* * **

"I therefore concur in his conclusion, though reluctantly and not without suggesting that remedial legislation to correct any possible unfairness to defendant and other companies similarly situated be enacted without delay lest Congress assert its undisputed power and authorize 'the incorporation of air lines under national law and control of taxation'."

The importance of the decision lies in its showing (1) that the decisions of the Supreme Court on the permissibility of multiple taxation of instrumentalities of interstate commerce are susceptible in the State courts of almost any interpretation, (2) that the State courts can be expected for the most part to interpret this doubtful question in favor of the State's power to impose its taxes, and (3) there is a pressing need for Congressional clarification of this field in order to forestall burdensome exactions upon the air lines and avoid extensive and costly litigation.

II

There can be no doubt that the proposed legislation is within the power of Congress.

Congress has controlled the State taxation of Federal properties and instrumentalities, such as Indian lands, Federal land banks, and Government corporations, such as the Home Owners' Loan Corporation and the Reconstruction Finance Corporation. These controls and exemptions, of course, were enacted upon a different constitutional basis, namely, the principle of Federal immunity from State taxation first announced in McCulloch v. Maryland. McCulloch v. Maryland also clearly established that Congress may set up corporations and control State taxation of their properties and operations. It will be recalled that both the dissent and the concurring opinion in the Minnesota case were apprehensive lest the decision of the majority would lead Congress to such a step. Thus it was stated in the dissent that the decision that multiple taxation by the States of the property and operations of air lines was proper "would doubtless in the end result in congressional authorization of the incorporation of the air lines under national law and control of taxation," and the concurring opinion admonished the legislature that "remedial legislation to cure any possible unfairness to defendant and other companies similarly situated be enacted without delay lest Congress exert its undisputed power and authorize the incorporation of air lines under national law and control of taxation."

But clearly Congress has the power to control State taxation of air lines as instrumentalities of interstate commerce and there is no necessity for incorporating them under national law to accomplish this end. The cases from Gibbons v. Ogden ((1824) 9 Wheat. 1), the earliest which defined the scope of the commerce power, to the most recent, United States v. Darby Lumber Co. ((1941) 312 U. S. 100), have consistently declared that the power delegated by the commerce clause "is complete in itself, may be exercised to its utmost extent, and acknowledges no limits other than those prescribed in the Constitution." Perhaps the most elaborate statement of the scope of the commerce power appears in National Labor Relations Board v. Jones & Laughlin Steel Corporation ((1937) 301 U. S. 1, 36, 37) in which the constitutionality of the National Labor Relations Act was declared:

"The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of the 'flow' of interstate or foreign commerce. Burdens and obstructions may be due to injurious action springing from other sources. The fundamental principle is that the power to regulate commerce is the power to enact 'all appropriate legislation' for its 'protection and advancement' (the Daniel Ball, 10 Wall. 557, 564, 19 L. Ed. 999); to adopt measures 'to promote its growth and insure its safety' (County of Mobile v. Kimball (102 U. S. 691, 696, 697, 26 L. Ed. 238); 'to foster, protect, control, and restrain.' (Second Employers' Liability Act cases, * * 223 U. S. 1, at 47 * that power is plenary and may be exerted to protect interstate commerce 'no matter what the source of the dangers which threaten it."

*

**)

**

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*

In the field of regulation, and apart from taxation, it is familiar of course that with regard to subjects of interstate commerce which in their nature permit of diversity of regulation, the States may act until Congress chooses to occupy the field by enacting laws with respect to the same subject. But after Congress has thus occupied the field, any attempted State regulation of the subject matter to which the Federal regulation applies is entirely superseded.

It might be asked in the present connection, however, whether Congress, without itself entering a particular field of regulation by the affirmative enactment of laws controlling the subject matter, may nevertheless limit or prohibit State regulations which do not conform to a prescribed standard or unduly burden and impede interstate commerce. Congress would appear without question to have such power, and the statements of the court in South Carolina Highway Department v. Barnwell Bros. ((1937) 303 U. S. 177) assert the existence of the power. There the State of South Carolina had prescribed certain size and weight limitations applicable to motor vehicles used on its highways.' It was contended that these regulations were unreasonable and in conflict with the commerce power and the fourteenth amendment. The Court, however, rejected these arguments and in the course of its opinion said (p. 190):

"Congress, in the exercise of its plenary power to regulate interstate commerce, may determine whether the burdens imposed on it by State regulation, otherwise permissible, are too great, and may, by legislation designed to secure uniformity or in other respects to protect the national interest in the commerce, curtail to some extent the State's regulatory power. But that is a legislative not a judicial function, to be performed in the light of the congressional judgment of what is appropriate regulation of interstate commerce, and the extent to which, in that field, State power and local interests should be required to yield to the national interest and authority

114 * * courts do not sit as legislatures, either State or National. They cannot act as Congress does when, after weighing all the conflicting interests, State and National, it determines when and how much the State regulatory power shall yield to the larger interests of the Nation."

