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District Court of Appeal, Second District, Division 2, California.

SCANDINAVIAN AIRLINES SYSTEM, INC., a New York corporation, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES, a political subdivision of the State of California, and City of Los Angeles, a municipal corporation, Defendants and Appellants. *

Civ. 24265.

Decided: July 22, 1960

Harold W. Kennedy, County Counsel, Alfred Charles De. Flon, Deputy County Counsel, Los Angeles, for appellants. Musick, Peeler & Garrett, Roderick M. Hills, Richard D. Esbenshade, Los Angeles, for respondent.

Plaintiff brought this suit to recover property taxes levied by both the City and County of Los Angeles against certain of plaintiff's planes employed in foreign commerce, which taxes had been paid by plaintiff under protest. Thirteen different aircraft belonging to plaintiff (SAS) were present in this county at one time or another during the period here in issue. The 13 aircraft made a total of 104 flights per year, or an average of 8 flights per plane. Each of the aircraft was registered and based in one of the three Scandinavian countries, Denmark, Norway or Sweden. As of the first Monday of March, 1955, the SAS service consisted of two flights per week into Los Angeles. Each week one plane would arrive in Los Angeles in the early afternoon of Tuesday and depart a day and one-half later on early Thursday morning, and another plane would arrive during early Saturday afternoon and would depart early on the following Monday morning. The only point in the United States with which said planes had physical contact was International Airport in Los Angeles.

Los Angeles City and County, as of the first Monday of March, 1955, assessed and levied a personal property tax upon these planes on an apportionment basis; that is, only a portion of the full value of the subject planes regularly entering Los Angeles County constituted the basis for the assessed valuation. That fraction of the total value of the aircraft equal to the hours spent in Los Angeles County as compared with the total hours in the year, was the basis upon which the tax was levied. Each of the aircraft is taxed in the country in which it was registered on an unapportioned basis.

Based on these facts, the trial court awarded judgment of SAS and the defendants County and City of Los Angeles have appealed.

SAS advances three grounds upon which it argues the judgment must be sustained: (1) that the tax violates due process; (2) that the tax is an unconstitutional regulation of foreign commerce; and (3) that there is no statutory authority for the tax.

We first consider the validity of the challenged tax with relation to the due process clause of the 14th Amendment to the Constitution of the United States. In this connection, the due process inquiry is whether the property taxed has acquired a situs in the taxing jurisdiction through having had sufficient contact with the jurisdiction. A further criterion is that the ‘* * * tax in practical operation had relation to opportunities, benefits, or protection conferred or afforded by the taxing State.’ Ott v. Mississippi Valley Barge Line, 336 U.S. 169, 69 S.Ct. 432, 434, 93 L.Ed. 585. See also Braniff Airways, Inc. v. Nebraska State Bd. of Equalization, 347 U.S. 590, 600, 74 S.Ct. 757, 98 L.Ed. 967; Slick Airways, Inc. v. County of Los Angeles, 140 Cal.App.2d 311, 314, 295 P.2d 46; and, Flying Tiger Line, Inc. v. County of Los Angeles, 51 Cal.2d 314, 319–320, 333 P.2d 323. In the Braniff case, supra, the Supreme Court said: ‘* * * [T]he bare question whether an instrumentality of commerce has a tax situs in a state for the purpose of subjection to a property tax is one of due process.’ 347 U.S. at pages 598–599, 74 S.Ct. at page 762.

