State v. Northwest Airlines, Inc. , 213 Minn. 395 ( 1942 )

The dissenting opinion of Mr. Justice Loring is based principally upon his interpretation of Johnson Oil Ref. Co. v. Oklahoma ex rel. Mitchell, 290 U.S. 158, 54 S. Ct. 152,78 L.ed. 238. He insists that that case is indistinguishable from the case at bar, notwithstanding that there the state seeking to tax an entire fleet of floating tank care was not the state of the corporate owner's domicile. To quote from his dissent:

"Thus we have a situation much like that presented to us in the case at bar except that the Johnson company was incorporated in Illinois instead of Oklahoma, a matter which the United States Supreme Court and the majority here seem to regard as immaterial insofar as tangible property is concerned."

But an examination of the opinion of Mr. Chief Justice Hughes establishes the contrary. To quote (290 U.S. 161,54 S. Ct. 152, 153, 78 L. ed. 238):

"Appellant had its domicile in Illinois and that State had jurisdiction to tax appellant's personal property which had not acquired an actual situs elsewhere. 'The State of origin remains the permanent situs of the property notwithstanding its occasional excursions to foreign parts.' "

In support of this statement, the Chief Justice cites New York ex rel. N.Y. C. H. R. R. Co. v. Miller, 202 U.S. 584,26 S. Ct. 714, 50 L. ed. 1155; Southern Pacific Co. v. Kentucky,

222 U.S. 63, 32 S. Ct. 13, 56 L. ed. 96. These cited cases and not the Johnson Oil Co. case are controlling here, as clearly pointed out by Mr. Justice Pirsig in his opinion. Granted that domicile of the corporate owner standing alone will not vest in the domiciliary state the power to tax an entire fleet of airplanes, yet the additional facts that the corporation's principal place of business is in the state, that all of its airplanes come within its borders during the tax year on scheduled trips and for repairs, and that the manner and extent of their operation is determined and directed from the state, supply the additional elements necessary to invest the state with power to tax such planes.

I not only fully but emphatically agree with Mr. Justice Loring that "to subject all the taxpayer's planes * * * to double or multiple taxation * * * would not only be unjust but would create a situation so burdensome to the airlines as materially to handicap their development and extension, so vital to the national interest."

As a court we cannot, however, concern ourselves with policy, a purely legislative question. Our only inquiry is power. It is an uncontroverted doctrine that courts will not consider the justice, wisdom, expediency, propriety, necessity, or policy of tax laws or other legislation. That cardinal principle is the basis of the circumspect avoidance by the judiciary of encroachment upon the exclusive domain of the legislature, a coequal branch of the government. 11 Am. Jur., Constitutional Law, pp. 802-3-4, 900, §§ 136-138, 198; 1 Cooley, Const. Limitations (8 ed.) 346; State v. Fairmont Creamery Co.162 Minn. 146, 202 N.W. 714, 42 A.L.R. 548; Champion v. Ames (lottery case) 188 U.S. 321, 363, 23 S. Ct. 321, 47 L. ed. 492,504; McCray v. United States, 195 U.S. 27, 24 S. Ct. 769,49 L.ed. 78, 1 Ann. Cas. 561.

As recently as November 9, 1942, in the case of Wickard v. Filburn, 317 U.S. 111, 129, 63 S. Ct. 82, 91, 87 L. ed. . . . ., Mr. Justice Jackson reiterated this rule in the following language:

"An Act of Congress is not to be refused application by the courts as arbitrary and capricious and forbidden by the Due Process Clause merely because it is deemed in a particular case to work an inequitable result."

Mr. Justice Pirsig has convincingly demonstrated that this state's power to tax defendant's entire fleet of airplanes exists so long as no part of it is permanently located in another state. I therefore concur in his conclusion, though reluctantly and not without suggesting that, for reasons so forcibly pointed out by Mr. Justice Loring, 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 airlines under national law and control of taxation."