# Appendix — Bair v. Atchison > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1071%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1071 ## Text IN THE a Supreme Court of the United States October Term, 1983 GERALD D. BAIR, DIRECTOR OF REVENUE OF THE IOWA DEPARTMENT OF REVENUE; IOWA DEPARTMENT OF REV- ENUE; IOWA RAILWAY FINANCE AUTHORITY; MAURICE E. BARINGER, TREASURER OF IOWA AND CUSTODIAN OF THE SPECIAL RAILROAD FACILITY FUND; RAYMOND L. KAS- SEL, DIRECTOR OF TRANSPORTATION OF THE STATE DE- PARTMENT OF TRANSPORTATION; STATE TRANSPORTATION COMMISSION OF THE STATE DEPARTMENT OF TRANSPOR- TATION; and STATE DEPARTMENT OF TRANSPORTATION, Petitioners, VS. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COM- PANY; BURLINGTON NORTHERN RAILROAD COMPANY; CHICAGO AND NORTH WESTERN TRANSPORTATION COM- PANY; ILLINOIS CENTRAL GULF RAILROAD COMPANY; NOR- FOLK AND WESTERN RAILROAD COMPANY; RICHARD B. OGILVIE, TRUSTEE OF THE PROPERTY OF CHICAGO, MiIL- WAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, DEBTOR; and UNION PACIFIC RAILROAD COMPANY, Respondents, IOWA RAIL SHIPPERS ASSOCIATION, Intervenor-Respondent. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF IOWA Ly a Thomas A. Miller, Att’y Gen. Donald A. Wine Brent R. Appel Stephen W. Roberts Harry M. Griger David W. Dunn Lester A. Pa Davis, Hockenberg, Wine, lowa Department of Justice Brown & Koehn Second Floor Hoover Building 2300 Financial Center Des Moines, lowa 50319 Des Moines, lowa 50309 Telephone: (515) 281-5164 Telephone: (515) 243-2300 Attorneys for Petitioners COCKLE PRINTING ©O., 2311 Douglas St., Omaha 68102 ae bo ~] . APPENDIX TABLE OF CONTENTS Pages The Atchison, Topeka and Santa Fe Railway Company v. Bair, 338 N.W.2d 338 (lowa Order Denying Rehearing in The Atchison, Topeka and Santa Fe Railway Company v. Bair, (lowa, October 13, 1983) ene App. 28 The Atchison, Topeka and Santa Fe Railway Company v. Bair, No. CE16-09145 (lowa District Court for Polk County, September ee ne (Me Section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976, Pub. L. 94 210, 90 Stat. 54 (4-R Act). App. 111 Commerce Clause, U.S. Const., art. I, § 8, | ia ne _.wApp. 114 Supremacy Clause, U. S. Const., art. VI, ee FASE ae Iowa Code Chapter 324A (1983)... App. 116 Iowa Code Chapter 307B (1983) 0000 App. 121 App. 1 APPENDIX 264 69397 IN THE SUPREME COURT OF IOWA THE ATCHISON, TOPEKA AND SANTA FE RAIL- WAY COMPANY; BURLINGTON NORTHERN RAIL- ROAD COMPANY ; CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY; ILLINOIS CENTRAL GULF RAILROAD COMPANY; NORFOLK AND WESTERN RAILWAY COMPANY; RICHARD B. OGILVIE, TRUSTEE OF THE PROPERTY OF CHI- CAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAIL- ROAD COMPANY, DEBTOR; AND UNION PACIFIC RAILROAD COMPANY, Appellants, Vs. GERALD D. BAIR, DIRECTOR OF REVENUE OF THE IOWA DEPARTMENT OF REVENUE; IOWA DE- PARTMENT OF REVENUE; IOWA RAILWAY FI- NANCE AUTHORITY; MAURICE E. BARINGER, TREASURER OF IOWA AND CUSTODIAN OF THE SPECIAL RAILROAD FACILITY FUND; RAYMOND L. KASSEL, DIRECTOR OF TRANSPORTATION OF THE STATE DEPARTMENT OF TRANSPORTATION; STATE TRANSPORTATION COMMISSION OF THE STATE DEPARTMENT OF TRANSPORTATION; AND STATE DEPARTMENT OF TRANSPORTATION, Appellees. IOWA RAILROAD SHIPPERS COMPANY, Intervenor. (Filed September 21, 1983) App. 2 Appeal from Iowa District Court for Polk County, Anthony M. Critelli, Judge. Appeal by railroads challenging validity of state tax on fuel consumption by railway vehicles. REVERSED. Bennett A. Webster, Frank W. Davis, Jr., and Brent B. Green of Gamble, Riepe, Burt, Webster & Davis, Des Moines, and Sheldon I. Fink, William T. Barker, and Maureen Martin of Sonnenschein Carlin Nath & Rosen- thal, Chicago, Illinois, for appellants. Thomas J. Miller, Attorney General, Harry M. Gri- ger, Special Assistant Attorney General, and Lester A. Paft, Assistant Attorney General, and Donald A. Wine, Stephen W. Roberts, and David W. Dunn of Davis, Hock- enberg, Wine, Brown & Koehn, Des Moines, for appellees. kK. Kevin Kelly, Des Moines, for intervenor. Considered en bance. UCHLENHOPP, J. This appeal requires us to consider the validity of an lowa tax which is challenged by plaintiff railroads, all of which are interstate carriers subject to the juris- diction of the Interstate Commerce Commission (ICC). The State claims the tax is a salutory effort to require the entire Iowa railroad industry to help support the re- habilitation of its members who are in Whancial trouble. Unfortunately, the problem is not that simple, primarily because of an act of Congress prohibiting discriminatory taxation of railroads. The financial condition of most American railroads deteriorated over a number of years. Part of the problem App. 3 was over-capacity, in the words of one expert, ‘‘too much track chasing too little traffic.”’ The first significant re- sponse by Congress was enactment of the Regional Rail Reorganization Act of 1973 (3-R Act) which, inter alia, established a Rail Services Planning Office in the ICC. The finances of railroads continued to deteriorate, however, and Congress next enacted the Railroad Revi- talization and Regulatory Reform Act of 1976 (4-R Act), which declared a national policy to ‘‘foster competition among all carriers by railroads and other modes of trans- portation.” 45 U.S.C. 4 801(b)(1) (1982 Supp.). The act made a major cominitment of federal financing for rail- road rehabilitation and improvement to selected railroads ‘‘according to the degree to which they are essential to the rail transportation system.” 45 U.S.C. 4§823(b)(1) (1982 Supp). The act resulted in ascertaining “corridors of excess capacity,’’ and it eased procedures for abandon- ment of uneconomic railroad lines. In fostering compe- tition among the several modes of transportation, the act also contained what is now section 11503 of title 49, United States Code (1983 Supp.), which proscribes discrimina- tory state taxation of railroads. The condition of most railroads continued to worsen, and Congress eventually enacted the Staggers Rail Act of 1980, which substantially reduced regulatory control of rail rates, limited state authority to regulate in-state rail rates, and further eased abandonment procedures. In 1981, the Iowa General Assembly enacted a special excise tax on railroads measured by the amount of fuel consumed to propel railway vehicles in the state. 1981 Iowa Acts ch. 3, § 29 (codified as Iowa Code $§ 324A.1 et seq. (1981)). Revenue from the tax is placed in a spe- App. 4 cial railroad facility fund, 4 3244.9, for use in carrying out the functions of the Iowa Railway Finance Authority (Authority). Creation of the Authority in section 307B.5 appears to be the result of reduced rail services in Iowa in recent years due to the railroads’ increasing financial difficul- ties. Legislative findings on which creation of the Author- ity were predicated include: (3.] There will exist a serious shortage of viable rail lines and railway facilities serving the urban, rural, argicultural and industrial communities of the state. 4. There exists a serious problem in this state regarding the ability of agricultural producers to transport economically farm products to traditional markets because of the abandonment and possible abandonment of railway facilities within the state. 5. These conditions are making it more and more difficult for farmers and farm related business- es to survive in the present state of the economy thus threatening the very heart blood of Iowa. 6. One major cause of this condition has been recurrent shortages of funds in private channels and the high interest cost of borrowing. 7. These shortages have contributed to reduc- tions in construction of new railway facilities, and have made the sale, purchase and repair of exist- ing railway facilities a virtual impossibility in many parts of the state. 8. Iowa faces the possible consequences of two railroad bankruptcies and further reductions in serv- ice by other railroads due to deteriorating rail fa- cilities. The loss of rail service on three thousand ninety miles may be the immediate consequence of the bankruptcies, with a resultant increase in trans- App. 5 portation costs. This will be accompanied by a re- duction in lowa farm income. Any prolonged loss of service on the essential portions of these rail facil- ities means the loss of jobs in Iowa and a loss to the state economy. 9. A stable supply of adequate funds for financ- ing of railway facilities is required to encourage construction of railway facilities, the rehabilitation of existing facilities and to prevent the abandonment of others in an orderly and sustained manner and to reduce the problems described in this section. 10. It is necessary to create a railway finance authority to encourage the investment of private capital and stimulate the construction, rehabilitation and repair of railway facilities and to prevent the abandonment of others through the use of public financing, publicly assisted financing and other forms of public assistance. Iowa Code § 307 B.3 (1983). The General Assembly created the Authority for the purpose of ‘‘providing or providing for the financing of railway facilities and enhancing and continuing the op- eration of railway facilities... .” 4§307B.5. The “[dJec- laration of necessity and purpose” for the Authority states in part in section 307 B.2: Access to adequate railway transportation facilities is essential to the economic welfare of the state. One purpose of this chapter is to preserve or provide for the citizens of Iowa those railway services now in existence or needed in the state which have a viable future but which for a variety of economic and legal reasons may not exist if the state does not provide the financing or other mechanisms referred to in this chapter. It is the intent of the chapter that any pub- lic ownership and control of railway facilities pro- vided for in this chapter be transferred to private App. 6 ownership as promptly as econoinically practicable subject to financing requirements. It is further in- tended that the authority created in this chapter be vested with all powers to enable it to accomplish the purposes of this chapter. The record indicates the Authority contemplated us- ing money from the special fund, derived in part from the railroad excise tax in question, to purchase various abandoned lines, especially the north-south ‘‘spine line’ — of the Rock Island Railread running through Iowa which was abandoned after the Rock Island entered bankruptcy. The State would then either lease the abandoned lines to railroad coinpetitors or eventually sell them back to the railroads. The Soo Line Railroad and the Chicago North- western Transportation Company made formal bids to the bankruptcy trustee and court to purchase the aban- doned Rock Island spine line. The Northwestern was eventually allowed to purchase it. The special excise tax was to go into effect on Oc- tober 1, 1981. Iowa Code §324A.3. Plaintiff railroads, however, filed a petition in equity on November 6, 1981, asking that collection of the tax be temporarily enjoined. Iowa Railroad Shippers Company intervened on the side of the railroads. A temporary injunction was granted on December 28, 1981, and trial of the action was held in January 1982. The railroads challenged the tax on various grounds, the trial court upheld the tax, and the railroads appealed. In this court the railroads narrowed their attack to three grounds. They first contend the tax discriminates against rail carriers contrary to section 11503 of title 49, United States Code. Next, they claim the tax violates the Su- premacy Clause in Article VI, Section 2, of the United App. 7 States Constitution. They argue that while Congress has streamlined the railroad industry to the lines which can survive and has forbidden discriminatory taxation in order to assist the viable lines, the General Assembly has burdened those lines with a tax for the purpose of helping the railroad to be abandoned. In this the rail- roads see a conflict of policies implicating the Suprem- acy Clause. Finally, the railroads urge that the tax con- travenes the Commerce Clause in Article I, Section 8, of the United States Constitution because it is unrelated to services the state furnishes the railroads. Complete Auto Transit Inc. v. Brady, 430 U.S. 274, 277-78, 97 S. Ct. 1076, 1078, 51 L. Ed. 2d 326, 330 (1977). They assert that the revenue from the tax will not benefit them and in some instances will be used to compete against them. Prefatorially, we note that state taxes carry a pre- sumption of validity. City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 375, 94 S. Ct. 2291, 2295, 41 L. Ed. 2d 132, 138 (1974); State ex rel. Bishop v. Travis, 306 N.W. 2d 733, 735 (Iowa 1981). I. Violation of section 11503? The railroads argue the state excise tax violates that portion of the Revised Interstate Commerce Act codified as section 11503 (b) (4) of title 49, United States Code. Subsection (b) of that section provides: (b) The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them: (1) assess rail transportation property at a val- ue that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and in- App. 8 dustrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property. (2) levy or collect a tax on an assessment that may not be made under clause (1) of this subsection. (3) levy or collect an ad valorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment juris- diction. (4) tmpose another tax that discriminates against a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title. (Emphasis added.) Sections 10101 and following of the Revised Inter- state Commerce Act of 1978 recodified subtitle IV of title 49, United States Code. 49 U.S.C. §§ 10101 et seq. Section 11503 recodified section 306 of the 4-R Act, which was originally codified as section 26C of title 49, United States Code (1976). The legislative purpose of the Re- vised Interstate Commerce Act of 1978 was [t]o restate in comprehensive form, without sub- stantive change, the Interstate Commerce Act... . In the restatement, simple language has been sub- stituted for awkard and obsolete terms. ... H.R. No. 95-1395, reported in 1978 U.S. Code Cong. & Admin. News 3013 (emphasis added). See also Alabama Great Southern R.R. v. Eagerton, 663 F.2d 1036, 1037 (11th Cir. 1981) (language of § 11503 cannot be construed as making a substantive change in § 306). Section 306 of the 4-R Act reads in pertinent part: App. 9 Section 306. Part I of the Interstate Commerce act (49 U.S.C. 1 et seq.), as amended by this Act, is further amended by inserting therein a new section 28 as follows: “Sec. 28. (1) Notwithstanding the provisions of section 202(b), any action described in this subsection is declared to