Braniff Airways v. Nebraska Board, 347 U.S. 590 (1954)
MR. JUSTICE DOUGLAS, concurring.
Braniff Airways, in challenging the power of Nebraska to lay this ad valorem tax, claims only that its planes have no taxable situs in the State. It does not claim that no fraction of the aircraft, on an apportioned basis, is permanently in the State. Nor does it attack this apportionment formula.
My understanding of our decisions is that the power to lay an ad valorem tax turns on the permanency of the property in the State. All the property may be there, or only a fraction of it. Property in transit, whether a plane discharging passengers or an automobile refueling, is not subject to an ad valorem tax. Property in transit may move so regularly and so continuously that part of it is always in the State. Then the fraction, but no more, may be taxed ad valorem.
I mention these elemental points to reserve explicitly the validity of the apportionment formula that serves as the basis of this ad valorem tax. The formula used presents substantial questions. What might be an adequate formula for a gross receipts tax might be inadequate for an ad valorem tax. Moreover, when we are faced with a due process question, we have a problem we may not delegate to Congress.
I do not think the Court takes a position contrary to what I have said. But there are passages in the opinion which blur the constitutional issues as they are blurred and confused in the interesting report of the Civil Aeronautics Board, H.R.Doc.No. 141, 79th Cong., 1st Sess., entitled Multiple Taxation of Air Commerce. Hence I have joined in the judgment of the Court, but not in the opinion.
1. The proposal of this Report -- that there be a uniform allocation formula to apportion taxes among the States -- was adopted by the Council of State Governments. See 20 State Government 95. However no federal legislation has yet resulted.
2. In addition to the problem of conflict between apportionment schemes of various States, it must be borne in mind that these schemes cannot be regarded as abstract mathematical formulas, and hence they must be closely scrutinized to ensure their fairness as applied to a given situation. See Wallace v. Hines, 253 U.S. 66.
3. Lest it be thought one formula of apportionment is clearly the appropriate one, it should be noted that the Board’s Report sets forth three formulas proposed by responsible groups, in addition to that recommended by the Board. And while Nebraska adopted the factors recommended by the Board, it did not give them the same weight which the Board’s proposed formula did. See H.R.Doc.No.141, 79th Cong., 1st Sess. 58.
4. With the exception of one plane which remains in Nebraska overnight, all of the Company’s planes remain in Nebraska for periods of between five and twenty minutes each day. Considering this brief time spent on the ground by planes which stop in transit, more than a bare assertion that flight equipment is "permanently" in Nebraska is called for to establish the requisite permanence for taxing purposes.