Petition for Writ of Certiorari — Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc.

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ae Se os In The

SUPREME COURT OF THE

March Term, 1971

EVANSVILLE-VANDERBURGH AIRPORT.

AUTHORITY DISTRICT, KENNETH C, KENT,

ELMO HOLDER, ROBERT M. .LEICH, IAN F.

- LOCKHART, CLIFFORD K. ARDEN, JAMES A.

GEYER and PAUL E, HATFIELD, on behalf of

himself and all other persons similarly situated,

3 Fa Petitioners,

= U8. ben

DELTA AIRLINES, INC., EASTERN AIRLINES,

_ ALLEGHENY AIRLINES, INC., and WILLIAM, |

F. WOOD, on behalf of himself/and all other )

persons similarly situated, |

, ei | Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

_ SUPREME COURT OF THE STATE OF INDIANA: .

. Howarp P.. TROCKMAN

JAMES F. FLYNN _

— . 20 N. W. Sixth Street .

Evansvillé, Indiana 47708

' Attorneys for Petitioners

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INDEX

: PAGE

Opinions Below sdcavavoiverinectaanpsesethitionssnsih§auesteeaegeniseneed 2

Fearne stat nae et cones TS suet +

The Questions Hieted a eR

Constitutional Provisions, Statutes and 3%

Ordinarices Involved. .0.........scsssssessesssssessnesseeneenesneeees 3

‘ Statement ................... Aguok ss sipshenkerernataatesiostbanniattente a

Reasons her Granting the wet bastinst TE! Sass 3

Conclusion ini thattiaialeoRias UTR eRe NE

Appendix A— Opinion of the Court Below a vee 14

Appendix B— sy Pes:

United States Constitutional Provisions ....:......... 23

Bieta MI ooo ciacocsesesorienorneisaceesqerecacussaeal: WE -

| Ordinance NO. 83... esccsssessessssnesssneesesees Se ape ae

| Appendix CcC— - Opinion of New Hampshire |

99.

ii-

CASES CITED

sere | ; . PACE

_Aero Mayflower Transit Co. v. R. R. —.

Commissioners, 332 U.S: 495, 503, 68 S.Ct.. :

RE, Fe Bate We CD. iv ticnsscnncesicsiie ne ckccteeecees 11, 12 ©

Financial Air Corporation \ Vv: Wallace, 216 Ind.

5114, BB NEQd. (1989): oo.cccscdecccecsseecesssccechesensseseeee 8

Gensel Motors:Corp. v. District of Columbia, ~

380 U.S: 553, 85 S.Ct. 1156, 14 L.Ed. 2d 68, 85 .

i esscisnstni Maca 6.

Hendrick v. Maryland, 235 U.S: 610, 35 S. Ct. 140, .

59 L.Ed. 885 (1914) cnnerrreierne Sanne | ae

| ase: Glover, 119 U.S. 548, S.Ct. 313, .

a : | Waker ene erent Ome ne nneennCEEe .. 1

Kersey v. City of Terre Haute, 161 Ind. 471,

AT3, 68 N.E. 1027 (1908) ..cssccsssosssosscessssssssseessten 120.

Northeast Airlines, Inc., et al v. New Hampshire ;

Aeronautics Commission, et-al, (Not yet

officially reported) See Appendix ©... 6

” orthwest Airlines, Inc. v.-Joint City County

: Airport Board, 154 Mont. a 463 P.2d 470.

PER EREERREARS ore Rta co nner ener Ska er oan ace ee 6

Richmond Baking Company v. Department of |

Treasury, 215 Ind. 110, 18 N-E.2d 778 (1938) ....... 12 -

Southern Ry. Co. v. Clift, 260 U.S. 316, .

48 S.Ct. 126, 67 L.Ed. 288 (1928) ..eicclacencney 2

‘Southern Ry. Co. v. Hunt, 42 Ind. App. 1,

SB NE. T21 (1908) rereinrnnennn nn

‘STATUTES CITED.

Burns Indiana Statutes, Annotated,

Behe MO BEB 5 ienensenntinnsnnnnnssseesnnneon ey a |

40 UBC 1110(4)- nanan nenntonninnce Ee oe

28 USCA (1257(8) cson Zanes aN ae

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_— - “ The

Ppa RLRED OH MOL On Sige a ne ee eS ee oe eee i ore

»

In ‘The

SUPREME COURT OF THE UNITED § STATES

. Mareh Term, 1971 |

BDA: cxcaisisnnioonsipi

EVAN SVILLE-VANDERBURGH AIRPORT

AUTHORITY DISTRICT, KENNETH C. KENT, |

ELMO HOLDER, ROBERT M.-LEICH, IAN F. . |

LOCKHART, CLIFFORD K. ARBE cee

GEYER and PAUL E. HATFI LD, on-behalf of . ~

himself-and all other persons similarly situated, .

Petitioners,

V8.

DELTA AIRLINES, INC., EASTERN AIRLINES, ©

ALLEGHENY AIRLINES, INC., and WILLIAM

F. WOOD, on behalf of himself and all other

persons, similarly situated,

: Reopondents :

PETITION FOR A WRIT OF CERTIORARI TO THE

m —— COURT weed THE — OF. INDIANA

To the Honorable, the ‘Chief Justice of the United

“States and the Associate Justices of the Supreme

Court of the United States: aa S naadlerat

. Petitioners pray that a Writ of Geitionari issue to

review the judgment of the Supreme Court of the State

of Indiana entered on December 23, 1970.

.

2

OPINIONS BELOW

_ The opinion of the Supreme Court of the State of

Indiana, Cause No. 869'S 179, is printed in icsmer |

A hereto and is err in 265 N. E. 2d 27. _

t

JURISDICTION ;

The Judgment of the Supreme Court of the State of

Indiana, printed in Appendix A hereto, was entered on

December :23, 1970. Said J udgment, was final and no

petition or order respecting a rehearing was requested

fa or required (Southern Ry. Co. v. Clift, 260 U.S. 316,

43. S.Ct:.126, 67 L.Ed. 283 (1923), and no request or or-

‘der for an extension of time within which to petition

for Certiorari was filed, granted, or required...

The jurisdiction of this Court is invoked under 28.

~- USCA 1257(8).

THE QUESTIONS PRESENTED

L ‘Wham an Airport, ‘at. its own expense, “furnishes

special facilities for the use of those engaged i in com-

". merce, interstate as well as intrastate, is it authorized .

to collect a reasonable use and service charge from ~

commerce for the privilege of using and enjoying such

facilities and for the purpose of defraying the costs

‘and maintenance thereof?

