57 HARV. L. REV. 1097. 

FN17  SEE, E.G., INDEPENDENT WAREHOUSES V. SCHEELE, 331 U.S. 70, 72;
CARSON PETROLEUM CO. V. VIAL, 279 U.S. 95; CHAMPLAIN REALTY CO. V.
BRATTLEBORO, 260 U.S. 366; GENERAL OIL CO. V. CRAIN, 209 U.S. 211; COE
V. ERROL, 116 U.S. 517; BROWN V. HOUSTON, 114 U.S. 622; POWELL,
TAXATION OF THINGS IN TRANSIT, 7 VA. L. REV. 167, 245, 429, 497. 

FN18  SEE, E.G., JOHNSON OIL RFG.  CO. V. OKLAHOMA, 290 U.S. 158;
FRICK V. PENNSYLVANIA, 268 U.S. 473; UNION REFRIGERATOR TRANSIT CO. V.
KENTUCKY, 199 U.S. 194; DELAWARE, L.&W.R.  CO. V. PENNSYLVANIA, 198
U.S. 341; 1 BEALE, CONFLICT OF LAWS, 533 ET SEQ.; MOORE, TAXATION OF
MOVABLES AND THE FOURTEENTH AMENDMENT, 7 COL. L. REV. 309; PAGE,
JURISDICTION TO TAX TANGIBLE MOVABLES, 1945 WIS. L. REV. 125. 

WHILE THE COMMON-LAW CONCEPT OF SITUS WAS RECOGNIZED BY THIS COURT AS
A LIMITATION ON STATE POWER TO TAX TANGIBLE PERSONAL PROPERTY PRIOR TO
INVOCATION OF THE FOURTEENTH AMENDMENT AS A DEFENSE TO SUCH TAXATION,
THE BASES FOR SUCH DECISIONS VARIED AND NO CONSISTENT CONSTITUTIONAL
PRINCIPLE WAS APPLIED.  COMPARE THE FOLLOWING CASES:  HAYS V. PACIFIC
MAIL S.S. CO., 17 HOW.  596; MORGAN V. PARHAM, 16 WALL.  471; ST. LOUIS
V. THE FERRY CO., 11 WALL.  423; MARYE V. BALTIMORE & O.R. CO., 127
U.S. 117; PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141 U.S. 18; ADAMS
EXPRESS CO. V. OHIO STATE AUDITOR, 165 U.S. 194.  SEE ALSO HARTMAN,
STATE TAXATION OF INTERSTATE COMMERCE, 13, 73 ET SEQ. 

A COLLECTION OF THIS COURT'S DECISIONS DEALING WITH POWER TO TAX MAY
BE FOUND IN AN APPENDIX TO MILLER BROS. CO. V. MARYLAND, 347 U.S. 340,
NOTES 8-20. 

FN19  JOHNSON OIL RFG.  CO. V. OKLAHOMA, SUPRA, AT 162.  SEE ALSO
PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, SUPRA; OTT V. MISSISSIPPI
VALLEY BARGE LINE CO., SUPRA. 

FN20  SUBSEQUENT TO THE NORTHWEST AIRLINES CASE, MINNESOTA ENACTED A
TAX STATUTE INCORPORATING AN APPORTIONMENT FORMULA FOR ALLOCATION OF
THE VALUATION OF PROPERTY OF AIR CARRIERS TO MINNESOTA.  MINN. STAT.,
1945, SECS. 270.071-270.079, AS AMENDED, MINN.  LAWS 1953, C. 672,
SECS. 2-3. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON DISSENTS FOR THE REASONS STATED IN HIS CONCURRING
OPINION IN NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292, 302. 

MR. JUSTICE DOUGLAS, CONCURRING. 

BRANIFF AIRWAYS, IN CHALLENGING THE POWER OF NEBRASKA TO LAY THIS AD
VALOREM TAX, CLAIMS ONLY THAT ITS PLANES HAVE NO TAXABLE SITUS IN THE
STATE.  IT DOES NOT CLAIM THAT NO FRACTION OF THE AIRCRAFT, ON AN
APPORTIONED BASIS, IS PERMANENTLY IN THE STATE.  NOR DOES IT ATTACK
THIS APPORTIONMENT FORMULA. 

