Joseph v. Carter & Weekes Stevedoring Company/Opinion of the Court
These two writs of certiorari bring before this Court contentions in reg rd to the application to the respective respondents, Carter & Weekes Stevedoring Company and John T. Clark & Son, of New York City, of the general business tax laws covering, when both cases are considered, the years 1937 to 1941, inclusive.  The character of the taxes in issue will appear from a section, set out below, of a local law imposing the tax for 1939 and 1940.  The respective taxpayers are liable also for the general income and ad valorem taxes of the State and City of New York. Both respondents are corporations engaged in the business of general stevedoring. For these cases, the business of respondents may be considered as consisting only of taking freight from a convenient place on the pier or lighter wholly within the territorial limits of New York City and storing it properly for safety and for handling in or on the outgoing vessel alongside, or of similarly unloading a vessel on its arrival. The vessels moved in interstate or foreign commerce, without a call at any other port of New York. We do not find it necessary to consider separately interstate and foreign commerce. The Commerce Clause covers both.

Through statutory proceedings unnecessary to particularize, the Comptroller of the City of New York determined that the respondents were liable for percentage taxes upon the entire gross receipts from the above activities for the years in question under the provisions of the respective local laws to which reference has been made. Review of these determinations was had by respondents in the Supreme Court of New York County, Appellate Division. The determinations of the Comptroller were annulled on the authority of Puget Sound Stevedoring Company v. Tax Commission, 302 U.S. 90, 58 S.Ct. 72, 82 L.Ed. 68; Matter of Clark & Son v. McGoldrick, 269 App.Div. 685, 54 N.Y.S.2d 380, 383. These orders were affirmed by the Court of Appeals, Carter & Weekes Stevedoring Co. v. McGoldrick, 294 N.Y. 906, 908, 63 N.E.2d 112, and remittiturs issued stating that the Court of Appeals affirmed on the ground that the local laws as applied in these cases were in violation of Article I, § 8, Clause 3, of the Constitution of the United States.  Writs of certiorari to  his Court were sought and granted on the issue of whether or not this tax on these respondents constituted an unconstitutional burden on commerce.

Petitioners recognize the force of the Puget Sound case as a precedent. Their argument is that subsequent holdings of this Court have indicated that the reasons which underlay the decision are no longer controlling in judicial examination of the constitutionality of state taxation of the gross proceeds derived from commerce, subject to federal regulation. They cite, among others, these later decisions: Western Live Stock v. Bureau of Internal Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823, 115 A.L.R. 944; Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586; McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565, 128 A.L.R. 876; Department of Treasury of Indiana v. Wood Preserving Corporation, 313 U.S. 62, 61 S.Ct. 885, 85 L.Ed. 1188.

In the Puget Sound case a state tax on gross receipts, indistinguishable from that laid by New York City in this case, was held invalid as applied to stevedoring activities exactly like those with which we are here concerned. The Puget Sound opinion pointed out, 302 U.S. at page 92 et seq., 58 S.Ct. at page 73, 82 L.Ed. 68, that transportation by water is impossible without loading and unloading. Those incidents to transportation occupy the same relation to that commerce whether performed by the crew or by stevedore, contracting independently to handle the cargo. The movement of cargo off and on the ship is substantially a continuation of the transportation. Cf. Baltimore & O.S.W.R. Co. v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433.

It is trite to repeat that the want of power in the confederation to regulate commerce was a principal reason for the adoption of the Constitution. The Commerce Clause bears no limitation of power upon its face and, when the Congress acts under it, interpretation has suggested none, except such as may be prescribed by the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L.Ed. 23; United States v. Carolene Products Co., 304 U.S. 144, 147, 58 S.Ct. 778, 780, 781, 82 L.Ed. 1234; North American Co. v. Securities and Exchange Commission, 327 U.S. 686, 704, 66 S.Ct. 785, 795, 796. On the other hand, the Constitution, by words, places no limitation upon a state's power to tax the things or activities or persons within its boundaries. What limitations there are spring from applications to state tax situations of general clauses of the Constitution. E.g., Art. I § 10, Cl. 2 and 3; New York Indians, 5 Wall. 761, 18 L.Ed. 708; Board of County Commissioners v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237, 10 S.Ct. 533, 535, 33 L.Ed. 892; Lawrence v. State Tax Commission, 286 U.S. 276, 284, 52 S.Ct. 556, 558, 559, 76 L.Ed. 1102, 87 A.L.R. 374; Henderson Bridge Co. v. City of Henderson, 173 U.S. 592, 614-15, 19 S.Ct. 553, 561, 562, 43 L.Ed. 823; New York Rapid Transit Corporation v. City of New York, 303 U.S. 573, 581-82, 58 S.Ct. 721, 725, 726, 82 L.Ed. 1024. From the Commerce Clause itself, there comes, also, an abridgment of the state's power to tax within its territorial limits. This has arisen from long continued judicial interpretation that, without congressional action, the words themselves of the Commerce Clause forbid undue interferences by the states with interstate commerce  and that this rule applies in full force to an unapportioned  tax on the gross proceeds from interstate business,  where the taxes were not in lieu of ad valorem taxes on property. 