Here, quite obviously, the Court did not have in mind the doctrine that Congress may by affirmative regulation supersede State laws in the same field, but it was declaring that Congress, quite asdie from the enactment of any such affirmative regulatory measures, might, if it saw fit, curtail and limit State action which it believed to constitute an undue burden on interstate commerce.

In the field of taxation the Court assumes without question that Congress has power to limit State taxation affecting interstate commerce. Minnesota v. Blasius ((1933), 290 U. S. 1) involved the power of Minnesota to tax certain livestock in the St. Paul stockyards, the taxpayer denying this power on the ground that the stock at the time the tax was imposed was moving in interstate commerce. The Court denied that the State tax was upon goods in commerce, and in the course of its opinion said (p. 9):

* * the States may not tax property in transit in interstate commerce. But, by reason of a break in the transit, the property may come to rest within the State and become subject to the power of the State to impose a nondiscriminatory property tax. Such an exertion of State power belongs to that class of cases in which, by virtue of the nature and importance of local concerns, the State may act until Congress, if it has paramount authority over the subject, substitutes its own regulation." [Italics added.]

Citations to statements of this nature might be multiplied, but another should be sufficient to demonstrate the Court's assumption that Congress unquestionably has power to control State taxation in the manner presently proposed. McGoldrick v. Berwind-White Coal Mining Co. ((1940), 309 U. S. 33) involved the question of whether a New York sales tax as applied to certain sales of coal was invalid as being in conflict with the Federal commerce power. The Court upheld the State tax and in the course of its opinion said (p. 49): "If, as guides to decision we look to the purpose of the commerce clause to protect interstate commerce from discriminatory or destructive State action, and at the same time to the purpose of the State taxing power under which inerstate commerce admittedly must bear its fair share of State tax burdens, and to the necessity of judicial recognition of these competing demands, we can find no adequate ground for saying that the present tax is a regulation which, in the absence of congressional action, the commerce clause forbids." [Italics added.]

So far, in fact, has gone the assumption that this power exists, that the members of the Court are now in a controversy which necessarily presupposes the possession by Congress of the fullest powers to control State taxation in the interstate commerce field. This dispute completely overshoots the issue of whether Congress can control State taxation of interstate commerce-that is assumed by all hands: the dispute is whether the Court should continue to determine the limitations of State power in a case-to-case fashion where Con83838-43-16

gress is silent or whether the Court should leave this field to the complete and detailed regulation of the Federal legislative branch. The latter course has been advocated in three dissenting opinions of Justice Black, in the last of which he was joined by Justices Douglas and Frankfurter. These cases will be briefly considered.

Adams Mfg. Co. v. Storen ((1938), 304 U. S. 307) involved the question whether the Indiana gross receipts tax applied to the total gross receipts of a corporation, a large part of whose business was in interstate commerce, was invalid as in conflict with the Federal commerce power. The majority concluded that the tax was upon gross receipts from both intra- and interstate commerce and hence unconstitutional. In his dissent Justice Black pointed out that while the power to regulate commerce (p. 319) "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution," nevertheless (id., note 6):

"Since Congress has not acted upon this subject, the present case does not involve a manifestation by Congress of its paramount and exclusive authority to regulate an aspect of interstate commerce with which the State may deal (because of its local nature) until Congress acts."

