The New Hampshire Commuters Income Tax imposes a tax on
nonresidents' New Hampshire-derived income above $2,000 at a 4%
rate, except that, if the nonresident's State of residence would
impose a lesser tax had the income been earned in that State, the
New Hampshire tax is reduced to that amount. The Commuters Income
Tax contains provisions that, in practical effect exempt from tax
income earned by New Hampshire residents outside the State, and New
Hampshire imposes no tax on its residents' domestic earned
income.
Held: Under the rule requiring substantial equality of
treatment for the citizens of the taxing State and nonresident
taxpayers, the New Hampshire Commuters Income Tax violates the
Privileges and Immunities Clause, since the tax falls exclusively
on nonresidents' incomes and is not offset even approximately by
other taxes imposed upon residents alone. Pp.
420 U. S.
665-668.
(a) The State's contention that the tax's ultimate burden is not
in effect more onerous on nonresidents because their total tax
liability is unchanged once the tax credit received from their
State of residence is taken into account cannot be squared with the
underlying policy of comity that the Privileges and Immunities
Clause requires. Pp.
420 U. S.
665-666.
(b) The possibility that, in this case, Maine, the appellant
taxpayers' State of residence, could shield its residents from the
New Hampshire tax by amending its credit provisions does not cure,
but, in fact, compounds, the constitutional defect of the
discrimination in the New Hampshire tax, since New Hampshire in
effect invites appellants to induce their representatives to
retaliate against such discrimination. The constitutionality of one
State's statutes affecting nonresidents cannot depend upon the
present configuration of another State's statutes. Pp.
420 U. S.
666-668.
114 N.H. 137, 316 A.2d 165, reversed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, POWELL, and REHNQUIST,
JJ., joined. BLACKMUN, J., filed a dissenting opinion,
post, p.
420 U. S. 668.
DOUGLAS, J., took no part in the consideration or decision of the
case.
Page 420 U. S. 657
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Appellants are residents of Maine who were employed in New
Hampshire during the 1970 tax year and, as such, were subject to
the New Hampshire Commuters Income Tax. On behalf of themselves and
others similarly situated, they petitioned the New Hampshire
Superior Court for a declaration that the tax violates the
Privileges and Immunities and Equal Protection Clauses of the
Constitutions of New Hampshire and of the United States. The cause
was transferred directly to the New Hampshire Supreme Court, which
upheld the tax. 114 N.H. 137, 316 A.2d 165 (1974). We noted
probable jurisdiction of the federal constitutional claims, 419
U.S. 822 (1974), and, on the basis of the Privileges and Immunities
Clause of Art. IV, we now reverse.
I
The New Hampshire Commuters Income Tax imposes a tax on
nonresidents' New Hampshire-derived income in
Page 420 U. S. 658
excess of $2,000. [
Footnote
1] The tax rate is 4%, except that, if the nonresident
taxpayer's State of residence would impose a lesser tax had the
income been earned in that State, the New Hampshire tax is reduced
to the amount of the tax that the State of residence would impose.
Employers are required to withhold 4% of the nonresident's income,
however, even if his home State would tax him at less than the full
4%. Any excess tax withheld is refunded to the nonresident upon his
filing a New Hampshire tax return after the close of the tax year
showing that he is entitled to be taxed at a rate less than 4%.
The Commuters Income Tax initially imposes a tax of 4% as well
on the income earned by New Hampshire residents outside the State.
It then exempts such income from the tax, however: (1) if it is
taxed by the State from which it is derived; (2) if it is exempted
from taxation by the State from which it is derived; or (3) if the
State from which it is derived does not tax such income. [
Footnote 2]
Page 420 U. S. 659
The effect of these imposition and exemption features is that no
resident of New Hampshire is taxed on his out-of-state income. Nor
is the domestic earned income of New Hampshire residents taxed. In
effect, then, the State taxes only the incomes of nonresidents
working in New Hampshire; [
Footnote
3] it is on the basis of this disparate treatment of residents
and nonresidents that appellants challenge New Hampshire's right to
tax their income from employment in that State. [
Footnote 4]
Page 420 U. S. 660
II
The Privileges and Immunities Clause of Art. IV, § 2, cl. 1,
provides: "The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States." The
Clause thus establishes a norm of comity without specifying the
particular subjects as to which citizens of one State coming within
the jurisdiction of another are guaranteed equality of treatment.
