Amicus Curiae Brief — American Trucking Assns., Inc. v. Scheiner

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

AMERICAN TRUCKING ASSOCIATIONS, INC.., et al..,

Anvvellants.

Vv. i v

JAMES I. SCHEINER, SECRETARY OF THE

DEPARTMENT OF REVENUE, et al.,

A ppe llees.

On Appeal from the Supreme Court of Pennsylvania

MOTION OF YELLOW FREIGHT SYSTEM, INC,

CRAIG TRANSPORTATION CO.

NORTH AMERICAN VAN LINES, INC. AND

B. I. TRANSPORTATION, INC. FOR LEAVE TO

FILE BRIEF AS AMICI CURIAE AND BRIEF

AS AMICI CURIAE IN SUPPORT OF APPELLANTS

LESTER M. BRIDGEMAN

Counsel of Record

Miller, Hamilton, Snider,

Odom & Bridgeman

Suite 1900

1112 Sixteenth Street, N.W.

Washington, D.C. 20036

(202 )429-9223

Counsel for Yellow Freight

System, Inc..,

Craig Transportation Co.,

North American Van

Lines, Inc., and B. I.

Transportation, Inc

—

WILSON - Eres PRINTING Co Inc 789-0096 - WASHINGTON Cc

—ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-357

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Appellants,

Vv.

JAMES I. SCHEINER, SECRETARY OF THE

DEPARTMENT OF REVENUE, et al.,

Appellees.

On Appeal from the Supreme Court of Pennsylvania

MOTION OF YELLOW FREIGHT SYSTEM, INC,

CRAIG TRANSPORTATION CO,

NORTH AMERICAN VAN LINES, INC. AND

B. I. TRANSPORTATION, INC,

FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

| To The Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

Pursuant to Rule 42 of the Rules of this Court, Yellow

Freight System, Inc. (“Yellow”), Craig Transportation

Co. (“Craig”), North American Van Lines, Inc. (“North

2

American”), and B. L. Transportation, Inc. (“B. L”) re

spectfully move for leave to file the accompanying brief

as amici curiae. Appellants have consented to the filing

of this brief ; appellees have not.

INTEREST OF YELLOW, CRAIG, NORTH AMERICAN,

AND B. L

This appeal presents inter alia the question whether

state highway use taxes that impose a substantially

higher effective tax rate on trucks registered outside the

taxing State than on trucks registered in it discriminate

against interstate commerce in violation of the Com-

merce Clause of the United States Constitution. The

four interstate motor carriers seeking to file the accom-

panying brief as amici curiae are subject to the chal-

lenged taxes—the Pennsylvania $25-per-truck marker

fee and $36-per-axle tax—and to similar highway use

taxes imposed by other states. As a victim of the dis-

crimination inflicted by these taxes, each carrier amicus

has a direct and substantial interest in this appeal.

This Court has long held that in reviewing a Com-

merce Clause challenge to a state tax, it is “not the tax

in a vacuum of words, but its practical consequences for

the doing of interstate commerce in applications to con-

crete facts [that] are our concern.” Nippert v. Rich-

mond, 327 U.S. 416, 431 (1946). The continuing spread

of non-mileage proportioned highway taxes (adopted by

seven states since 1980) creates an increasingly serious

discriminatory impact on movants. Movants have first

hand experience with the practical effects of discrimina-

tory state highway taxes and can inform this Court in

concrete dollars and cents terms of the cumulative burden

imposed by such taxes on interstate motor carriers.

3

A grant of leave to file the accompanying brief as

amici curiae is, therefore, clearly warranted.

Respectfully submitted,

LESTER M. BRIDGEMAN

Counsel of Record

Miller, Hamilton, Snider,

Odom & Bridgeman

Suite 1900

1112 Sixteenth Street, N.W.

Washington, D.C. 20036

(202 )429-9223

Counsel for Yellow Freight

System, Inc.,

Craig Transportation Co.,

North American Van

Lines, Inc., and B. I.

