Braniff Airways v. Nebraska State Board of Equalization and Assessment/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. 977, 49 U.S.C. §§ 401-705, 49 U.S.C.A. §§ 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 §§ 77-1244 to 77-1250 of the state tax statute  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-Continent Airlines, Inc., and tried upon stipulated facts. Subsequent to filing, but before the decision, Mid-Continent 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',  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.'  A formula is prescribed for arriving at the proportion of a carrier's flight equipment to be allocated to the state. 
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.  Use of a uniform allocation formula to apportion air-carrier taxes among the states follows the recommendation of the Civil Aeronautics Board in its report to Congress.  The Nebraska statute provides for reports, levy, and rate of tax by state average. 
Required reports filed by Mid-Continent 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. 
Appellant argues that federal statutes governing air commerce enacted under the commerce power preempt the field of regulation of such air commerce and preclude this tax. Congress, by the Civil Aeronautics Act of 1938, 52 Stat. 977, 1028, § 1107(i)(3), 49 U.S.C. § 176(a), 49 U.S.C.A. § 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, § 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, § 3, 49 U.S.C. § 403, 49 U.S.C.A. § 403. 
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.  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.  The recommendation of the National Conference of Commissioners on Uniform State Laws to the states to enact this Act was withdrawn in 1943.  Where adopted, however, it continues in effect. See United States v. Praylou, 4 Cir., 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, 66 S.Ct. 1062, 1065, 90 L.Ed. 1206, 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 non-navigable 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 United States, regardless of the ownership 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, 6 L.Ed. 23, has comprehanded 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. City of Philadelphia, 3 Wall. 713, 729, 18 L.Ed. 96. Since, over streams, Congress acts by virtue of the commerce power, the sovereignty of the state is not impaired. State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534, 61 S.Ct. 1050, 1063, 85 L.Ed. 1487. The title to the beds and the banks are in the states and the riparian owners, subject to the federal power over navigation.  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.  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.  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. 
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,  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.  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 People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184, and cases cited; Wolfson and Kurland, Jurisdiction of the Supreme Court of the United States, 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.C.o., 17 How. 596, 15 L.Ed. 254; Morgan v. Parham, 16 Wall. 471, 21 L.Ed. 302; Southern Pacific Co. v. Commonwealth of Kentucky, 222 U.S. 63, 32 S.Ct. 13, 56 L.Ed. 96. 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 the 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, 69 S.Ct. 432, 93 L.Ed. 585; Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427. 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 page 174, 69 S.Ct. at page 434. In Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339, 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., 307 U.S. at page 364, 59 S.Ct. at page 904.
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 do 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.'  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 that 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 domicile', Standard Oil Co. v. Peck, supra, 342 U.S. at page 384, 72 S.Ct. at page 310, 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. State of Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283, 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.  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 has acquired a permanent location, i.e., a taxing situs, elsewhere.' 322 U.S. at page 295, 64 S.Ct. at page 952. That opinion recognized the 'doctrine of tax apportionment for instrumentalities engaged in interstate commerce', 322 U.S. at page 297, 64 S.Ct. at page 953, but held it inapplicable because no 'property (or a portion of fungible units) is permanently situated in a State other than the domiciliary State.' 322 U.S. at page 298, 64 S.Ct. at page 953. When Standard Oil Co. v. Peck, 342 U.S. 382, 384, 72 S.Ct. 309, 310, 96 L.Ed. 427, 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.
^1 Neb.Rev.Stat.1943, § 77-1244 et seq.
^2 Id., § 77-1244(3).
^3 Id., § 77-1245.
^4 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 this state scheduled by such air carrier during the preceding calendar year bears to the total aircraft arrivals and departures within and without this 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.'
^5 Resolutions, The Eighth General Assembly of the States, 20 State Government 95.
^6 Multiple Taxation of Air Carriers, 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.
^7 Neb.Rev.Stat.1943, §§ 77-1247, 77-1249.
^9 That space was defined in § 10 of the Air Commerce Act and freedom for its navigation declared. This was continued by the Civil Aeronautics Act, 49 U.S.C. § 180, 49 U.S.C.A. § 180, in 'airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority'.
^10 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.