SAS contends that their aircraft have acquired no tax situs in this state. Reliance is placed on the old ‘home port’ doctrine cases to support this proposition, principally Hays v. Pacific Mail S. S. Co., 17 How. 596, 58 U.S. 596, 15 L.Ed. 254; Old Dominion S. S. Co. v. Commonwealth of Virginia, 198 U.S. 299, 25 S.Ct. 686, 49 L.Ed. 1059; southern Pac. Co. v. Commonwealth of Kentucky, 222 U.S. 63, 32 S.Ct. 13, 56 L.Ed. 96; and Morgan v. Parham, 16 Wall. 471, 83 U.S. 471, 21 L.Ed. 302. These cases dealt with the tax situs of ocean going vessels engaged in commerce between states. The Hays case held a vessel taxable only by New York, its state of registry. This rule found support by way of dicta in the Old Dominion case, but the court nevertheless allowed Virginia to tax vessels which had a permanent situs in the state even though registered in another state. The Southern Pac. Co. and Morgan cases allowed taxation only by the state of domicile of the owner on the rationale that no permanent situs had been developed in any other state and thus the vessels would escape taxation entirely unless taxed by the domiciliary state. This rule was also applied to vessels moving solely in inland waters. City of St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 78 U.S. 423, 20 L.Ed. 192; Ayer & Lord Tie Co. v. Commonwealth of Kentucky, 202 U.S. 409, 26 S.Ct. 679, 50 L.Ed. 1082.

Clearly, the early rule was that permanent presence in the taxing jurisdiction was essential to the dovelopment of a tax situs in a jurisdiction other than the state of domicile or registry, in so far as vessels engaged in interestate commerce were concerned. However, contemporaneously, a different rule developed with regard to the taxation of railroad rolling stock. Pullman's Palace-Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613; Union Refrigerator Transit Co. v. Commonwealth of Kentucky, 199 U.S. 194, 26 S.Ct. 36 50 L.Ed. 150. In these cases it was held that rolling stock engaged continuously in commerce between states could acquire a taxable situs in more than one state and that the taxable value of the property must be apportioned among the states in which the property had thus acquired a situs.

This rule of apportionment was later expanded to include vessles employed on inland waters in interstate commerce. In Ott v. Mississippi Valley Barge Line, supra, the court allowed Louisiana to levy an apportioned tax on tugs and barges which were domiciled in Ohio. The taxable situs in Louisiana developed through regular and substantial employment of the vessels in the waters of that state. Later, in Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, 310, 96 L.Ed. 427, the Supreme Court adopted the rule that a domiciliary state could not tax the full value of property which was employed in interstate commerce and which was not physically present in the state of domicile during the entire tax year. the court said: ‘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.’ Thus, the early cases involving vessels engaged in interstate commerce upon inland waters and allowing taxation only by the state of domicile have been, in effect, overruled.

Two Supreme Court cases in the filed of air transportation have resulted in the application of the apportionment doctrine to interstate aircraft traffic. In Northwest Airlines, Inc. v. State of Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283, the court allowed an unapportioned tax on aircraft by the state of domicile even though the plans had substantial contacts with other states. However, in Braniff Airways, Inc. v. Nebraska State Bd. of Equalization, supra, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967, an apportioned tax levied by Nebraska, a non-domiciliary state, on aircraft flown in interstate commerce was upheld. The Northwest case was distinguished on the ground that no proof of taxable situs elsewhere had been made by the airline in that case. The court said at page 600 of 347 U.S., at page 763 of 74 S.Ct.: ‘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.’ The test of taxable situs, said the court, is the ‘sufficiency of contact’ of the nondomiciliary state with property it seeks to tax. The ‘sufficiency of contact’ criterion was held to be satisfied by the fact that Braniff aircraft made an average of 18 stops per day in Nebraska. The court concluded: “The basis of the jurisdiction [to tax] is the habitual employment of the property within the state.” 347 U.S. at page 600, 74 S.Ct. at page 764.

The application of the Braniff doctrine of ‘sufficiency of contact’ to establish situs has been applied and expanded by the courts of this state. In Flying Tiger Line, Inc. v. County of Los Angeles, 51 Cal.2d 314, 333 P.2d 323, the taxpayer's aircraft operated in interstate and foreign commerce. Assuming that the planes had acquired a taxable situs elsewhere, merely from the fact that they were flown in interstate and in foreign commerce, after a review of the authorities, the Court held: ‘A taxpayer resisting an ad valorem tax on personal property based on an unapportioned assessment does not have the burden of showing that other states have actually imposed a tax on such property. He is entitled to an assessment on an apportionment basis if the record shows that he was, during a tax year, receiving substantial benefits and protection in more than one state.’ 51 Cal.2d at page 319, 333 P.2d at page 326. (Emphasis added.)