MY UNDERSTANDING OF OUR DECISIONS IS THAT THE POWER TO LAY AN AD
VALOREM TAX TURNS ON THE PERMANENCY OF THE PROPERTY IN THE STATE.  ALL
PROPERTY MAY BE THERE OR ONLY A FRACTION OF IT. PROPERTY IN TRANSIT,
WHETHER A PLANE DISCHARGING PASSENGERS OR AN AUTOMOBILE REFUELING, IS
NOT SUBJECT TO AN AD VALOREM TAX.  PROPERTY IN TRANSIT MAY MOVE SO
REGULARLY AND SO CONTINUOUSLY THAT PART OF IT IS ALWAYS IN THE STATE. 
THEN THE FRACTION, BUT NO MORE, MAY BE TAXED AD VALOREM. 

I MENTION THESE ELEMENTAL POINTS TO RESERVE EXPLICITLY THE VALIDITY
OF THE APPORTIONMENT FORMULA THAT SERVES AS THE BASIS OF THIS AD
VALOREM TAX.  THE FORMULA USED PRESENTS SUBSTANTIAL QUESTIONS.  WHAT
MIGHT BE AN ADEQUATE FORMULA FOR A GROSS RECEIPTS TAX MIGHT BE
INADEQUATE FOR AN AD VALOREM TAX.  MOREOVER, WHEN WE ARE FACED WITH A
DUE PROCESS QUESTION, WE HAVE A PROBLEM WE MAY NOT DELEGATE TO
CONGRESS. 

I DO NOT THINK THE COURT TAKES A POSITION CONTRARY TO WHAT I HAVE
SAID.  BUT THERE ARE PASSAGES IN THE OPINION WHICH BLUR THE
CONSTITUTIONAL ISSUES AS THEY ARE BLURRED AND CONFUSED IN THE
INTERESTING REPORT OF THE CIVIL AERONAUTICS BOARD, H.R. DOC. NO. 141,
79TH CONG., 1ST SESS., ENTITLED MULTIPLE TAXATION OF AIR COMMERCE. 
HENCE I HAVE JOINED IN THE JUDGMENT OF THE COURT BUT NOT IN THE
OPINION. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

ONE OF THE MOST TREACHEROUS TENDENCIES IN LEGAL REASONING IS THE
TRANSFER OF GENERALIZATIONS DEVELOPED FOR ONE SET OF SITUATIONS TO
SEEMINGLY ANALOGOUS, YET ESSENTIALLY VERY DIFFERENT, SITUATIONS.  THE
DOCTRINES EVOLVED IN ADJUSTING RIGHTS AS BETWEEN THE STATES TO TAX
PROPERTY BEARING SOME RELATION TO A NUMBER OF STATES, AND THE TAXING
POWER OF THE STATES AS AGAINST THE FREEDOM FROM STATE INTERFERENCES
SECURED BY THE COMMERCE CLAUSE, BEAR, OF COURSE, A PRACTICAL RELATION
TO WHAT IT IS THAT IS TAXED.  IT TOOK A CONSIDERABLE TIME TO MAKE THIS
ADJUSTMENT IN REGARD TO TAXATION OF RAILROAD PROPERTY AND RAILROAD
INCOME - TO DECIDE WHEN THE STATES ARE WHOLLY EXCLUDED FROM LEVYING
CERTAIN TAXES, WHEN AN AD VALOREM TAX MAY BE LEVIED ON RAILROAD
PROPERTY REASONABLY DEEMED TO BE PERMANENTLY IN A GIVEN STATE, AND ON
WHAT BASIS INCOME FROM INTERSTATE RAILROAD BUSINESS MAY FAIRLY BE
APPORTIONED AMONG DIFFERENT STATES.  EVEN AS TO RAILROADS, NICE
DISTINCTIONS HAD TO BE MADE AND THE MAKING OF THEM HAS NOT BEEN
CONCLUDED. 