2. Is a use and service charge of One Dollar ($1. 00) -

- imposed upon each enplaning commercial airline pas-

senger by an Airport which, at great. expense to its

taxpayers, provides its facilities for the primary use

and benefit of commercial airline passengers, an un- ca a

reasonable burden on interstate commerce in violation —

of Article I, Section 8, Clause 3 of the United States,

pa cacarsapals

3

CONSTITUTIONAL PROVISIONS, STATUTES ~~

_ AND ORDINANCES INVOLVED ==

_° The constitutional provision involved is the Com- -

- merce Clause, the same being Article I, Section 8,

Clause 3 of the United States Constitution. ; . -

The Indiana legislative authorization for ehactment :

of this use and service charge is found in the Acts of —

1959, Chapter 15, page 32, the same being Burns’ Indi- —

ana Statutes, Annotated, Section 14-1215. |

The Ordinance involved in this. proceeding was

passed by the Petitioner, Evansville-Vanderburgh Air-

port Authority District, as Ordinance No. 33, on Feb-

ruary 26,1968. * a ee

The provisions of said Constitution, Statute and Or-

dinance are printed in Appendix B-hereto. wees <

ye STATEMENT -

This was an action brought by Respondents against

Petitioners for a Restraining Order; Temporary In- .

junction and Permanent. Injunction against the en-

forcement of Ordinance No. 33 of the Petitioner, Ev-

. gnsville-Vanderburgh Airport Authority District, en- -

acted on February 26, 1968, which Ordinance estab-

-lished and, effective July 1, 1968, sought to impose a

use and service charge of One Dollar ($1.00) for each

passenger enplaning commercial aircraft at Dress

‘Memorial Airport, Evansville, Indiana, operated by

‘the Petitioner Airport Authority. Respondents’ Com-

plaint was filed in four (4) pleading paragraphs, the |

first paragraph of which alleged that Petitioner’s Oy- |

~ dinance No. 33 constituted an unreasonable burden on —

interstate commerce and was, therefore, in vidlation

of Article I, Section 8 of the United States Constitu-~

' “ tion. (R.16:) : = ae

e-*

- Upon the filing of Respondents’ Complaint on June *

28, 1968, the Superior Court of Vanderburgh County,

on the same date, issued a Restraining Order without

Notice. (R. 76) On February 21, «1969, said Superior |

Court, after extensive briefing and argument of coun-

_ sel, issued a Temporary Injunction (R. 312), incorpo- _

‘ rating therein special Findings of Fact and Conclu-

_. gions of Law wherein the Court held that Ordinance

No. 38 violated Article I, Section 8 of the United States

- Constitution. (R. 314-333) Petitioners filed a Motion

for Change of Venue from the Judge on February. 27,

1969, (R. 336), which motion was subsequently denied. _

(R. 350) On March 24, 1969, Petitioners filed their An-

swers to Respondents’ Complaint wherein Petitioners

~ denied that its Ordinance No. 33 constituted an unrea-

sonable burden on interstate commerce in violation of

Article I, Section 8, Clause 3 of the United States Con-

stitution, (R. 357-373), and on the same date Petition- -

ers filed their Counterclaim praying for a recovery.

under its use and service charge Ordinance against

the Respondent Airlines in accordance with the num- *

ber of enplaning passengers which were expected to

be enplaned during 1969, together with attorneys’ fees

and litigation costs. (R. 353-356) On April 2, 1969, Re- |

-spondents filed their Demurrer to Petitioners’ Coun--

terclaim (R. 374-378), which Demurrer was sustained

on April 16, 1969. On April 17, 1969, Respondents filed_.

their Motion for Summary Judgment (R. 383-385) and

on May 1, 1969, Petitioners filed their Motion for Sum-

mary Judgment. (R. 388-389) Finally, on May 8, 1969,

the Superior Court of Vanderburgh County sustained —

Respondents’ Motion for Summary Judgment and

overruled Petitioners’ Motion for Summary Judgment

_ ‘and issued its permanent injunction enjoining the en- —

' forcement of the Petitioners’ use and service charge. —

e

5:

Sod

No. 83. (R. 391-395) On July 11, 1969, said .

lower Court entered its Nunc Pro Tunc Judgment

wherein the Court declared said Ordinance to be un-

lawful and unconstitutional under Article I, Section 8,

Clause 3 of the United States Constitution. (R. 403- -

.

408) On August 5, 1969, Petitionérs timely filed their

Transcript. and Assignment of Errors. wherein. Peti-

toners, among ocher things, assumed ‘as error and pre-

served for appeal the validity of said Ordinance under * en

Article I, Section, 8, Clause 3 of the United States Con-

} stitution. DA Es ee eee.

The decision of the Superior Court of Vanderburgh’

County was subsequently affirmed by the Supreme.

- Court of the State of Indiana on December 23, 1970.

(Appendix A.) : Soa

REASONS FOR GRANTING. THE WRIT

- The decision of the Supreme Court of Indiana has

_passed upon a Federal question of substance which has

not been settled by this Court and there is a conflict of

authorities on this question among the various states.

The specific question raised by this Petition for Writ

of Certiorari concerns the constitutionality of an ordi-

nance enacted by: the Petitioner Airport Auth@ity

which sought to impose a use and service charge of

One Dollar ($1.00). for each enplaning passenger of

ar ie aircraft at Petitioners’ Airport for the —

privilege of using and enjoying the facilities which are

_ being provided for said passengers and which use and _

service fee is designed, in part, to defray the costs of

-providing such facilities by the Petitioners. The ques-__

. tion before the Court on this Petition for Writ of Cer-—

tiorari relates to the ability of a state or municipal —

body to require interstate, as well as intrastate, com- —

merce to pay its own way. gis O°

4 -

" merée. may be taxed rather. |

- taxed at all, citing General Motors Corp. v. District of

Columbia, 380 U.S. 553, 85 S. Ct. 1156, 14 L.Ed. 2d 68,

- -As stated; ‘the. Supreme Court of Indiana decided /: 2

this case adversely to the Petitioners on mber 23;

1970. Immediately prior to said decision, the Supreme ~

Court of Montana; in the case of Northwest Airlines,

Inc. vdpint City-County Airpe Board, 154 Mont.

.352, 463 P.2d 470 (1970), declared unconstitutional a

state legislative enactment establishing a service.

charge of One Dollar ($1.00) for each passenger en- —

planing air carriers at all. publicly operated airports

-within the State.-In the Northwest case, the Court de-

clared that there was no issue before the Court as to —

-the need for revenues to maintain and operate the ~——

Helena Airport nor as to the propriety of raising. reve-

nues by assessing proper charges on the commercial

support such a need.

Subsequently, on J anuary 29, 1971, the Supreme :

Court of New Hampshire, in the case of Northeast Air- —

lines; Inc.; et al ». New.Hampshire Aeronautics Com-

mision, et al, adopted a contrary view and held that a

similar One Dollar ($1.00) enplaning fee did not con-

stitute an unreagonable burden on inteystate -com-

merce in violation

States Constitution, and further held that it did not re-_

’- gard the decisions of the Montana Supreme Court and

the Indiana Supreme Court in the instant case, a8 con- —

trolling, and, accordingly, did nét adopt the views ~

which these cases expressed. The New Hampshire Su-

preme Court declared that the critical issue in state

taxation of interstate commerce is how interstate com-

| her than whether it. may be

85 (1968).