Transportation, Inc.

January 20, 1987

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE 2

TATA a oie 2

ARGUMENT ........ ae eT Tee nee ae ie Diamine: 6

I. PENNSYLVANIA’S MARKER FEE AND

AXLE TAX IMPOSE PER-MILE COSTS ON

OUT-OF-STATE MOTOR CARRIERS SEV-

ERAL TIMES THE COSTS THAT THE

TAXES IMPOSE ON THEIR IN-STATE

COMPETITORS sane sadaendintunseninnenene 6

Il. FUEL TAXES—A NON-DISCRIMINATORY

FORM OF STATE HIGHWAY TAXATION—

PROVIDE A READY ALTERNATIVE TO

TAXES NOT PROPORTIONED TO MILE-

AGE ...... sneneiein tienen 12

CONCLUSION eeinsistanecnesdentinieninnamenemneinemiaiens 13

ii

TABLE OF AUTHORITIES

Cases:

American Trucking Associations, Inc. v. Gray, 55

U.S.L.W. 3175 (U.S., appeal docketed Sept. 3,

1986) (No. 86-358) .. TES aE

Armco, Inc. v. Hardesty, ‘467 U. s. 638 (1984)

Capitol Greyhound Lines v. Brice, 339 U.S. 542

(1950) . eeemmeiniiiions

Lawfulness of Volume Discount Rates—Motor

Common Carrier of Property, 365 I.C.C. 711

(1982) - =

Lewis v. BT Inv. Managers, Inc., 447 U.S. 27

(1980)

National Bellas Hess, Ine. v. Department of Reve-

nue, 386 U.S. 753 (1967)

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)

Constitution, statutes, and rule:

United States Constitution, Commerce Clause

Motor Carrier Act of 1980, Pub. L. No. 96-296, 94

Stat. 793-826

Ark. Stat. Ann. (Supp. 1985) :

75-817.2

75-817.3 (a) (3)

75-817.3 (a) (4)

15- S17. 3 (a) (5)

5-12

Ark. Stat. Ann. (Repl. 1979) :

Yr wm

oe)

6 eS ee 6 ee 8

~]

nao

' ‘

—

a)

i

="

un

~]

-

mo

i)

or)

te)

Ind. Code Ann. § 6-6-8 (Burns Supp. 1986)

Ky. Rev. Stat. Ann. § 138.660(4)-(7) (Supp.

1986)

Md. Transp. Code Ann. § 13-423 (a) (1984)

N.J. Stat. Ann. § 54.39 A-10 (West Supp. 1986)

Page

passim

iii

TABLE OF AUTHORITIES—Continued

Page

Pa. Cons. Stat. Ann. tit. 72, § 26lla et seq. (Pur-

don 1964) 13

Pa. Cons. Stat. Ann. tit. 72, § 2614.1 et seq. (Pur-

don 1964) 13

Pa. Cons. Stat. Ann. tit. 72, § 2617.1 et seq. (Pur-

don 1964) . 13

Pa. Cons. Stat. Ann. tit. 72, § 7401(3)2(b) (Pur-

don Supp. 1986)

Pa. Cons. Stat. Ann. tit. 75 § 2102 (Purdon 1981) 12

Pa. Cons. Stat. Ann. tit. 75 § 9901 et seq. (Purdon

Supp. 1986) -... 12

Vt. Stat. Ann. tit. 23, §§ 415, 3007, 3010 (1978 and

Supp. 1985) 12

Sup. Ct. R. 36 l

Miscellaneous:

AMERICAN TRUCKING ASSOCIATIONS, INC., FINAN-

CIAL & OPERATING STATISTICS, MOTOR CARRIER

ANNUAL REPORT 1978-85 eds.) 4

C. A. TAFT, COMMERCIAL MOTOR TRANSPORTATION

(1986) 4

Craig Transportation Co., 1985 Annual Report M

to the ICC 8

North American Van Lines, Inc., 1985 Annual Re-

port M to the ICC 8

Yellow Freight System, Inc., 1985 Annual Report

M to the ICC 8

1982 CENSUS OF TRANSPORTATION, TRUCK INVEN-

TORY & USE SURVEY 2

1984 I.C.C. Ann. Rep ' 2,4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

AMERICAN TRUCKING ASSOCIATIONS, INC., et al..,

Appellants,

Vv.