IT STANDS TO REASON THAT THE DRASTIC DIFFERENCES BETWEEN SLOW-MOVING
TRAINS AND THE BIRD-LIKE FLIGHT OF AIRPLANES WOULD BE REFLECTED IN THE
LAW'S RESPONSE TO THE CLAIMS OF THE DIFFERENT STATES AND THE
LIMITATIONS OF THE COMMERCE CLAUSE UPON THOSE CLAIMS.  THE DIFFERENCES
IN RESULT AND THE CONFLICT EVEN AMONG THOSE WHO AGREED IN RESULT IN
NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292, DEMONSTRATE NOT THE
CONTRARINESS OR CAPRICE OF DIFFERENT MINDS BUT THE INHERENT
PERPLEXITIES OF THE LAW'S ADJUSTMENT TO SUCH NOVEL PROBLEMS AS THE
EXERCISE OF THE TAXING POWER OVER COMMERCIAL AVIATION IN A FEDERAL
SYSTEM.  THE PROBLEMS CANVASSED IN THAT CASE WERE UNPRECEDENTED, AND
PERHAPS THE MOST IMPORTANT THING THAT WAS THERE DECIDED WAS THE REFUSAL
OF THE COURT TO APPLY TO AIR TRANSPORTATION THE DOCTRINES THAT HAD BEEN
ENUNCIATED WITH REGARD TO LAND AND WATER TRANSPORTATION.    THE PLAIN
INTIMATION OF THE CASE - THAT THESE NOVEL PROBLEMS, AFFECTING THE
TAXING POWER OF THE STATES AND THE NATION, CALL FOR THE COMPREHENSIVE
POWERS OF LEGISLATION POSSESSED BY CONGRESS - FOUND RESPONSE IN A
RESOLUTION OF CONGRESS DIRECTING THE CIVIL AERONAUTICS BOARD TO DEVELOP
THE "MEANS FOR ELIMINATING AND AVOIDING, AS FAR AS PRACTICABLE,
MULTIPLE TAXATION OF PERSONS ENGAGED IN AIR COMMERCE  ...  WHICH HAS
THE EFFECT OF UNDULY BURDENING OR UNDULY IMPEDING THE DEVELOPMENT OF
AIR COMMERCE."  58 STAT. 723.  THE INQUIRY THUS SET AFOOT PRODUCED AN
ILLUMINATING REPORT.  SEE H.R. DOC. NO. 141, 79TH CONG., 1ST SESS.,
WHICH ANALYZED THE DIFFICULTIES AND ALSO MADE CONCRETE PROPOSALS. 
(FN1)  THE GIST OF THESE PROPOSALS WAS THAT CONGRESS MAKE AN
APPORTIONMENT OF TAXES AMONG THE STATES OVER WHICH AIR CARRIERS FLY,
BASED UPON RELEVANT FACTORS AND IN APPROPRIATE RATIOS.   THE BASIS OF
TAXATION BY NEBRASKA, HERE UNDER REVIEW, SUBSTANTIALLY REFLECTS THE
FACTORS WHICH THE CIVIL AERONAUTICS BOARD RECOMMENDED TO THE CONGRESS. 
IT IS ONE THING, HOWEVER, FOR THE INDIVIDUAL STATES TO DETERMINE WHAT
FACTORS SHOULD BE TAKEN INTO ACCOUNT AND HOW THEY SHOULD BE WEIGHED. 
IT IS QUITE ANOTHER FOR CONGRESS TO DEVISE, AS THE CIVIL AERONAUTICS
BOARD RECOMMENDED IT SHOULD, A SCHEME OF APPORTIONMENT BINDING ON ALL
THE STATES.  UNTIL THAT TIME, NEBRASKA MAY RELY ON ONE SCHEME OF
APPORTIONMENT; OTHER STATES ON OTHER SCHEMES.  AND EACH STATE MAY, FROM
TIME TO TIME, MODIFY THE RELEVANT FACTORS.  (FN2) 