Thus, the modern situs rule, as approved by the courts of this state, is that substantial benefits and protection have been accorded the property by the taxing state. The same result is reached by requiring a ‘sufficiency of contact’ in line with the Braniff case since contact with a state results in the conferring of benefits and protection by the state contacted.

It is thus too clear for argument that the aircraft of SAS have established a taxable situs in the County of Los Angeles. It would seem therefore, that due process has been satisfied with respect to the tax in question. Yet this is not the whole answer. SAS argues that the imposition of any tax, whether fairly apportioned or not, is in reality a double tax and thus a denial of due process. Although the courts have consistently purported to limit the due process consideration to the ‘situs' and ‘fair apportionment based on benefits and protection’ issues, there is language in both the Standard Oil Co. v. Peck and Braniff Airways cases which indicates that double taxation would constitute a denial of due process as well as an undue burden on commerce.1

We may not, however, consider the problem of multiple taxation with respect to any possible violation of due process in the taxation of property used in foreign commerce. It has long been settled in this state that the due process requirements of the 14th Amendment (with the exception of situs or power to tax) do not apply to taxes levied on the property of a resident of a foreign country. On this point, Estate of McCreery, 220 Cal. 26, 29 P.2d 186, 187, is apposite. In that case, McCreery had died testate, a resident and citizen of Great Britain. He died possessed of stock certificates representing shares in a California corporation, all of the shares being present in the State of California on the date of his death. Inheritance tax based on the value of these shares was assessed by court order, which order was later reversed by the same court. On appeal by the controller, the Supreme Court posed the following question to respective counsel: ‘Does the due process clause of the Fourteenth Amendment to the Constitution of the United States prevent the state of California from collecting an inheritance tax on the transfer of stock in a California corporation in the estate of a non-resident of the United States, the certificates representing the stock being physically in the state of California?’

In answer to this question the court held that the 14th Amendment did not apply as between a state and a non-resident of the United States. The only requisite to the power to tax was the ‘actual or constructive situs' within the jurisdiction of the state. The possibility of taxation by Great Britain of the same property was thus no bar to taxation by California, even though, as between this state and residents of other states, the tax would be unconstitutional under the due process clause.

The court relied principally upon the case of Burnet v. Brooks, 288 U.S. 378, 53 S.Ct. 457, 77 L.Ed. 844, wherein the decedent was a British citizen domiciled in Cuba and died owning bonds and stocks, the physical evidences of which were all situated in New York State. The Supreme Court allowed a Federal estate tax on the property located in New York and held that the imposition of the tax was not precluded by the due process provisions of the 5th Amendment to the Constitution of the United States. The court in McCreery reasoned that likewise, the due process requirements of the 14th Amendment would not bar state taxation under similar circumstances. In accord is Estate of Lloyd, 185 Wash. 61, 52 P.2d 1269.

Therefore, since the aircraft of SAS acquired a taxable situs in California, thereby establishing, for due process purposes, the power of California to levy a tax, the fact the aircraft are subjected to a double tax becomes immaterial as a due process concept. The naked power exercised by the County is not disturbed by a necessity to avoid multiple taxation, in so far as it may constitute a denial of ude process, since the owners are non-residents of the United States and are not protected by the 14th Amendment.