We do not think that a tax on gross income from stevedoring, obviously a 'continuation of the transportation,' is a tax apportioned to income derived from activities within the taxing state. The transportation in commerce, at the least, begins with loading and ends with unloading. Loading and unloading has effect on transportation outside the taxing state because those activities are not only preliminary to but are an essential part of the safety and convenience of the transportation itself.

When we come to weigh the burden or interference of this tax on the gross receipts from interstate commerce, the purposes of that portion of the Commerce Clause-the freeing of business from unneighborly regulations that inhibit the intercourse which supplies reciprocal wants by commerce -is a significant factor for consideration. An interpretation of the text to leave the states free to tax commerce until Congress intervened would have permitted intolerable discriminations. Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586, 162 A.L.R. 844, and cases collected in notes 13, 14, 15 and 16. Nevertheless, a proper regard for the authority of the states and their right to require interstate commerce to contribute by taxes to the support of the state governments which make their interstate commerce possible, has led Congress, over a long period to leave intact the judicial rulings, referred to above, that apportioned, non-discriminatory gross receipt taxes or those fairly levied in lieu of property taxes conformed to the requirements of the Commerce Clause. As the power lies in Congress under the Clause to make any desired adjustment in the taxation area, its acquiescence in our former rulings on state taxation indicates its agreement with the adjustments of the competing interests of commerce and necessary state revenues.  There is another reason that may be the basis for the acceptance, almost complete, by Congress of the judicial interpretations in this field. This is that a wide latitude exists for permissible state taxation. This term, in an effort to show that the reach of the Circuit Court did not destroy the state's power to make commerce pay its way, we elaborated the fact that taxes on the commerce itself was not the sole source of state revenue from that commerce. Freeman v. Hewit  supra, 329 U.S. 249, 254, 67 S.Ct. 274, 277, see also Adams Mfg. Co. v. Storen, supra, 304 U.S. at page 310, 58 S.Ct. at page 915, 85 L.Ed. 1365.

A power in a state to tax interstate commerce or its gross proceeds, unhampered by the Commerce Clause, would permit a multiple burden upon that commerce. This has been noted as ground for their invalidation. Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 255, 58 S.Ct. 546, 548, 82 L.Ed. 823, 115 A.L.R. 944. The selection of an intrastate incident as the taxable event actually carries a similar threat to the commerce but, where the taxable event is considered sufficiently disjoined from the commerce, it is thought to be a permissible state levy.  This result generally is reached because the local incident selected is one that is essentially local and is not repeated in each taxing unit. In the present case, the threat of a multiple burden, except in the few instances in the record of interstate, in distinction to foreign, commerce, is absent. The multiple burden on interstate transportation from taxation of the gross receipts from stevedoring arises from the possibility of a similar tax for unloading. The actual effect on the cost of carrying on the commerce does not differ from that imposed by any other tax exaction-ad valorem, net income or excise. Cf. Western Live Stock v. Bureau of Revenue, supra, 303 U.S. at page 254, 58 S.Ct. at page 548, 82 L.Ed. 823, 115 A.L.R. 944. We need consider only whether or not the loading and unloading is distinct enough from the commerce to permit the tax on the gross.