JAMES I. SCHEINER, SECRETARY OF THE

DEPARTMENT OF REVENUE, et al..,

Appellees.

On Appeal from the Supreme Court of Pennsylvania

BRIEF OF YELLOW FREIGHT SYSTEM, INC.

CRAIG TRANSPORTATION CO.

NORTH AMERICAN VAN LINES, INC. AND

B. I. TRANSPORTATION, INC.

AMICI CURIAE, IN SUPPORT OF APPELLANTS

Pursuant to Rule 36 of the Rules of this Court, Yellow

Freight System, Inc., Craig Transportation Co., North

American Van Lines, Inc., and B. I. Transportation, Inc.

respectfully submit this brief as amici cure in support

of appellants.

INTEREST OF THE AMICI CURIAE

The interest of Yellow, Craig, North American, and

B. I. in this matter is set forth in the accompanying Mo-

tion for Leave to File Brief as Amici Curiae.

STATEMENT

The Pennsylvania marker fee and axle tax and similar

discriminatory taxes imposed by other states adversely

affect the entire interstate motor carrier industry. That

industry comprises hundreds of thousands of businesses,

ranging from single truck owner-operators to major com-

panies that operate several thousand trucks each. Truck-

ing firms are either “for-hire” carriers or “private” car-

riers. For-hire carriers transport other people’s freight

for compensation, while private carriers (manufacturers,

merchants, and others) transport their own goods. To-

gether, the two types of carriers utilize over 1.5 million

trucks to haul goods approximately 46.5 billion miles

interstate each year.’ Truck transportation is critical to

almost every other line of interstate commerce, and ulti-

mately to the livelihoods and leisure activities of virtu-

ally all Americans.

The four intersta.2 carrier amici represent a cross-

section of this major industry. Amicus Yellow Freight

System, Inc. (“Yellow”), based in Overland Park, Kan-

sas, is one of the largest of the over 32,000 interstate for-

hire motor carriers regulated by the Interstate Com-

merce Commission (“ICC”). 1984 LC.C. Ann. Rep. Ap-

pendix E, Table 1. Yellow transports less-than-truckload

‘The U.S. Department of Commerce Bureau of the Census’ 1982

CENSUS OF TRANSPORTATION, TRUCK INVENTORY & Use SURVEY

indicates that for-hire carriers annually operate approximately

650,000 trucks in nearly 30 billion miles of interstate operations

p. 8, Table 2) while private carriers annually operate approxi-

mately 800,000 trucks (p. 33, Table 6) in over 16.5 billion miles of

long range transportation (p. 90, Table 12

shipments of general commodities throughout the United

States and parts of Canada using 533 terminals (points

of consolidation and distribution). In 1985, Yellow em-

ployed over 3,000 trucks to haul freight some 417 million

miles interstate. Yellow Freight System, Inc., 1985 An-

nual Report M to the ICC, Schedule 720, Line 11b;

Schedule 730, Line 6b.

Amicus Craig Transportation Co. (“Craig”) of Perrys-

burg, Ohio, is a regulated interstate common carrier of

full truckload shipments of general commodities. In

1985, it operated into and through approximately 32

states, using 96 vehicles leased from owner-operators to

travel approximately 5.7 million miles. Craig Transpor-

tation Co., 1985 Annual Report M, to the ICC, Schedule

720, Line 11b; Schedule 730, Line 6b. Craig is a typical

example of the many medium-sized carriers that operate

regionally.