We turn now to a consideration of the subject tax in the light of the prohibitions of the commerce clause of the Federal Constitution. The cases are in accord that (at least in interstate taxation) the threat of double taxation of the instrumentalities of commerce and the undue burden thereby imposed, constitutes the relevant inquiry under the commerce clause. Braniff Airways, Inc. v. Nebraska State Bd. of Equalization, 347 U.S. 590, 598, 74 S.Ct. 757, 98 L.Ed. 967. SAS advances a further argument, however, contending that the Federal government has retained, under the commerce clause, exclusive jurisdiction and power in the field of taxation of foreign-flag carriers. In the absence of congressional action empowering the states to levy such taxes, the states may not act, they argue. Relying on the time-honored rule of Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 53 U.S. 299, 13 L.Ed. 996, that ‘[w]hatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress' (53 U.S. at page 319), SAS contends that the taxation of foreign commerce is by ‘nature national’ admitting ‘only of one uniform system, or plan of regulation’ and thus requires ‘exclusive legislation by Congress.’

The commerce clause of the Constitution of the United States (Art. I, Sec. 8, Cl. 3) provides that: ‘The Congress shall have Power * * * to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ SAS points out, and correctly so, that even though interstate and foreign commerce are mentioned in the same clause, and in the same breath, yet the courts have recognized essential and basic differences between the two concepts and have ascribed a larger share of exclusive jurisdiction to the Congress in the case of foreign as opposed to interstate commerce. See, e. g., Bowman v. Chicago & N. W. Ry., 125 U.S. 465, 482–483, 8 S.Ct. 689, 31 L.Ed. 700; Brolan v. United States, 236 U.S. 216, 222, 35 S.Ct. 285, 59 L.Ed. 544; Gibbons v. Ogden, 9 Wheat. 1, 228, 229, 22 U.S. 1, 228, 229, 6 L.Ed 23, Mr. Justice Johnson concurring; Board of Trustees of Univ. of Ill. v. United States, 289 U.S. 48, 56–57, 53 S.Ct. 509, 77 L.Ed. 1025.2 These cases deny the power of a state to regulate foreign commerce or to have official relations with foreign governments. However, nowhere in the cases is these a prohibition of the taxation of the instrumentalities of foreign commerce by a state because of any exclusive power to levy such a tax residing in Congress. On the contrary, three decided cases have expressly recognized that power exists in the serveral states to tax such instrumentalities. In Old Dominion S. S. Co. v. Commonwealth of Virginia, supra, 198 U.S. 299, at page 305, 25 S.Ct. 686, at page 688, the Court held: ‘It is equally well settled that there is nothing in the Constitution or laws of the United States which prevents a state from taxing personal property, employed in interstate or foreign commerce, like other personal property within its jurisdiction.’ (Emphasis added.) See, e. g., Western Union Telegraph Co. v. Taggart, 163 U.S. 1, 14, 16 S.Ct. 1054, 41 L.Ed. 49. The Old Dominion case was quoted with approval by the Washington Supreme Court in Canadian Pacific Ry. Co. v. King County, 90 Wash. 38, 155 P. 416, wherein the court held valid property taxes levied by King County of the State of Washington on rolling stock owned by the Canadian Pacific Railway Company, a foreign corporation and engaged in foreign commerce. It seems clear, therefore, that the tax levied in this State was not prohibited by the commerce clause because of any actual exclusive control over the taxing power residing in the Congress.

There remains for our consideration the question as to whether or not the tax in question violates the commerce clause by imposing a multiple tax on the instrumentalities of foreign commerce. The Los Angeles County tax does in fact constitute a multiple tax since the aircraft are admittedly taxed at the full value in their home countries. The specific problem before us is to determine whether the local tax constitutes a regulation of foreign commerce by imposing an undue burden thereon.

