1. Where an application for an interlocutory injunction under
Jud.Code § 266 has been denied by a court of three judges and the
bill is dismissed by that court on final hearing, the case is
reviewable by direct appeal to this Court. P.
276 U. S.
249.
2. A state tax of one cent for each mile of highway traversed in
the state by any motor bus used in interstate commerce, the
proceeds of which are devoted to maintenance of public highways of
the state, is not repugnant to the Commerce Clause of the
Constitution when not unreasonable in amount or discriminatory
against interstate commerce. P.
276 U. S.
249.
3. Such a charge, when reasonable in itself, is not to be deemed
unreasonable because other taxes are imposed by the state on the
same taxpayer for the use of its highways, if he fails to show that
the aggregate charge is unreasonable. P.
276 U. S.
251.
4. In addition to other taxes common to both classes, the owners
of motor buses operated in interstate commerce pay in Connecticut,
a tax of one cent for each mile of state highway traversed by each
vehicle, but the owners of such vehicles engaged in intrastate
commerce pay instead a tax on their gross receipts, the proceeds of
both taxes being devoted to maintenance of highways.
Held
that a party complaining of the mileage tax does not establish
discrimination against interstate commerce by the mere difference
of the
Page 276 U. S. 246
taxes, but must prove that, in actual practice, the tax
complained of fall with disproportionate economic weight upon him.
P.
276 U. S.
251.
5. Where relief from a state tax is sought upon the ground that
it is unconstitutional, and it is held valid, it may be assumed
that the complaining party will pay it, and.the constitutional
validity of the consequences imposed by the statute in case of
nonpayment need not be considered. P.
276 U. S. 252.
19 F.2d 256 affirmed.
Appeal from a final decree of the district court of three judges
dismissing a bill to restrain tax officials of Connecticut from
levying a tax on the appellant based on its use of the state
highways for interstate transportation of passengers in motor
buses.
Page 276 U. S. 249
MR. JUSTICE STONE delivered the opinion of the Court.
The appellant, complainant below, is a Connecticut corporation
engaged in the transportation of passengers in motor busses,
exclusively in interstate commerce, between Connecticut and points
in Massachusetts and Rhode Island. The present suit was brought in
the district court for Connecticut to restrain appellees, tax
officials of the state, from levying a tax on appellant under a
Connecticut statute, Pub.Acts Conn.1925, c. 254, on the ground that
the tax is a unconstitutional burden on interstate commerce.
Application to a court of three judges for an interlocutory
injunction under Judicial Code, § 266 was denied, 19 F.2d 256, and,
on final hearing, the court dismissed the bill on the merits. The
application for the preliminary injunction having been pressed to a
determination before the court of three judges, the case is
properly here on direct appeal from the final decree of that court.
Judicial Code, §§ 238, 266;
Smith v. Wilson, 273 U.
S. 388;
Clark v. Poor, 274 U.
S. 554.
The appellant has already complied with the general statutes of
Connecticut requiring the registration of motor vehicles. Part II,
§ 1, of the act in question imposes a tax of one cent for each mile
of highway traversed by any motor vehicle used in interstate
commerce "as an excise on the use of such highway." By Part II, §
4, the proceeds of the tax are to be applied to the maintenance of
public highways in the state.
Appellant objects to the tax as an infringement of the paramount
power of Congress to regulate interstate commerce, or at least as a
discrimination against that commerce. It is not denied that a state
may impose a registration or license fee on those using motor
vehicles in the state, although engaged in interstate commerce, or
that the state may impose a reasonable charge for the use of
Page 276 U. S. 250
its highways by motor vehicles so employed,
Hendrick v.
Maryland, 235 U. S. 610;
Kane v. New Jersey, 242 U. S. 160;
Clark v. Poor, supra, and there is no evidence that the
tax here is, in itself, an unreasonable charge for the privilege.
But it is said that the particular scheme of taxation adopted by
Connecticut imposes this tax in addition to statutory charges
already made for the use of the highways in interstate commerce,
and both in purpose and in effect discriminates against appellant
and in favor of those operating motor vehicles in intrastate
commerce.