_° Further, the Supreme Court of New Hampshire |

» ‘stated that even a reasonable charge to federal instru--

air carriers using the. Airport since, the record did not —

f Article I, Section 8 of the United -

. > 7 “>, ‘ , :

27 3 - ! nal ‘ wi

. x “

“a / iz

. mentalities making “substantial” use of public ailport :

“facilities is saqctioned by Feileral Statute, citing 3°

USCA Section D0 4). Accordingly, the Court con- Dae

_ eluded that the enplanement fee was what it purported ~~

-to'be, a fee for the use of facilities furnished by the .

public and that its incidence depends upon an event. .

which is wholly intrastate, namely the enplanenient of —

"passengers within the State of New ‘Hampshire at a

"facility publicly provided or supported; that the bur-

‘= den upon the carriers was minimal, and did not exceed

reasonable compensation for the ‘use provided. The

opinion of the Supreme Court -of the State of New

Hampshire, Merrimack, No. 6086, is printed in Appen-

- dix C and is not yet reported in the official reports. ~

While the Respondents will, undoubtedly, oppose the .

granting of this Petition for Certiorari, it is virtually

certain that the unsuccessful airlines in ‘the New |

‘Hampshire proceeding, ultimately, will petition this

Court for a review of its adverse decision.

. Thus, the question of the validity the Petitioner ce

Airport Authority's Ordinance¥ here "involved, under

the Commerce Clause of the Federal Constitution is

of far-reaching importance to all state and municipal. -

taxing bodies where facilities are provided foxy inter- —

“state, as well as intrastate, commerce at a great finan-

jal burden to its taxpayers. | iter

"The Acts of 1959, Chapter 1,

‘General Assembly, the same

“statutes, Annotated, Section 14-121

pag@ 32, of the Indiana

bei Burns’ Indiana

, specifically au-

thorizes the Petitioner Airport Authority, at subpard:

graph9: atk oh eae cae

“to adopt a schedule of reasona Je-tharges and to

collect the same from all users of facilities and’

services within the jurisdiction of the District.”

oh

nd

and at ‘niente 16'thereof to:

* an ae

', . make all reasonable.tules and regulations .

the Management and control. of its airports nt

ran ee facilities and

other property der its control.”

. to fix, charge and-collect’ sebtiie tolls, fees and |

yee to be paid for the use of the whole-or any ©

part or parts of any’such airports’or landing fields, .

and other’ air navigation facilities . . Gand to.fix, ~~

charge and collect: fees for. public admissions: and

privileges.” ) ae oad

The State of Indiana -has long since held that the

Legislature may' confer and delegate the power to.

adopt rules, by-laws arid ordinances and has the right —

to delegate to the Executive or Administrative its

- power te:fix rates. Financial Air Corporation v. Wal- —

“ lace, 216 Ind. 114, 23 'N. E.2d 472 (1939) ; Sou. bi Co.

_ v. Hunt, 42 Ind. App. 1, 83'N.E. 721 (1908). all

The record in this proceeding amply displays both

‘the legislative: Pgh: anewer for the-enactment of a

| _ user charge aiid. the inancia}fneed of the Petitioner °

Airport- AutKority to raise the. revenues created.

through the enactment of such charge for the: purpose

of defraying the cost of present and future require-

é ments for capital inprovemenits ‘at the Petitioners’ i.

The thespoaiuis ‘below stipulated and prices am as ‘tn

the truth of certain facts submitted by the Petitioners _

below, each of which Stipulated. Facts of thé Petition-

* ers are material and relevant to this Petition and ‘sup-

port the constitutionality of the use and service charge

established: by Petitioners’ Ordinance No. 33. (R. 469-

. 490) These arrieeee Facts show, among other snines

3 Om:

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(a)

9 |

The use and service Rar ‘ge, OO No. 33, s

.was adopted by the Petitioners, Evansville;Van- ue

der‘burgh Airport Authcr ity District? in accord- *

‘ance with the legal pr ogedur es vequired by In-

(b)

diana: Law. (R. 489)

In the year 1967, appr oximiately 146, 955 enplan-

‘ing _passengers boarded aircraft at Dress Me-

morial Airport. That the number of: enplaning |

and deplaning passengers at Dress Memorial —

Airport are approximately the same « (R. 478),

and that Petitioners” Ordinance No. 33 imposes —

a use and Service charge of One Dollar. ($1. 00)

on all enplaning passengers of commercial air-

lines whether said enplaning passengers travel

- . in intrastate or interstate. commerce. (R.. 480).

| (Cc).

_ craft at Dress Memorial Airport are either ini-

That the vast majority of persons enplaning air-..

tiating the first: leg of a journey which wilh be:

completed by a return flight to Evansville or,

coriversely, are completing the second leg of a

journey which had its. origin at a locality other md

— than. Evansville. (R. 487) .

(d).

Appr oximately forty percent (40% ) of the users

of Dress Memorial Airport are non-residents of |

Vanderburgh County, Indiana, wherein Dress ©

Memorial Airport is located, and that the use

and service charge established by Ordinance No.

33 is designed to be collected from all commer- “

cial airline enplaning. passengers using’Dress

Memorial Airport without regard to their resi-

dence or ownership. of property: within Vander-

we (e)

.. cilities are primarily designed for use by per-

burgh County, Indiana. (R. 486):

That the Terminal Building and most of its fa-

10

sons travelling ‘on commercial -airlines. and.

would not be. essential for the operation ‘of.a’

‘non-commercial airport. (R. 480)

(f ) That the real’ estate, runway . Jengths® “approach

ar eas, taxiways, ramp areas and approach light-

: “ing system of Dress Memorial Airport would

not be so extensive except for the accommoda-

tion of commercial airline. carriers and ‘their

_ passengers. (R. 480, 481) ;

(g). That the capital impr ‘overhent: program recom- .

_g@ mended by. the consultants of the Petitioners is ~

primar ily designed for the safety, comfort and

convenience of commercial airlines, its. equip-

~ ment, personnel and commercial airline passen-

‘ gers (R. 486) and based-upon the present. bond- -

ed indebtedness of the Petitioner Airport Au-.

thority and the need for additional capital im-

provements, as shown by the exhibits attached.

— to the stipulations, there exists a need for addi- -

> tional revenue which the use and service charge, »

Ordinance No... 33, was — to raise. >

(R. 486)

- (h) That the adoption, initiation and fulfillment of.