A direct burden by taxation laid by a state upon the transactions of foreign commerce is in effect a regulation of commerce. Crew Levick Co. v. Commonwealth of Pennsylvania, 245 U.S. 292, 297, 38 S.Ct. 126, 62 L.Ed. 295. Thus, when a court speaks of burdens on commerce, it also speaks of an unconstitutional regulation of commerce. The test of such ‘regulation’ was announced in Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 15 S.Ct. 268, 269, 360, 39 L.Ed. 311. Mr. Chief Justice Fuller, speaking for the Court, said: ‘It is settled that where, by way of duties laid on the transportation of the subjects of interstate commerce, or on the receipts derived therefrom, or on the occupation or business of carrying it on, a tax is levied by a state on interstate commerce, such taxation amounts to a regulation of such commerce and cannot be sustained.’ (Emphasis added.) It should be clear, that the above rule does not include taxes levied on the instrumentalities of commerce. Nor is it material that the rule as announced was specifically directed toward interstate commerce. In a case involving taxation of the gross volume of business of an exporter, the Supreme Court considered the tax as a burden on foreign commerce and thus as an unconstitutional regulation. Crew Levick Co. v. Commonwealth of Pennsylvania, supra. In reaching this result, the Court applied the principles enunciated in the interstate cases, holding at page 296 of 245 U.S., at page 128 of 38 S.Ct.: ‘Most of these cases related to interstate commerce, but there is no difference between this and foreign commerce, so far as the present question is concerned.’ See, e. g., Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80. The Court then distinguished the tax before it from a ‘property tax’, implying that the latter would not constitute a regulation of commerce. It thus seems clear that a tax on property engaged in foreign commerce is not, per se, a regulation or burden on such commerce.

But this is, of course, not the complete answer to the problem posed by this case. Double taxation has been held to constitute an undue burden on interstate commerce. J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 311, 58 S.Ct. 913, 82 L.Ed. 1365. In fact the whole apportionment doctrine discussed supra seems designed to avoid such a result. Braniff Airways, Inc. v. Nebraska State Bd. of Equalization, supra, 347 U.S. 590, 601, 74 S.Ct. 757, 98 L.Ed. 967; Flying Tiger Line, Inc. v. County of Los Angeles, supra, 51 Cal.2d 314, 333 P.2d 323. Yet apportioned taxes based upon ‘sufficiency of contact’ and fairly relating to ‘benefits and protections conferred’ have been held valid even though such taxes were in fact double taxation of the chattels involved. Ott v. Mississippi Valley Barge Line Co., supra, 336 U.S. 169, 69 S.ct. 432, 93 L.Ed. 585; Standard Oil Co. v. Peck, supra, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427. The rationale of these cases is not based on the necessity to avoid double taxation but, rather, on the recognition of the non-domiciliary state's right to fair compensation for the benefits and protections afforded the taxpayer. The power to tax flows from the presence of the property in the taxing state and the concomitant privileges enjoyed by its owners while thus employed within the jurisdiction. It is the unfairness of the original ‘domicile’ or ‘permanent presence’ doctrines as applied to transient carriers which prompted the present rule of apportionment. Surely, the older rules insured that no double tax would result, for only one jurisdiction could tax. Just as surely, the apportionment theory leads to the distinct possibility of double taxation through the utilization of different apportionment formulae. Thus, the onus of double taxation falls, not on the jurisdiction levying a fairly apportioned tax, but upon the domiciliary jurisdiction which refuses to apportion its taxes on the basis of benefits and protections actually conferred.3 The conclusion appears to be clear that any burdens imposed upon SAS in its foreign commerce operations by the incidence of double taxation of its aircraft, flows from the full ad valorem tax assessed by the countries of registry which does not correspond to the benefits and protections afforded such aircraft in those countries. Since the root of the evil is to be found in foreign soil, the sovereign power of this state is not poisoned by the fruit.

We agree with our Supreme Court in Estate of McCreery, supra, that ‘* * * it seems peculiarly proper at this juncture to follow our own decisions until the federal courts rule that such taxation is without the power of the state.’ 220 Cal. at page 31, 29 P.2d 188.

