542 FRANKFURTER, J., dissenting. Again, if the State makes clear by disposition of the tax proceeds or by statutory declaration that the tax is levied to secure compensation for road use, the tax classification will be sustained if it may fairly be attributed to the privilege of road use, as distinguished from actual use. Compare Interstate Transit, Inc. v. Lindsey, 283 U. S. 183 (no allocation of proceeds) with Clark v. Poor, 274 U. S. 554 (allocation); see Appendix, post, p. 561. Thus, mileage may be ignored and an annual tax may be based on horsepower, Hendrick v. Maryland, 235 U. S. 610, and Kane v. New Jersey, 242 U. S. 160; on carrying capacity, Clark v. Poor, 274 U. S. 554, and Hicklin v. Coney, 290 U. S. 169; and on manufacturer's rated capacity, Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U. S. 72. And the Court has upheld flat fees imposed without regard to size or weight factors. Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, 295 U. S. 285; Morf v. Bingaman, 298 U. S. 407; Clark v. Paul Gray, Inc., 306 U. S. 583; Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U. S. 495. From this body of decisions, the Court now extracts the principle that, so long as a tax is levied for highway purposes and does not formally discriminate against interstate commerce, it cannot be attacked for its tax formula or classification, but only for "excessiveness" of amount. Such a view collides with the guiding limitation upon State power announced in Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, 186, that a tax intended to compensate for road use "will be sustained unless the taxpayer shows that it bears no reasonable relation to the privilege of using the highways or is discriminatory." This wary qualification was formulated for the Court by Mr. Justice Brandeis, who was most alert not to deny to States the right to make interstate commerce pay its way. Likewise, today's opinion disregards McCarroll v. Dixie Greyhound FRANKFURTER. 7. tvenng 3. U.S. Lines, Inc., 309 U. S. 178 holding a tax invalid simply because the standard of measurement was found to be unrelated to what the State gave. In that case, the tax was declared to be imposed upon the privilege of highway use and the proceeds were allocated, ani, as here. it was sought to justify the tax as levied for that purpose. There was no showing that the State was ecllecting sums in excess of its needs or that the carrier was being subjected to severe economic strain. The defect lay in the capricious tax formula. In no prior case has the Court upheli a tax formula bearing no reasonable relationship to the privilege of road use. No support to the result now reached is lent by the fact that State tax formulas need not be limited to factors refecting actual road use, such as mileage, but may be measured by the privilege of highway use extended to all alike. In a case involving a dat tax characterized as "moderate." the matter was Muminatingly put for the Court by Mr. Justice Cariczo: "There would be administrative difficulties in collecting on that basis [i e.. mileage). The fee is for the privilege of a use as extensive as the carrier wills that it shall be. There is nothing unreasonable or oppressive in a burden so imposed.... One who receives a privilege without limit is not wronged by his own refusal to enjoy it as freely as he may." Aero Mayfower Transit Co. v. Georgia Public Service Comm'n. 295 U. S. 285. 289. Systems of taxation need not achieve the ideal. But the fact that the Constitution does not demand pure reason and is satisfied by practical reason does not justify unreason. Though a State may levy a tax based upon the privilege granted, as distinguished from its exercise, this does not sanction a tax the measure of which has no reasonable relation to the privilege. Reason precludes 542 FRANKFURTER, J., dissenting. the notion that a tax for a privilege may disregard the absence of a nexus between privilege and tax. Our decisions reflect that reason. A State naturally may deem factors of size or weight to be relevant. Hicklin v. Coney, 290 U. S. 169, 173. Since the relationship of these factors to highway construction and maintenance costs cannot be measured with even proximate accuracy, the States are not hobbled in exercising rough judgment in devising tax formulas, giving to size, weight and other relevant factors such respect as is fairly within the restraints of decency. Cf. Clark v. Paul Gray, Inc., 306 U. S. 583, 594. And a State, with an eye to the problems of tax administration, may also reasonably conclude that under some circumstances such factors are not sufficiently significant or material to call for insistence upon impractical details, and that a flat tax is proper. In the cases involving flat taxes, the Court carefully pointed out that the classification was reasonable on the facts before it. Morf v. Bingaman, 