Amicus North American Van Lines, Inc. (“NAVL”),

headquartered in Fort Wayne, Indiana, is a leading

household goods carrier (moving company), as well as a

regulated common carrier of general commodities. NAVL

is thus representative of both specialty carriers (includ-

ing tank truck carriers, automobile transporters, and

others) and general freight carriers. NAVL’s household

goods division operates approximately 1,500 leased truck

tractors throughout the country. Together with NAVL’s

general freight fleet, these trucks travel approximately

403 million miles in interstate commerce annually.

North American Van Lines, Inc., 1985 Annual Report M

to the ICC, Schedule 720, Line 11b; Schedule 722, Line 22.

Amicus B. I. Transportation, Inc. (“B. 1.”), based in

Burlington, North Carolina, is the transportation arm of

Burlington Industries, a major textile manufacturer.

Utilizing approximately 345 trucks, B. I. transports

Burlington’s products nationwide. Its fleet travels ap-

4

proximately 41.5 million interstate miles annually. B. I.

is representative of the nation’s over 119,000 private mo-

tor carriers. See C. A. TAFT, COMMERCIAL MOTOR TRANS-

PORTATION 7 (1986). Those carriers use over 800,000

trucks to conduct more than 16.5 billion miles of long

range operations annually. See footnote 1, supra.

Competition in the interstate trucking industry has in-

creased significantly since passage of the Motor Carrier

Act of 1980, Pub. L. No. 96-296, 94 Stat. 793-826. Over

12,000 new interstate operations have been granted

broad, unencumbered authority by the ICC. 1984 L.C.C.

Ann. Rep. 50. The ICC has noted that there is now

“vigorous price competition in the trucking industry”

(see Lawfulness of Volume Discount Rates—Motor Com-

mon Carrier of Property, 365 1.C.C. 711, 714 (1982)),

which greatly limits carriers’ ability to set rates high

enough to offset discriminatory state taxes. In fact, the

trucking industry’s net income every year since 1978 has

been below 3 percent of operating revenues, and in 1985,

33 percent of the carriers operated at a loss. AMERICAN

TRUCKING ASSOCIATIONS, INC., FINANCIAL & OPERATING

STATISTICS, MOTOR CARRIER ANNUAL REPORT (1978-85

eds.) [based on carriers’ Annual Reports M filed with the

ICC], Summary Table I, Column 7; Section I-IV, Line

45—Net Carrier Operating Income.

The competitive impact of discriminatory state taxes

such as the Pennsylvania marker fee and axle tax—both

in terms of competition with locally based carriers and

in terms of intermodal competition in the long haul

freight business—is a matter of grave concern. In the

highly competitive environment in which they operate,

interstate motor carriers are especially vulnerable to in-

creased costs resulting from discriminatory taxes. Com-

petition also requires flexibility and deference to cus-

vomer needs. Because the vagaries of demand make it

5

extremely difficult for carriers to predict where trucks

will be needed or what routes they will have to take, it

is virtually impossible for interstate carriers to control

their level of highway use in any one state in an effort

to avoid or mitigate the impact of such taxes.

For example, appellant Old Dominion Freight Line,

Inc. testified through one of its officials that all its inter-

state vehicles must be “permitted or qualified to go any-

where within our operating authority” (J.A. 53). An

employee of Leonard Brothers Trucking Company, Inc.

likewise testified that “|wlje have no way of knowing

where the freight is going to go until a customer calis. So

we have to have the trucks legalized and ready to go” (J.A.

57). Interstate carriers, therefore, are unable to control

either their level of highway use in a state or the number

of vehicles they must qualify for operation in that state.

This compounds the discrimination attendant to flat per-

truck qualification taxes, such as the Pennsylvania marker

fee and axle tax, in that carriers must qualify trucks

which may never enter the taxing state. The representa-

tive of Leonard Brothers Trucking testified that of the

275 Pennsylvania markers it purchased in 1982, it put

only 225 on trucks that eventually traveled in Pennsyl-

vania (J.A. 58).