"The question," Justice Black said, "is whether in the obsence of regulatory legislation by Congress condemning State taxing on gross receipts from interstate commerce-the commerce clause, of itself, prohibits all such State taxes, as regulations of interstate commerce, even though general, uniform, and nondiscriminatory." He pointed out (p. 320) that "some State gross income taxes may be designed or applied so as seriously to impede the freedom of interstate commerce. If interstate commerce should be so impeded, Congress mightunder its commerce power-find it 'necessary and proper' to condemn all State taxation on gross receipts, in order 'carry into execution' its granted power to regulate interstate commerce."" But, he added, no such Congressional regulation was here involved, and the sole question was whether the Indiana tax was in conflict with the Constitution. He denied that such conflict existed, and contended that the decision of the majority was regrettable in that, from a practical standpoint, it served to impose an unfair burden upon the purely local business of Indiana (p. 327):

"Until Congress, in the exercise of its plenary power over interstate commerce, fixes a different policy, it would appear desirable that the States should remain free to adopt tax systems imposing uniform and nondiscriminatory taxes upon interstate and intrastate business alike." [Italics added.] At page 328:

"A court may act to protect a litigant from unfair and unjust burdens upon the litigant's interstate business. Yet, it would seem that only Congress has the power to formulate rules, regulations, and laws to protect interstate commerce from merely possible future unfair burdens. The control of future conduct, the prevention of future injuries and the formulation of regulatory rules in the fields of commerce and taxation, all present legislative problems." [Italics Justice Black's.]

At page 332:

"If it be true, as urged, that some State gross receipts taxes may possibly in the future be multiplied so as to burden interstate commerce unfairly, it is equally true that other State gross receipts taxes (as the Indiana tax) may not, in the absence of such multiplication, result in such burdens. Since the present litigation has developed that no such unfair burdens have been imposed upon appellant's interstate business, appellant can only be exempted from payment of this tax by application of a regulatory rule or law which condemns all such State taxes-whether fair or unfair. If such a general rule or law is to be promulgated it would seem that under our constitutional division of governmental powers such a regulatory policy should be considered and determined by Congress under its exclusive grant. It will be time enough for judicial protection when a litigant actually proves, in a particular case, that State gross receipts taxes levied against the litigant have resulted in unfair and unjust discrimination against the litigant because of engagement in interstate commerce."

Gwin, White & Prince v. Henneford ((1938), 305 U. S. 434) likewise involved a State gross receipts tax levied upon gross receipts both from local and interstate business. The majority held the tax unconstitutional and Justice Black again dissented. The theme of his dissent was almost exactly the same as that in the Adams case-namely, that while the Court should outlaw State taxes which discriminate against interstate commerce, it should

no longer intrude itself into questions of whether a nondiscriminatory State tax is in conflict with the Constitution, since this field is one which Congress is more competent to deal under its undoubted and exclusive power to enact laws controlling and limiting State taxation of interstate commerce. following extracts are of interest:

At pages 444-446:

The

"No other State in which appellant's agents perform sales services has imposed a similar tax upon appellant measured by any part of its gross receipts. Such an eventuality-if it should occur--is given the title of 'multiple taxation.' And such conjectured 'multiple taxation' would be-it is said-a violation of the clause of the Constitution which gives Congress power to regulate commerce among the States. Thus far, Congress has not deemed it necessary to prohibit the States from levying taxes measured by gross receipts from interstate commerce. *

*

* * * Since 'multiple taxation' can only result if another States passes a valid, nondiscriminatory tax law, two nondiscriminatory State laws, when combined become invalid and discriminatory under the commerce clause, as a result of the judgment here. This is the consequence of departing from the sound position that State laws are not invalid under the commerce clause unless they actually discriminate against interstate commerce or conflict with a regulation enacted by Congress.

At page 449:

"Only a comprehensive survey and investigation of the entire national economy-which Congress alone has power and facilities to make can indicate the need for, as well as justify, restricting the taxing power of a State so as to provide against conjectured taxation by more than one State on identical income." At page 451:

66* * * When State statutes of apportionment come here, this Court is unable to make the broad national inquiry necessary to reach an informed conclusion on this question of economic policy.

"But Congress has both the facilities for acquiring the necessary data, and the constitutional power to act upon it."

At page 455:

"Any belief that Congress has failed to take cognizance of the problems of conjectured 'multiple taxation' or 'apportionment' by exerting its exclusive power over interstate commerce, is an inadequate reason for the judicial branch of Government-without constitutional power-to attempt to perform the duty constitutionally reposed in Congress. I would return to the rule that-except for State acts designed to impose discriminatory burdens on interstate commerce because it is interstate-Congress alone must determine' how far [interstate commerce] * * ** shall be free and untrammelled; how far it shall be burdened by duties and imposts; and how far it shall be prohibited."