298 U. S. 407, 410; Clark v. Paul Gray, Inc., 306 U. S. 583, 600; Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U. S. 495, 506. Maryland's titling tax fails to meet the justifications that sustain a State's power to levy a tax on what is exclusively the carrying on of interstate commerce. Giving the State court's judgment every indulgence for supporting its validity, one cannot find any fair relationship between the tax and actual road use or the privilege of such use. The value of a vehicle is not a practical function of what the State affords. It has at best a most tenuous relationship to the privilege of using the roads, since differences in value are due to a vehicle's appointments or its age or to other factors which have no bearing on highway use. Differences in the cost of vehicles based on such factors, reflecting in large measure the financial condition of owners or their investment policies, can FRANKFURTER, J., dissecting. 3 U.S. hartly furnish a standard by which a return for road e may be measured. This irrelevance in the basis of the tax is reinforced by the irrelevance of its incidence. For the tax is exacted not only on the original purchase of the vehicle but upon its subsequent transfer to a new owner. If the tax be treated as one on the vehicle, then it is attributable not to the privilege of road use but to a shift in its ownership. If the tax is deemed to be upon the owner, then it depends hot upon the privilege of road use but upon the frequency of turnover of his equipment. Unlike all the comparable taxes heretofore sustained, the Maryland tax is measured by considerations extraneous to the State's right to impose it. The Court in effect concedes this, but proceeds on the theory that the basis of such a road tax need not be intrinsically reasonable. Validity is treated as a question of dollars and certs; only the amount of the tax may be questioned. It should oression no surprise that such a test breaks wholly new ground. Amount has of course played a part in the total context of prior decisions and it raises issues to which I shall shortly advert. But a test of amount has never been regarded as in itself a substitute for a reasonable tax classification. Whilt novelty of doetrine does not prove unconstitutionality, neither does it establish constitutionality no prior decision gives any warrant for determining the validity of a State tax on commeret going through, it merely by the size of the financia. burden, which such a tax entails, the reason is obvious enough.. It would rast what is surely not a judicial function upon this Court to decide how big an amount, abstractly considered. car. economically he absorbed by & carrier engaged exclusively m. interstate commerce as ai exaction by each State through which the carrier 542 3 FRANKFURTER, J., dissenting. passes. Contrariwise, it is within the competence of judges to determine the fair relevance of criteria in achieving allowable ends. How criteria work in specific cases involves familiar practicalities in the administration of law. No doubt difficulties are encountered by the States in formulating classifications for tax purposes which express the needed accommodation in our federalism between due regard for the special facilities afforded by States to interstate commerce for which they require compensation, and that freedom of commerce across State lines the desire for which was one of the propelling forces for the establishment of this nation and the benefits of which are one of its greatest sources of strength. Of course this Court must not unduly rein in States. Practical, not ideal, lines must be drawn, which means that within. the broadest reach of policy relevant to the States' basis of taxation a wide choice must be allowed to the States of possible taxes on motor vehicles traveling in interstate commerce. Clark v. Paul Gray, Inc., 306 U. S. 583. But simply because many tax formulas may be devised does not mean that any formula will do. Of course, the problem involves matters of degree. Drawing lines, recognition of differences of degree, is perhaps the chief characteristic of the process of constitutional adjudica 3 The Court, to be sure, does not avow that the validity of the tax depends on the relation of its size to the financial condition of the carrier. But such is the effective consequence of the considerations by which it determines validity. Once the Court abandons, as it does, an inquiry into the reasonableness of the tax basis in relation to the allowable purposes of the tax, there is nothing by which the validity of the imposition can be judged except its effect upon the finances of the carrier, unless perchance the matter is to be left wholly at large. Even in that event, the Court is bound to make ad hoc judgments that the particular amount a State asks of a carrier is not going to hurt it. |