The origins of the Clause do reveal, however, the concerns of
central import to the Framers. During the pre-constitutional
period, the practice of some States denying to outlanders the
treatment that its citizens demanded for themselves was widespread.
The fourth of the Articles of Confederation was intended to arrest
this centrifugal tendency with some particularity. It provided:
"The better to secure and perpetuate mutual friendship and
intercourse among the people of the different States in this Union,
the free inhabitants of each of these States, paupers, vagabonds
and fugitives from justice excepted, shall be entitled to all
privileges and immunities of free citizens in the several States;
and the people of each State shall have free ingress and regress to
and from any other State, and shall enjoy therein all the
privileges of trade and commerce, subject to the same duties,
impositions and restrictions as the inhabitants thereof
respectively."
The discriminations at which this Clause was aimed were by no
means eradicated during the short life of the Confederation,
[
Footnote 5]
Page 420 U. S. 661
and the provision was carried over into the comity article of
the Constitution in briefer form but with no change of substance or
intent, [
Footnote 6] unless it
was to strengthen the force of the Clause in fashioning a single
nation. [
Footnote 7] Thus, in
the first, and long the leading, explication of the Clause, Mr.
Justice Washington, sitting as Circuit Justice, deemed the
fundamental privileges and immunities protected by the Clause to be
essentially coextensive with those calculated to achieve the
purpose of forming a more perfect Union, including "an exemption
from higher taxes or impositions than are paid by the other
citizens of the state."
Corfield v. Coryell, 6 F. Cas.
546, 552 (No. 3,230) (CCED Pa. 1825).
In resolving constitutional challenges to state tax measures,
this Court has made it clear that, "in taxation, even more than in
other fields, legislatures possess the greatest freedom in
classification."
Madden v.
Kentucky,
Page 420 U. S. 662
309 U. S. 83,
309 U. S. 88
(1940).
See Lehnhausen v. Lake Shore Auto Parts Co.,
410 U. S. 356
(1973). Our review of tax classifications has generally been
concomitantly narrow, therefore, to fit the broad discretion vested
in the state legislatures. When a tax measure is challenged as an
undue burden on an activity granted special constitutional
recognition, however, the appropriate degree of inquiry is that
necessary to protect the competing constitutional value from
erosion.
See id. at
410 U. S.
359.
This consideration applies equally to the protection of
individual liberties,
see Grosjean v. American Press Co.,
297 U. S. 233
(1936), and to the maintenance of our constitutional federalism.
See Michigan-Wisconsin Pipe Line Co. v. Calvert,
347 U. S. 157,
347 U. S. 164
(1954). The Privileges and Immunities Clause, by making
nonitizenship or nonresidence [
Footnote 8] an improper basis for locating a special
burden, implicates not only the individual's right to
nondiscriminatory treatment, but also, perhaps more so, the
structural balance essential to the concept of federalism. Since
nonresidents are not represented in the taxing State's legislative
halls,
cf. Allied Stores of Ohio, Inc. v. Bowers,
358 U. S. 522,
358 U. S.
532-533 (1959) (BRENNAN, J., concurring), judicial
acquiescence in taxation schemes that burden them particularly
would remit them to such redress as they could secure through their
own State; but "to prevent [retaliation] was one of the chief ends
sought to be accomplished by the adoption of the Constitution."
Page 420 U. S. 663
Travis v. Yale & Towne Mfg. Co., 252 U. S.
60,
252 U. S. 82
(1920). Our prior cases, therefore, reflect an appropriately
heightened concern for the integrity of the Privilege and
Immunities Clause by erecting a standard of review substantially
more rigorous than that applied to state tax distinctions among,
say, forms of business organizations or different trades and
professions.
The first such case was
Ward v.