— capital i improvement program recommended

by th he consultants of the Petitioner Airport Au-

thority and the retirement of the indebtedness

created thereby will require more revenues than

~ would be produced.by the use and service

charge, Ordinance No., 33,. 3, assuming that said

improvements would be ‘amortized over a fifteen

= (15) year period and that the forecast of prob-

- able passenger movement at: the. Petitioners’

Airport is reasonably accurate. (R. 448)

'. (i) That, presently, the funds which are needed,

\

\

on

over and above operating revenues, te retire. .

existing and future capital improvement costs

- at Dress Memorial Airport are derived from tax

levies on all assessed property located only with- —

in Vanderburgh County, Indiana, (R. 486) and_

that the fulfillment of the capital improvements ~~

program recommended by the consultants of the |

| Petitioners will require more revenue than can .

be produced by the maximum tax levy now per- '

_ mitted by.law to be levied by the Petitioners and:

will necessarily <require additional revenues in

_ excess of those which ‘would be produced by Or- .

dinance No. 33 in order to amortise the costs

' thereof. (R. 489)

The right of a state or municipality to charge for -

the use of valuable facilities furnished to commerce °

‘has been upheld by the Supreme Court of the United '

States. In the much cited case of Huse v. Glover, 119

U.S. 543, 7.S.Ct. 318; 30 L.Ed. 487 (1886); the Su-

no preme Sourt of the United States was called upon to

enactment vesting a Board of Canal Commissioners

. with authority to prescribe rates or tolls for passage. of.

all vessels through: its locks. The Court, in sustaining

‘the constitutionality of the.enactment, held at page 548

of the opinion, that the exaction of tolls is as compensa-

. \. tion for the use of artificial facilities: constructed, not ~

as an impost upon the navigation of the stream and

. that private. inconvenience must yield to_the-public—-

good. |

Additionally, the right of the states to impose upon

‘ motor vehicles usirig highways in interstate commerce ©

such ‘charges as will reasonably ‘defray the expenses |

and represent a fair contribution to the cost of con--

structing and maintaining those highways has been

well established. Aero Mayflower Transit Co. v.-R.R.

For.

*

x

a

12

; (iecedaatiiie: 382 vu. S. 495, 503, 68 S.Ct. 167, 92 .

2 L Ed. 99 (1947).- - ;

-. The’amount‘of charges and the method of collection

are primarily for determination by the state itself, and

80 long as they are reasonable and are fixed according

to some uniform,, fair and practical ‘standard, such

charges constitute no burden upon interstate.com-

. merce. Hendrick v. Maryland, 285 U.S. 610, 35 S.Ct.

140, 59 L.Ed. 385 (1914); Richmond Baking. Company

v. Department ofeTreasury, 215 Ind. 110, 18 NE. 2d.

778 (1938) ; Kersey v. City of Terre Haute, 161 ss

471, 473, 68 N.E. 1027 (1903).

As in the case of Hendrick v. Maryland, supra,

_where the Supreme Court of the United States de- -

clared‘that the highways are public. property and itis —

within the power of the ita te to require the users |

thereof to contribute to their cost and maintenance,

and to require those who make special use thereof to

- contribute to their upkeep, the runways, Terminal

= ing and rela acilities of the Petitioner Air- ~~

port. Authority are literally the highways of commer-: —

cial aircraft requiring ———— toward their up-

keep and maintenance..

The question presented by this Petition for a ‘Writ

‘of Certiorari is one of grave and vital importance to _

- the’ preservation of the right of states tc tg provide for

__the adequate safety-and accommodation 0f interstate |.

as well as intrastate commerce. This is: particularly

true where the Federal government has not either as-

sumed the exclusive cost and maintenance of such fa-

_. © ‘cilities or precluded the states, or its municipally dele- -

' gated ‘bodies from charging — for "e™ use of

“ such facilities. |

a

18 “

“CONCLUSION kis

For the reasons set: forth above,” it is “respectfully ;

submitted that this Petition for 4 Writ ‘of Certiorari.

-Should be ceed. oe . ae ‘eee

Howarp P. TROCKMAN a

\ | JAMES F. FLYNN.

20 N. W. Sixth Street _

Evansville, Indiana 47708

Attorneys for Petitioners

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0s APPENDIX A.

| - In The Wee ha

SUPREME COURT OF IN DIANA

EVAN SVILLE-VAN DERB URGH

_ AIRPORT AUTHORITY DIS-

_TRICT, KENNETH C. KENT,

ELMO HOLDER, ROBERT M.

. LEICH, IAN, fl — 9 itl

CLIFFORD K —

__A- GEYER an and PAUL E.:- .

HATFIELD, On Behalf of Himself

and All Other Persons Similarly,

Situated, . ie

. we

_ DELTA “AIRLINES, INC.,

. EASTERN. AIRLINES,

RELEGREN Y AIRLINES, IN C. ma

d.WILLIAM F. WOOD, On .

Be sot of Himself and All Other

@

| . Persons Similarly Situated,

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eae “Appellants, ): No. 869S side

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_ Appel.

. . ‘APPEAL FROM THE SUPERIOR COURT 0 OF |.

on 123 VANDERBURGH COUNTY | |

= Honorable —— E. Buente, Tudge

‘peBRUTER, J. a se

‘ a

a_—

F ome

—

—

| fr, ae ee

This is an siaeinads ines. a final judgpient’ in ied Van-

<¢ derburgh County Superior Court” granting appellees

@ @ permanent injunction_agai inst the enforcement of

ea gh. Airport: Authority District’s

Ordinance—-No. | 33 which ordinance establishes a-

__charge. “of $1.00 for each passenger (with ¢ertain ex-

Mar

— ceptions) enplaning a commercial aircraft at Dress

Memorial Airport, Evansville, Indiana. The other ap-.

pellants are either directors or officers of the appel-- ..

lant Airport Authority District.

*, On February 26, 1968, appellants enacted 5 sae

N o. 33, intended to become effective July 1, 1968,

. Which levied a charge of $1.00 on enplaning commer- |

> cial air passengers at Dress Memorial | Airport. The

| "ondinane in pertinent part, reads: ot

ion 1. Commencing on July 1,’ 1968, there

is hereby fixed, created and established -‘@ use

and service chargé of One Dollar ($1.00) for each |

_ passenger enplaning any commercial aircraft

| Operated from the Dress Memorial Alrport. oe

8 * *. |

- “Section 4. The ‘term ‘each passenger enplaning

any commercial aircraft operated from the Dress

Memorial Airport’ shall not include, nor shall the

use and service charge hereby created, apply’

to any active members of the United States

Armed Forces enplaning aircraft at the Dress

- Memorial Airport, or any person purchasing an

airline ticket having, as an initial point of depar-

, ture, a locality other than Dress Memorial Air-

“e, port, and whose flight either terminates or re- -

quires an intermediate or temporary stop at.

7 — Memorial Airport.

; > nn

. es * ~~) es

La = Se,

- “Section 5. All revenue collected fronr said: use

and service charges shall be held by the Evans-. |

- ville-Vanderburgh Airport Authority District in -

'* a separate fund for the purpose of defraying the .

. present and future costs incurred by said’ Airport ee

_ Authority in the construction, - improvement,

equipment,’ and maintenance of said: Airport and

.. its facilities for the continued use and fubare en-_

+ ‘joyment by all users thereof.” ss

“The appellee airlines .are commer cial air carriers

transporting passengers, freight, express and mail to.

‘ and from Dress Memorial Airport in interstate com-

fueree under authorization of the Civil Aeronautics »

Board. Each of the appellee airlines: leases and oper-

ates facilities at Dregs Memorial Airport. ‘for the pur-

poses of provisling” commercial ait passenger and

freight service. The ‘appellees-sought to enjoin the en- |

forcement of Ordinance No. 33 on the ‘grounds it was .

unconstitutional and illegal in several respects: In

granting appellees a permanent- injunction the trial -

court made eleven conclusions of law, but in the view .

we take of this case it-is necessary to discuss only the

following one:

“The :$1.00 chitge imposed by sedhehene No. 33_

upon passengers enplaning tpon commercial air-

- eraft at Dress Memorial Airport, not being. re-

'- lated to or apportioned according to the use of

facilities at Dress Memorial Airport, constitutes _

an unreasonable burden upon negoenrusee com- ta

merce in the United States.”

