State has a primary and immediate concern in their safe and economical administration."

III. SUMMARY AND CONCLUSIONS

In Cooley v. Board of Wardens ((1851) 12 How. 299), came the first definite formulation of the theory that the mere grant to Congress of the power to regulate interstate commerce prohibits the States from regulating those subjects or aspects of commerce which call for uniform national laws. The States cannot regulate such subjects of commerce even if Congress has not acted in the particular field. But, according to this theory, where the subject is one permitting of local diversity of treatment, the States may regulate if and only to the extent that Congress has not manifested its intention of entering the field to the exclusion of the States. While even the most recent cases would seem to show that the Court's analysis of the present problem is dominated by this theory (see e. g., Townsend v. Yeomans ((1937) 301 U. S. 441, 455), and Cloverleaf v. Harrison ((1942) 315 U. S. 148, 155, both discussed supra), the content of these respective areas of regulations, of course, can be defined only in the vaguest of terms.

But in the range to which, as stated at the outset, the present discussion is limited, i. e., where the States may act in the absence of Federal occupation of the field, the Court construes the scope of the Federal enactment strictly in order to save the State law. Throughout these cases the formula expressed and followed is to the effect that Congress cannot be deemed to have superseded State regulation in the absence of a clearly manifested intention that the Federal law should be exclusive, either explicitly stated or necessarily to be implied from the nature and terms of its enactment.

When the State law is of a type traditionally regarded as a police regulation, most of the cases have buttressed the principle just expressed by a statement that it is peculiarly applicable in such situations. But the Court has been careful to point out that the force of this principle is hardly less where the State law deals other than police matters. As the Court stated in Kelly v. Washington ((1937) 302 U. S. 1, 13), "The principle is not limited to cases of this description" but "extends to State power directed to more general purposes." But it is of interest to note that in the only two cases discussed above where the State regulation was declared in conflict with the Federal law, viz, McDermott v. Wisconsin ((1912) 228 U. S. 115), and Cloverleaf v. Patterson ((1942) 315 U. S. 148), involving, respectively, food-labeling requirements and the production of butter, the laws were of a type traditionally regarded as police regulations.

In order to preserve the State enactment the Court has resorted to a variety of techniques. For example, in construing the scope of the Federal law, the Court is prone to believe that Congress was cognizant of existing State laws in the same area, and that by its failure expressly to regulate the exact matters included in the State statutes or to declare such statutes in conflict with its enactment, it has manifested an intention that the State regulation should continue (Townsend v. Yeomans (1937) 301 U. S. 44). Again, even if the Federal enactment is in terms exclusive but it is possible to construe it either as absolutely exclusive or conditionally exclusive, the latter construction will be adopted (Minz v. Baldwin (1932) 289 U. S. 346, supra). Again, Congress may have acted in a particular field, but delegated to an administrative agency authority to promulgate regulations on the subject. In such case the field is not occupied until the regulations of the agency are actually issued-and, it may be administered and enforced. Smith v. Ill. Bell Telephone Co. ((1930) 282 U. S. 133, 160); Northwestern Bell Telephone Co. v. Nebraska Railway Commission ((1936) 297 U. S. 471, 480); Illinois Central R. R. Co. v. Public Utilities Commission ((1918) 245 U. S. 493, 510); and Welsh Co. v. New Hampshire ((1939) 306 U. S. 79), all supra. At any rate, the State law is not violated by an ambiguous administrative regulation which may or may not have been intended to supersede State regulation (Ill. Cent. R. R. Co. v. Public Utilities Commission (1918) 245 U. S. 493).

It is not believed that a further summary of the principles expressed in these cases should be necessary to show that the decisions contain no clear formula by which it could be determined that a particular enactment, in the absence of any express prohibition, was intended to exclude State regulation in the same field. To sum up, the cases show no more than a strong attitude of reluctance to invalidate any State law claimed to be in conflict with a Federal regulation of commerce, but this attitude has never been embodied in any formula sufficiently clear-cut to afford a dependable basis for predicting the construction which the

court will give to any particular law in which concurrent action by the States is not specifically excluded. Further decisions may be expected in spite of their expression of the same formulas which the court has announced in the past, to continue to decide ad hoc as various new laws are presented for consideration. The Court has, in fact, admitted on occasion that no clear guide exists by which its decision of this question could be in any case predetermined.

"The rule is clear that State action may be excluded by clear implication or inconsistency. Its application to individual cases creates difficulties. The differentiation between cases where the assumption of Federal power is exclusive and where it admits State action is narrow." Cloverleaf v. Patterson (315 U. S. 148, 157).

"Whether the State in a particular matter goes too far must be left to be determined when the precise question arises," Kelly v. Washington (302 U. S. 1, 13).