Maryland, 12 Wall. 418 (1871), challenging a
statute under which nonresidents were required to pay $300 per year
for a license to trade in goods not manufactured in Maryland, while
resident traders paid a fee varying from $12 to $150, depending
upon the value of their inventory. The State attempted to justify
this disparity as a response to the practice of "runners" from
industrial States selling by sample in Maryland, free from local
taxation and other overhead expenses incurred by resident
merchants. It portrayed the fee as a "tax upon a particular
business or trade, carried on in a particular mode," rather than a
discrimination against traders from other States. Although the tax
may not have been "palpably arbitrary,"
see Allied Stores of
Ohio, Inc. v. Bowers, supra, at
358 U. S. 530,
the discrimination could not be denied, and the Court held that it
violated the guarantee of the Privileges and Immunities Clause
against "being subjected to any higher tax or excise than that
exacted by law of . . . permanent residents." [
Footnote 9]
In
Travellers' Insurance Co. v. Connecticut,
185 U. S. 364
(1902), the Court considered a tax laid on the value of stock in
local insurance corporations. The shares of
Page 420 U. S. 664
nonresident stockholders were assessed at their market value,
while those owned by residents were assessed at market value less
the proportionate value of all real estate held by the corporation
and on which it had already paid a local property tax. In analyzing
the apparent discrimination thus worked against nonresidents, the
Court took account of the overall distribution of the tax burden
between resident and nonresident stockholders. Finding that
nonresidents paid no local property taxes, while residents paid
those taxes at an average rate approximating or exceeding the rate
imposed by the State on nonresidents' stock, the Court upheld the
scheme. While more precise equality between the two classes could
have been obtained, it was
"enough that the State has secured a reasonably fair
distribution of burdens, and that no intentional discrimination has
been made against nonresidents."
Their contribution to state and local property tax revenues,
that is, was no more than the ratable share of their property
within the State.
The principles of
Ward and
Travellers' were
applied to taxes on nonresidents' local incomes in
Shaffer v.
Carter, 252 U. S. 37
(1920), and
Travis v. Yale & Towne Mfg. Co., supra.
Shaffer upheld the Oklahoma tax on income derived from
local property and business by a nonresident where the State also
taxed the income from wherever derived -- of its own citizens.
Putting aside "theoretical distinctions" and looking to "the
practical effect and operation" of the scheme, the nonresident was
not treated more onerously than the resident in any particular,
and, in fact, was called upon to make no more than his ratable
contribution to the support of the state government. The New York
tax on residents' and nonresidents' income at issue in
Travis, by contrast, could not be sustained when its
actual effect was considered. The tax there granted personal
exemptions to each resident
Page 420 U. S. 665
taxpayer for himself and each dependent, but it made no similar
provision for nonresidents. The disparity could not be "deemed to
be counterbalanced" by an exemption for nonresidents' interest and
dividend income because it was not likely "to benefit nonresidents
to a degree corresponding to the discrimination against them."
Looking to "the concrete, the particular incidence" of the tax,
therefore, the Court said of the many New Jersey and Connecticut
residents who worked in New York:
"They pursue their several occupations side by side with
residents of the State of New York -- in effect competing with them
as to wages, salaries, and other terms of employment. Whether they
must pay a tax upon the first $1,000 or $2,000 of income, while
their associates and competitors who reside in New York do not,
makes a substantial difference. . . . This is not a case of
occasional or accidental inequality due to circumstances personal
to the taxpayer . . . , but a general rule, operating to the
disadvantage of all nonresidents . . . and favoring all residents.
. . ."
252 U.S. at
252 U. S. 80-81
(citations omitted).
III
Against this background establishing a rule of substantial
equality of treatment for the citizens of the taxing State and
nonresident taxpayers, the New Hampshire Commuters Income Tax
cannot be sustained. The overwhelming fact, as the State concedes,
is that the tax falls exclusively on the income of nonresidents,
and it is not offset even approximately by other taxes imposed upon
residents alone. [
Footnote
10] Rather, the argument advanced in favor
Page 420 U. S. 666
of the tax is that the ultimate burden it imposes is "not more
onerous in effect,"
Shaffer v. Carter, supra, on
nonresidents because their total state tax liability is unchanged
once the tax credit they receive from their State of residence is
taken into account.
See n 4,
supra. While this argument has an initial
appeal, it cannot be squared with the underlying policy of comity
to which the Privileges and Immunities Clause commits us.
According to the State's theory of the case, the only practical
effect of the tax is to divert to New Hampshire tax revenues that
would otherwise be paid to Maine, an effect entirely within Maine's
power to terminate by repeal of its credit provision for income
taxes paid to another State. The Maine Legislature could do this,
presumably, by amending the provision so as to deny a credit for
taxes paid to New Hampshire while retaining it for the other 48
States. Putting aside the acceptability of such a scheme, and the
relevance of any increase in appellants' home state taxes that the
diversionary effect is said to have, [
Footnote 11] we do not think the possibility that Maine
could
Page 420 U. S. 667
shield its residents from New Hampshire's tax cures the
constitutional defect of the discrimination in that tax. In fact,
it compounds it. For New Hampshire in effect invites appellants to
induce their representatives, if they can, to retaliate against
it.