” Appellants’ arguments on: appeal is that that con-

clusion is erroneous and the $1.00 tax. is a valid service

tax for the use of facilities. provided by appellants at

- Dress Memorial Airport and thus not an a -

‘burden on interstate commerce. - pcg aye

ON ee

a

Ch ee

ad

‘iia e saan oust that the ineidenee of the tax im-

ae) _by Ordinance No. 33 falls on interstate com- ° -

re merce,’ The tax is on the act of enplanement on one of - —_.

the appellee airlines and‘in 1966, 88. ay of the persons °

aor departing Dress Memorial Airport upon the appellee ;

~ airlines enplaned for ultimate destina‘ions beyond the...

State of Indiana.

- The basic principle governing “ae rer of a ite :

+ to levy a-tax affecting inteistate c

merce is -that

‘ suich a tax “can only be justified as designed to make’

such commerce bear. a fair share of the cost of the local

government whosé protection it enjoys.” National Bel- |. |

las Hess, Inc. v. Dept: ‘of Revenue. (1967 ), 386 US.)

158; 87 S.Ct. 1889, 18 L.Ed.2d 505; Freeman vu: Hewit_

| + (1946), 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265. The

mere. fact that the taxing. authority denominates a tax -

- as-a “use” or “service does not settle the question,

however. The classification used by the taxing author-

aes ity for the assessment of such fees must embody a uni-

form, fair, practical standard bearing a reasonable re-

lationship tothe use of State facilities. Northwest Air-. .

_. Lines, Inc. v. Joint City-County Atrport Bd: (1970,

Mont: S.Ct.), 463 P.2d 470; Hendrick v: ‘Maryland ;

(1915), 285 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385.

_- ‘The sole issue then on this: appeal i is whether the act “aoe

a of enplaning a commercial aircraft is reasonably re-

lated to the use of the facilities at Dréss Memorial Air- 7

port for which the’$1. 00 tax is levied. 2

The facts are undisputed and show the following :.

In 1967, there were 146,955 enplaning passengers

and 145,142 deplaning passengers on air‘carrier flights _

at Dress Memorial Airport. In. 1967, there were 14,834"

take-oits — landings by commercial air carriers and

a en

e

da, Se |

there were 84,598 take-offs and Jandings by other civil.

and. military aircraft. .

The airport facilities at Dress Memorial Airport i in-

_ clude the following facilities and services:

(1) Main Terminal Building.

o°

x

ory

+g air passenger service counters .=ss€i. ti na

air freight service overs and facilities |

* waiting room. .

* rest ‘rooms,

- ° dining room: —

-. lunch counter . ~

“newsstand. =~ | os

barber shop et ee \

gf tay areas" : _

stands

car: rental counters. .7

'. . <baggage facilities © ~-*

_« telephone booths. *

“(2) Other Facilities

. private hangar facilities |

nonschedule¢ airline hangar ‘facilities, office,

space, and waiting areas

entrance,and exit facilities and sidewalks — |

parking“Jots. .

fuel rere areas

office sp

runways ed texhwwage

' approach lighting system

instrument, lighting system” - .

By the‘ express terms of. the Ordinance the revenue

A:

. from the tax is for the apport of all of these —

the relevant part stating:

a) ¢

_*

mY

| 19 ?

“Section 5. AN revenue. collected fr om. ne use

‘and service charges shall be held by the Evans-

ville-Vanderbur gh Airport Authority District in —

B _a separate fund for-the purpose. of defraying the

present'and-future costs incurred by said Airport

Authority ‘in the construction, improvement,

equipment, and maintenance of said Airport and .

its facilities for the continued use and future

_ enjoyment by pe. users. net. 3 —_—

“added. )

7 However; enplaning commercial air passengers are not

the only persons using these facilities. It was stipu-—

~~ lated by the parties that the above facilities-and serv-

ices are alsq used by the following classes of persons

who are not subject to the $1.00 tax eet by. Ordi-

nance No. 33: |

(a) “Enplaning commercial passengers who. are ac- :

tive members of the armed forces}~_ )

- (b) ‘Enplaning commercial passengers stopping over = >

or changi ng planes at Dress Memorial Airport

‘after arrival by commercial aircraft ;

(c) Deplaning « commercial passengers ; :

‘(d) Persons arriving or departing on noncommer-

cial or nonscheduled aircraft ;

(e) Persons sending or receiving air + freight ship-

ments ; |

(f) Persons m eting or seeing . off coummurchal and

noncomme ‘tial passengers ; are

(g) Persons visiting the airport for the purpose of

observing flight operations or for the purpose

“of using dining, bar, car ‘rental, or other facili- |

. ties.

*

‘20

%

- These classes of uses of airport facilities aiteaaly 4 con-

stitute anmajority of those persons ‘who use one or

_‘more of t airport facilities.

_ It is obvious that certain enplaning commercial pas- ea

sengers are subject to the tax regardless of the extent:

to which they-use the airport facilities. On the other

. hand persons who may make very extensive use of the

- facilities die not subject-to.the tax. unless they actually

~ board one ‘of appellees’ commercial flights. For exam-

ple} a ‘commercial passenger carrying only a briefcase

- may be driven to the airport by his wife, immediately

buy a ticket i board the air plane. He is subjéct to

the so-called “use” tax. Another person may drive to

the pace fat his carat the facility’ provided,

- <-get a haircut, eat dinner, use the washroom, and then

get in his own private jet and take off. He does not pay

the $1.00 tax. Also a deplaning commercial passenger,

who makes the same minimum use of the facilities as

an enplaning commercial passenger, seen, not have to

pay the tax. ;

The substantially identical issue was ae de-

cided in Northwest Airlines, Inc. v. Joint City-County

- . Airport Bd., supra. That case involved a Montana stat-

‘ute which authorized airport, boards to impose.on each

commercial air carrier operating aircraft over 12,500°

lbs. a so-called “service” charge of $1.00 for each origi-

nating passenger enplaning upon its aircraft at that |

airport.

The Montana Supreme Court held that the inte

was unconstitutional in several respects including the

fact that the tax could not be justified as a use and

service fee because its imposition was not reasonably

said:

related to actual use of the airport facilities. The court ~

Pd

21

_ “In holding Chapter 281, and the tax imposed

pursuant thereto, to be constitutional, the trial

court rested its decision on the single proposition? _

that the tax was user tax on passengers. A basic.

principle goverhing the power of the state to levy

an exaction on interstate commerce, recently. re-

‘affirmed by the Supreme Court in National Bel-

las Hess, Inc. v. Départment ef Revenue, 386 U.S. .

