Dameron v. Brodhead/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
The power to tax is basic to the sovereignty of the states. Railroad Co. v. Peniston, 18 Wall. 5, 21 L.Ed. 787. There are few express restrictions of that power contained in the Constitution. See Art. I, § 10; Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80; Canton R. Co. v. Rogan, 340 U.S. 511, 71 S.Ct. 447, 95 L.Ed. 488. And the implied restrictions are not numerous. A privilege secured by the Constitution, such as the right to free speech or the right to intercourse among the states, may not be taxed by a state. Murdock v. Com. of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. A state may not tax that part of an interstate operation which has no relation to the opportunities or benefits which it confers. Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427. Nor may it discriminate in its tax scheme against interstate commerce or place an undue burden on it. J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365; Gwin, White & Prince, Inc., v. Henneford, 305 U.S. 434, 59 S.Ct. 325, 83 L.Ed. 272; Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760.
Closer in point are those instances where the state tax is levied on a federal instrumentality or on the means with which that instrumentality performs its functions. This exception is also represented by a rather narrow group of cases. See Pittman v. Home Owners' Loan Corp., 308 U.S. 21, 60 S.Ct. 15, 84 L.Ed. 11; Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 62 S.Ct. 1, 86 L.Ed. 65; Maricopa County v. Valley Nat. Bank, 318 U.S. 357, 63 S.Ct. 587, 87 L.Ed. 834. United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209. Cf. Board of Commissioners of Creek County v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094. Some of those immunities were made explicit by an act of Congress. Some were implied. But the implied immunity, which derives from a forbidden interference with a federal function, has a limited scope. It does not, for example, extend to salaries of federal functionaries, Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927, to the proceeds under a contractor's contract with the Federal Government, James v. Dravo Contracting Co., 302 U.S. 134, 149 et seq., 58 S.Ct. 208, 216, 82 L.Ed. 155, or to sales taxes on goods and supplies furnished contractors with the Federal Government. State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3. Cf. Buckstaff Bath House Co. v. McKinley, 308 U.S. 358, 60 S.Ct. 279, 84 L.Ed. 322. The power of Congress to withhold tax immunity is clear. But to date the power of Congress to create a tax immunity has been narrowly confined. It stems from 'the power to preserve and protect functions validly authorized'. See Carson v. Roane-Anderson Co., 342 U.S. 232, 234, 72 S.Ct. 257, 258, 96 L.Ed. 257. Up to the present the Court has never held that the private affairs of a federal employee can be made public affairs by Congress and immune from state taxation. The question was indeed reserved in Graves v. People of State of New York ex rel. O'Keefe, supra, 306 U.S. at pages 478-479, 59 S.Ct. at pages 597-598. As Mr. Justice Frankfurter stated in his concurring opinion, id., 306 U.S. at page 492, 59 S.Ct. at page 604, 'Whether Congress may, by express legislation, relieve its functionaries from their civic obligations to pay for the benefits of the State governments under which they live is matter for another day.'
The federal property used by the soldier, his activities as a federal employee, every phase of the functions he performs for the Army are immune from state taxation because his work is the work of the national government. But the wages that he makes, as Graves v. People of State of New York ex rel. O'Keefe, supra, held, can be taxed on a nondiscriminating basis by the states. So can his real and personal property. For in his private capacity a federal employee is no different from any other citizen. He receives protection and benefits from the society which the states create and maintain. Their police, their courts, their parks, their sanitary districts, their schools are all part of the civilization which he enjoys. If he gets tax immunity, it means that other citizens must pay his share.
The Court does not profess to go so far. It merely says that this case turns on changing military assignments and the burden placed on service men and women as a result of that feature of their work. But we also know that service men and women receive salaries much lower than those earned in civilian life. Can Congress remove those salaries from the reach of state taxing officials because they are burdensome to our military personnel? Certainly the burden, the harassment, the unpleasantness of those taxes would be as easy to establish as the burden of the present tax. And the relation of the burden to the federal service would be as close and intimate in one case as in the other.
The private affairs of our military personnel-the disposition of their salary, the furniture they purchase, the apartments they rent, the personal contracts that they make-by the very definition are not in the federal public domain. When Congress undertakes to protect them from state taxation or regulation, it is not acting to protect either a federal instrumentality or any function which a federal agency performs. Congress, therefore, acts without constitutional authority.
In sum, the power to tax is basic to the sovereignty of the states. The creation of islands of tax immunity should therefore be sparingly made. The tax immunity here recognized is not contained in the Constitution. It cannot be fairly implied because Denver's tax does not burden the performance of any federal function.