In McCarroll v. Dixie Greyhound Lines ((1939) 309 U. S. 176) a State tax imposed on each gallon of gasoline above 20, brought into the State by any motor vehicle for use as fuel in such a vehicle, was held a forbidden burden on interstate commerce as applied to gasoline carried by interstate motor busses through the State for use as fuel in the course of interstate transportation in other States. The majority held that there was no reasonable relationship between the use of the State's highways and this method of computing the tax. This time Justice Black, repeating the same argument he had advanced in the two preceding cases, was joined by Justices Douglas and Frankfurter. The following extracts are of interest.

At page 185:

"Our disagreement with the opinions just announced does not arise from a belief that Federal action is unnecessary to bring about appropriate uniformity in regulations of interstate commerce. Indeed, State legislation recently before this Court indicates quite the contrary. * * * It is not for us to approve or disapprove 'courts do not sit as legislatures, either State or National. They cannot act as Congress does when, after weighing all the conflicting interests, State and National, it determines when and how much the State regulatory power shall yield to the larger interests of national commerce.' As both the Union and the States are more and more dependent upon the exercise of their taxing powers for carrying on government, it becomes more and more important that potential conflicts between State and National powers should not be found where Congress has not found them, unless conflict is established by demonstrable concreteness."

And at pages 188-189: "Judicial control of national commerce-unlike legislative regulations-must from inherent limitations of the judicial process treat the subject by the hitand-miss method of deciding single local controversies upon evidence and information limited by the narrow rules of litigation. Spasmodic and unrelated instances of litigation cannot afford an adequate basis for the creation of integrated national rules which alone can afford that full protection for interstate commerce intended by the Constitution. We would, therefore, leave the questions raised by the Arkansas tax for Congress in a Nation-wide survey of the constantly increasing barriers to trade among the States. Unconfined by 'the narrow scope of judicial proceedings' Congress alone can, in the exercise of its plenary constitutional power over interstate commerce, not only consider whether such a tax as now under scrutiny is consistent with the best interests of our national economy, but can also, on the basis of full exploration of the many aspects of a complicated problem, devise a national policy fair alike to the States and our Union."

The significance of these dissents lies not so much in their bearing out the past assumptions of the Court that Congress has ample power to control and even prohibit State taxation of interstate commerce. The entire Court would regard that proposition as a foregone conclusion. These dissents are mainly significant in what they portend for the future. Justices Frankfurter and Douglas are now alined with Justice Black.

It is not supposing the impossible to anticipate that Justice Black may win the necessary two further members for a majority in the very next decision. What then would be the status of the air lines? The Court would sustain any State tax which was not expressly discriminatory on the theory that, in rendering past decisions invalidating multiple nondiscriminatory taxation, it had overstepped its constitutional function and encroached upon a field within the exclusive control of Congress. The Minnesota decision would be affirmed and, in the absence of congressional action anticipating the adoption of Justice Black's views by the Court, there could be expected a flood of burdensome and multiple State taxes.

The possibility that the Court may soon swing to Justice Black's views is real. Unless Congress anticipates this development by enacting some provision such as that now proposed, the air lines may soon find themselves deprived of all protection against burdensome and unfair exactions.

DISCUSSION OF SECTION 56 OF H. R. 1012

This section is as follows:

"SEC. 56. Section 1101 of the Civil Aeronautics Act of 1938, as amended, is hereby amended to read as follows:

""WORKMEN'S COMPENSATION AND RELATED LIABILITY

"SEC. 1101. In order to prevent uncertainty and confusion, and to reduce the necessity for litigation with respect to the liability of air carriers and air contractors on account of injury or death to employees arising out of or in the course of their employment, the Authority shall promulgate regulations which thereupon shall govern the choice of law defining such liability as between the statutory or other laws of the several States, Territories, possessions, or other governments which may be concerned.'"

At the outset two questions arise with respect to this section. It should be determined first whether there is need for the enactment of this section; that is to say, whether there is at present in conflict of laws principles in the field of workmen's compensation "uncertainty and confusion" to an extent which warrants clarifying Federal legislation. Second, assuming that there is an urgent need for such clarification, it is essential to consider whether Congress under the Constitution may resolve the uncertainties in this field by authorizing regulations governing the choice of State law.

I

In the first of workmen's compensation the conflict of laws principles enjoined by the Federal Constitution stem from the holdings of three leading cases, namely Bradford Electric Co. v. Clapper (1932) 286 U. S. 145), Alaska Packers' Ass'n v.