constitute an unreasonable and unjust discrimination against, and an undue burden on, interstate commerce. It is unlawful for a State, a political subdivision of a State, or a governmental entity or person acting on behalf of such State or subdivision to commit any of the following prohibited acts: “(a) The assessment (but oniy to the extent of any portion based on excessive values as hereinafter described), for purposes of a property tax levied by any taxing district, of transportation property at a value which bears a higher ratio to the true market value of such transportation property than the ratio which the assessed value of all other commercial and industrial property in the same assessment jurisdic- tion bears to the true market value of all such other commercial and industrial property. “(b) the levy or collection of any tax on an assessment which is unlawful under subdivision (a). “(e) The levy or collection of any ad valorem property tax on transportation property at a tax rate higher than the tax rate generally applicable to com- mercial and industrial property in the same assess- ment jurisdiction. “(d) The imposition of any other tax which results in discriminatory treatment of a common carrier by railroad subject to this part.” (Emphasis added.) We thus construe section 11503 in light of the language in section 306. App. 10 Initially, section 306 did not contain subsection (d). A Senate report at that time stated the purpose of sec- tion 306 was {[t]o eliminate the longstanding burden on interstate commerce resulting from discriminatory State and local taxation of common and contract carrier trans- portation property. . . . Substantively [this section] would amend the Interstate Commerce Act to declare unlawful, as an unreasonable and unjust discrimina- tion against and an undue burden upon interstate commerce, a State or local tax rate, assessment, or collection upon the transportation property of a coin- mon or contract carrier at a higher level than upon property in the same taxing district. Procedurally, it would provide a remedy in the Federal courts for common and contract carriers against the collection of the excessive portion of any tax based upon such unlawful assessment or rate. Senate Report No. 91-630, 91st Cong., Ist Sess. (1969). See also Ogilvie v. State Loard of Equalization of North Dakota, 657 F.2d 204, 206 (Sth Cir.), cert. denied, 454 U.S. 1086, 102 S. Ct. 644, 70 L. Ed. 2d 621 (1981). Sub- sequently, when the Senate and House developed separate bills, subsection (d) was added in conference committee. Alabama Great Southern R.R. v. Eagerton, 663 F.2d 1036, 1040-41 (11th Cir. 1981). A. With this legislative history as background, we first inquire whether section 11503 applies at all in the present context. The State argues section 11503 pro- hibits only discriminatory property taxes and not excise taxes such as we have here. Relying first on principles of statutory construction, the State points to the title of section 11503: “Tax discrimination against rail trans- portation property.” It also notes the prohibited taxes in App. 11 subsections (1), (2), and (3) all refer to property taxes, and it concludes that the words of subsection (4) [of see- tion 306], “impose any other tax that discriminates”, must refer to any other property tax. We do not think so. The title of a statute or heading of a section cannot limit the plain meaning of the text. Brotherhood of Rail- road Trainmen v. Baltimore, 331 U.S. 519, 528, 67 S. Ct. 1387, 1392, 91 L. Ed. 1646, 1652 (1947). We are unable to read Congress’ words, “any other tax” to mean “any other property tax”. Our conclusion finds support in Alabama Great Southern R.R. v. Eagerton, 663 F.2d 1036 (11th Cir. 1981). The court there held section 11503 applies to a business license tax, as against the argument the section applies only to property taxes: It would be difficult to imagine statutory lan- guage that would be less needful of construction than the “any other” language used here. Following three subparagraphs, (a), (b) and (¢) dealing with taxation of “transportation property,” paragraph (d) then for- bids “the imposition of any other tax which results in discriminatory treatment of a common carrier by railroad.” Without invoking any of the ordinary rules of construction, it would appear that paragraph (d) is indeed intended as a catchall provision to pre- vent discriminatory taxation of a railroad carrier by any means. This view is greatly strengthened when we consider the avowed purpose of the Act which has been clearly set forth by the Court of Appeals for the Eighth Cireuit which has now affirmed the Ogilvie case: As noted in our review of the history of this section, its purpose was to prevent tax diserimi- nation against railroads in any form whatsoever. App. 12 Ogilvie v. State Board of Equalization, 657 F.2d 204, 210 (Sth Cir. 1981). Id. at 1040. The trial court in Ogilvie held: “The phrase ‘any other tax’ obviously means a tax not referred to in sub- sections (1)(b) or (ce)... .” Ogivie v. State Board of Equalization of North Dakota, 492 F. Supp. 446, 454 (D.N.D. 1980), aff'd, 657 F.2d 204 (8th Cir. 1981). The United States Court of Appeals for the Eighth Cireait recently made clear again that section 11503 is not limited to property taxes: Section 306(1)(d), rather than proscribing spe- cific types of tax discrimination against “transpor- tation property” like subdivisions (1)(a) through (c), prohibits “the imposition of any other tax which results in the discriminatory treatment of a common carrier by railroad.” As the Fifth Circuit noted in Alabama Great Southern Railroad Co. v. Eagerton, 663 F.2d 1036, 1041 (5th Cir. 1981), however, Con- gress’ purpose in changing the language of section 306 from “transportation property” in subdivisions (1)(a) through (1)(¢c) to “any other tax” and “com- mon carrier by railroad” in subdivision (1)(d) was most likely to broaden, not narrow, the scope of the section by making it applicable to all forms of state taxation rather than just property taxation. Trailer Train Co. v. State Board of Equalization of North Dakota, F. 2d , n. 6 (8th Cir. 1983) (emphasis added). The State also urges application of the doctrine of ejusdem generis, that general words (any other tax), following enumeration of specific terms (property taxes), apply only to the kinds of taxes previously enumerated. We do not find the doctrine to be applicable here. The App. 13 United States Supreme Court has recently stated that this doctrine is to be used only where the meaning of words is uncertain. Harrison v. PPG Industries, Inc., 446 U.S. 578, 589, 100 S. Ct. 1889, 1895, 64 L. Ed. 2d 525, 535 (1980). We see no uncertainty in the clear and unambigu- ous words “any other tax.” As pointed out by the court in Eagerton, 663 F.2d at 1041: The Supreme Court made that clear in the Gordon case [Gordon v. Appeal Tax Court, 44 U.S. (3 How.) 132, 11 L. Ed. 529 (1845) ], where the Court said: “The words ‘any further tax’... will, by common consent . . . be intended to mean any additional tax besides that referred to, and not any further like tax.” 44 U.S. at 147 [11 L. Ed. at 536]. The State contends that the legislative history of section 11503 supports its view that Congress intended to prohibit only discriminatory property taxes. We have examined the mater.al the State cites. Acts of Congress, however, must be interpreted in light of the spirit in which they were written and the reasons for their enactment. General Services Employees Union Local No. 73 v. NLRB, 578 F.2d 261, 366 (D.C. Cir. 1978). As already quoted in Eagerton, the federal court of appeals for this circuit stated the purpose of section 11503 “was to prevent tax discrimination against railroads in any form whatsoever.” Ogilvie v. State Board of Equalization of North Dakota, 657 F.2d 204, 210 (Sth Cir. 1981). Moreover, as also stated in Eagerton, “a mere prohibition against discrimi- natory property taxes would be without effect if a state were to be permitted to enact any other discriminatory tax.” 663 F.2d at 1041. In addition, the words in the conference report which the State relies on (“limited ... to taxation of railroad property”) appear to dis- App. 14 tinguish property of rai/roads from property of all car- riers as included in the Senate bill under consideration in the report. Sen. Rep. No. 94-595, 94th Cong., 2d Sess. (1976). The Court of Appeals in Eagerton reached this con- clusion about the state’s argument of legislative history: Finally, the legislative history seems to us to cut the other way from that urged by the state of Alabama. The earlier bills did not contain anything like subsection (d). They were primarily concerned with an important existing discrimination in property taxes. Then, as stated by the appellee in its brief here: “Section 11503(b)(4) [correctly stated it should be section 306(1)(d)] does not appear to have been included in any of the debates. Instead, it seems to have been added at the last minute almost as an afterthought.’ Of course, such debates as were had on the bill, under such circumstances, usually in- cluded the words “property” or “transportation prop- erty.” But, towards the end of the debate, it must have become plain to Congress that a mere prohibi- tion against discriminatory property taxes would be without effect if a state were to be permitted to enact any other discriminatory tax, so long as it was not a property tax. The appellees would have us ignore subparagraph (d) because they do not understand why Congress added it “almost as an afterthought.” We cannot give such cavalier treatment to a formal act of Congress, or a part of it that seems clearly within the purpose and intendment of the law. 663 F.2d at 1041. In holding section 11503 applies to excise taxes, we note that the United States District Court for the South- ern District of Iowa, faced with the same parties and issues, so held. Atchison, Topeka, & Santa Fe R.R. v. Bair, 535 F. Supp. 68 (S. D. Towa 1982). Proceedings in App. 15 that case have been stayed pending disposition of the present litigation. We also note that the anti-diserimi- nation section applicable to trucks is in fact limited to property taxes; it contains paragraphs (1), (2), and (3), but not paragraph (4) relating to other taxes. Compare § 11503 with § 11503a, 49 U.S.C. (1983 Supp.). B. We thus approach the central question regarding section 11503: does the lowa excise tax discriminate against railroads! The first problem involved in that question is this: with what other taxpayers and taxes do we compare the railroad fuel tax? Because individuals and corporations in business usually have property in their enterprises, a tax on rail- road property is compared with state taxes on property of commercial and industrial taxpayers generally. App. 44 BURDEN OF PROOF ON PLAINTIFFS TO PROVE UNCONSTITUTIONALITY The burden of proof that rests upon the Plaintiffs if they are to prevail in these proceedings and the presump- tions of constitutionality with which statutory enactments are manteled require recognition. A carefully worded and all inclusive statement concerning constitutional presump- tions and the burden of proof required of one seeking to dislodge constitutionality is set forth by the Iowa Snu- preme Court in City of Waterloo v. Selden, 251 N. W. 2d 506, at page 508 as follows: “The general principles applicable to the determina- tion of the constitutionality of the challenged statutory provision are well established. All presumptions are in favor of the constitutionality of the statute, and it will not be held invalid unless it is clear, plain and palpable that such decision is required. The legisla- ture may pass any kind of legislation it sees fit, so long as it does not infringe the state or federal con- stitutions. Courts do not pass on the policy, wisdom, advisability or justice of a statute. The remedy for those who coutend legislation which is within consti- tutional bounds is unwise or oppressive is with the legislature. The burden is not upon Defendant, Sel- den, and Intervenor, State Appeal Board, to prove the act is constitutional. Plaintiffs have the burden to demonstrate beyond a reasonable doubt the act violates the constitutional provision envoked and to point out with particularity the details of the alleged invalidity. To sustain this burden, Plaintiffs must negative every reasonable basis which may support the statute. Dickinson v. Porter, 240 Iowa 393, 399- 400, 35 N. W. 66, 71 (1949). Every reasonable doubt is resolved in favor of constitutionality. Avery v. Peterson, 243 N. W. 2d 630, 633 (Iowa 1976).” App. 45 The subject in Selden, supra, was not the constitution- ality of an enacted tax but rather dealt with the constitu- tionality of legislation which had the effect of imposing budget limitations on cities with populations of more than 750. Iowa’s single-sales factor formula for taxing net in- come of corporations doing interstate business was at- tacked as being unconstitutional in Moorman Manufactur- ing Company v. Bair, 254 N. W. 2d 737 (1977). The Court stated beginning at page 743 as follows: “It is well settled with notable exceptions not here involved that all presumptions are in favor of the con- stitutionality of a regularly enacted statute. Where the constitutionality of a statute is merely doubtful, this Court will not interfere as it must be shown that legislative enactments clearly, palpably and without doubt infringe upon constitutional rights before an attack will be upheld. Moorman as the attacking party has the burden to demonstrate beyond a reasonable doubt the Act vio- lates the constitutional provisions envoked and to point out with particularity the details of the alleged in- validity. To sustain this burden, it must negative every reasonable basis which may support the statute (cases cited).” Continuing on page 743 the Court in Moorman stated: “Keasling v. Thompson, 217 N. W. 2d 687, 690 (lowa 1974), states this principle: ‘The judicial branch of the government has no power to determine whether legislative Acts are wise or un- wise, nor has it the power to declare an Act void un- less it is plainly and without doubt repugnant to some provision of the Constitution.’ In the field of taxation, it would appear the above principles somewhat understate the defe ‘ence accorded App. 46 the legislature. In this regard, see 71 Am. Jur. 2d, State and Local Taxation, section 96, page 417, and 84 C.J.S. Taxation, section 7, pages 53-54.” Judicial pronouncements concerning the extraordinarily heeavy burden which will be borne by the Plaintiff chal- lenging the constitutionality of a tax statute are not just of recent vin.age. In Lee Enterprises, Inc. v. lowa State Tax Commission, 162 N.W. 2d 730, 739 (lowa 1969), the Iowa Supreme Court quoted State v. Fairmont Creamery Company, 152 lowa 702, 711, 133 N. W. 895, 899, a 1911 decision as follows: “The Constitution was intended to announce certain basic principles to serve as a perpetual foundation of a state. It was not intended to be a limitation upon its helpful development, nor to be an obstruction to its progress. New days bring new problems. Legis- lation must meet these problems as they come. Other- wise, our plan of government must prove inadequate. Manifestly, we ought not to be swift to adopt such a technical or a strained construction of the Constitu- tion as would unduly impair the efficiency of the leg- islature to meet its unavoidable responsibilities.” UNCONSTITUTIONALITY BASED ON VIOLATION OF 49 U.S.C., SECTION 11503(b) (4) Section 306 of the 4-RA Act now codified as 49 U.S. C., section 11503(b) provides: “The following acts unreasonably burden and dis- criminate against interstate commerce and a state, subdivision of a state, or authority acting for a state or subdivision of a state may not do any of them: (4) impose another tax that discriminates against a rail carrier providing transportation sub- ject to the jurisdiction of the Comunission App. 47 under subchapter I of Chapter 105 of this title.” It is undisputed that the Plaintiffs are providing trans- portation subject to the jurisdiction of the Commission under the indicated title. Although arguments were proposed to the contrary, there is no question in this Court’s mind that the imposi- tion of the tax involved herein comes within the perameters of the aforementioned and quoted section 11503(b)(4). On September 22, 1981, the same Plaintiffs in these proceed- ings brought a federal complaint against the same Defend- ants in United States District Court for the Southern Dis- trict of Iowa. The identical relief sought by the Plaintiffs in these proceedings was the subject of the federal action, and same was heard by the federal court on December 21, 1981. The basis of the Motion to Dismiss was the Defend- ant’s reliance on the Federal Anti-Tax Injunction Act, 28 U.S.C., section 1341, which provides in pertinent part as follows: “The district courts shall not enjoin, suspend or re- strain the assessment, levy or collection of any tax under state law or a plain, speedy and efficient remedy may be had in the courts of such state.” In response, the Plaintiffs took the position that the federal court did have jurisdiction to maintain the instant action, under the exception to section 1341 as contained in 49 U.S.C., section 11503, as follows: “(e) Notwithstanding section 1341 of Title 28 and with- out regard to the amount in controversy or citi- zenship of the parties, a district court of the Uni- ted States has jurisdiction concurrent with other jurisdictions of courts of the United States and the states to prevent a violation of subsection (b) of this section.” (Emphasis added.) App. 48 Chief Judge Stuart in his decision of February 2, 1982, (Atchison T & SF Ry. Co. v. Bair, 535 F. Supp. 68 (S.D. Iowa 1982), overruled the Motion to Dismiss relying on the 11th Cireuit Decision in Alabama Great Southern Rail- road Company v. Eagerton, 663 F. 2d 1036. He held that the aforementioned subsection (d) which has reference to “any other tax” was not limited to any other property taxes, but meant just what it said, i.e., “any other tax”, and that an excise tax such as is involved in both that fed- eral district court action and in this lowa district court action was the type of imposition of tax that could on ade- quate proof of “discriminatory treatment of a common carrier by railroad subject to this chapter” be considered and held to be an unreasonable burden and discrimination against interstate commerce. This Court concurs and agrees with the position atul decision of Judge Stuart and rules that the excise tax in- volved herein is an “any other tax” for the purposes of sub- section (b) of the federal law above quoted and cited. Having so determined, it is now necessary for this Court to determine on the basis of this record whether or not Plaintiffs have met their burden and have presented adequate proof to the effect that by the imposition of such tax there has resulted in a “discriminatory treatment of a common carrier by a railroad subject to this chapter”. Respective counsel have dealt with this question of “discrimination” in their briefs, Plaintiffs in their Post- Trial Brief beginning on page 109 and in their Reply Brief beginning on page 31 and Defendants beginning on page 132 (actually 141) of Defendants’ Brief and beginning on page 33 of Defendants’ Reply Brief. App. 49 Although it appears that the Defendants would opt for the “entire tax structure” test, this Court rules that a more fair, equitable and proper and perhaps legal test would be a comparison of the current tax situation involv- ing railroads as opposed to other modes of transportation, i.e., barges, truckers and to some extent airlines. (See Arizona Public Services Company v. Snead, 441 U.S. 141; 99 S. Ct. 1629; 60 L. Ed. 2d 106; a 1979 case.) Plaintiffs contend that there is discrimination because HF 874 imposes a tax solely on railroads and not upon competing modes of transportation. They contend that motor fuel tax paid by truckers is not comparable because that tax is used solely for the construction and maintenance of highways on which the trucks travel. Plaintiffs contend that barges are not taxed at all in the state of Iowa and such taxes and fees that they pay to the federal govern- ment are likewise to defray the costs of maintaining these publicly owned right-of-ways. Plaintiffs contend that neither trucks or barges pay property tax on their public right-of-way and the only other state charges paid by truckers for use of highways are registration fees under section 321.122 of The Code of Iowa. In that respect, the Court notes that the highest an- nual registration fee charged by the state of lowa for truck tractors, road tractors, etc., is $1,695 for such piece of equipment that weighs between 39 and 40 tons, the amount increasing at the rate of $80 for each ton over 40 tons. To this Court’s recollection there was no testimony or evidence or exhibit offered in these proceedings bear- ing on the general question and position as to the extent App. 50 and amount of “registration fees” collectively paid by com- mercial truckers to the state of lowa. Of course, in addi- tion to the aforementioned collective registration fees, other physical personal and real property owned by trucker corporations within the State of Iowa and upon which taxes are imposed and paid to the State of Lowa would be important in viewing this mode of transportation col- lective tax responsibility. We do have in this record by stipulation and admitted pleadings the fact that for the year 1980 the Plaintiffs collectively paid to the State of Lowa almost 7 and % mil- lion dollars in either property taxes on property owned by them in the State of lowa and other taxes owed to the State of lowa and its political subdivisions. Considerable of the briefs of Plaintiffs dealt with the undisputed fact that neither trucks nor barges pay prop- erty taxes on their public rights-of-way. On the other hand, the railroads do pay property tax on their right-of- way, as that property is owned by the railroads and is taxed by the state or other subdivisions thereof. Plain- tiffs argue further that they would receive or see little direct benefit from this tax imposed. Whereas, on the contrary, and for example giving full consideration to the vehicle fuel tax paid by truckers, those taxes go to defray and maintain expenses in connection with highways which are, of course, used by truckers in their business. The Court’s attention has been called to three exhibits in these proceedings for the reason that in the opinion of the Defendants they contain relevant statements on the question of discrimination. These exhibits consisted of Deposition Exhibit 127 (which appears to be a position App. 91 paper or staff recommendation of the IDOT concerning “State Ownership of Essential Rock Island Trackage”), Deposition Exhibit 130 (a statement prepared to be given to the House Ways and Means Committee at a public hear- ing on railroad transportation, same prepared by the [DOT Planning and Research Division), and Deposition Exhibit 152 (what appears to be minutes of a meeting of the lowa Railway Finance Authority). Coincidentally, the aforementioned exhibits were specifically brought to the Court’s attention by Plaintiffs on page 110 of Plain- tiffs’ Post-Trial Brief for the purpose of indicating to the Court that the “Defendants themselves have repeatedly recognized that such intermodal discrimination is forbid- den”. While these three exhibits do perhaps support the reason why they were referred to the Court by Plaintiffs, they also beared, in this Court’s view, on this question of “discrimination”. For instance, Exhibit 127 in discussing “railroad diesel fuel tax” contained certain staff findings and computa- tions. The exhibit contained the statement that a tax of 10 to 15 cents per gallon (we are here involved with a maximum of 8 cents per gallon) would have a minimal im- pact (1 to 1.5 percent) on the cost of railroad transporta- tion services, that a 10 to 15 cent per gallon tax would approximate the tax levels which will be charged over the next several years to motor carriers and barge operators, and that Iowa’s collection of all taxes from railroads on a per mile basis is among the lowest of all of the states (even the collection of 15 million dollars of revenues— based on 15 cent per gallon tax—would only place Iowa above 50 percent in comparison with all of the other states). App. 52 It was indicated that fuel costs currently represent about 15 percent of railroad freight operating costs, that a 1 cent tax levied upon a gallon of fuel (which currently costs railroads buying on bulk contracts about 1 dollar per gallon) would increase railroad operating costs by only about 0.15 percent. Thus, a 10 cent per gallon tax would raise costs by 1.5 percent. A comparison was set forth of the anticipated per- centage of traffic loss relative to the rail traffic involving certain specific products such as agricultural crops, chemicals, stone and clay, transportation equipment, ma- chinery, metals, corn and soybeans, ete. It reflected the impact of a 1 percent rail rate increase. The estimated percentage of traffic loss ranged from a high of 2.7 per- cent involving the shipping of transportation equipment nationwide to a low of 0.2 percent concerning the trans- portation of metals nationwide and the transportation of corn and soybeans, northwest Iowa. The report-exhibit also presented the supposition that increases in fuel taxes for trucks and/or barges in the future were likely to become a reality. Assuming a 10 percent tax on rail fuel and likewise assuming for various comparisons a 3.5 cent per gallon increase in truck fuel, a 4 cent per gallon barge fuel increase and a 3.4 cent per gallon barge fuel increase, the report went on to make a comparison of the impact upon rail traffic assuming the aforementioned variables and possible increases. De- pending on the variables used, the anticipated percentage of traffic gain or loss was indicated. The Court notes in that regard that on the assumption of a 10 cent rail increase, a 3.5 cent truck increase and a 4 cent barge increase the report indicated that there would be a “negligible change”’. App. 53 The other two named exhibits, i.e., Deposition Ex- hibit 120 and Deposition Exhibit 152, are only of par- ticular significance because in each instance the exhibit- report indicated that there was definitely a question of constitutionality involving this proposed tax on this ques- tion of “discrimination”. Considerable brief attention was given to comparison of the current “comparable” taxes imposed concerning barge operations and trucking. Currently, diesel fuel purchased in Towa by barges is subject to Iowa sales tax but not the Iowa fuel tax. However, diesel fuel used by barges is taxed by the United States government and pre- sumably these taxes are used to keep up and maintain the waterways. That tax amounts to 6 cents per gallon, is to go to 8 cents per gallon on October 1, 1982, and to 10 cents per gallon on October 1, 1985. It is the position of the Defendants that at the present time the Plaintiffs enjoy the benefit of substantial competitive advantage as compared with barges since the Plaintiffs pay no tax at all on their use of fuel. It is the position of the Defend- ants that the overall tax burden upon barge diesel fuel created by the federal tax and the Towa sales tax is presently greater than that borne by railroad diesel fuel under HF 874. In regards to a comparison of trucker taxes, it appears that the truckers are required to pay diesel fuel tax in the amount of 13% cents per gallon, again sub- stantially in excess of the maximum now proposed for the railroad diesel fuel tax of 8 cents per gallon. It is like- wise the Court’s understanding that as of July 1, 1982 (the date now passed), the tax on truck diesel fuel will increase to 15% cents per gallon. App. D+ Defendants have brought to the Court’s attention the fact that in their view the Plaintiff-railroads enjoy other tax benefits which give them an advantage over other transportation competition and over other businesses. lowa sales tax: “The gross receipts from sales of tangible personal property used or to be used as railroad rolling stock for transporting persons or property or materials or parts thereof.” (See also section 423.4(4) of The Code for a comparable use tax exemption.) The railroads do not currently pay any Iowa sales or use tax on fuel consumed in their railway vehicles. It has also been brought to the Court’s attention by De- fendants that for lowa property tax purposes the rate of assessed value for railroad property is carefully set at the lower of the rates existing for the assessment year for either commercial property, industrial property, or cen- trally assessed property (see section 441.21[10] of The Code). (Plaintiffs bring to the Court’s attention and take the position that the claimed “advantage” of being assessed at lower levels was nothing more than the Iowa legislature recognizing that such favored treatment was warranted under the very section now being considered —section 11503. While conceding same for the sake of argument, the fact remains that there is what one must consider to be a tax advantage afforded to railroad property.) As indicated above, Plaintiffs in support of their “discrimination” argument rely heavily on the fact that