339 U.S.

Opinion of the Court.

legations, bought a new passenger-carrying vehicle and declared a purpose to use its vehicle on one of its Maryland routes. The Maryland portions of these three routes are 9, 41 and 64 miles respectively. The state taxes computed on the fair market value of each vehicle are $505.17, $580 and $372.55, respectively. This showing does indicate that the title tax falls short of achieving uniformity among carriers in relation to road use. Moreover, as argued, it may well be unwise to subject carriers to the monetary temptation incident to the application of a tax that hits a carrier only when it purchases a bus. But that is not our issue. And it should be noted that the total charge of Maryland for the privilege of using its roads will not show the same disparity among carriers. For Maryland also charges a mileage tax, and this tax added to the title tax is what Maryland actually charges for its road privileges. Thus the total charge as among carriers does vary substantially with the mileage traveled.

We recognize that in the absence of congressional action this Court has prescribed the rules which determine the power of states to tax interstate traffic, and therefore should alter these rules if necessary to protect interstate commerce from obstructive barriers. But with full appreciation of congenital infirmities of the Maryland formula-and indeed of any formula in this field—as well as of our present rules to test its validity, we are by no means sure that the remedy suggested by appellants would not bring about greater ills. Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensation for road use. These factors, like those relevant in considering the constitutionality of other state taxes, are so countless that we must be content with "rough approximation rather than precision." Harvester Co. v. Evatt, 329 U. S. 416, 422423. Each additional factor adds to administrative bur

*See note 1, supra.

542

Opinion of the Court.

7

dens of enforcement, which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which on its face appears to bear with unequal weight upon different carriers. Aero Transit Co. v. Georgia Comm'n, 295 U. S. 285, 289. Upon this type of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads.

Our adherence to existing rules does not mean that any group of carriers is remediless if the total Maryland taxes are out of line with fair compensation due to Maryland. Under the rules we have previously prescribed, such carriers may challenge the taxes as applied, and upon proper proof obtain a judicial declaration of their invalidity as applied. Ingels v. Morf, 300 U. S. 290. Cf. Clark v. Paul Gray, Inc., 306 U. S. 583.

If a new rule prohibiting taxes measured by vehicle. value is to be declared, we think Congress should do it.

One example of the complexities springing from state attempts to weigh numerous factors was the Indiana tax upheld in Eavey Co. v. Department of Treasury, 216 Ind. 255, 264, 24 N. E. 2d 268, 272, which was ". . . based upon the carrying capacity, number of wheels per axle, load per axle, size of tires used, weight, and other elements described in the act, all of which bear a direct relation to the hazards of the highways."

8 Congress has passed comprehensive legislation regulating interstate carriers in which it is declared that "Nothing in this chapter shall be construed to affect the powers of taxation of the several States. . . ." 49 U. S. C. § 302 (b). See Brashear Freight Lines v. Public Serv. Comm'n, 23 F. Supp. 865; see also Maurer v. Hamilton, 309 U. S. 598. It is interesting to note that the Interstate Commerce Commission charged with the duty of fixing rates and administering the Motor Carrier Act requires carriers to keep accounts showing the "cost of all taxes, licenses and fees assessed for the privilege of operating revenue vehicles over the highways, such as registration fees, license plate fees, . . . certificates of title fees .. and similar items

49 CFR, 1947 Supp., § 182.5220.

FRANKFURTER J., dissenting

339 T.S

We decline to hold that this Maryland title tax law is wholly invalid however applied.

Second. Little need be said as to the faint contention here that the taxes actually levied against appellants are in excess of a fair compensation for the privilege of using Maryland roads. While the State Supreme Court did pass on this question, holding that appellants had failed to prove excessiveness, the assignments of error here did not specifically mention such a challenge. That court satisfactorily disposed of any question of the size of the fees in relationship to the road privileges granted. The burden of proof in this respect is on a carrier who challenges a state law. Clark v. Paul Gray, Inc., 306 U. S. 583. 598-600. We agree with the Supreme Court of Maryland that here there is a complete and utter lack of proof sufficient to invalidate the state law on this ground. See Dirie Ohio Co. v. Commission, 306 U. S. 72, 77-78.