A similar, though much less disruptive, invitation was extended
by New York in support of the discriminatory personal exemption at
issue in
Travis . The statute granted the nonresident a
credit for taxes paid to his State of residence on New York-derived
income only if that State granted a substantially similar credit to
New York residents subject to its income tax. New York contended
that it thus "looked forward to the speedy adoption of an income
tax by the adjoining States," which would eliminate the
discrimination "by providing similar exemptions similarly
conditioned." To this the Court responded in terms fully applicable
to the present case. Referring to the anticipated legislative
response of the neighboring States, it stated:
"This, however, is wholly speculative; New York has no authority
to legislate for the adjoining States, and we must pass upon its
statute with respect to its effect and operation in the existing
situation. . . . A State may not barter away the right, conferred
upon its citizens by the Constitution of the United States, to
enjoy the privileges and immunities of citizens when they go into
other States. Nor can discrimination be corrected by retaliation;
to prevent this was one of the chief ends sought to be accomplished
by the adoption of the Constitution."
252 U.S. at
252 U. S. 82.
[
Footnote 12]
Page 420 U. S. 668
Nor, we may add, can the constitutionality of one State's
statutes affecting nonresidents depend upon the present
configuration of the statutes of another State.
Since we dispose of this case under Art. IV, § 2, of the
Constitution, we have no occasion to address the equal protection
arguments directed at the disparate treatment of residents and
nonresidents and at that feature of the statute that causes the
rate of taxation imposed upon nonresidents to vary among them
depending upon the rate established by their State of
residence.
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
N.H.Rev.Stat.Ann. § 77-B:2 II (1971) provides:
"A tax is hereby imposed upon every taxable nonresident, which
shall be levied, collected and paid annually at the rate of four
percent of their New Hampshire derived income . . . less an
exemption of two thousand dollars; provided, however, that, if the
tax hereby imposed exceeds the tax which would be imposed upon such
income by the state of residence of the taxpayer, if such income
were earned in such state, the tax hereby imposed shall be reduced
to equal the tax which would be imposed by such other state."
[
Footnote 2]
N.H.Rev.Stat.Ann. § 77-B:2 I (1971) provides:
"A tax is hereby imposed upon every resident of the state, which
shall be levied, collected and paid annually at the rate of four
percent of their income which is derived outside the state of New
Hampshire . . . ; provided, however, that, if such income shall be
subject to a tax in the state in which it is derived, such tax
shall constitute full satisfaction of the tax hereby imposed; and
provided further, that, if such income is exempt from taxation
because of statutory or constitutional provisions in the state in
which it is derived, or because the state in which it is derived
does not impose an income tax on such income, it shall be exempt
from taxation under this paragraph."
[
Footnote 3]
New Hampshire residents pay a 4.5% tax on interest (other than
interest on notes and bonds of the State and on bank deposits) and
dividends (other than cash dividends on stock in national banks and
New Hampshire banks and thrift institutions) in excess of $600.
N.H.Rev.Stat.Ann. §§ 77:1-5 (1971). Residents also pay a $10 annual
"resident tax" for the use of their town or city of residence.
N.H.Rev.Stat.Ann. §§ 72:1, 5-a (Supp. 1973). Other state taxes,
such as those on business profits, real estate transfers, and
property, are paid by residents and nonresidents alike.
State income tax revenues from the tax on residents' unearned
income in fiscal year 1970 were $3,462,000. In fiscal year 1971,
the first in which the State taxed the earned income of
nonresidents, total income tax revenues rose to $5,238,000. U.S.
Dept. of Commerce, Bureau of the Census, State Tax Collections in
1970 (Series GF70 No. 1) and in 1971 (Series GF71 No. 1), p.
26.