they feel they are being taxed for the consumption of fuel used in locomotives that are operated on their own right- App. 55 of-ways. In contrast, fuel taxed, for instance, for the use of truckers is used in turn to repair and maintain the very right-of-way that is used by the truckers. Stated another way, the Plaintiffs consider that the tax is un- reasonable and is discriminatory since there are no recog- nizable henefits that the railroad will receive as a result of the tax imposed. In support of such proposition, the Plaintiffs have brought to the Court’s attention two United Ste’ s Supreme Court decisions, namely, Evans- ville-Vanderburgh Airport Authority District v. Delta Airlines, 405 U. S. 707, 712; 92 S. Ct. 1349, 1353; 31 L. E. 2d 620, 626 (1972); and Massachusetts v. United States, 485 U.S. 444, 446; 98 S.Ct. 1153; 55 L. E.2d 403, 418 (1978). In Massachusetts, supra, the state of Massachusetts brought an action contending that the United States could not constitutionally impose a tax that affected the state’s function of operating a police force. Specifically, Con- gress enacted legislation which in part imposed an annual “flat fee” registration tax on all civil aircraft, including those owned by the states. The tax was imposed on Massachusetts law enforcement helicopters. This tax was part of a comprehensive program to recoup the cost of federal aviation programs from those who used the national air system. The Court held that the registration tax does not violate the implied immunity of a state government from federal taxation. At page 1166 of the Supreme Court decision it stated as follows: “We held that such taxes are valid so long as they (1) do not discriminate against interstate commerce, (2) are based upon some fair proximation of use and (3) are not shown to be excessive in relation to the ? App. 56 costs to the government of the benefits conferred.” (Delta, supra, was cited as authority for such enum- eration and legal statement.) In Delta, supra, which was combined with an appeal also entitled Northeast Airlines, Inc. v. New Hampshire Aeronautics Commission, the United States Supreme Court was called upon to decide whether or not 1 dollar fees charged passengers enplaning commercial aircraft within the states of either Indiana or New Hampshire amounted to an unconstitutional burden on interstate commerce. The Court held that it was not, relying to some extent on the fact that the funds collected were used at least in part for the maintenance of airline facilities which in turn were used by the taxed passengers. At the fear of being redundant, Plaintiffs herein have consistently argued that these tax funds are not contemplated to be used for any purpose that will in any way positively affect them and to the contrary their posi- tion is that they will adversely affect them. First off, it is not unconstitutional to tax a business and use the revenue to compete with the taxpayer (if in fact one can assume for the henefit of argument that there will in fact be competition of other railroad or railroads with the Plaintiffs). See Pittsburgh v. Alco Parking Corporation, 417 U.S. 269; 41 L.E.2d 132; 94 S.Ct. 2291 (1974); and Puget Sound Power and Light Company v. Seattle, 291 U.S. 619: 78 L. E. 1025; 548. Ct. 542 (1934). Plaintiffs are mistaken if they consider that there must be some direct relationship between the tax imposed and any benefits received by them as a result of said taxes or the funds to which thev are deposited. App. 57 The “controlling test ... ‘is whether the state has exerted its power in proper proportion to the taxpayer’s activities within the state and to the taxpayer’s consequent enjoyment of the opportunities and protection which the state has afforded’”. See Colonial Pipe Line Company v. Traigle, 421 U.S. 100, 108-09; 44 L. E. 2d 1; 95 S. Ct. 1538 (1975). As indicated in Defendants’ brief, the latest United States Supreme Court pronouncement on the permissibil- ity of state taxaton of interstate commerce (Common- wealth Edison Company v. Montana—U.S.—69 L. E. 884; 101 S. Ct. 2946 [1981]), confirms that so long as the tax- payer engages in substantial business in the state the taxpayer can be required to pay state taxes even when no direct benefit is derived from the taxes paid. Plaintiffs here seem to labor under the “incorrect assumption that the amount of state taxes that may be levied on an activity connected to interstate commerce is limited by the costs incurred by the state on account of that activity.” (See Commonwealth Edison, supra—emphasis applied.) It is also stated in Commonwealth Edison, supra, that it is only “when the measure of tax bears no relationship to the taxpayer’s presence or activities in a state that a court may properly conclude under the fourth prong of the Complete Auto Transit test that the state is imposing an undue burden on interstate commerce”. It is undisputed in these proceedings and in the record herein that the respective Plaintiffs have a sub- stantial nexus with the state of Iowa and that they are all in varying degrees actively engaged in business within the state of Iowa. It is also necessary and interesting to App. 5S note that the tax imposed herein is based on the fuel con- sumed as measured by the miles actually traveled in the state (the degree of activity within the state). In any event, these Plaintiffs unquestionably own hundreds of miles of right-of-way in the state and derive millions of dollars of business within the state. They receive police and fire protection, access to the courts and they themselves have access to financial assistance in the rehabilitation of railroad tracks, road beds and tressels. The Court has made an effort to examine and con- 3 as amended by House File 874, giving sider Chapter 307 particular attention to the objects and purposes of said amended Act. As amended, the last unnumbered para- graph of section 307B.2 reads as follows: “It is a further intent of this chapter and of the gen- erl assembly that, in order to preserve rail competi- tion and to provide for railway services in this state, the authority work primarily with railroad carriers already providing service in this state based upon their willingness and ability to meet these objectives.” It is obvious in reading the amended Act that the lowa legislature was making efforts to respond to a crisis situation having to do with the fact that railroad lines and trackage were being abandoned or that abandonment was eminent and that this would cause and have a crippling affect on several facets and types of industry within the state of lowa, including agriculture and rail- roads (as a system). Based on this record made, this Court finds that the preserved and improved condition of health of the total App. 59 railroad system within the State of Iowa would in fact bestow at least indirect benefits on the Plaintiffs in these proceedings. In summary therefore, this Court determines and rules that the Plaintiffs have failed to meet their burden of proof that the imposition of the tax involved was dis- criminatory and had the effect, pursuant to 49 U.S.C. section 11503(b), of being an unreasonable burden against interstate commerce and thereby unconstitutional in vio- lation of the Commerce Clause of the United States Constitution. COMMERCE UNDULY BURDENED BY IRFA FRUSTRATION OF ABANDONMENT PROCESS Plaintiffs argue that commerce is being unduly burdened by IRF A’s frustration of the abandonment process, i.e., the fund created by this tax would be used to revitalize and make operative lines that the Interstate Commerce Commission has already determined should be abandoned as they constitute a burden on interstate commerce. Plaintiffs insist that the procedure antic- ipated by IRFA is merely shifting a burden (for pur- chase of and rehabilitation of abandoned lines) from a particular railroad to the industry as a whole. Defendants on the other hand deny that their in- tended or actual efforts are designed at frustrating the ICC abandonment process primarily for the reason that no provision of the Interstate Commerce Acts prohibits a party from acquiring a railroad line that has been abandoned. Defendants insist that nothing on House File 874 empowers the Iowa Railway Finance Authority to App. 60 coerce or force railroad carriers into operating an aban- doned line. Defendants insist that House File 874 empowers the authority to issue bonds and provide financial assistance to private parties, including railroad companies like Plaintiffs herein to take a second look at and to make an economic analysis of abandoned lines to see if perhaps they should be rehabilitated or acquired. The Court determines and rules that the Plaintiffs have failed to carry their burden of proof that the alleged objects and effects envisioned in the operation of HF 874 have or will have the effect of materially frustrating the abandonment process of the Interstate Commerce Com- mission to the point that same would be determined to be a burden on interstate commerce. VIOLATION OF SUPREMACY CLAUSE BY REVITALIZING LINES THAT CONFLICT WITH NATIONAL TRANSPORTATION PLANNING Plaintiffs take the position that pursuant to the 4R Act the Secretary of Transportation has categorized rail lines with regard to “the degree to which they are essen- tial to the rail transportation system” (45 U.S.C. section 823[b][1]. A major purpose of this process was to effect consolidation of lines and corridors with excess capacity and in furtherance of that purpose substantial federal funds were committed to the rehabilitation of what were deemed some of the most essential and viable lines in Iowa. It is the position of the Plaintiffs that if the Defend- ants are permitted to resurrect or artifically sustain other App. 61 lines that such process will have the effect of diminishing the viability and fiseal soundness of the lines that have been found to be economically justified. Plaintiffs say further that for such reasons House File 874 stands as an obstacle to the accomplishment of Congressional purposes and therefore must yield to federal supremacy. Defendants respond by first commenting on the policy or theory of pre-emption or supremacy. In Chicago and Northwest Transportation Company v. Kalow Brick and Tile, 67 L. E. 258, 265 (1981) the United States Supreme Court stated: “Pre-emption of state law by federal statute or regu- lation is not favored in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no other conclusion or the Congress has unmistakenly so ordained.” It is the Defendants’ position that Congress has not specifically indicated that states cannot rehabilitate abandoned lines. It does not appear to be logical or reasonable that classification or categorization of rail lines by the Seere- tary of Transportation necessarily prohibits said lines from receiving a “second look” and from revitalization by private parties or by the state, or by assistance from the state, if such abandoned lines can be economically operated and can provide and fulfill a necessary complement to the total transportation picture of the state involved. As indicated by the Plaintiffs: “The economics of smaller operation without the larger obligations of the common carrier makes short line operation feasible to someone other than a Class I carrier.” 4 : ‘a. : 5 Mi a lst i tl ia al — App. 62 The language of House File 874 certainly is not man- datory but only permissive in consideration of the possible revitalization of previously abandoned lines. The Court does not find that the Plaintiffs have car- ried their burden of proof to the effect that Congress has in fact pre-empted the whole question of treatment of abandoned lines and likewise has not carried its burden of proof to the effect that the provisions of House File 874 and the process of utilization of the tax provided therein for the express purposes of House File 874 and of Chapter 307B of The Code are in contravention or frustration of a national transportation policy or an ob- stacle to such policy. Having so determined, the Court rules that the Plaintiffs are not entitled to the relief re- quested pursuant to their claimed violation of the Suprem- acy Clause of the United States Constitution. THE TAX IMPOSED BY HOUSE FILE 874 IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT (ALSO UNDER THE UNIFORM LAWS REQUIREMENT OF THE IOWA CONSTITUTION) Plaintiffs claim that House File 874 violates the Equal Protection Clause of the 14th Amendment to the United States Constitution and the Uniform Laws Re- quirement of the Iowa Constitution. This Court has al- ready ruled that House File 874 does not materially dis- criminate against railroads and in favor of trucks, barges and other modes of transportation. The Plaintiffs ques- tion why they as an industry are singled out to contribute to a subsidy that is to be given to or at least will benefit other Iowa shippers. App. 63 Defendants respond that it is not improper to classify railroads into a particular or a special class for the pur- pose of taxation. Numerous cases are set forth on page 108 of the Defendants’ brief in support of the proposition that “classification of railroads for the purposes of taxa- tion differently from other businesses does not violate the 14th Amendment’s Equal Protection Clause”. The defendants quote from Klank v. Grimes, 238 Iowa 495; 28 N.W.2d 34 (1947), wherein the Iowa Supreme Court rejected an Equal Protection and Uniform Laws constitutional challenge to the Iowa Motor Vehicle Fuel Tax Law and stated in part as follows: “As an excise to be paid by user of motor vehicle fuel to propel vehicles on the highways of this state, the law operates with uniformity upon all within the class, and the equality and due process provisions of the state and federal constitutions are satisfied.” As indicated in Defendants’ brief in that regard, “every railroad comipany operating locomotives within the state of Iowa will be subject to House File 874 excise tax for consuming fuel to propel such vehicles in the state of Iowa. The House File 874 tax treats all within the taxed classifi¢ation (operating locomotives in Iowa) alike so as to satisfy the equality provisions of the Iowa and the United States Constitutions”. There is nothing in this record to indicate that rail- roads, whether they be intrastate or interstate are taxed or treated any differently under this Act. They all are required to pay tax on the fuel that they consume and use while operating their locomotives and other railway ve- hicles within the borders of the State of Iowa. App. 64 Plaintiffs have failed to carry their burden of proof to the effect that the Equal Protection Clause of the United States Constitution or the Uniform Laws Require- ment of the Iowa