"We deal * * * not with theoretical disputes but with concrete and actual issues raised by actual cases * * 'Constitutional questions are not to be dealt with abstractly.' * * * They will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us” AllenBradley Local v. Board (315 U. S. 740, 746).

The Civil Aeronautics Act contains no provision expressly prohibiting the States from regulating in the field of air commerce. An inference that Congress intended, on the contrary, that some limited aspects of air commerce should be subject to concurrent regulation might be said to be drawn from sections 205 (b) and 1106. Again, the act directs the Board to promulgate regulations on various matters, but apparently there is no provision prohibiting the States from regulating in those fields prior to such promulgation, or from enacting supplementary regulations even after the effective date of the Federal regulations.

Of course, it is not altogether impossible that the court would find such great technical differences to exist between air commerce and other forms of transportation as to call for the application of new doctrines differing from those applied above with respect to railroads, motor carriers, and water transportation. But in the absence of a specific enactment such as the proposed section 802 (a) there is obviously no assurance that this will occur. Since the court in the great majority of decisions discussed above has sought to sustain State regulation with respect to every variety of activity and subject matter, it is impossible to predict with any confidence that air transportation will be regarded by the court as differing so radically from all other types of activity as to compel a complete break from its traditional view.

A statement in Justice Stone's dissent in Hines v. Davidowitz ((1941) 312 U. S. 52, 75), indicates that, by reason of the recent tremendous shift of power to the National Government, which has resulted in a corresponding diminution of the reserved powers of the States, the court will not be entirely uninfluenced by such considerations:

"At a time when the exercise of Federal power is being rapidly expanded through congressional action, it is difficult to overstate the importance of safeguarding against such diminution of State power by vague inferences as to what Congress might have intended if it had considered the matter or by reference to our own concepts of a policy which Congress has not expressed and which is not plainly to be inferred from the legislation which it has enacted."

It may be concluded that section 802 (a) is not to be criticized as only a supererogatory statement of an intention which Congress has already clearly expressed; on the contrary, if it is intended to exclude the States entirely from this field of regulation nothing short of an explicit prohibition of State action can be certain to accomplish this result.

DISCUSSION OF THE TAXATION PROVISION OF SECTION 34 OF H. R. 1012

The provision in question is as follows:

"The multiple taxation of air carriers and of air contractors, or of their operations or properties, is declared to be contrary to the public interest. No State, Territory, or possession of the United States, or subdivision thereof, shall impose or enforce any tax, assessment, fee, or levy upon any air carrier or air contractor, or upon its operations or properties, in a manner, or on a basis, which results or is likely to result in multiple taxation or in a payment by such carrier or contractor of more than an amount fairly allocable to such State, Territory, or pos

session having in view the operations, if any, of such carrier or contractor outside such State, Territory, or possession."

Numerous situations, no doubt, might be supposed in which the imposition of State taxes on the properties and operations of the airlines would result in multiple taxation and hence would unduly burden air commerce in the manner which the proposed provision seeks to prevent. For present purposes, the posing of hypothetical cases, and reference to actual cases in which the airlines are being subject to the conflicting exactions of the States, is rendered unnecessary by reason of the Minnesota Supreme Court's decision in Minnesota v. Northwest Airlines, decided December 18, 1942. That case demonstrates graphically the nature and extent of the evil against which the proposed enactment is directed. Its holding and implications should be carefully considered.

The situation was as follows. Northwest Airlines was organized and domiciled in Minnesota. It operated a fleet of airplanes over a route between Chicago and Portland, Oreg. The opinion notes that 15 stops in the States of Wisconsin, Minnesota, Illinois, North Dakota, Montana, Washington, and in Manitoba, Canada, were regularly scheduled. These scheduled stops were at bases whose facilities, apparently, were adequately developed. The company either owned or leased the buildings necessary for its operations at every point upon its route. Hangars and office space were maintained at several of the ports. At five bases (Chicago, Minneapolis, Fargo, Billings, Spokane, Seattle) the necessary mechanics' tools and equipment were maintained for minor repairs and maintenance of aircraft, although major repairs and overhauling were done at the St. Paul base. Radio operators and station managers were employed at all the bases. The flight crews were located at definite bases at which they began and ended their runs. The company's airplanes, of course, were constantly flying from State to State, and as the court stated, "their location was constantly changing from one county to another and from one State to another, except for brief stops at the airports and occasional layups for repairs and overhauling." All of the defendant company's airplanes were in Minnesota from time to time during the tax year, not only on the business of transportation, but for periodic overhauling, On the Minnesota tax day, May 1, 1939, only a portion of the defendant's planes were in Minnesota; and on that day in round figures about 300 miles (or about one-eighth) of the total length of its routes extending over more than 2,400 miles, were flown in Minnesota. The defendant airline filed its tax return for 1939 in Minnesota, in which it included only a portion of its airplanes at the full value of $77,000, having based this value on the number of planes present in the State on the tax day. But later the county auditor made an additional assessment in which he included the remaining airplanes of the defendant at a full value of $500,000.