^11 11 Uniform Laws Annotated 159:
§ 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.
§ 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.
§ 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.'
^12 See Conference Handbook, 1943, pp. 66-67. Efforts continue to draft an acceptable State Uniform Aeronautical Code. See Conference Handbook, 1948, p. 147.
^13 United States v. Chandler Dunbar Water Power Co., 229 U.S. 53, 60, 33 S.Ct. 667, 671, 57 L.Ed. 1063; United States v. Kansas City Life Ins. Co., 339 U.S. 799, 808, 70 S.Ct. 885, 890, 94 L.Ed. 1277; Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 246 et seq., 74 S.Ct. 487, 491.
^14 In its original petition appellant also alleged that the Nebraska statute is invalid under § 8, cl. 3, § 9, cl. 6, and § 10, cl. 3 of Art. I of the Constitution. While noting that such contentions were apparently 'abandoned in 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.
^16 See Pullman's Palace-Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613; Ford Motor Co. v. Beauchamp, 308 U.S. 331, 60 S.Ct. 273, 84 L.Ed. 304; Nashville, C. & St. L. Ry. Co. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254; Central Greyhound Lines of New York v. Mealey, 334 U.S. 653, 654, 662, 663, 68 S.Ct. 1260, 1261, 1265, 1266, 92 L.Ed. 1633; Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 174, 69 S.Ct. 432, 434, 93 L.Ed. 585; Canton R. Co. v. Rogan, 340 U.S. 511, 514-516, 71 S.Ct. 447, 448-449, 95 L.Ed. 488. Multiple Taxation of Air Commerce, H.R.Doc.No.141, 79th Cong., 1st Sess.; Arditto, State and Local Taxation of Scheduled Local Airlines, 16 Jour. of Air Law & Com. 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 State Taxation of Airlines, 31 Cornell L.Q. 228; Ternes, Aviation Taxation, 25 Mich. S.B.J. 23; Note, 57 Harv.L.Rev. 1097.
^17 See e.g., Independent Warehouses v. Scheele, 331 U.S. 70, 72, 67 S.Ct. 1062, 1064, 91 L.Ed. 1346; Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626; Champlain Realty Co. v. City of Brattleboro, 260 U.S. 366, 43 S.Ct. 146, 67 L.Ed. 309; General Oil Co. v. Crain, 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754; Coe v. Town of Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715; Brown v. Houston, 114 U.S. 622, 5 S.Ct. 1091, 29 L.Ed. 257; Powell, Taxation of Things in Transit, 7 Va.L.Rev. 167, 245, 429, 497.
^18 See e.g., Johnson Oil Refining Co. v. State of Oklahoma, 290 U.S. 158, 54 S.Ct. 152, 78 L.Ed. 238; Frick v. Commonwealth of Pennsylvania, 268 U.S. 473, 45 S.Ct. 603, 69 L.Ed. 1058; Union Refrigerator Transit Co. v. Commonwealth of Kentucky, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150; Delaware, L. & W.R. Co. v. Commonwealth of Pennsylvania, 198 U.S. 341, 25 S.Ct. 669, 49 L.Ed. 1077; 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 personalty 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.C.o., 17 How. 596, 15 L.Ed. 254; Morgan v. Parham, 16 Wall. 471, 21 L.Ed. 302; City of St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L.Ed. 192; Marye v. Baltimore & O.R. Co., 127 U.S. 117, 8 S.Ct. 1037, 32 L.Ed. 94; Pullman's Palace-Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613; Adams Express Co. v. Ohio State Auditor, 165 U.S. 194, 17 S.Ct. 305, 41 L.Ed. 683. 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. State of Maryland, 347 U.S. 340, notes 8-20, 74 S.Ct. 535, 540-546.
^19 Johnson Oil Refining Co. v. State of Oklahoma, supra, 290 U.S. at page 162, 54 S.Ct. at page 154, 78 L.Ed. 238. See also Pullman's Palace Car Co. v. Commonwealth of Pennsylvania, supra; Ott v. Mississippi Valley Barge Line Co., supra.
^20 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, §§ 270.071-270.079, as amended, Minn.Laws 1953, c. 672, §§ 2-3, M.S.A. §§ 270.071-270.079.