Constitution have been violated or will be violated if the tax under House File 874 is permitted to be collected and the other provisions of the Act enforced. HOUSE FILE 874 IS UNCONSTITUTIONAL UNDER THE PUBLIC PURPOSE REQUIREMENTS OF THE IOWA CONSTITUTION Article II], section 31 of the Iowa Constitution provides: “No public money or property shall be appropriated for local or private purposes unless such appropria- tion, compensation or claim be allowed by two thirds of the members elected to each branch of the General Assembly.” It is not even argued in these proceedings that a two- thirds vote was obtained for the purpose of avoiding the effects of the aforementioned. constitutional provision. Plaintiffs contend that enactment and enforcement and eventual effect of House File 874 is for a private as opposed to a public purpose and is therefore unconstitu- tional under the aforementioned and quoted Iowa Con- stitutional provision. Both parties (and particularly the Defendants) have brought to the Court’s attention por- tions of the language of House File 874 and of certain sections of Chapter 307B of The Code. As examples, section 307B.2 of The Code (as amended by House File 874) provides in part as follows: “Declaration of Necessity and Purpose. The pur- pose of this chapter is to benefit the citizens of Iowa App. 65 by improving their general health, welfare and pros- perity and ensuring the economic and commercial development of the state and by promoting agricul- tural and industrial improvement. Access to ade- quate railway transportation facilities is essential to the economic welfare of the state .. .” § 307B.3 of the Code (as amended by House File 874) is rather outspoken and direct on this question. Sub- section 11 of same reads as follows: “All of the purposes stated in this section are public purposes and are uses for which public monies may be borrowed, expended, advanced, loaned or granted.” Plaintiffs take the position that such a statement or statements do not in themselves have the effect of chang- ing a sow’s ear into a silk purse, that is make a private purpose a public purpose. The lowa Supreme Court in Simpson v. Low-Rent Housing Agency of Mount Ayr, 224 N. W. 2d 624, 627 (Iowa 1974), held that: When reviewing a statute challenged under the pub- lie purpose clause of the lowa Constitution, Articie III, § 31, the Court while “not required to treat a legislative declaration purpose as final, binding or conclusive ... will not find absence of publie pur- pose except where such absence is so clear ‘as to be perceptible by every mind at first blush’. Dickinson v. Porter 240 lowa 393, 417: 35 N.W.2d 66, 80 (1948).” See also Grubb v. Iowa Housing Finance Authority, 255 N. W. 2d 89, 93 (Iowa 1977), and Green v. Mount Pleasant, 256 lowa 1184; 131 N.W.2d 5 (1964). As stated in Grubb, supra, in commenting on the bur- den on Plaintiffs to establish lack of public purpose in the face of legislative findings to the contrary, it was held that same is especially difficult to satisfy because of the “plain judicial intent to permit the concept of ‘public purpose’ App. 66 to have the flexibility and expansive scope required to meet the challenges of increasingly complex social, eco- nomic and technological conditions”. After giving due consideration to the language of and expressed purposes and intends of Chapter 307B of The Code as amended by House File 874, this Court deter- mines and rules that the Plaintiffs have failed to meet their burden of proof that House File 874 is a private purpose enactment as opposed to a public purpose enact- ment and has further failed to prove that such tax law violates the public purpose provisions of the Iowa constitution. HOUSE FILE 874 UNCONSTITUTIONALLY BURDENS INTERSTATE COMMERCE BY IMPOSING A TRANSIT FEE FOR MOVEMENT ON OUT-OF-STATE SHIPPERS Plaintiffs take the position that imposition of this tax can be likened to a state duty or import-export fee. The Court was referred to Michelin Tire Corp. v. Wages, 423 U.S. 276; 96 S.Ct. 535; 46 L.E.2d 495 (1976). Therein, the Court examined the historical impetus for the scheme of commercial regulation established by the federal constitution. In drawing upon this history, as well as other sources, the Court concluded that one of the three principal reasons for the prohibition of state duty and imposts on imports and exports was that: “... harmony among the states might be disturbed unless seaboard states with their crucial ports of entry were prohibited from levying taxes on citizens of other states by taxing goods merely flowing through their ports to the other states not situated as favorably geographically.” App. 67 To call this tax an import or export fee such as the evils sought to be corrected in the historical cases referred to in Michelin, supra, requires some substantial stretch of imagination. As indicated before, in Deposition Exhibit 127 only about three of the United States rank below Iowa in taxes per mile paid by railroads (in the year 1978). Also as indicated before, a collection of 15 million dollars in revenues from this purpose would only place Iowa just above the average of the United States. (Actually if this Court’s computation is correct, we are talking about an additional collection of on!y 8 million at the highest as- sessment authorized by House File 874.) Likewise, again in reference to Deposition Exhibit 127, the imposition of this tax would have a negligible effect on the percentage of traffic loss. The test of validity is whether the tax discriminates against or unreasonably burdens interstate commerce. This Court has already determined in these proceedings and in this ruling that the tax imposed does not materially discriminate against interstate commerce and is not ma- terially an unreasonable burden on interstate commerce. This Court therefore determines and rules that the Plaintiff has failed to meet its burden of convincing this Court that the tax involved under House File 874 exploits out-of-state shippers by imposing upon them a transit fee for movement though lowa, has failed to convince this Court that same amounts to an import or export duty or fee, and failed to convince this Court that such tax for those reasons is a burden on interstate commerce and a taking of the property of the Plaintiffs without due pro- cess of law. App. 68 THE TAX IMPOSED BY HOUSE FILE 874 DISCRIMINATES AGAINST PLAINTIFFS BECAUSE THEIR COMPLIANCE BURDENS ARE GREATER THAN THOSE OF PURELY LOCAL RAILROADS In this Court’s view, Western Livestock v. Bureau of Revenue, 303 U.S. 250, 254; 82 L. E. 823, 827; 58 S.Ct. 546; 115 ALR 944 (1938), is right on point and is directly against the proposition proposed by Plaintiffs. In Western Livestock, the Supreme Court stated: “It is not the purpose of the Commerce Clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing business . . ., and the bare fact that one is carrying on interstate commerce does not relieve him from many forms of state taxation which add to the cost of his business.” Plaintiffs by their own choice chose to function and operate and do business in various states. If their choice of conducting interstate commerce requires them to pre- pare documents and compute their tax obligation respon- sibility in each of the states involved, so be it. It is a consequence of doing business in more than one state and most certainly is not a discrimination that would render the imposition of the tax an unconstitutional burden on interstate commerce or deprivation of property without due process. The Plaintiffs have failed to carry their burden of proving that the requirement of additional compliance, expense or related activity unconstitutionally discrimi- nates against them as opposed to purely local railroads. App. 69 THE TAX IS AN UNCONSTITUTIONAL DENIAL OF DUE PROCESS BECAUSE OF VAGUENESS, UNREASONABLE DIFFICULTY IN APPLICATION AND CONFISCATION OF TAXPAYERS’ FUNDS TO COMPLY Perhaps the most difficult problems confronted by the Court in these proceedings deals with the subject matter above indicated. Considerable of the testimony evidence and depositions in these proceedings had to do with how certain employees of the Defendant and other experts for respective sides viewed the terminology in- volved in the Act involved and how they felt that it could or could not be applied as a tax-raising measure. The Iowa Supreme Court noted in Lee Enterprises, Inc. v. Iowa State Tax Commission, 162 N. W. 2d 730-739 (Iowa 1968), an excise tax case: “Only when the Act is so indefinite and uncertain that the Courts are unable, by accepted rules of construc- tion, to determine with any reasonable degree of cer- tainty what the legislature intended, or when it is so incomplete and inconsistent that it cannot be executed, that the law will be invalidated as indefinite and uncertain.” The Iowa Supreme Court in Lee Enterprises, supra, cited as authority for such proposition State v. Coppes, 247 Iowa 1057, 78 N. W. 2d 10 (1956), and other cites. The above quote and the proposition of law stated therein un- doubtedly came from page 1062 of the Iowa citation in Coppes, swpra, but it was stated in a reverse manner as follows: “Tn 25 R. C. L. Statutes, Section 62, page 810, referring to the fundamental rule governing the validity of a Fe > a App. 70 statute, it is stated that if it is couched in language ‘so vague, indefinite and uncertain that the Courts are unable to determine, with any reasonable degree of certainty, what the legislature intended, or is so in- complete or is so conflicting and inconsistent in its provisions that it cannot be executed, that it will be declared to be inoperative and void.’ ” Coppes, supra, which dealt with the constitutionality of an lowa statute prescribing speed limits has a couple of more statements that are important for this Court’s understanding of its duty and responsibility in these pro- ceedings. The following quotes appear on page 1066 of the lowa citation: “In State v. Andrews, 108 Conn. 209, 213, 142 Atlantic 840, 841, the Court said: ‘In most jurisdictions statutes will not be held void for uncertainty if a prac- ticable or sensible effect may be given to them.’ “In State Ex. Inf. Crow v. West Side Street Railway Company, 146 Mo. 155, 167, 168, 47 S. W. 959, 961, the Court said: ‘A statute cannot be held void for un- certainty, if any reasonable and practical construction can be given to its language. Mere difficulty in as- certaining its meaning or the fact that it is susceptible of different interpretations will not render it nuga- tory. Doubts as to its proper construction will not justify us in disregarding it. It is the bounden duty of the Courts to endeavor by every rule of construc- tion to ascertain the meaning of and to give full, force and effect to every enactment of the General Assembly not obnoxious to constitutional prohibitions.” (Em- phasis applied) Another instructive quote from Lee Enterprises, supra, dealing with this Court’s burden is set forth on page 738 of the Northwest citation as follows: “The general rule applicable here is that one chal- lenging the constitutionality of the legislative act on at App. 71 these grounds has the burden of establishing that the Act is unconstitutional and must negative every rea- sonable basis which may sustain the statute.” (Cases cited—emphasis applied) Iowa Rule of Civil Procedure 14(f) (13), Iowa Rules of Appellate Procedure, indicates: “In construing statutes the Court searches for the legislative intent as shown by what the legislature said rather than what it should or might have said.” In these proceedings, as indicated above, Plaintiffs offered the testimony of some State Department employ- ees called as their witnesses as to the interpretation and possible application of some of the terms and provisions of the Tax Act involved. In a somewhat similar situation, the Iowa Supreme Court in Jowa State Education Asso- ciation v. PERB, 269 N. W. 2d 446 (Iowa 1978), stated as follows at page 448: “In order to search out legislative intent the PERB heard testimony of three members of the General As- sembly who had been active in the enactment of the statute. These witnesses, on the basis of their leg- islative experience, offered opinions on the subject of legislative intent. On a number of occasions we have seen records where legislators gave similar testimony. At first blush it might seem reasonable to rely upon an individual leg- islator’s opinion of legislative intent. But we believe such testimony is generally unpersuasive. The legislative process is a complex one. A statute is often, perhaps generally, a consensus expression of conflicting private views. Those views are often subjective. A legislator can testify with authority only as to his own understanding of the words in question. What impelled another legislator to vote for the wording is apt to be unfathomable. a) App. 72 Accordingly we are usually unwilling to rely upon the interpretations of individual legislators of statutory meaning. This unwillingness exists even where, as here, the legislators who testify are knowledgeable and entitled to our respect. See generally 2A Sutherland Statu- tory Construction, 48.16, p. 22 (Fourth ed. 1973). We have long ied the rule that ‘in construing statutes the court searches for the legislative intent as shown by what the legislature said, rather than what it should or might have said.’ Rule 14(f) (13), Rules of Appellate Procedure. We pass the testimony of the legislators and turn to the more traditional tools of statutory construction.” (Emphasis applied) The Court has examined particularly the testimony of Cynthia Eisenhauer, Director of Excise Tax for the Iowa Department of Revenue (beginning in Volume I, Abstract of Record, page 113), that of Carl Anthony Cas- telda, Il (beginning in Abstract of Record, Volume II, at page 36 and in Abstract of Record, Volume III, begin- ning at page 52), and that of George C. Shaffer, a trans- portation consultant (Abstract of R rd, Volume ITI, be- ginning at page 76). Other witnesses testified for the respective parties concerning somewhat the same subject matter. Both Eisenhauer, in the hearing relative to the Temporary In- junction, and Castelda, by deposition, were called by the Plaintiffs. Castelda later testified in the trial on the mer- its, as did Shaffer, for the Defendants. These witnesses to varying degrees testified to such matters as their opinion as to what is included in the definition of “railroad vehicles”, “dispensed”, “within/ App. 73 without the State of Iowa”, “metering” requirements, and some did to a certain extent make a comparison of the statutory language with Exhibit 22—the monthly report form. Plaintiffs in these proceedings and in their brief have made much of the fact that there is not a great deal of consistency between these respective witnesses concerning their opinions as to definitions and as to application of the law and the filling out of the report form However, as indicated above, in Jowa State Educa- tion, supra, “such testimony is generally unpersuasive”. This Court would observe, however, that there is in fact considerable and general agreement among these re- spective witnesses concerning the aforementioned defini- tions and to some less extent their application in a form- ula and in filling out Exhibit 22 im these proceedings. The Iowa Supreme Court in American Home Prod- ucts v. lowa State Board of Tax Review, 302 N.W.2d 140, 142-143 (Iowa 1981), set forth a number of traditional rules of statutory construction utilized in tax cases. Be- fore setting forth seven enumerated rules of statutory construction, beginning on page 142 of American Home, supra, the Court stated: “The purpose of all rules of statutory construction is to ascertain the intent of the enacting legislature. Iowa National Industrial Loan Co. v. Iowa State De- partment of Revenue, 224 N. W. 2d 437, 439 (Iowa 1974). (Emphasis applied) The Court does not consider it necessary to set forth the aforementioned and enumerated seven rules of statu- tory construction. App. 74 Sections 22 through 29 of the Act shows a manifest legislative intent and purpose to impose the excise fuel tax upon the consumption of fuel by “railway vehicles” in the State of Iowa for propulsion purposes. The tax applies to consumption of fuel in locomotives within the State of lowa. “Fuel” is defined in Section 23 of the Act. It does not appear in these proceedings that there is any serious question or doubt as to what type of “fuel” is the subject of this tax measure. “Department” and “railroad company” are also de- fined; and there does not appear to be any serious ques- tion as to what is meant by those two particular terms. Subsection 3 of Section 23 of the Act defines “rail- way vehicle” as meaning a vehicle designed and used pri- marily upon railways for self propulsion or for propelling conveyances. The Defendants take the position that particular em- phasis should be put on the words “used primarily” and that while locomotives would clearly fit within the defini- tion of “railway vehicle”, track maintenance equipment would not fall within such definition because they are not designed and used primarily for self propulsion or for propelling conveyances. This proposition was succinctly stated by Defendants at page 14 of their Brief as follows: “Any ambiguity in the definition of ‘railway vehicle’ should be resolved in favor of the taxpayer. Asso- ciated General Contractors v. State Tax Comm’n, 255 lowa 673, 123 N. W. 2d 922 (1963). Therefore, track App. 75 maintenance self-propelled vehicles do not constitute ‘railway vehicles’ as defined in section 23(3) of House File 874 and consumption of fuel by such vehicles in Iowa is nontaxable. To say otherwise would lead to an absurd interpretation of the tax law.” Another term that has perhaps caused some confusion within this tax law and its application is the word “dis- pense”. The word is used in section 24 in reference to the requirement of metering. It is also used in section 26 which has reference to the tax computation and is specifi- cally used in numbered paragraphs 1 throvgh 5 and in an unnumbered paragraph which provides for the computa- tion of the tax. Its particular importance in these proceedings is that it is used in connection with the requirement of “meter- ing”. That subject in turn precipitated substantial tes- timony and evidence in these proceedings as to, first, the difficulty if not impossibility of a metering process and more important the alleged tremendous capital expendi- tures that would be required if the railroads were re- quired to “meter” all fuel used. The State takes the position that fuel is “dispensed” when it is delivered, and fuel can be delivered into storage or into a locomotive. Exhibit 13 is a letter dated Novem- ber 16, 1981, from G. D. Bair, Director of Iowa Depart- ment of Revenue, to F. L. Rilev, a Director of Tax Ac- counting for the Plaintiff A.T.S.F. In this letter Bair expresses the Department’s view that only fuel dispensed in this state is subject to metering. He also states the Department’s view that this “dispensing” could be either into a railway vehicle or into a storage facility and that if it is done by a fuel supplier it would undoubtedly be App. 76 metered by that supplier and the invoices concerning same could be used by the railroad without the necessity of it itself likewise “metering” the fuel as it is “dispensed” either directly into a railway vehicle or into a railway storage facility. The Court would observe that the De- fendants appear to be putting particular emphasis on the fact that for the most part when the word “dispense” is used it is used in connection with the following words “in Iowa”. The only exception to that appears to be in sub- section 5 of Section 26 where it is used in the following context: “DS. The total gallons of fuel dispensed outside Iowa and placed into railway vehicles traveling within with- out the State.” The State’s position that whenever the word “dis- pense” is used it has reference to fuel that is either placed by a supplier either directly into a railway vehicle or into a railway-owned fuel storage facility would seem to be logical and reasonable with the exception of the aforemen- tioned quoted subparagraph 5. The State offers explana- tion for that one apparent inconsistency by taking the position that fuel “dispensed” outside of Iowa is not re- quired to be metered but that the definition would follow that “dispense” still means fuel placed directly into a railway vehicle or placed into a railway-owned storage facility. However, the one distinction might be that the fuel “dispensed” outside of Iowa might not be metered, depend- ing on the specific statutory requirements of the states other than Iowa. It is the Court's decision at this time to comment about the comparison that Defendants made beginning on page cad App. {7 16 of their Brief in regards to the requirements of Exhibit 22 as compared with the required information to be sup- plied in Section 26 of the Act. The purpose of this com- parison is to determine whether or not the Act is so in- definite and uncertain that the Court is unable to deter- mine the legislative intent or that it is so incomplete and inconsistent that it cannot be executed (see Lee Enter- prises; supra). It is the position of the Defendants that the first item in Section 26 (the total gallons of fuel dispensed in Iowa) and line 1 of Exhibit 22 (total gallons of fuel dispensed in Iowa) simply represents the railroad company’s monthly purchases of locomotive diesel fuel delivered by a sup- plier either into a railroad-owned storage facility or de- livered directly into a railway vehicle. This fuel would be metered and invoices would be available to support same. The second item in Section 26 of the bill (the total gallons of fuel dispensed in lowa and placed in railway vehicles used solely within the State during the reporting period) corresponds with line 3 of Exhibit 22 (total gal- lons of fuel dispensed in Iowa for use in vehicles travel- ing solely within Iowa). Hereinafter there will be a method proposed to determine the amount of fuel used and to be taxed regarding line 3 of Exhibit 22. However, in all honesty it is unlikely that any sizeable amount, if any, of fuel would fall into this limited category. The third item in Section 26 (the total gallons of fuel dispensed in Iowa for nontaxable purposes) corresponds with line 2 of Exhibit 22 (the total gallons of fuel dispensed in Towa for nontaxable purposes). It is possible that a ¥ App. 78 railroad might well have some specific figures for this category, if in fact it could prove that some fuel was dis- pensed for nontaxable purposes, such as fuel sold to an- other railroad, fuel used to heat buildings, fuel used in maintenance equipment, and perhaps some reasonable esti- mate for spillage, particularly if this was a one-time size- able occurrence. For the most part, however, this Court observes that the nontaxable fuel more than likely would be the product which results from some computation of estimated fuel used solely within the State subtracted from total gallons of fuel dispensed in Iowa. The fourth item in Section 26 (the total gallons of fuel dispensed in lowa and placed in railway vehicles used within and without the State) corresponds with line 4 of Exhibit 22 (total gailons of fuel dispensed in lowa for use in vehicles traveling within and without the State of Iowa). Accepting the Defendants’ position as to what “dispense” means, item 4 of Exhibit 22 would represent fuel delivered by a supplier within the State of Iowa and metered by said supplier into a railway vehicle or into a railway-owned storage facility and then actually (but not necessarily metered) delivered into a railway vehicle that during the reporting period traveled both within and with- out the State of Iowa. Determination of the figure to be inserted into paragraph 4 of Exhibit 22 would require some method of determining the estimated amount of fuel used for such purposes. The fifth item in Section 26 (the total gallons of fuel dispensed outside of Iowa and placed into railway vehicles traveling within and without the State) corresponds to line 5 of Exhibit 22 (total gallons of fuel dispensed outside App. 79 of lowa for use in vehicles traveling within and without the State of lowa). As indicated above, fuel “dispensed” outside of lowa would not have to be metered. Such fuel represents fuel that was placed in a railway vehicle that during the reporting period traveled both within and without the State of lowa. Again, it is required and necessary that some method of determining the estimated amount of fuel so used be utilized. As indicated in Defendant’s Brief, the second, fourth and fifth items in Section 26 would require the reporting of total gallons of fuel dispensed into locomotives which were used for propulsion of railway vehicles. The De- fendants take the somewhat restrictive and conservative view (giving the taxpayer the benefit of the doubt) that locomotives when they are “idling” would not be used for propulsion purposes and the fuel used during “idling” would not be taxable. Beginning on page 39 of Defendant’s Brief and based apparently on the testimony of Mr. Castelda, Defendants and Castelda proposed a six step procedure for comput- ing line 5.of Exhibit 22, which as indicated above repre- sents total gallons of fuel dispensed outside of Iowa for use in vehicles traveling within and without the State of Iowa. The first step of the proposal would be the determina- tion of total system fuel for the railroad involved for the reporting month involved. This could generally consist of a system wide dispensation of fue! into fueling loca- tions by vendors or directly into locomotives by vendors. This information is now reported annually in the R-1 re- ports (see page 111 of Defendants’ Exhibit 6—Annual Re- App. 80 port for Burlington Northern for the year 1980). That page and form indicates that BN used fuel totaling 490 million gallons for the year 1980. It also indicates that work train gallonage of 904 thousand was used. The next step requires a determination of system miles for the railroad involved and for the month involved. Again, the railroads are required by the ICC to prepare on an annual basis a compilation of the locomotive unit- miles of their locomotives in each state. As an example, the Iowa information for the year 1980 for BN again appears in Defendants’ Exhibit 56 and is identified on page SC-18. This report indicates total locomotive unit-miles of 8 million plus for the year 1980. Also, it indicates train-miles work trains in the amount of 30,787. The third proposed step is mathematically the divi- sion of the system fuel figure by the system mileage fig- ure, which results in an average gallons per mile system wide. Plaintiffs would argue and there was evidence pre- sented to the effect that such a figure should not be used to reflect, or be a part of any computation which has the purpose of reflecting gallons of fuel used in Iowa. The reason is that such a figure does not reflect what might be substantial differences in terrain, in total train speed, in total train load, and the particular driving and operation methods of the engineer involved, ete. Based on the evi- dence in these proceedings, however, this Court would de- termine and rule that such individual characteristics and factors would not so distort the eventual tax imposed as to make the tax imposed indiscriminate and unconstitution- ally sound. Such differences as they exist and to the ex- App. 81 tent that they exist could certainly be a part of a rail- road’s alternate proposal. Step four of the proposal requires the identification of locomotives that were never in Lowa during the report- ing period. In this day of technology and computeriza- tion, it does not appear to this Court to be anything close to an insurmountable or even extremely expensive proc- ess for a railroad to compile information that would re- flect what of its locomotives either were or were not in the State of Iowa during a particular month. In truth and fact this Court is sure that most, if not all, of the rail- roads presently keep such type of information for their own records and information. The next step in the proposal requires first the de- termination of the miles traveled by the identified loco- motives in step four for the period involved. In that re- gard, the Court would state that it is reasonable and plaus- ible and certainly possible that if one is required to keep information for and to prepare reports that reflect the \ total system miles of locomotives for a year this would indicate that such information can and more likely is kept for an individual locomotive, and further, if it is kept for an individual locomotive for a year, it could likewise be computed for an individual locomotive for a month. Such being the case and once that figure is determined, it could be multiplied by the number of locomotives identified in number four. The proposal suggests that those number of miles (i. e., miles during the reporting system attribut- able to locomotives that never enter the State of Iowa during the reporting month) be multiplied by the average gallons per mile (step three) and the result would equal gallons of fuel used by locomotives during the reporting ‘period that never entered the State of Iowa. App. 82 Step six of the proposal requires