In these circumstances, interstate motor carriers of

all kinds have no choice but to pay the discriminatory

highway taxes that an increasing number of states are

exacting. Vigorous enforcement of the Commerce Clause,

as in the present challenge, represents the carriers’ only

potential salvation from these costly, unconstitutional

State taxes.

ARGUMENT

I. PENNSYLVANIA’S MARKER FEE AND AXLE

TAX IMPOSE PER-MILE COSTS ON OUT-OF-

STATE MOTOR CARRIERS SEVERAL TIMES THE

COSTS THAT THE TAXES IMPOSE ON THEIR IN-

STATE COMPETITORS.

Appellants challenge the validity under the Commerce

Clause of Pennsylvania’s former $25-per-truck marker

fee (in effect from 1980 to 1983) and its current $36-

per-axle ($180 per typical, 5-axle truck) tax. Each tax,

on its face, was found to apply both to trucks registered in

Pennsylvania and to trucks registered outside the State.

However, this Court has consistently held that in review-

ing a Commerce Clause challenge to a state tax, “|tjhe

principal focus must be the practical operation of the

statute, since the validity of state laws must be judged

chiefly in terms of their probable effects.” Lewis v. BT

Inv. Managers, Inc., 447 U.S. 27, 37 (1980) (emphasis

added). The practical effects of the marker fee and axle

tax and other highways use taxes can be determined by

examining the relative costs per mile traveled in the tax-

ing state for out-of-state, versus in-state, motor carriers

As discussed below, under such an analysis, each tax dis-

criminates heavily in favor of locally based carriers and

therefore violates the Commerce Clause.

Record evidence from a survey conducted by appellants

American Trucking Associations, Inc. (“ATA”), et al

shows that, on a classwide basis, the marker fee and axle

tax impose a far higher cost per mile on trucks registered

uutside Pennsylvania than on trucks registered in the

State (J.5. 6). To determine whether the taxes discrim

inate against the carrier amici individually, each has con

pared its own tax cost per mile (for its fleet of trucks

registered outside Pet nsyivania with the tax cost per

y ' , » +) ae . ) aole »

mile for ne average Pennsylvania-registered motor car-

rier. The amici performed the same comparison for

Arkansas’ $175-per-truck/5¢ per-mile highway use equal-

ization tax, which is under Commerce Clause challenge ir

a contemporaneous appeal.? American Trucking Associa-

Lions, Ine t Gray, 55 U S L W 8175 U.S , appeal dock-

eted Sept. 3, 1986) (No. 86-358

Table I below presents these comparisons, and demon-

trates the blatantly discriminatory impact of the Arkansas

and Pennsylvania taxes.* The tax cost-per-mile differen-

tials set forth in Table I add up quickly to huge dollar

amounts of discrimination. Table II shows how much

excess tax the carrier amici are compelled to pay as 2

result of the non-mileage proportioned highway taxe

7

inder chalienge in this appeal and Gray

Che erage tay st per mile for the Arkansas-registered and

Pennsylvania-registered irriers, set forth in Table I infr :

lerived from statistical evidenc« n this ase Penns ar

registered trucks eraged 25.857 mile n-state during calendar

ear 1981 (PX 12 i figure which. when d led int le annu

I ker fee $25 per tr ick, yields a tax st per mile of 0.10 cent

nd, when divided int tne annua xie tax f $180-per axle

truck, yields a tax st per i . t 0.70 cents ind if Dpe ts :