758, 756, 87 S.Ct. 1389, 1391, ,18L.Ed2d 505

. (1967 ), is that ‘Staté taxation falling on- inter=

state commerce * * * can only be justified as de-

signed to make such commerce bear a fair share

.\of the cost of the local government whose protec- ~

tion it enjoys.’ It follows from this that fées col-

~ lected as compensation for the use of state facili- |

ties must be levied according to a ‘uniform, fair,

and pratbical standard.” Hendrick:v. Maryland, —

235 U.S. .610, 624, 35 S.Ct. 140, 59 L.Ed, 385

(1915). The formula or classification adopted by’ -

the state must’ bear a reasonable relatign to the

use of state facilities, McCarroll v. Dixie Grey-

hound Lites, Inc.7309° U.S. 176, -60'S.Ct. 504°84

‘L.Ed. 683 (1940), in order. to, insure,that inter-

state commerce bear only the burden of fair com-_

-. pensation or intrastate activities incidental to it.

“Measuring against these. constitutional stand-

~ ards, Chapter 281 cannot be justified as a use tax.

The charge is levied arbitrarily without any ref- "

erence: to actual use of airport facilities by the .

“passenger’s use of terminal facilities. The. stipu-

lated facts indicate that the majority of users.

of the airport (arriving passengers, private avia-

_ tors, visitors, etc.) are exempted from the pay--

_ ment-of any ea yet a substantial number of

persons so ex

pted. make equal or greater use

N

ee oan |

| Hunter: C.J., Arterburn, Givan and Jackson; Id.,

concur. |

22

= of airport facilities. Similarly, a passenger who

has originated his journey elsewhere by commer-

cial air carrier, and who makes a stopover at the

Helena airport using airport facilities, is exempt .

from payment of the fée, while a traveler follow-

* 6 ing an identical route and making no greater use .

of the facilities must pay if he arrives in Helena

_ by means ‘other than by commercial air carrier.”

463 P.2d at 474. i ae a 3

The fact that the Montana tax was in form imposed

on the carrier instead of the passengers asin.the case ~

at bar, is of no legal significance. Henderson v. Mayor

of New York (1876), 92 U.S. 259, 23 L:Ed. 543.

It is clear and we so hold that=the tax imposed by -

Ordinance. No. 33'is not reasonably related to the use:

of the facilities which benefit -from the tax, ‘and is,

therefore, an unreasonable burden on interstate com-

merce in violation of Art. 1, § 8, cl. 3 of the United.

States Constitution.-

Judgment affirmed.

>

a .

Wg

a

C

[Sem

ee

o \

owen B

I. UNITED STATES’ CONSTITUTIONAL 7

- PROVISIONS IN VOLVED ©

ARTICLE I, SECTION 8, CLAUSE 3:

Section 8. POWERS OF CONGRESS.

(3) To regulate commerce with foreign na- ~

‘tions, and among the’ several states, and with

the Indian tribes; :

Il. INDIANA STATUTES INVOLVED

Airport Authority District Statute (Evans-

ville), Acts of 1959 of the Indiana General As-

“.. sembly, Chapter 15, page 32, the same being

i

a

Burns Indiana Statutes, Annotated, Section.

14-1215, which provides as follows:

“14-1215. POWERS OF THE BOARD. —In. |

addition to the powers and duties conferred

upon it elsewhere in this act (Sections aie

—'14-1235), such board shall have full ;

_ and authority to-do-all-acts essary or rea-.

thereof, ‘the bined

1. Asa municipal corporation, in its name to

sue and be sued in any court of a jur-

~ isdietion.

9. To adopt a schedule: of reasonable charges

and to collect the same from-all users of facili-

‘ties and services within the. jurisdiction of the

district. :

16. General Powers... o.

. To manage and operate any and all airports

and landing fields and other air ir. navigation fa-

—EEE

24

cilities now or hereafter acquired or main-—

tained by any such district; and to lease all or

’- any part of any such airport or landing field

and any buildings and other structures thereon

and parts hereof and to fix, charge and collect

rentals,: tolls, fees and Charges. to be paid for

the usé of the whole or any part or parts of

any such airports or landing fields, and other -

air navigation facilities, and for aircraft land-

ing thereon, and the servicing thereof; and to

‘erect and construct such public’ ‘recreational 7

. facilities as will not conflict or interfere with

air operational facilities; and to fix, charge .

and collect fees for ee and brivi- ,

' s leges;..

—]HL ORDINANCE NO. 33 PASSED BY THE EV-,

_ANSVILLE-VANDERBURGH AIRPORT A

. THORITY DISTRICT ON FEBRUARY 26, 19

EVANSVILLE-VANDERBURGH AIRPORT |

-- _AUTHORITY DISTRICT. -

: ORDINANCE NO.. 33 |

AN ORDINANCE ESTABLISHING AND: FIXING ~

‘A USEAND SERVICE CHARGE FOR ALL -EN-

PLANING PASSENGERS UTILIZING AIRPORT

PREMISES AND FACILITIES. =~

- WHEREAS, the Acts of the Indiana General Assem-

‘bly, 1959, Chapter 15, Section 30, provides that tlie ac-

quiring,. establishment, construction, improvenients,

- .equipment and maintenance and the control and oper-

_ ation of Airports and landing fields for aircraft under

and pursuant to the Act creating the Evansville-Vah-

“a _derburgh Airport Authority District, shall and are ©

. hereby declared to be a governmental function of gen-

_ eral public necessity and benefit, and shall be for the

° ; ..° * ; ;

use and general welfare of all of the people of the State.

of Indiana, a8 well ags-all of the people residing in the —

District of said Board, the same being coterminous .

' with the boundaries of: Vanderburgh County, Indiana;

and) ae oe :

.WHEREAS, the Evangville-Vanderburgh Airport —

Authority District was duly -created. under and: pur-

_ guant to the terms and -provisions-of the Acts of the ~

-* Indiana General Assembly, 1959, Chapter 15;and upon.

- its ion and establishment, said Airport Authority -

_-— District’ assiimed the responsibility for the care, con-

| struction, improvement, equipment, maintenance and

- control. of the Dress Memorial Airport located in Ev-

: ansyille, Vanderburgh County, Indiana; and ©

_ -WHEREAS, the Board of Evansville-Vanderburgh .

Airport ‘Authority District is empowered, pursuant to ~

. said Acts of the Indiana General Assembly, to enact —

ordinances for.the purpose of adopting a schedule of

rates and charges and to collect the same from all 7

‘users of facilities and services provided by said Dress

Memorial ‘Airport; and .

Bn,

Br)

WHEREAS, the Evansville-Vanderburgh Airpo

Authority District, pursuant to said Acts of the Indi- —

ana General. Assembly, has the further power to fix; ~~.

charge and collect rentals, tolls, fees and chargestobe = -

paid for the use of the whole or any part or parts of © = ¢, 7

said Dress Memorial Airport and to fix, charge and &

'. collect fees for public admissions and privileges; and

WHEREAS, the Board of Evansville-Vanderburgh

_ Airport Authority ‘District has determined, upon in-

_ ° vestigation, that the use of said Airport and its various

facilities is enjoyed by persons and taxpayers not only

residing in Vanderburgh County, Indiana, but by num-

and

_ WHEREAS, the. Board of. said Airport Authority

“we Dress Memorial Airport. _ \

_ erous persons residing outside the jurisdiction of said. ©.