one to first de- termine the total fuel dispensed into system locomotives outside the State of Iowa for the reporting period and for the railroad involved. Again, if it is required that such information be maintained and obtained for the preparation of system fuel on a yearly basis, and fuel of necessity has to be dispensed within a respective state, either into a holding receptacle or into a loco- motive, it should be reasonably possible to compute on a monthly basis the amount of fuel dispensed, as indi- cated above, by a particular railroad into all of its locomotives and in all states other than the State of lowa. The proposal indicates that once that figure is determined the figure determined in step five, ie. gal- lons of fuel dispensed into locomotives which never en- tered lowa during the reporting month, would be sub- tracted, and the resultant figure would be the figure required for completion of paragraph number 5 of form 22, i.e., total gallons of fuel dispensed outside of Iowa for use in vehicles traveling within and without the State of Iowa. As one proceeds down form 22, the Court agrees with the Defendants that the next step is obvious, ie., the totaling of items 4 and 5, and the resultant figure 6 represents the total gallons of fuel used in vehicles traveling within and without the State of Iowa. The next point of controversy deals with the com- putation of the percentage. It is the Court’s opinion that the purpose of the computation and use of such percentage is to assure as best possible that the tax- payer is not required to pay tax on fuel that was used ouside of the State of Iowa and to further show the App. 83 taxpayer that the tax imposed and paid in the State of Iowa has a direct reflection on the extent of business conducted by the railroad in the State for the report- ing period involved. This computation first requires the determination of the total miles traveled in lowa. This Court is of the opinion that that means the monthly figure which compares with the annual figure that appears in Sched- ule SC-18 of Defendants’ Exhibit 56 for the BN Rail- road. The Court should note that it is not necessary that a railroad necessarily use and follow the same process and make the same assumptions that are used in making and preparing a Schedule SC-18 but only suggest that such is a process that could be used for such purpose. According to the testimony, the process used in the preparation of SC-18 first deals with the concept of locomotive unit-miles. Edward Burkhardt of the CNW described a locomotive unit mile as follows: “Q. Explain what locomotive unit miles is. What does that mean? A. Well, as an example, if a locomotive has three units and operates 100 miles, we’re going to develop 300 locomotive unit miles on that trip.”’ Michael Iezkowski, as indicated above, was called as a witness (on deposition) by the Defendants. He was previously identified as a senior analyst in the operations planning department of CNW. He testified concerning the process used for determining locomo- tive unit miles concerning train switching and yard switching. He testified as follows: “Q. In the four categories that we have been dis- cussing of locomotive operations, is mileage A. A. App. 84 developed by the Northwestern for each indi- vidual locomotive unit? Using the methodology that I have described, namely for road unit miles, you take point to point mileage. For train switching and yard switching, you take the hours in service times six. Yes, they do have records for individual locomotive units. And then would it be the aggregate of those individual records that would give you your total locomotive unit miles for each of the four catagories? Right.” Iezkowski testified further on deposition concern- ing the computation of locomotive unit miles as follows: *Q. A. © > > Now, to your knowledge does the North West- ern determine in any manner locomotive miles for through freight operations? We do have computer records of locomotive unit miles which are generated from the—I be- lieve the conductor’s wheel report. And we also have—some of these records also include estimated train switching locomotive unit miles. . The train switching locomotive unit miles, is that also on the conductor’s wheel report? . It’s generated from the conductor’s wheel re- port, yes. . What about way freight, do you determine mile- age on way freight also? . Yes, the locomotive unit miles for the through freight as well as the way freight are all de- termined in the same manner. It’s point to point mileage from the conductor’s wheel re- port. . That’s the source document, in other words? © > © POP O-rOoOpPOo>d App. 85 en . Is that the only source document? . For that particular record, yes. Both — . It’s the primary report, the only input for it. In other words, for both through freight op- erations — . Right. —and way freight operations? . Right. The computer in calculating the unit mileage doesn’t really discriminate hetween a way freight and a through freight. It’s a train, a train being a locomotive and/or cars which operate between stations, over the road. - Mr. Iezkowski, are you familiar with what has been marked in this proceeding as Exhibit 204. It’s a schedule 931 statistics. . Yes. . Now, you mentioned, I believe, yard. Does yard include only switching or does it include other type of operations? . No, yard is just local switching operation. . It’s switching? . Solely local switching right. It does not in- clude any road service. . All right. Do you develop any yard switching miles for locomotives? . Yes, we take the—I believe it’s the yard en- gineer’s time return or the conductor—the yard conductor’s time return and the number of hours on duty are multiplied by the number App. 86 of locomotives assigned to the particular yard engineer and then multiplied by a factor of six to determine estimated miles traveled— unit miles traveled in yard service. Q. And in train switching to determine those miles, do you also use that type of formula? A. The same basic formula. Only you take the — again, it’s the road conductor or engin-er’s time return, you multiply by the number of locomotives on the wheel report times six to get an estimate.”’ The reports prepared and regularly kept by the railroads and referred to by Mr. Burkhardt and by Mr. lezkowski are the source materials, or could be the source materials for compilation of the information required in determining the total miles traveled in lowa by the respective railroad during the reporting month. The next item to be computed is identified as 7B, i.e., total miles traveled within and without Iowa. Using the same process, the same source materials and com- piling the comparable records for all locomotives of the railroad that were used in the compilation of 7A (i.e., locomotives that at some time travel within the State of Iowa), it will be possible to compile the in- formation required to complete item 7B. 7B, to this Court’s understanding represents the total miles trav- eled (regardless of geographical location) during the reporting period by locomotives that travel to some extent within the State of Iowa, and such Iowa travel is reflected in 7A. App. 87 Form 22 then requires that the 7A item be di- vided by the 7B item and the resultant figure be mul- tiplied by 100 to produce a percentage. This appears to be in reasonable conformity with (albeit in this Court’s view a somewhat clumsy process) the require- ments of the statute involved which refers to a ‘‘frac- tion, the numerator of which is miles traveled in Iowa by railway vehicles traveling within/without Iowa and the denominator of which is the total miles traveled by the same railway vehicles.” Form 22 then requires the taxpayer to multiple the item 6 gallons by the indicated percentage and then add that resultant number of gallons to the gallonages indicated in item 3, resulting in the total number of gallons to be taxed. The form then goes on and re- quires imposition of a 3 cent per gallon tax (as in- dicated above, that figure now by passage of time would be in the amount of 8 cents per gallon). The purpose of this Court’s extended discussion of the proposals and the attempted explanation as to how this tax could be computed and enforced and per- haps more importantly the types of materials and rec- ords that should be readily available to the railroad to comply with this Act is to determine whether or not the tax imposed and the statute involved is so vague and so unreasonably difficult in application as to be an unconstitutional denial of due process. As indicated in lowa National Industrial Loan Co. v. lowa State Department of Revenue, 224 N.W.2d 437 (lowa 1974). the Iowa Supreme Court at page 442 of the Northwest citation stated as follows: App. 88 ‘*It is well settled that one of two possible inter- pretations leads to unconstitutionality and the other to constitutionality. We must adopt the view which upholds rather than defeats the law.” The same Court in the same case on the same page when discussing the use of the word either ‘‘may’’ or the word ‘‘shall” went on to state: ‘*Conversely, we believe ‘may’ shall be construed to be mandatory rather than permissive, if that were necessary to preserve the constitutionality of Section 422.37(1).” Again, this is strong, instructive language of our Appellate Court as to what Plaintiffs might consider to be extreme lengths the Court must go in attempt- ing to preserve the constitutionality of questioned stat- utes. The Plaintiffs have failed to carry their burden of proving that the statute involved is so vague and so unreasonable difficult in application as to be an un- constitutional denial of due process. The other problem area referred to in this par- ticular division or portion of the ruling deals with the question as to whether or not there has been an unconstitutional confiscation of railroad property, i.e., are unreasonable and exorbitant expenditures required to comply with this law. Substantial of this record dealt with testimony of railroad witnesses as to what they would consider to be astronominical required ex- penses if in fact they were required to meter fuel as it goes into locomotives. In the same light, estimates of considerable expense were given if they are required App. 89 to have some form of elaborate mechanism on the loco- motives that would indicate at any one given time the amount of fuel remaining in its locomotive storage tanks so as to permit some estimate of use as it passed perhaps into and out of the State of Iowa. In the same light, estimates of extreme expense were given by railroad witnesses concerning miles traveled devices (odometers!) on locomotives. We note that such de- vices would not necessarily be of particular import- ance if one were measuring distance between stations, but it certainly would be helpful in measuring the dis- . tance traveled by locomotives within switch yards and in train switching oprations. There is also testimony and argument given to the Court to the effect that consid- erable additional help and the commensurate expense concerning same would be required if the railroads were to reasonably and with any degree of accuracy measure ‘‘idle in tow’’ and ‘‘dead in tow” locomotive operations. In regards to metering, the Court has stated before in this decision that metering approval is only required in regards to fuel that is dispensed within the State of Iowa and that would be either into a railroad-owned storage facility or directly into a locomotive. Again, as indicated above, that would undoubtedly come from a fuel dealer and would be metered by them as opposed to being specifically metered by the railroad. While App. 90 metering might be of some assistance to the railroad and this record would indicate that all of them are involved to some extent in that process, it certainly is not a re- quirement and is not the basis for any required and nec- essary substantial expenditure of funds on the part of the railroad. In regards to the necessity and expense commen- surate with the use and the obtaining of some kind of an odometer device, the Court has hereinbefore indicated that there are other methods and other reports presently available and required from which a reasonable estimate of miles traveled can be obtained without the necessity of or the expense of the implimentation of some kind of an odometer device to measure miles traveled by a locomotive. Again, this is not the basis of required and unreasonable expenses as far as compliance is concerned. It is true that some additional expenditure of per- sonnel will be required for the railroads to determine, with any degree of accuracy, to what extent locomotives are “idle in tow’’ or ‘‘dead in tow’’. However, it is con- ceivable and possible that some of this information is already being coliected by the railroads, and in any respect any additional expenditures in that regard would certainly not be so confiscatory such as to render this statute unconstitutional as being a deprivation of prop- erty without due process. This Court therefore determines and rules that the Plaintiffs have failed to meet their burden of proof that the imposition of this tax and its requirements amounts to a confiscatory deprivation of railroad funds without due process and it is not therefore in violation of the Constitution of the United States. App. 91 Before moving on to other matters, it is necessary for the Court to comment about two other questions that were raised concerning the computation of the tax and its application. As will be noted in the above comment by the Court concerning the computation of the tax and in particular in the determination of the system mileage and the Iowa mileage, reference was made to the SC-18 form which is contained in the R-1 reports. In the com- pilation of locomotive unit-miles, train switching miles and yard switching miles used a 6 mile an hour average for such computation. The Railroad Plaintiffs serious- ly question the accuracy of such 6 mile factor and in support of such objection offered into evidence Exhibits 206 and 207. 207 is a letter from Chicago & Northwestern Railroad to a representative of the Interstate Commerce Commission wanting to know the basis for the 6 mile an hour average used for calculating locomotive unit-miles for yard and train switching services. 