1 porane s cnalienge to Arkansas’ highwa ise equalization tax

imeri n Trucl ng 4s ociat ns (7? / i107 S.W 2a 759 Ark

peal docketed (U.S., filed Sept. 3, 1986) (No. 86-858) (Arkansas

registered trucks a eraged 17.770 miles n-State ring uiendal

198? PY nd i figure wl ; wher : led nt t ing annua

HUE tax of $175 per truck, yields a tax cost per n f approx

ely 1 OO entra

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10

As Table I demonstrates, the interstate carrier amici

are being forced to pay effective tax rates of 1.8 to 12.2

times their in-state counterparts’ rates. As depicted in

Table II, this rate differential results in the amici paying

hundreds of thousands of dollars in excess taxes.*

The burden associated with each state’s discriminatory

highway tax is exacerbated when such taxes are levied

by many states. “[{I]f [one State] can impose such bur-

dens, so can every other State,” thereby compounding

“the resulting impediments on the free conduct of...

interstate business.” National Bellas Hess, Inc. v. De-

partment of Revenue, 386 U.S. 753, 759 (1967). See

also Armco, Inc. v. Hardesty, 467 U.S. 638, 644 (1984)

(a state tax must be such that “if applied by every juris-

diction, there would be no impermissible interference with

free trade”) ; Capitol Greyhound Lines v. Brice, 339 U.S.

542, 557 (1950) (Frankfurter, J., dissenting) (“an in-

terstate carrier will be subject to privilege taxes of sev-

eral states, even though his entire use of the highways

is not significantly greater than that of intrastate oper-

”)\

ators }.

The potential cumulative tax burden today is far worse

than Justice Frankfurter envisioned because the trucking

industry has expanded dramatically over the last half

century. Along with a huge increase in the number of

interstate carriers, individual interstate carriers have

* Amici recognize that if Arkansas and Pennsylvania sought to

raise the same amount of revenue by a non-discriminatory tax

proportioned to highway use rather than by their existing discrimi-

natory taxes, the uniform tax cost per mile would be somewhere be-

tween the high rate now paid by trucks registered outside those

states and the low rate paid by the in-state carriers. The savings to

amici from such a revenue-neutral, non-discriminatory tax, while

substantial, would be somewhat less than the amounts shown in

Table II. The figures in that Table, however, are revealing in that

they reflect the magnitude of the disadvantage suffered by amici

compared to their Arkansas-registered and Pennsylvania-registered

competitors.

11

greatly expanded both in terms of the number of vehicles

they operate and the range of their operations.

All of the amici’s interstate operations have grown

dramatically. For example, amicus B. I. Transportation

in 1935 operated only two trucks and those wholly in

North Carolina and by the end of the 1930’s operated

only 13 trucks in a four state area. By contrast, B. I. in

1985 operated approximately 345 trucks nationwide.

Amicus North American’s operations have shown a simi-

lar increase. In 1942, North American operated 32

trucks, compared to over 1,500 today. Its fleet traveled

approximately 1.7 million miles in interstate commerce

in 1942, compared to over 400 million miles in 1985.

Likewise, amicus Craig, doing business as Hoefer Motor

Transportation Co., served only four states with 25 trucks

in 1962 whereas today Craig operates in approximately

32 states through 96 vehicles. Amicus Yellow has under-

gone the most significant expansion. By the end of the

1930’s, Yellow operated only 3 trucks, 15 tractors, and 13

trailers in a regional operation serving parts of only four

states. In 1985, Yellow utilized nearly 25,000 pieces of

equipment, including 3,500 tractors and over 20,000 trail-

ers, and provided a nationwide trucking service.

The major broadening of interstate motor carriers’

business operations greatly increases their vulnerability

to effectively discriminatory taxes, and significantly

heightens the harmful impact of those taxes on their bus-

inesses. Already, seven states levy some form of annual

non-mileage proportioned highway tax: Arkansas ($175

per truck), Indiana ($50 per truck), Kentucky ($150 per

truck), Maryland ($25 per truck), New Jersey ($25 per

truck), Pennsylvania ($36 per axle, amounting to $180

per truck for most interstate vehicles), and Vermont

($50 per truck).® The potential burden on interstate com-

° Ark. Stat. Ann. §§ 75-817.2, 75-817.3(a) (3), (4) and (5) (Supp.

1985). Ind. Code Ann. § 6-6-8 (Burns Supp. 1986); Ky. Rev. Stat.