THE EXERCISE OF THE TAXING POWER BY ONE OF THE STATES BY MEANS OF A
FORMULA, BASED ON SUCH CRITERIA AS TONNAGE, REVENUE, AND ARRIVALS AND
DEPARTURES, MAY, IN ISOLATION, IMPOSE NO UNFAIR BURDEN ON COMMERCE. 
AND THE ADOPTION BY ALL THE STATES OF SUCH A BASIS FOR TAXATION, WHICH
ONLY CONGRESSIONAL ACTION COULD ENSURE, WOULD NOT OFFEND THE COMMERCE
CLAUSE.  IT IS THE DIVERSE AND FLUCTUATING EXERCISE OF POWER BY THE
VARIOUS STATES, EVEN WHERE BASED ON CONCEDEDLY RELEVANT FACTORS, WHICH
IMPOSES AN UNDUE BURDEN ON INTERSTATE COMMERCE.  (FN3) 

THE COMPLEXITY OF THE PROPOSALS OF THE BOARD'S REPORT - THE ITEMS TO
BE TAKEN INTO ACCOUNT, THE BALANCE TO BE STRUCK AMONG THEM, THE PROBLEM
OF GIVING THE STATES THEIR DUE WITHOUT UNFAIRLY BURDENING AN INDUSTRY
OF VITAL NATIONAL IMPORT - INDICATES HOW ILL-ADAPTED THE JUDICIAL
PROCESS IS, AS AGAINST THE CHOICES OPEN TO CONGRESS, FOR DEALING WITH
THESE PROBLEMS AND HOW WARILY THIS COURT SHOULD MOVE WITHIN THE LIMITS
OF ITS OWN INESCAPABLE DUTY TO ACT.  THE PROTECTION OF INTERSTATE
COMMERCE AGAINST THE BURDEN OF MULTIPLE TAXATION OUGHT NOT TO BE LEFT
TO LITIGATION GROWING OUT OF CHANGES IN THE METHODS OF TAXATION. 

"THE IMMUNITIES IMPLICIT IN THE COMMERCE CLAUSE AND THE POTENTIAL
TAXING POWER OF A STATE CAN HARDLY BE MADE TO DEPEND, IN THE WORLD OF
PRACTICAL AFFAIRS, ON THE SHIFTING INCIDENCE OF THE VARYING TAX LAWS OF
THE VARIOUS STATES AT A PARTICULAR MOMENT.  COURTS ARE NOT POSSESSED OF
INSTRUMENTS OF DETERMINATION SO DELICATE AS TO ENABLE THEM TO WEIGH THE
VARIOUS FACTORS IN A COMPLICATED ECONOMIC SETTING WHICH, AS TO AN
ISOLATED APPLICATION OF A STATE TAX, MIGHT MITIGATE THE OBVIOUS BURDEN
GENERALLY CREATED BY A DIRECT TAX ON COMMERCE."  FREEMAN V. HEWIT, 329
U.S. 249, 256. 

THIS WOULD NOT BE THE ONLY INSTANCE IN WHICH A CONSTRUCTIVE
ADJUSTMENT OF COMPETING CONSIDERATIONS REQUIRES CONGRESSIONAL
LEGISLATION AND IS BEYOND THE SCOPE OF THE JUDICIAL PROCESS.  SEE,
DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249, 259; UNITED STATES V.
STANDARD OIL CO., 332 U.S. 301; HALCYON LINES V. HAENN SHIP CEILING &
REFITTING CORP., 342 U.S. 282; UNITED STATES V. GILMAN, 347 U.S. 507. 

IT WAS NOT TOO DIFFICULT IN NORTHWEST AIRLINES TO ALLOW MINNESOTA TO
LEVY A PERSONAL PROPERTY TAX ON THE ENTIRE FLEET OF AIRPLANES OWNED BY
A CORPORATION OF ITS CREATION, THE PRINCIPAL PLACE OF BUSINESS OF WHICH
WAS ALSO MINNESOTA.  THE STATE OF MINNESOTA, AS WE SAID, WAS THE ONLY
STATE THAT HAD SUCH A HOLD ON THE PLANES.  IN THE CASE BEFORE US,
NEBRASKA HAS NO SUCH RELATION WITH THE AIRPLANES ON WHICH IT SEEKS TO
IMPOSE AN AD VALOREM TAX. 