206 is the response from a representative of the Interstate Commerce Com- mission to such request for information. The important part of said response is as follows: ‘‘Unfortunately, we are unable to locate in our files specific documentation on the original establishment of this factor. However, the factor has been used for many years and has general acceptance for the purpose for which it is used in rail costing.” It certainly would have been beneficial to these pro- ceedings if we could have had a more definitive and posi- tive response or answer than was indicated in Exhibit 206. It was also indicated in these proceedings that some of the expert witnesses called are even now involved in programs and studies aimed at developing a more cred- ible process of determining switching and yard mileage. App. 92 On the other hand, to this Court’s recollection the Plain- tiffs were not able to come up with any alternative pro- cedure that would warrant the at least present discon- tinuance of the 6 mile per hour factor for the determina- tion of switching and yard mileage. In any event, use of that factor is not such as in this Court’s view and opin- ion would produce such a variance in tax collection as would cause it to be discriminatory and unconstitutional. The Plaintiff-Railroads also contended that the tax was unworkable because of their use of ‘‘pooling agree- ments’’ with other railroads. The Defendants’ response, which this Court is willing to accept, was that the statute involved imposes the tax on the consumption of fuel by the railroad company and that the Defendants interpret this to mean fuel consumed when the locomotive is op- erated by the taxpayer railroad company and not by someone else. It is this Court’s understanding that mile- age incurred by railroad locomotives while they are in- volved in a pooling agreement is not included in the mile- age statement (contained in R-1) of the owner of the locomotive but rather it is included in the like instrument for the other railroad involved in the pooling agreement. In any event, not taxing the owner-railroad for fuel consumed when a particular locomotive is being operated by another railroad is a reasonable construction of the tax law. This Court adopts such construction in an effort, if same is necessary, to uphold rather than defeat this statute (see Jowa Natural Industrial Loan Co., supra). HOUSE FILE 874 VIOLATES THE COMMERCE CLAUSE AND THE DUE PROCESS CLAUSE OF THE CONSTITUTION OF THE UNITED STATES BECAUSE IT TAXES FUEL CONSUMED OUTSIDE OF THE STATE OF IOWA a As indicated above, this Court agreed at the request of all counsel to decide these proceedings first without con- sideration of this second amendment and then secondly with consideration of said second amendment, all for the purpose of eliminating the necessity of respective counsel being back before this Court for a second opinion giving due consideration to this latest amendment. It appears to this Court that the legislature passed this second amendment, at least the portion of same that has reference to metering, because of the “metering” ques- tions and testimony that was offered in these proceedings. It is this Court’s view that the legislature considered that this was a protective measure that would preserve the integrity of the Act in the event that this Court would de- termine that the requirement of metering was so noxious as to render this Act unconstitutional. This Court has previously ruled in these proceedings that in its view metering is not anywhere close to being the “boogeyman” either as contemplated or asserted by Plaintiffs in these proceedings. This Court has ruled that only fuel dispensed within the State of Iowa need be metered. This Court has also ruled that the only fuel that has to be metered is that which is delivered into a railway-owned storage facility or is delivered directly into a railway locomotive. This would be delivered by a re- tailer, and the retailer would be responsible for the meter- ing of such delivered fuel. Such being the case, this Court determines and rules further that its decision in these proceedings is the same either with or without this second amendment to House File 874. App. 109 CONCLUSIONS OF LAW Based on the foregoing Findings of Fact and this Court’s understanding of the applicable law and particu- larly the burden of proof that rests upon the Plaintiffs and the Intervenor in these proceedings, this Court comes to the following Conclusions of Law: 1. That all Plaintiffs and Intervenor have failed to meet their burden of proof that the Act involved as amend- ed on two occasions is in any way violative of the Consti- tutions of either the United States of America or the State of Iowa. 2. That the prayed for relief summarized is that for Temporary and Permanent Injunction from enforcement and collection of the tax involved; that disbursement of funds from the Special Railroad Facility Fund be pro- hibited; that Sections 22-29, inclusive, of House File 874 (and as later amended) be declared unconstitutional; and for attorney fees and costs is in all respects denied to Plaintiffs and to Intervenor. 3. That the Temporary Injunction entered herein on the 28th day of December, 1981, is hereby terminated as of the 28th day of September, 1982, unless further ex- tended. 4. That the Petition of Plaintiffs and of Intervenor should be dismissed at Plaintiffs’ and Intervenor’s costs. 5. That the attorney for Defendants shall prepare a Decree for the Court’s signature in conformity with the foregoing Findings of Fact and these Conclusions of Law on or before the 21st day of September, 1982. App. 110 Dated at Des Moines, lowa, this 8th day of September, 1982. /s/ A. M. Critelli Judge, Fifth Judicial District Copies mailed or hand delivered by the Court to all counsel of record. App. 111 Section 306 of Railroad Revitalization and Regulatory Reform Act of 1976, Pub. L. 94- 210, 94 Stat. 54 (4-R Act) Prohibiting Discriminatory Tax Treatment of Transportation Property Sec. 306. Part I of the Interstate Commerce Act (49 U.S.C. 1 et seq.), as amended by this Act, is further amended by inserting therein a new section 28, as follows: “Sec. 28. (1) Notwithstanding the provisions of sec- tion 202(b), any action described in this subsection is de- clared to constitute an unreasonable and unjust discrimina- tion against, and an undue burden on, interstate commerce. It is unlawful for a State, a political subdivision of a State, or a governmental entity or person acting on behalf of such State or subdivision to commit any of the follow- ing prohibited acts: “(a) The assessment (but only to the extent of any portion based on excessive values as hereinafter described), for purposes of a property tax levied by any taxing district, of transportation property at a value which bears a higher ratio to the true market value of such transportation property than the ratio which the assessed value of all other commercial and industrial property in the same assessment jurisdic- tion bears to the true market value of all such other commercial and industrial property. “(b) The levy or collection of any tax on an as- sessment which is unlawful under subdivision (a). “(c) The levy or collection of any ad valorem property tax on transportation property at a tax rate higher than the tax rate generally applicable to com- mercial and industrial property in the same assess- ment jurisdiction. App. 112 “(d) The imposition of any other tax which re- sults in discriminatory treatment of a common car- rier by railroad subject to this part. “(2) Notwithstanding any provision of section 1341 of title 28, United States Code, or of the constitution or laws of any State, the district courts of the United States shall have jurisdiction, without regard to amount in con- troversy or citizenship of the parties, to grant such manda- tory or prohibitive injunctive relief, interim equitable re- lief, and declaratory judgments as may be necessary to prevent, restrain, or terminate any acts in violation of this section, except that— “(a) such jurisdiction shall not be exclusive of the jurisdiction which any Federal or State court may have in the absence of this subsection; “(b) the provisions of this section shall not be- come effective until 3 years after the date of enact- ment of this section; “(c) no relief may be granted under this section unless the ratio of assessed value to true market value, with respect to transportation property, exceeds by at least 5 per centum the ratio of assessed value to true market value, with respect to all other commercial and industrial property in the same assessment juris- diction ; “(d) the burden of proof with respect to the determination of assessed value and true market value shall be that declared by the applicable State law: and “(e) in the event that the ratio of the assessed value of all other commercial and industrial property in the assessment jurisdiction to the true market value of all such other commercial and industrial property cannot be established through the random-sampling method known as a sales assessment ratio study (con- App. 113 ducted in accordance with statistical principles appli- cable to such studies) to the satisfaction of the court hearing the complaint that transportation property has been or is being assessed or taxed in contravention of the provisions of this section, then the court shall hold unlawful an essessment of such transportation property at a value which bears a higher ratio to the true market value of such transportation property than the assessed value of all other property in the assessment jurisdiction in which is ineluded such taxing district and subject to a property tax levy bears to the true market value of all such other property, and the collection of any ad valorem property tax on such transportation property at a tax rate higher than the tax rate generally applicable to taxable property in the taxing district. “(3) As used in this section, the term— “(a) ‘assessment’ means valuation for purposes of a property tax levied by any taxing district: “(b) ‘assessment jurisdiction’ means a geographi- cal area, such as a State or a county, city, township, or special purpose district within such State which is a unit for purposes of determining the assessed value of property for ad valorem taxation; “(e) ‘commercial and industrial property’ or ‘all other commercial and industrial property’ means all property, real or personal, other than transportation property and land used primarily for agricultural purposes or primarily for the purpose of growing timber, which is devoted to a commercial or industrial use and which is subject to a property tax levy; and “(d) ‘transportation property’ means transporta- tion property, as defined in regulations of the Com- mission, which is owned or used by a common carrier by railroad subject to this part or which is owned by the National Railroad Passenger Corporation.” App. 114 Commerce Clause, U.S. Const. Art. I, § 8, Cl. 3 Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States ; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; App. 115 Supremacy Clause, U.S. Const. Art. VI, Cl. 2. ARTICLE VI This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treat- ies made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. App. 116 Iowa Code Chap. 324A (1983) CHAPTER 324A RAILWAY VEHICLE FUEL TAX This chapter is repealed July 1, 2008; see 81 Acts, 2d Ex. ch 3, $31 324A.1 Purpose. 3244.2 Definitions. 3244.3 Tax imposed. 3244.4 Railroad company license. 3244.5 Railroad company reports, tax computation and tax payment. 3244.6 Annual payment of certain tax liabilities. 324A.7 Records retained. 3244.8 Statutes applicable. 3244.9 Deposit of revenues. §324A.1 RAILWAY VEHICLE FUEL TAX 3244.1 Purpose. The purpose of this chapter is to impose an excise tax upon the use within this state of fuel to power railway vehicles. [81 Acts 2d Ex, ch 3, § 22] 324A.2 Definitions. As used in this chapter, unless the context otherwise requires: 1. ‘‘Fuel’’ means a combustible gas or liquid suit- able for the generation of power for the propulsion of railway vehicles, except that it does not include motor fuel as defined in section 324.2. 2. ‘‘Department” means the department of revenue. 3. ‘‘Railway vehicle’’ means a vehicle designed and used primarily upon railways for self-propulsion or for propelling conveyances. App. 117 4. ‘Railroad company’ means a person responsible for the operation of a railway vehicle within this state. (81 Acts 2d Ex, ch 3, § 23 3244.3 Tax imposed. For the privilege of operating railway vehicles in this state, an exeise tax is imposed at the rate of three cents per gallon beginning October 1, 1981 and is imposed at the rate of eight cents per gallon beginning July 1, 1982 upon the use of fuel for the propulsion of a railway vehicle within the state. The tax attaches at the time of use and shall be paid monthly to the department by the railroad company using the fuel. At such time the Iowa railway finance authority deems necessary, it may require that fuel dipensed in this state shall only be through meters which have been approved for accuracy by the Iowa railway finance an- thority and sealed by the authority. The authority may contract the responsibility for approving and _ sealing meters to the department of agriculture. Fuel dispensed through sealed meters shall be presumed taxable unless the railroad company proves otherwise. [81 Acts 2d Ex, ch 3, § 24; 82 Acts, ch 1260, § 60] Referred to in § 3244.6 3244.4 Railroad company license. A railroad com- pany responsible for paying the tax imposed by this chap- ter shall obtain a license from the department. To ob- tain a license a railroad company shall file an applica- tion with the department which shall include the follow- ing information: 1. The name of the railroad company. 2. The location of its principal office within the state, if any. App. 118 3. A list of each location where fuel will be dis- pensed on a regular basis. 4. Other information the director of revenue re- quires. [81 Acts 2d Fx, ch 3, § 25] 3244.5 Railroad company reports, tax computation and tax payment. For the purpose of determining a rail- road company’s tax liability, each railroad company re- quired to obtain a license under this chapter shall file with the department a monthly report. The report shall be filed by the end of the month following the month of use. The report shall include the following information: 1. The total gallons of fuel dispensed in Iowa. 2. The total gallons of fuel dispensed in Iowa and placed in railway vehicles used solely within the state during the reporting period. 3. The total gallons of fuel dispensed in Iowa for nontaxable purposes. 4. The total gallons of fuel dispensed in Iowa and placed in railway vehicles used within and without the state. 5. The total gallons of fuel dispensed outside Iowa and placed into railway vehicles traveling within and without the state. 6. Other information the director of revenue re- quires. The report sha [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1071%3A2. Public record. Not legal advice.