12

merce from the spread of these discriminatory state taxes

is staggering. Amici Yellow, North American, and B. I.

all engage in nationwide operations, and thus are vul-

nerable to discriminatory impositions by all 48 contiguous

states and the District of Columbia. If all 49 jurisdic-

tions levied taxes like Pennsylvania’s axle tax, and the

amici had the same level of operations in each jurisdic-

tion as they have in Pennsylvania, Yellow would face

over $18.8 million in excess taxation, North American

over $33.4 million, and B. I. $1.1 million. Even a re-

gional carrier such as Craig, which operates in 32 states,

would face an enormous cumulative excess tax burden—

over $285,000.

When the challenged taxes’ discriminatory effects are

extrapolated to the interstate trucking industry as a

whole, the burdening of interstate commerce is crippling.

In view of the potentially grave adverse effects on inter-

state commerce of parochial legislation such as the Penn-

sylvania axle tax and marker fee, this Court should re-

verse the decision below and declare those taxes uncon-

stitutional.

Il. FUEL TAXES—A NON-DISCRIMINATORY FORM

OF STATE HIGHWAY TAXATION—PROVIDE

A READY ALTERNATIVE TO TAXES NOT PRO-

PORTIONED TO MILEAGE.

The discrimination suffered by interstate carriers is

all the more egregious because Arkansas and Pennsy]l-

vania could easily avail themselves of an alternative

method of highway taxation that is proportioned to each

earrier’s actual miles traveled in the state. All states,

including Arkansas and Pennsylvania, already levy fuel

sales and use taxes that are directly related to a taxpay-

Ann. § 138.660(4)-(7) (Supp. 1986); Md. Transp. Code Ann.

§$13-423(a) (1984); N.J. Stat. Ann. § 54.39 A-10 (West Supp.

1986) ; Pa. Cons. Stat. Ann. tit. 75 § 2102 (Purdon 1981); Pa. Cons

Stat. Ann. tit. 75, §9901 et seq. (Purdon Supp. 1986); Vt. Stat.

Ann. tit. 23, $§ 415, 3007, 3010 (1978 and Supp. 1985).

13

er’s level of highway use.* If maintenance requirements

justify a rise in Arkansas’ or Pennsylvania’s highway tax

revenues, those states could simply increase their existing

fuel taxes. Given the availability of this constitutionally

valid alternative, there is no justification for the discrim-

inatory taxes under challenge here and in Gray. See Pike

v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (a state

action violates the Commerce Clause where “the local

interest” [here, the raising of highway tax revenues]

“could be promoted as well with a lesser impact on inter-

state activities”).

CONCLUSION

To halt the states’ harmful attempts to protect local

interests and export their highway tax obligations, this

Court should reverse the judgment of the Supreme Court

of Pennsylvania, and strike down the challenged taxes

under the Commerce Clause.

Respectfully submitted,

LESTER M. BRIDGEMAN

Counsel of Record

Miller, Hamilton, Snider,

Odom & Bridgeman

Suite 1900

1112 Sixteenth Street, N.W.

Washington, D.C. 20086

(202)429-9223

Counsel for Yellow Freight

System, Inc., et al.,

January °%, 1987 Amici Curiae

* See Ark. Stat. Ann. §§ 75-1106, 75-1150, 75-1241, 75-1251, 75-

1269 (Repl. 1979); 75-1278 (Supp. 1985) and 72 Pa. Cons. Stat.

Ann. §§ 261la et seq., 2614.1 et seq., 2617.1 et seq. (Purdon 1964).

The more miles a truck is driven in a state, the more gallons of fuel

it consumes and the more tax is paid on the fuel. Pennsylvania also

apportions its corporate income tax, when levied on interstate car-

riers, according to the carrier’s total miles traveled in the state.

See 72 Pa. Cons. Stat. Ann. §7401(3)2(b) (Purdon Supp. 1986).