[
Footnote 4]
Appellees challenge appellants' standing to maintain this action
on the theory that their economic position was unchanged despite
the imposition of the Commuters Income Tax because they received an
offsetting credit under the tax laws of Maine, Me.Rev.Stat.Ann.,
Tit. 36, § 5127 (Supp. 1973), against income taxes owing to that
State; the appellants' total tax liability, that is, was
unaffected. We think the question is covered, however, by the
holding of
Allied Stores of Ohio, Inc. v. Bowers,
358 U. S. 522
(1959). In addition, appellants are affected by the requirements
that they file a New Hampshire tax return and that their employers
withhold 4% of their earnings; since the appellees do not suggest
that appellants are subject to the tax at the 4% rate, at the very
least, the withholding requirement deprives them of the use value
of the excess withheld over their ultimate tax liability, if any.
These effects may not be substantial, but they establish
appellants' status as parties "adversely affected" by the State's
tax laws, giving them "a direct stake in the outcome" of this
litigation.
Sierra Club v. Morton, 405 U.
S. 727,
405 U. S. 740
(1972).
[
Footnote 5]
James Madison, in a commentary on the plan of union proposed by
William Paterson of New Jersey, wrote:
"Will it prevent trespasses of the States on each other? Of
these enough has been already seen. He instanced Acts of Virga.
& Maryland which give a preference to their own citizens in
cases where the Citizens [of other States] are entitled to equality
of privileges by the Articles of Confederation."
1 M. Farrand, Records of the Federal Convention 317 (1911).
[
Footnote 6]
Charles Pinckney, who drafted the shorter version now found in
Art. IV, § 2, cl. 1,
see 37 Annals of Cong. 1129 (1821),
assured the Convention that
"[t]he 4th article, respecting the extending the rights of the
Citizens of each State, throughout the United States [etc.] is
formed exactly upon the principles of the 4th article of the
present Confederation. . . ."
3 M. Farrand,
supra, at 112. For an explanation of the
deletion of certain phrases found in Art. IV of the Confederation
in light of the Fugitive Slave and Commerce Clauses of the
Constitution,
see Lemmon v. People, 20 N.Y. 562, 627
(1860) (opinion of Wright, J.).
[
Footnote 7]
Id. at 607 (Denio, J.);
See
Paul v.
Virginia, 8 Wall. 168,
75 U. S. 180
(1869).
[
Footnote 8]
For purposes of analyzing a taxing scheme under the Privileges
and Immunities Clause, the terms "citizen" and "resident" are
essentially interchangeable.
Travis v. Yale & Towne Mfg.
Co., 252 U. S. 60,
252 U. S. 79
(1920) ("a general taxing scheme . . . if it discriminates against
all nonresidents, has the necessary effect of including in the
discrimination those who are citizens of other States");
Smith
v. Loughman, 245 N.Y. 486, 492, 157 N.E. 753, 755,
cert.
denied, 275 U.S. 560 (1927);
see Toomer v. Witsell,
334 U. S. 385,
334 U. S. 397
(1948).
[
Footnote 9]
Accord, Toomer v. Witsell, supra, at
334 U. S. 396,
where the Court held invalid another disparate licensing fee
system, citing
Ward v. Maryland for the proposition
that
"it was long ago decided that one of the privileges which the
clause guarantees to citizens of State A is that of doing business
in State B on terms of
substantial equality with the citizens
of that State."
(Emphasis added.)
[
Footnote 10]
The $10 annual resident tax and the tax on certain unearned
income in excess of $600 would rarely equal, much less exceed, the
4% tax on nonresidents' incomes over $2,000. Appellant Logan, for
example, with $33,000 of New Hampshire-derived income, paid $252 in
taxes to that State; a resident with the same earned income would
have paid only the $10 resident tax. Against this disparity and the
disparities among nonresidents' tax rates depending on their State
of residence, we find no support in the record for the assertion of
the court below that the Commuters Income Tax creates no more than
a "practical equality" between residents and nonresidents when the
taxes paid only by residents are taken into account. "[S]omething
more is required than bald assertion" -- by the state court or by
counsel here -- to establish the validity of a taxing statute that,
on its face discriminates against nonresidents.
Mullaney v.
Anderson, 342 U. S. 415,
342 U. S. 418
(1952).
[
Footnote 11]
The States of Maine and Vermont,
amici curiae, point
out that, at least $400,000 was diverted from Maine to New
Hampshire by reason of the challenged tax and Maine's tax credit in
1971, and that the average Maine taxpayer, appellants included,
thereby bore an additional burden of 40 cents in Maine taxes. While
the inference is strong, we deem the present record insufficient to
demonstrate that Maine taxes were actually higher than they
otherwise would have been but for this revenue loss.