THIS COURT HAS HELD THAT A STATE MAY LEVY AN AD VALOREM TAX  ON THE
BASIS OF A SHOWING THAT THE TOTAL TIME SPENT IN A STATE BY DIFFERENT
UNITS OF A CARRIER'S PROPERTY IS SUCH THAT A CERTAIN PROPORTION OF THAT
PROPERTY MAY BE SAID TO HAVE A PERMANENT LOCATION IN THAT STATE.  SUCH
A DOCTRINE OF APPORTIONMENT, AS THE BASIS OF PROPERTY TAXATION, WAS
ADOPTED BY THIS COURT IN PULLMAN'S CAR CO. V. PENNSYLVANIA, 141 U.S.
18, WITH RELATION TO RAILROAD CARS; AND IN OTT V. MISSISSIPPI BARGE
LINE CO., 336 U.S. 169, WITH RELATION TO BARGES.  BUT BOATS AND
RAILROAD CARS WHICH SPEND HOURS AND DAYS AT A TIME IN A STATE HAVE A
CLOSENESS AND DURATION OF RELATIONSHIP TO THAT STATE OBVIOUSLY NOT TRUE
OF PLANES WHICH MAKE BRIEF STOPOVERS FOR A FEW MINUTES. 

THE APPEALING PHRASE THAT "INTERSTATE BUSINESS MUST PAY ITS WAY" CAN
BE INVOKED ONLY WHEN WE KNOW WHAT THE "WAY" IS FOR WHICH INTERSTATE
BUSINESS MUST PAY.  OF COURSE, THE APPELLANT MUST PAY FOR THE USE OF
THE AIRPORTS AND OTHER SERVICES IT ENJOYS IN NEBRASKA.  IT MUST PAY A
TAX ON ALL ITS PROPERTY PERMANENTLY LOCATED IN NEBRASKA.  LIKE EVERYONE
ELSE IT MUST PAY A GASOLINE TAX.  IN FACT IT PAYS APPROXIMATELY $22,000
A YEAR FOR THE USE OF THE AIRPORT, $14,000 A YEAR IN GASOLINE TAXES,
AND APPROPRIATE PROPERTY TAXES ON OFFICE EQUIPMENT, TRUCKS AND OTHER
ITEMS PERMANENTLY IN NEBRASKA. 

BUT ONLY THOSE WHO HAVE A SUFFICIENTLY SUBSTANTIAL RELATION TO
NEBRASKA THAT THEY MAY FAIRLY BE SAID TO PARTAKE OF THE BENEFITS,
THOUGH IMPALPABLE AND UNSPECIFIC, IT GIVES AS AN ORDERED SOCIETY, MAY
BE TAXED BECAUSE THEY PARTAKE OF THOSE BENEFITS.  AND EVEN THEN, OF
COURSE, AN UNDUE BURDEN MUST NOT BE CAST ON COMMERCE.  NOT UNLESS
NEBRASKA CAN SHOW THAT APPELLANT HAS AIRPLANES THAT HAVE A
SUBSTANTIALLY PERMAMENT PRESENCE IN NEBRASKA CAN NEBRASKA EXERT ITS
TAXING POWER ON THEIR PRESENCE.  I DO NOT BELIEVE THAT PLANES WHICH
PAUSE FOR A FEW MOMENTS CAN BE MADE THE BASIS FOR THE EXERCISE OF SUCH
POWER.  (FN4)  IF NEBRASKA CAN TAX WITHOUT SUCH A TIE, EVERY OTHER
STATE THROUGH WHICH THE PLANES FLY OR IN WHICH THEY ALIGHT FOR A FEW
MINUTES CAN TAX.  SURELY THIS IS AN OBVIOUS INROAD UPON THE COMMERCE
CLAUSE AND AS SUCH BARRED BY THE CONSTITUTION. 