_ District who do not directly contribute toward the

support, construction, improvement, equipment, main-

tenance and control of said Aitport and 1 its facilities ;

District has determined that there exists a need for

additional revenue with which to defray the continued : _ .

and future -costs of construction, improvement, equip-

ment and maintenance of said Airport so as to provide

for the reasonable safety, convenience and comfort of

_ enplaning passengers using the facilities of Dress Me-

morial Airport; and ,

‘WHEREAS, the. Board of said vanisville Vander-

burgh. Airport Authority District, after due and de-

/ liberate eonsideration, has determined that the respon- _

sibility for the support, construction, improvement,

- equipment and maintenance wf said Airport’ and its -

facilities, lies and should be shared more ‘equally by

all those per sons who enjoy and use its facilities and

_ Services ; a ta

NOW, THEREFORE, BE IT RESOLVED D by the

3 Board of manners: Yapieciues) Airport. Authority

eae District. as follows:

‘Section 1. Commencing ’ on July 1, 1968, there is

hereby fixed, created and established a use and service

charge of One Dollar ($1. 00) for each passenger en- - |

planing any. commercial aircraft operated from the

Section 2. Each commercial airline now or here-

after operating commercial aircraft to and from the

_ Dress Memorial Airport.is hereby charged, together

with its. various agents. = travel agencies, servants,

ennloyess. and representatives, with the responsibility

of collecting said use and service charge.

Section. 3. Said commercial airlines are hereby fur-

ther directed to remit to Evansville-Vanderburgh Air-

- port Authority District all the use. and service charges 7

. -. 80 collected: _ . ed

- (a). for the period commencing July land terminat- .

ing December 31 of each year, on or before Jan-

- uary 31 next following said six month period; .

(b) for the period commencing January 31 and ter-

_. minating June 30 of each year, on or before etd

31 next following’ said six.month period. |

- Said remittance shall be based upon the number of en-

planing passengers at Dress Memorial Airport as here- |

- inabove described in Section 2 of this Ordinance, times

the use and service charge of One Dollar ($1.00), less

six percent (6%) of all amounts so collected, which

percentage is hereby allocated and allowed to said air-.__-

lines for the purpose of defraying the administrative

-* -eosts of collecting and. rémitting said use and service .

| charge.

‘ Section 4. The term “each passenger enplaning any

sommercial aircraft operated from the Dress ‘Memo-

rial Airport” shall not include ‘nor shall the use and -

service charge hereby created, apply to any active

members of the United States Armed Forces: enplaning

aircraft at the Dress Memorial Airport, or any person

purchasing an airline ticket having, as an initial point

of departure, a locality other. than Dress Memorial

__ Airport, and whose flight either terminates-or requires

an intermediate 0 temporary sop at Dress Memorial |

“rport. | - :

"Section 5. All revenue collected from said ‘use da

service charges shall. be held by the Evansville-Van- —

28 es

_ der gh Airport’ J Author ity District . in a i aeeicels |

nd for the purpose of defraying the present and fu-

ture costs incurred by said Airport Authority in the

: construction, improvement, equipment; and mainte-.

‘nance of said. Airport’ and its facilities for the con- ;

: tinued use and future enjoyment by all users thereof.

Section 6. If any provision or clause. of this Ordi-

| _ nance or the application thereof to any person or cir- |

cumstance is held invalid, such invalidity shall not af-

fect other provisions or applications of this Ordinance

which can be given effect without the invalid provision

or ‘application, arid to this end the provisions of this.

| Ordinance are declared: to be severable. -

Section 7. “This Ordinance shall’ be in full force aiid

effect upon its passage-and approval’ by the Board of

Evansville-Vanderburgh Airport. Authority District

. a8 provided by: law; and shall remain in full-force and

effect until amended,’ modified or. revoked by ‘the - |

| Board of said Distéict,

-. . PASSED by the Board of Birpitaville-Wasdentuarh:

_ Airport Authority: District on this 26th day of Feb-__

ruary, 1968, and on-said day signed by the President

and attested by the Secretary of Evansville-Vander- i

burgh Airport Authority District. eg

io . [s/. Kenneth C. Kent

| | Kennéth C. Kent, President

ATTEST:

/s/ Robert M. Leich : ;

Robert M. Leich, Secretary Big

, y i

IS /

Gong” .

or, .

q

a _

ae Ap. cg

Cae re sy Ee

Oe : APPENDIX c.

OPINION OF NEW HAMPSHIRE SUPREME

- =, COURT © °. \

Merrimack,

No. 6086.0 : :

"NORTHEAST AIRLINES, Iné. & a. os

é' Vv.

| “NEW. HAMPSHIRE AERONAUTICS

-COMMISSION.€a.-°

January 29, 1971 )

bein Millimet, McDonough, Stahl &" Branch and

’ Robert A: Backus (Mr. i A. Milliinet pray) for ~

UK

' the plaintiffs.

‘Warren B. Rudman, Attorney dorset ‘ind W. Mi.

-chael Dunn, Assistant Attorney General poe Dunn *

. orally), for the defendanfjs., ce

- DUNCAN, J. By petition for declar atory ‘ilainoat:

the plaintiff airlines question the eonstituticnality of.”

RSA 422:43 (supp.), imposing upon them, as common :

* carriers of passengers for hire by,aircraft on regular

schedules, a service fee of one dollar for each’ passen-

| _ ger emplaning upon their aircraft at publicly operated

landing areas in this State. For the three-year period a

presently involved, the fees charged to the plaintiff...

Northeast Airlines, Ine. have averaged somewhat over’

$41,000 a year, and to the plaintiff ‘Mohawk Airlines

a little over $2600..The facts were stipulated by the.

parties, and ‘the Superior Court, (Loughlin, J.) re- —

served and transferred without ruling: all questions ©

of law presen

When first t Btore this court as a sobsonel: in sie.

form of House Bill 435 at the 4959 session of the legis-

5.

80°

Taft, the service fee was consideredf by reason of:

my

Watutory definition (RSA 422:3(II)) to be applicable

only to carrier's engaged solely in intrastate commerce,

and was considered not to violate the Constitution of

this State, so long as it was reasonable recompensefor -

facilities furnished. Opinion of the Justices, 102 N.H.