Affirmed.

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

MR. JUSTICE FRANKFURTER, whom MR. JUSTICE JACKSON joins, dissenting.

Once more we are called upon to subject a State tax on interstate motor traffic to the scrutiny which the Commerce Clause requires so that interstate commerce may enjoy freedom from State taxation outside of those narrow limits within which States are free to burden such commerce.

The essential facts are easily stated. By various provisions of Maryland law, an interstate motor carrier may not operate its vehicles within the State until it has registered them. As a prerequisite to registration the car

542

FRANKFURTER, J., dissenting.

rier must obtain a certificate of title for each vehicle. Section 25A of Article 661⁄2 of the Annotated Code of Maryland, 1947 Cum. Supp., imposes a so-called titling tax of 2% of the "fair market value" of each motor vehicle "for the issuance of every original certificate of title . . . and . . . every subsequent certificate of title in the case of sales or resales ." Thus, the tax does not strike at periodic intervals but only when a purchase has been made of a motor vehicle which is to be operated in whole or part on Maryland highways, whether the vehicle be new or old. The entire proceeds of the tax are devoted to road purposes.

.

1

Appellants operate interstate bus lines, in part over Maryland roads. Each purchased a bus, but refused to pay the tax on the ground that § 25A was invalid under the Commerce Clause as applied to interstate carriers. They were denied certificates of title by the State and thereupon filed petitions for mandamus to secure them. The Maryland Court of Appeals sustained the levy, 64 A. 2d 284, and the case is here on appeal. 28 U. S. C. § 1257 (2).

I. Since "a State may not lay a tax on the privilege of engaging in interstate commerce," the titling tax can be

1 The relevant portion of § 25A reads more fully as follows: "In addition to the charges prescribed by this Article there is hereby levied and imposed an excise tax for the issuance of every original certificate of title for motor vehicles in this State and for the issuance of every subsequent certificate of title for motor vehicles in this State in the case of sales or resales thereof, and on and after July 1, 1947, the Department of Motor Vehicles shall collect said tax upon the issuance of every such certificate of title of a motor vehicle at the rate of two per centum of the fair market value of every motor vehicle for which such certificate of title is applied for and issued." 2 Although two of the appellants also engage to some extent in intrastate transportation, it was not argued either here or below that this has any bearing on the case. Cf. Sprout v. South Bend, 277 U. S. 163, 170-71.

FRANKFURTER, J., dissenting.

339 U.S.

sustained only if it be a fair imposition for the use of highways constructed and maintained by Maryland or for the cost of traffic regulation. Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, 185; see also Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U. S. 72, 76. The right of a State to levy such a compensatory tax also as to interstate commerce for special benefits is well settled. The subjection of interstate motor traffic to such State power is only a particular application of a general principle. Clyde Mallory Lines v. Alabama, 296 U. S. 261, 267-68, and cases cited. But whether the tax now under review comes within the scope of the principle must be tested by the considerations which have guided prior adjudication. (All of the cases in which this Court has dealt with our specific problem are listed, and their relevant facts described, in an Appendix to this opinion, post, p. 561.) If a new principle is to be announced, it, too, must stand the test of reason in relation to the Commerce Clause.

Since the levy is upon commerce exclusively interstate, and therefore inevitably an inroad upon its normal freedom from State burdens, Maryland must justify it as a means of securing compensation for the road use which the State affords and for which it may exact a return. Interstate Transit, Inc. v. Lindsey, 283 U. S. 183. This requirement is not a close accounting responsibility, however, for the States are free to exercise a loose judgment in fixing a quid pro quo. Thus, tax formulas dependent on actual use of the State's highways satisfy the constitutional test, without more, since they reflect an obvious relationship between what is demanded and what is given. by the State. Taxes based on miles or ton-miles have encountered no difficulty here. Interstate Busses Corp. v. Blodgett, 276 U. S. 245; Continental Baking Co. v. Woodring, 286 U. S. 352.