IT CANNOT BE SAID THAT FOR AIRPLANES, FLYING REGULARLY SCHEDULED
FLIGHTS, TO ALIGHT, STOP OVER FOR A SHORT TIME AND THEN TAKE OFF IS SO
TENUOUSLY RELATED TO NEBRASKA THAT IT WOULD DENY DUE PROCESS FOR THAT
STATE TO SEIZE ON THESE SHORT STOPOVERS AS THE BASIS OF AN AD VALOREM
TAX.  BUT THE INCIDENCE OF A TAX MAY OFFEND THE COMMERCE CLAUSE, EVEN
THOUGH IT MAY SATISFY THE DUE PROCESS CLAUSE. 

I AM NOT UNAWARE THAT THERE IS AN AIR OF IMPRECISION ABOUT WHAT I
HAVE WRITTEN.  SUCH IS THE INTENTION.  UNTIL CONGRESS ACTS, THE VITAL
THING FOR THE COURT IN THIS NEW AND SUBTLE FIELD IS TO FOCUS ON THE
PROCESS OF INTERSTATE COMMERCE AND PROTECT IT FROM INROADS OF TAXATION
BY A STATE BEYOND "OPPORTUNITIES WHICH IT HAS GIVEN,  ...  PROTECTION
WHICH IT HAS AFFORDED,  ...  BENEFITS WHICH IT HAS CONFERRED BY THE
FACT OF BEING AN ORDERLY, CIVILIZED SOCIETY."  WISCONSIN V. J.C. PENNEY
CO., 311 U.S. 435, 444. 

FN1  THE PROPOSAL OF THIS REPORT - THAT THERE BE A UNIFORM ALLOCATION
FORMULA TO APPORTION TAXES AMONG THE STATES - WAS ADOPTED BY THE
COUNCIL OF STATE GOVERNMENTS.  SEE 20 STATE GOVERNMENT 95.  HOWEVER NO
FEDERAL LEGISLATION HAS YET RESULTED. 

FN2  IN ADDITION TO THE PROBLEM OF CONFLICT BETWEEN APPORTIONMENT
SCHEMES OF VARIOUS STATES, IT MUST BE BORNE IN MIND THAT THESE SCHEMES
CANNOT BE REGARDED AS ABSTRACT MATHEMATICAL FORMULAS, AND HENCE THEY
MUST BE CLOSELY SCRUTINIZED TO ENSURE THEIR FAIRNESS AS APPLIED TO A
GIVEN SITUATION.  SEE WALLACE V. HINES, 253 U.S. 66. 

FN3  LEST IT BE THOUGHT ONE FORMULA OF APPORTIONMENT IS CLEARLY THE
APPROPRIATE ONE, IT SHOULD BE NOTED THAT THE BOARD'S REPORT SETS FORTH
THREE FORMULAS PROPOSED BY RESPONSIBLE GROUPS, IN ADDITION TO THAT
RECOMMENDED BY THE BOARD.  AND WHILE NEBRASKA ADOPTED THE FACTORS
RECOMMENDED BY THE BOARD, IT DID NOT GIVE THEM THE SAME WEIGHT WHICH
THE BOARD'S PROPOSED FORMULA DID.  SEE H.R. DOC. NO. 141, 79TH CONG.,
1ST SESS. 58. 

FN4  WITH THE EXCEPTION OF ONE PLANE WHICH REMAINS IN NEBRASKA
OVERNIGHT, ALL OF THE COMPANY'S PLANES REMAIN IN NEBRASKA FOR PERIODS
OF BETWEEN FIVE AND TWENTY MINUTES EACH DAY.  CONSIDERING THIS BRIEF
TIME SPENT ON THE GROUND BY PLANES WHICH STOP IN TRANSIT, MORE THAN A
BARE ASSERTION THAT FLIGHT EQUIPMENT IS "PERMANENTLY" IN NEBRASKA IS
CALLED FOR TO ESTABLISH THE REQUISITE PERMANENCE FOR TAXING PURPOSES.