On precedent, the Puget Sound case is controlling. It was promptly and recently cited with approval.  It appears in Adams Mfg. Co. v. Storen  in support of the possible double tax argument against levies on interstate commerce. In Western Live Stock v. Bureau of Revenue, supra, 303 U.S. at page 258, 58 S.Ct. at page 549, 550, 82 L.Ed. 823, 115 A.L.R. 944, it was adverted to as a case for comparison with a ruling that 'preparing, printing and publishing magazine advertising is peculiarly local and distinct from its circulation whether or not that circulation be interstate commerce.' The case was not included in the Court's opinion in Gwin, White & Prince, Inc. v. Henneford,  where a state gross receipts tax on income from marketing fruit interstate was invalidated under the Commerce Clause, or in McGoldrick v. Berwind-White Coal Mining Co.,  though relied upon in the concurring opinion in the first 305 U.S. at page 442, 59 S.Ct. at page 329, 83 L.Ed. 272, and the dissent in the second 309 U.S. at page 62, 60 S.Ct. at page 400, 84 L.Ed. 565, 128 A.L.R. 876. Upon examination this history gives an impression that there has been a doubt as to the continued vitality of Puget Sound. We come now face to face with the problem of overruling or approving the case.

Since Puget Sound there has been full consideration of how far a state may go in taxing intrastate incidents closely related in time and movement to the interstate commerce. The cases that lend strongest support to petitioners' argument for overruling the Puget Sound decision have been referred to above. We comment further upon them. The 2% excise tax levied by New Mexico on the gross receipts of publishers from advertising, upheld in Western Live Stock, was found to be an exaction for carrying on a local business.  The Gallagher case turns expressly on our conclusion that a use tax is validly levied on an intrastate event, 'separate and apart from interstate commerce,' 306 U.S. at page 176, 59 S.Ct. at page 393, 83 L.Ed. 586, and the Wood Preserving case  reached a similar result by reason of the fact that the taxpayer sold and delivered its ties intrastate before transportation began, 313 U.S. at page 67, 61 S.Ct. at page 887, 888, 85 L.Ed. 1188. This is likewise true of American Mfg. Co. v. City of St. Louis, 250 U.S. 459, 39 S.Ct. 522, 63 L.Ed. 1084, as explained in the Storen case.  When we examine the Berwind-White tax on the purchasers of tangible personal property for consumption, there is the same reliance upon the local character of the sale, 309 U.S. at pages 43, 47, 49, 58, 60 S.Ct. at pages 390, 392, 393, 394, 398, 84 L.Ed. 565, 128 A.L.R. 876.  We there said, 309 U.S. at page 48, 60 S.Ct. at page 393, 84 L.Ed. 565, 128 A.L.R. 876:

'Certain types of tax may, if permitted at all, so readily be made the instrument of impeding or destroying interstate commerce as plainly to call for their condemnation as forbidden regulations. Such are the taxes already noted which are aimed at or discriminate against the commerce or impose a levy for the privilege of doing it, or tax interstate transportation or communication or their gross earnings, or levy an exaction on merchandise in the course of its interstate journey.' Though all of these cases were closely related to transportation in commerce both in time and movement, it will be noted that in each there can be distinguished a definite separation between the taxable event and the commerce itself. We have no reason to doubt the soundness of their conclusions.

Stevedoring is more a part of the commerce than any of the instances to which reference has just been made. Although state laws do not discriminate against interstate commerce or in actuality or by possibility subject it to the cumulative burden of multiple levies, those laws may be unconstitutional because they burden or interfere with commerce. See Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915. Stevedoring, we conclude, is essentially a part of the commerce itself and therefore a tax upon its gross receipts or upon the privilege of conducting the business of stevedoring for interstate and foreign commerce, measured by those gross receipts, is invalid. We reaffirm the rule of Puget Sound Stevedoring Company. 'What makes the tax invalid is the fact that there is interference by a State with the freedom of interstate commerce.' Freeman v. Hewit, supra, 329 U.S. 249, 256, 67 S.Ct. 274, 279. Such a rule may in practice prohibit a tax that adds no more to the cost of commerce than a permissible use or sales tax. What lifts the rule from formalism is that it is a recognition of the effects of state legislation and its actual or probable consequences. Not only does it follow a line of precedents outlawing taxes on the commerce itself but it has reason to support it in the likelihood that such legislation will flourish more luxuriant y where the most revenue will come from foreign or interstate commerce. Thus in port cities and transportation or handling centers, without discrimination against out-state as compared with local business, larger proportions of necessary revenue could be obtained from the flow of commerce. The avoidance of such a local toll on the passage of commerce through a locality was one of the reasons for the adoption of the Commerce Clause.

Affirmed.

Mr. Justice BLACK dissents.

Mr. Justice DOUGLAS, with whom Mr. Justice RUTLEDGE concurs, dissenting in part. 

Notes