As has been stated, defendant was domiciled in Minnesota, and, moreover, maintained its head office at St. Paul, and the issue presented was whether Minnesota had the right on these facts to tax all of its planes or only those planes which were in the State on its tax day. The lower court had held that all the planes were taxable, on the ground that "they had a situs * * in Minnesota and not elsewhere." The Minnesota Supreme Court

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affirmed this decision.

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The company had attacked the lower court's decision on the ground that the tax was a violation of due process and an interference with interstate commerce. The Minnesota Supreme Court first considered the question of whether air transportation differs from other forms of transportation in a degree so great as to require the formulation of new constitutional principles governing the rights of several States to impose taxes upon it, and concluded, "We do not * * consider it of such a nature that it must be placed in a new and independent category so far as taxation is concerned." "Its distinction," the court said, “lies in that it leaves the ground and travels through the air." "But that is not of significance here," because "an airplane in the air over the territory of a State. is within the State and subject to its sovereign power.' Hence, the court said, "the question * * is the broader one of when * * * the State of the owner's domicile loses jurisdiction to tax tangible personal property moving about from State to State? May the State of domicile tax the whole thereof?" The court then considered two classes of cases dealing respectively with the taxation of ships and the rolling stock of railroads. The ship cases, Hays v. Pacific Mail S. S. Co. (58 U. S. 596), Morgan v. Parham (83 U. S. 471); Southern · Pacific Co. v. Kentucky (222 U. S. 63), St. Louis v. The Ferry Company (78 U. S. 423), and Gloucester Ferry Co. v. Pennsylvania (114 U. S. 196), had held that

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ships which had not gained a situs elsewhere were taxable only by the State of the home port, and that although a ship sails from its home port into the port of a foreign State, it cannot be taxed by the latter if it stays there only temporarily for the purpose of loading and unloading. But if the ship has obtained an actual situs in a State other than that of the home port, that State may validly subject the ship to the ordinary property taxes of that State. The court considered the Old Dominion case, supra, to hold that "in that event * * * the situs of the domicile yields to the actual situs and resulting dominion of another government." But the court regarded the "rolling stock" cases as standing for a different principle and pointed out that in Pullman's Palace Car Co. v. Pennsylvania (141 U. S. 18), a certain portion of the cars of an Illinois corporation was constantly and continuously present in Pennsylvania, and the right of Pennsylvania to impose a property tax upon the average number of cars "permanently" present within that State was sustained. It is to be noted that in this case the State of situs, and not of domicile, was seeking to impose the tax. The Court observed: "Notwithstanding the fact that individual cars making up the average in the State were constantly changing and were there but temporarily," "the Court looked not at the individual cars but at the average, and the average was a permanently located in Pennsylvania." But, the Court stated, this case has its limitations, since a State in the situation of Pennsylvania-i. e., a State other than the domiciliary State-could not tax more than the average cars present, "even though all the cars of the company might at some time during the tax period be actually, but temporarily present." The average number, the Court said, as distinguished from individual cars, must be permanently present, since if there is not present permanently and continuously over the necessary period of time an average number of the cars, the State cannot tax them at all, even, presumably, though all the cars had been casually present during some short, temporary period in the taxable year.

The air line had contended that the limitations which were placed on Pennsylvania by the Pullman's Palace_case applied likewise to Minnesota's power to tax on the present situation. The State contended, however, that the ship cases were applicable, and that since the airplanes had not been in any State other than Minnesota for a sufficient length of time to acquire a situs elsewhere, Minnesota, being the air line's domicile, could tax all the planes. But the Court said it was unnecessary to decide whether the ship cases were controlling, since even under the principles announced in the "rolling stock" cases, all of the planes were taxable by Minnesota.