The state has adopted a system of financing its highway
construction and maintenance under which about 80 percent of the
cost is collected from fees for the registration of motor vehicles
and for operators' licenses, from taxes on the sale of gasoline,
and from fines and penalties for violations of the motor vehicle
laws. The balance of the cost is paid from general appropriations
by the state legislature and a certain amount received under
federal aid legislation. Appellant, it is conceded, pays certain
taxes imposed alike on those engaged in intrastate and interstate
commerce. These include a personal property tax upon its motor cars
used in the state, a registration or license fee for each vehicle
so used, and also, it is urged, a tax of two cents a gallon on the
sale of gasoline within the state which, in practice, is absorbed
by the consumer in the purchase price.
But no mileage tax like that imposed by Part II, § 1, is levied
upon those using motor vehicles in intrastate commerce. Instead
Part I, §§ 2 and 3, of the act under discussion, subject all
companies engaged in intrastate motor bus transportation to an
excise of 3 percent of their gross receipts, less such taxes as
they have paid locally on their "real and tangible personal
estate." By Part 1, § 6, this excise is declared to be in lieu of
all taxes on intangible personal property. Moreover, those who pay
it are exempt
Page 276 U. S. 251
from the income tax of 2% imposed generally on corporations,
including, apparently, the appellant. Conn.Gen.Stat., c. 73, as
amended. It, like the mileage tax, is devoted to the maintenance of
highways.
To show that the mileage tax is discriminatory, appellant first
points out the obvious differences between it and the gross
receipts tax, and secondly relies on an uncontradicted allegation
in the bill of complaint that, apart from the mileage tax, it
already contributes to the maintenance of the highways of the state
in the same manner and to the same extent as others in the payment
of the personal property tax, the license tax on busses, and the
shifted gasoline tax.
The two statutes are complementary in the sense that, while both
levy a tax on those engaged in carrying passengers for hire over
state highways in motor vehicles, to be expended for highway
maintenance, one affects only interstate, and the other only
intrastate, commerce. Appellant plainly does not establish
discrimination by showing merely that the two statutes are
different in form or adopt a different measure or method of
assessment, or that it is subject to three kinds of taxes, while
intrastate carriers are subject only to two or to one. We cannot
say from a mere inspection of the statutes that the mileage tax is
a substantially greater burden on appellant's interstate business
than is its correlative, the gross receipts tax, on comparable
intrastate businesses. To gain the relief for which it prays,
appellant is under the necessity of showing that, in actual
practice, the tax of which it complains falls with disproportionate
economic weight on it.
General American Tank Car Corp. v.
Day, 270 U. S. 367;
Hendrick v. Maryland, supra; Interstate Busses Corp. v. Holyoke
Street Ry., 273 U. S. 45,
273 U. S. 51.
The record does not show that it made any attempt to do so.
That appellant is already contributing to highway maintenance is
not, in itself, significant, for the state does
Page 276 U. S. 252
not exceed its constitutional power by imposing more than one
form of tax as a charge for the use of its highways in interstate
commerce. It is for appellant to show that the aggregate charge
bears no reasonable relation to the privilege granted.
It is further objected that the provision of the state statute,
Part II, § 3, authorizing the suspension of registration as a
remedy for the nonpayment of the mileage tax, is invalid in any
case, since payment of even a lawful tax may not be enforced by the
exclusion of the taxpayer from interstate commerce.
Western
Union Telegraph Co. v. Massachusetts, 125 U.
S. 530;
St. Louis Southwestern R. Co. v.
Arkansas, 235 U. S. 350. And
it is not denied that appellees have threatened to invoke § 3
against appellant. But we need not consider here whether the
principle relied on goes so far as to prevent a state from
excluding from its highways a motor carrier which refuses to pay a
charge for their use.
Compare Hendrick v. Maryland, supra; Kane
v. New Jersey, supra; Clark v. Poor, supra. Here, the relief
sought presupposes that the tax is unconstitutional. That point
being determined against appellant, we shall not assume that it
will persist in its refusal to pay the tax.
Objections of less moment, which we have considered, do not
require comment.
Affirmed.