All of the constitutionally essential requisites are present in this tax. The property taxed was physically present in this state on a regular schedule creating a ‘sufficiency of contact’ which establishes situs. The tax as levied is fairly apportioned to correspond to the benefits and protections afforded. The county has the power to tax the instrumentalities of foreign commerce, and the tax as imposed does not violate due process nor constitute an undue burden on foreign commerce. Thus, the language of Mr. Justice Stone, dissenting in Northwest Airlines, Inc. v. State of Minnesota, 322 U.S. 292, at page 326, 64 S.Ct. 950, at page 967, 88 L.Ed. 1283 seems particularly pertinent:4 ‘The extent to which one state may constitutionally tax the instruments of interstate transportation does not depend on what other states may happen to do, but on what the taxing state has constitutional power to do.’ See also Standard Oil v. Peck, supra, and Central Greyhound Lines of N. Y., Inc. v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633. Likewise, the power of a state to tax the instrumentalities of foreign commerce should not depend upon what the home country has chosen to do, but upon what the state, under the Constitution of the United States, and its own laws has the power to do.

SAS makes one further contention with relation to the commerce clause; i. e., that the Federal government has so completely occupied the field of regulation of foreign air traffic that the present tax conflicts with such Federal regulation and is therefore void under the supremacy clause of the United States Constitution. In this connection, suffice it to say that we have examined the applicable statutes, rules, treaties, regulations, protocols and executive agreements which constitute the Federal governments controls over foreign commerce and in particular, over SAS, and that we find no mention of tax on personal property nor evidence of any intention of the Federal government to regulate in the area of such taxation. There simply is no Federal occupancy of this field. The argument is therefore lacking in foundation.

The final argument made by SAS is that there is no statutory authority in this State providing for taxation of the instrumentalities of foreign commerce. However, California Constitution, Article XIII, Sec. 1 provides: ‘All property in the State * * * not exempt under the laws of the United States shall be taxed in proportion to its value * * *.’ Further, Article XIII, Sec. 10, provides that: ‘All property * * * shall be assessed in the county, city and county, town or township, or district in which it is situated.’ (See also Sections 201 and 405 of the Revenue and Taxation Code.) Thus, the Constitution of this State requires that all property not exempt be taxed and the tax to be levied in the jurisdiction wherein the property acquires a situs. The legislature provides the machinery for taxation or may, by statute, exempt certain property (Art. XIII, Sec. 14, par. 4, California Constitution), but the power to tax all property resides in each jurisdiction by virtue of the Constitution. No statutory authority is therefore necessary to establish this power. See, e. g., Crocker v. Scott, 149 Cal. 575, 584, 87 P. 102; McHenry v. Downer, 116 Cal.20, 24, 47 P. 779, 45 L.R.A. 737. Moreover, the provisions of the Revenue & Taxation Code, particularly §§ 201, 404 and 405, provide adequate machinery for the exercise of the Constitutional power that has been granted.

Furthermore, in the Slick and Flying Tiger cases, supra, apportioned taxation (even in the absence of specific enabling legislation) was applied by the courts as the correct rule of assessement for property engaged in interstate and foreign commerce. The value of the aircraft for tax purposes is thus determined on the basis of the actual physical presence of the aircraft in the County. This is the rule announced in the Flying Tiger case and we see no valid reason to question the County's power to levy an apportioned tax in the face of Supreme Court's assumption that such power exists.

The tax is not invalid under the Constitution of the United States or this State, nor does the City or County lack legal authority to levy it. The judgment must therefore be reversed.

The judgment is reversed with directions to enter judgment for the defendants.


1.  In the Standard Oil Co. v. Peck case, the court stated that in the case of ‘multiple taxation of interstate operations * * * [such] tax would have no relation to the opportunities, benefits, or protection which the taxing state gives those operations.’ 342 U.S. at page 385, 72 S.Ct. at page 310. Furthermore, the court in Braniff purported to decide the constitutionality of the tax on due process grounds. Yet the majority said, quoting Curry v. McCanless, 307 U.S. 357, 364, 59 S.Ct. 900, 83 L.Ed. 1339: “When we speak of the jurisdiction to tax * * * 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 taz, are so narrowly restricted to the state in whose territory the physical property is located as to set practical limits to the taxation of others.” 347 U.S. 600, 74 S.Ct. 763. (Emphasis added.) While the ‘benefit and protection of laws' is a due process concept, it would seem that the setting of ‘practical limits to taxation by others' involved a commerce clause concept of prevention of undue burdens on commerce. It thus appears that multiple taxation as a constitutional concept overlaps both the due process and commerce fields of inquiry.

2.  The Supreme Court of the United States has consistently held that states may not take action which affects the relations of this country with foreign governments. In Bowman v. Chicago & N. W. Ry., 125 U.S. 465, at pages 482–483, 8 S. Ct. 689, at page 697 the Court said: ‘Laws which concern the exterior relations of the United States with other nations and governments are general in their nature, and should proceed exclusively from the legislative authority of the nation. The organization of our state and federal system of government is such that the people of the several states can have no relations with foreign powers in respect to commerce, or any other subject, except through the government of the United States, and its laws and treaties * * *. The same necessity perhaps does not exist equally in reference to commerce among the states.’ (Emphasis added.) In Brolan v. United States, 236 U.S. 216, 35 S.Ct. 285, the Court reaffirmed the sweeping distinction between the power of Congress over foreign commerce as opposed to interstate commerce. At page 222 of 236 U.S., at page 287 of 35 S.Ct., the Court stated: ‘* * * but the very postulate upon which the action of Congress to absolutely prohibit foreign importation * * * rests in the broad distinction which exists between the two powers * * *.’ Mr. Chief Justice Hughes speaking for the Court in Board of Trustees of Univ. of Ill. v. United States, 289 U.S. 48, at pages 56–57, 53 S.Ct. 509 said: ‘It is an essential attribute of the power [over foreign commerce] that it is exclusive and plenary. As an exclusive power, its exercise may not be limited, qualified, or impeded to any extent by state action * * *. The principle of duality in our system of government does not touch the authority of the Congress in the regulation of foreign commerce.’ Perhaps the most cogent discussion of the essential distinction between Congress' power over foreign as opposed to interstate commerce is to be found in the concurring opinion of Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 1, 6 L.Ed. 23, appearing at pages 228–229. He said: ‘Power to regulate foreign commerce is given in the same words, and in the same breath * * * with that over the commerce of the state * * *. But the power to regulate foreign commerce is necessarily exclusive. The states are unknown to foreign nations; their sovereignty exists only with relation to each other and the general government. Whatever regulations foreign commerce should be subjected to in the ports of the Union, the general government would be held as responsible for them; and all other regulations, but those which Congress had imposed, would be regarded by foreign nations as trespasses and violations of national faith and comity.’ (Emphasis added.) See also Buttfield v. Stranahan, 192 U.S. 470, 492, 24 S.Ct. 349, 48 L.Ed. 525; Chy Lung v. Freeman, 92 U.S. 275, 279, 280, 23 L.Ed. 550, and Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 434, 52 S.Ct. 607, 76 L.Ed. 1204.

3.  Apportioned taxation by a non-domiciliary state was allowed in Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585 and Pullman's Palace-Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613. When the burden on taxpayers caused by unapportioned taxes in domiciliary states has been before the courts, those jurisdictions have been required to apportion their taxes. See, e.g., Union Refrigerator Transit Co. v. Commonwealth of Kentucky, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150; Flying Tiger Line, Inc. v. County of L. A., 51 Cal.2d 314, 333 P. 323.

4.  This language takes on greater significance because of the Supreme Court's decision in the Braniff Airways case which strongly modified the holding in the Northwest case and because of the California rule as announced in the Flying Tiger and Slick cases, approving and following the Braniff rule. The minority in Northwest enunciated what has become the majority rule today.

FOX, Presiding Justice.

ASHBURN, J., and RICHARDS, J. pro tem., concur.

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