The "rolling stock" cases and the principles which the Court drew from them to reach this conclusion may be briefly considered. The Court addressed itself to the question of whether the rolling-stock cases denied a company's domicile the right to tax all of its rolling stock where some of this stock had acquired a status in another State. It concluded that they did not. Therefore, the Court said that it might be conceded that these planes had acquired a situs in States other than Minnesota which would empower such States likewise to impose a property tax upon them, such other States, however, being subject to the limitations on average numbers declared by the Pullman's Palace case. But this concession involved no denial of Minnesota's right to tax all the planes, even though multiple taxation would result. It was objected by the air line that such a decision was opposed to Union Refrigerator Transit Co. v. Kentucky (199 U. S. 194), but the Court distinguished the Transit case on its facts. There, it was pointed out, it was held that Kentucky (State of domicile) was without power to impose a property tax on all the rolling stock of a Kentucky corporation, some of whose stock was used in Kentucky but the remainder of which was never used in that State. The Minnesota court said: "It was this last factthat a portion of the cars was never in Kentucky-which the court deemed controlling." Since a portion of the rolling stock was permanently outside the State of domicile, that State was in no position to confer benefits upon it, and hence to render any equivalent in protection of the property upon which the tax was sought to be imposed.

The court thus distinguishes between two varieties of "situs" which may be acquired in a State other than the State of the owner's domicile. (1) "situs' of property which at some time during the taxable period is within the domi ciliary State, no matter how briefly or casually, and (2) "situs" of property which is never in the domiciliary State. In (1) both the State of the domicil and the "situs" may tax, the domicile to the full value, and the "situs" to the average value (under the limitations laid down in Pullman's Palace); in (2

only the "situs" may tax to the "average" value, but the domicile cannot tax at all.

The court, to bolster this conclusion, then cited two more cases: New York ex rel R. R. Co. v. Miller (202 U. S. 584) which, it said, had held that the State of domicile of a railroad company was permitted to tax all the cars of the company despite the fact that an average number of cars was constantly outside the State, the basis for sustaining the tax being that all the cars were at least temporarily present in New York at some time during the tax period; and Johnson Oil Ref. Co. v. Oklahoma (290 U. S. 158). In the latter case the domicile of the owner of the cars was in Illinois, and the right of Oklahoma to tax all of the cars on the ground that they were from time to time within the State was denied. Oklahoma's right, in other words, was limited, as was Pennsylvania's in Pullman's Palace, to imposing a tax only upon the average number of cars within the State. These cases, the court intimated, bore out its formula stated above, that the State of situs may tax only the average number of planes, while the State of domicile may tax all the planes if all planes enter the domiciliary State some time during the tax year. The court, however, deprecated the "situs" doctrine as "a legalistic concept," and made the announcement that "without any controlling authority to guide" it, it had been forced to resort "to the basic constitutional principles upon which the right or jurisdiction of a State to tax depends."

The court then advanced the proposition that constitutionally there was no objection to multiple taxation of these airplanes, and quoted random extracts from a number of cases dealing with the taxation of intangibles in support of its view.

It then enumerated the benefits bestowed upon the carrier by the domiciliary State of Minnesota, and concluded that since, as the Supreme Court had stated in Wisconsin v. J. C. Penney Co. (311 U. S. 435) "the simple but controlling question is whether the State has given anything for which it can ask return," taxation of all the planes by Minnesota was not a denial of due process of law, despite the fact that taxes on these planes were likewise being levied by all the other States but one. The court earnestly disclaimed any reliance upon "the discredited maxim 'Mobilia sequntur personam'," since "a more substantial reason for the tax exists" in that "the State is giving a real and substantial return."

Finaly it announced the familiar doctrine that it was not cerncerned with the wisdom of the tax or its economic effects, since such questions were solely within the province of the State legislature.

There was a three-judge dissent and a special concurring opinion. The dissenting opinion first argues that the majority in coming to its view that multiple taxation is not obnoxious to due process under the Federal Constitution, had been misled by statements in cases dealing only with intangibles, and that altogether different doctrines applied where, as here, tangible property was involved.

"It appears to me that it would be very unfortunate to extend to tangible property theories which have been applied to intangibles only. The Supreme Court has not done so. Should the habitual use and flight of airplanes over the various jurisdictions be held to subject all the taxpayer's planes-not only a proper proportionate share of them-to double or multiple taxation on their full value, it would not only be injust but would create a situation so burdensome to the air lines as materially to handicap their development and extension, so vital to the national interest. It would likewise be unfortunate for those States imposing the tax on the full value and would doubtless in the end result in congressional authorization of the incorporation of airlines under national law and control of taxation."

The dissent then reexamined the "rolling stock" cases out of which the majority had evolved its formula, and by emphasizing language in those cases to which the majority had made no reference, came out with the exactly opposite conclusion that Minnesota could not tax more than its fair proportion of the planes, and concluded:

"What this court should say is that the tax may only be imposed by Minnesota upon its proportionate share figured on some reasonable basis, which, primarily, the taxing authorities should first determine."

The concurring opinion agreed with the soundness of the majority's conclusion that the State had power to impose this tax, but condemned the tax measure as ill-advised and impractical: