The opinion
Disney,
dissenting: I dissent. I can not believe that the idea as to the management of ports involving the principle of essential governmental agency, under the various facts discussed in Montgomery B. Case, 34 B. T. A. 1229, following Commissioner v. Ten Eyck, 76 Fed. (2d) 515, requires that principle to be extended over proprietary functions such as appear in the instant case. It has been said that taxation is a practical matter, and I believe that tenuous theories have been followed far enough in a matter of such practical import and of reciprocal relations between state and nation, without impinging further upon situations involving functions indubitably proprietary in their essential nature, and as a matter of fact involving competition with ordinary business. Assuming, in a situation of national or near-national importance, where state sovereignty has been exercised and state aid rendered because necessary to the project, that comparatively unimportant incidental proprietary functions might be included, there is violation of logic in allowing the covering of competitive and proprietary business enterprise within the mantle of essentially governmental functions. They are, in fact, and under common custom and practice, not such, and can logically be included only upon the ground of necessity and as indispensable incidents in a project of such breadth as to render them inconsequential. In the instant case I fail to see such a situation.
Hill agrees with this dissent.