[
Footnote 12]
Neither
Travis nor the present case should be taken in
any way to denigrate the value of reciprocity in such matters. The
evil at which they are aimed is the unilateral imposition of a
disadvantage upon nonresidents, not reciprocally favorable
treatment of nonresidents by States that coordinate their tax
laws.
MR. JUSTICE BLACKMUN, dissenting.
For me, this is a noncase. I would dismiss the appeal for want
of a substantial federal question. We have far more urgent demands
upon our limited time than this kind of litigation.
Because the New Hampshire income tax statutes operate in such a
way that no New Hampshire resident is ultimately subjected to the
State's income tax, the case at first glance appears to have some
attraction. That attraction, however, is superficial and, upon
careful analysis, promptly fades and disappears entirely. The
reason these appellants, who are residents of Maine, not of New
Hampshire, pay a New Hampshire tax is because the Maine Legislature
-- the appellants' own duly elected representatives -- has given
New Hampshire the option to divert this increment of tax (on a
Maine resident's income earned in New Hampshire) from Maine to New
Hampshire, and New Hampshire willingly has picked up that option.
All that New Hampshire has done is what Maine specifically permits
and, indeed, invites it to do. If Maine should become disenchanted
with its bestowed
Page 420 U. S. 669
bounty, its legislature may change the Maine statute. The crux
is the statute of Maine, not the statute of New Hampshire. The
appellants, therefore, are really complaining about their own
statute. It is ironic that the State of Maine, which allows the
credit, has made an appearance in this case as an
amicus
urging, in effect, the denial of the credit by an adjudication of
unconstitutionality of New Hampshire's statute. It seems to me that
Maine should be here seeking to uphold its own legislatively
devised plan or turn its attention to its own legislature.
All this is reminiscent of the federal estate tax credit for
state death taxes paid, originally granted by § 301(b) of the
Revenue Act of 1924, 43 Stat. 304, and by § 301(b) of the Revenue
Act of 1926, 44 Stat. 70, and now constituting § 2011 of the
Internal Revenue Code of 1954, 26 U.S.C. § 2011. States, including
New Hampshire and those adjacent to it, through specific
legislation, have taken advantage of the credit allowed.
Me.Rev.Stat.Ann., Tit. 36, §§ 3741-3745 (1965 and Supp. 1973);
Mass.Gen.Laws, c. 65A, §§ 1-7 (1969 and Supp. 1975);
N.H.Rev.Stat.Ann. §§ 87:1-13 (1971); Vt.Stat.Ann., Tit. 32, §§
7001-7005 (1970). The credit provision has been upheld against
constitutional attack.
Florida v. Mellon, 273 U. S.
12,
273 U. S. 17
(1927);
Rouse v. United States, 65 Ct.Cl. 749,
cert.
denied, 278 U.S. 638 (1928).
One wonders whether this is just a lawyers' lawsuit. Certainly,
the appellants, upon prevailing today, have no direct or apparent
financial gain. Relief for them from the New Hampshire income tax
results only in a corresponding,
pro tanto, increase in
their Maine income tax. Dollarwise, they emerge at exactly the same
point. The single difference is that their State, Maine, enjoys the
tax on the New Hampshire-earned income, rather than New Hampshire.
Where, then, is the injury? If there is an element of injury, it is
Maine-imposed.
Page 420 U. S. 670
We waste our time, therefore, by theorizing and agonizing about
the Privileges and Immunities Clause and equal protection in this
case. But if that exercise in futility is nevertheless indicated, I
see little merit in the appellants' quest for relief. It is settled
that absolute equality is not a requisite under the Privileges and
Immunities Clause.
Toomer v. Witsell, 334 U.
S. 385,
334 U. S. 396
(1948);
id. at
334 U. S. 408
(Frankfurter, J., concurring). And I fail to perceive
unconstitutional unequal protection on New Hampshire's part. If
inequality exists, it is due to differences in the respective
income tax rates of the States that border upon New Hampshire.
I say again that this is a noncase, made seemingly attractive by
high-sounding suggestions of inequality and unfairness. The State
of Maine has the cure within its grasp, and if the cure is of
importance to it and to its citizens, such as appellants, it and
they should be about adjusting Maine's house, rather than coming
here complaining of a collateral effect of its own statute.