78, ‘150 A. .2d°522 (1959). It was intimated that objec-

tion because of its effect upon interstate commerce was

not likely in view'@f Aero Transit Co. v. Comm’rs, 332

U.S. 495, 92 L.Ed. 99, 68 S.Ct, 167 (1947) and Tirrell =

‘v. Johnston, 86 N.H,.530, 171 A. 641 (1934). 7d. at 75,

150 A.2d at 5

Ag enacted in 1959, the statute was made applicable -

to common carriers of ‘passengers “whether. in inter-

state or intrastate operations” (RSA 422:43); and the

phrase “passenger carrier by aircraft” was substituted

for the phrase “air carrier” used by the bill. Thus

House Bill 435 as-enacted was made applicable to inter- .

state as well as intrastate commerce. a,

Th plaintiffs suggest that because of these and later

-. _ changes, it cannot be said that section 43 (supp.) has

“ever been reviewed by this court.” While this may be

so, the fact: remains that the essential characteristics

‘ of the charge or fee were considered in Opinion of the

4

‘

Justices, supra, and it was upheld. See also Opinion of

the: Justices, 94\N.H. 513, 52 A. 2d 859 (1947). We

continuéto regard the charge as being what it pur-

ports to be: a “service fée on (common) carriers” of

passengers for hire on a regular schedule; while s. 44

of the act imposes a like charge upon carriers under

contract or by charter. RSA 422:44. >

We also regard the charge as one levied upon the

carrier and not the passenger, although we recognize

., that.the statute expressly, provides that it shall not

-* _

ae 31

: e*, Ae

prevent the carrier from collecting the fee over’ from

its passengers. In this connection we note also that by.

reason of a 1969 amendment the amount of the fee now

depends not only upon the number of passengers car- — .

ried, but-also upon the gross weight of the aircraft...

RSA-422:43 (supp.). Thus for planes having a gross. °

weight of less than 12,500 pounds, which are crafts de-

scribed. by federal statute as “small aircraft” (26

U.S.C.A. s 4263 (d) (1967),.the fee is one-half: of that:

assessed per passenger against the plaintiffs, which

_ operate heavier aircraft. Since we-accept the. view

that the charge is levied upon. the carrier, we do not

reach the. argument advanced by the plaintiffs that

the statute invades the constitutional rights of :passen-

gers tg travel interstate. See Shapiro v. Thompson, 394

U.S. 618, 22 L. Ed..2d 600, 89 S.Ct. 1322 (1969).

Our conclusion that the fee is levied upon the carrier

is fortified not only: by the express language of the

statute, but also by the provision originating wi

House Bill 435 supra, that the proceeds of the tax shal

be covered into the aeronautical fund established by |

section 42, for the purpose of establishing and main-

taining air navigation’ facilities, and liquidating obli- —

_ gations incurred under the aeronautics act. RSA 422:

42.

The cases from other jurindicticna upon which the

plaintiffs rely in support of their ‘arguments do not |

i persuade us that our statute must be held invalid. In

Allegheny Airlines, Inc. v. Sills, 110 NJ. “Super. 54,

264 A. 2d 268. (1970), a statute under attack -would have

_ imposed a service charge for the benefit: of munici- .

palities which did not contribute to the management

or cost of operation of the airport in question. Hence -

the. court concluded that the — could not be Jus- 7

32

tified as a service charge, and was invalid as a tax

‘upon interstate commegce. dn holding the charge in-

valid, the court relied. upon Northwest Airlines, Inc.

v. Joint City-County Air. Bd., 154 Mont. 352, 463, P.2d

470 (Mont. 1970). That case involved a statute more

‘ closely resembling our own. It was considered by the:

Montana court to be in essence a tax upon the: passen-_ 7

gers, and in holding it invalid the court placed substan- .

tial reliance upon Passenger Gases, 48 U.S. (7 How.)

- 283, 12 L. Ed. 702 (1849), and upon Crandall v. Ne-

vada, 73 U.S. (6 Wall:) 35, 18 L. Ed. 745 (1867). which

invalidated a tax expressly imposed‘ upon passengers..

Those decisions in turn relied upon McCulloch v. Mary-

. land, 17 U.S. (4 Wheat. 316, 4 L.Ed. 579 (1819) and

its unsound declaration . . . that the power to tax is a |

power to destroy” ( Tirrell v. Johnston, 86 N.H. 530, -

' 547,171.A: 641, 651 (1934) a declaration to which Mr.

_ Justice Holmes later rejoined, in Panhandle Oil Co. v.

- Knox, 277 U.S. 218, 223, 72 L.Ed. 857, 859; 48 S.Ct.

= 451, 453 (1928) : “not « - while this Court sits.”

Even in cases involving taxes upon intérstate com- —

merce, which this case is not,.the law has go far ad-

vanced ‘since McCulloch v. Maryland supra, that a_-re-

cent comment could say that’ “Both judicial and legis-

lative developments stemming from +the Supreme

. Court’s decision in Northwestern. (Northwestern

States Portland Cement Co. v. Minnesota, 858: U.S. _

450, 3 L. Ed. 2d 421, 79 S. Ct. 357 (1959)] suggest

that the critical ‘issue in state taxation of interstate

- commerce is how interstate commerce may be taxed

rather than whether it may be taxed at all” (citing

General: Motors Corp. v. District, 380 U:S. 558, 14 L.

Ed. 2d 68,.85-S. Ct. 1156 (1965) and Norfolk & W. Ry.

v. Missourt State Tax Comm'n, 390 US. 317,19 L. Ed.

/

2d 1201, 88 S. Ct. 995 (1968) ). Note,. = U. of Chi. L.

Rev. 186, 204-05.

Most recently the Northwest Airlines case supra Was .

followed and heavily ;relied upon in Evansville- Van-

derburgh Airport re

Inc., 265 N.E. 2d 27 (Ind. 1970), jnvalidating a dis-

trict ordinance which imposed a use and service charge

for the purpose of defraying the costs: of the district’s

| airport, upon the ground that the “tax imposed” was |

not “reasonably related to the use of facilities” and was

therefore a burden: upon interstate commerce, Since

'. we do not regard the authorities relied upon by this .

andthe Northwest! Airlines case as controlling, we do

not adopt the views which they express. )

Many of the plaintiffs’ objections to the carrier serv-

ice fee are answered by the comprehensive. opinion of

Peasleeé; ©. J.in Tirrell v. Johnston supra, upholding

the validity of the gasoline road toll under state and

Federal Constitutions. As was there observed; “The

‘state may tax things used -in interstate commerce as it

taxes other like things. This-is not taxing interstate

_ commerce.” Id. at 551, 171 A at 653. However, we _ |

not consider the charge to be an act of the State “i

its sovereign capacity as a layer of taxes for the nap:

port of government or a regulator of conduct.” Tirrell

v. Johnston, supra at 540, 171 A. at 647. We regard it

rather.as a “charge for the use of facilities furnished. v

Id. at 541, 171 A. at 647.

The complaint that the charee| is discriminatory be-

cause imposed upon an arbitrary class of users includ-

ing the plaintiffs is not convincing. Other classes of -

' . users, whose use of the facilities is only irregular, or .

for purposes incidental to. business other than the _

_ business of carriage of passengers by air for hire may

hority District v. Delta Airlines, a

eee

-

reasonably bs differently. classified, as ‘may. the car-

riers of passengers by lighter craft, having: smaller.

carrying capacities. See Morf v. Bingaman, 298 U.S...

407, 80 L. Ed. 1245, 56 S.Ct. 756 (1936). Even a reason-

able charge to federal instrumentakties making ‘sub- .

stantial” use of public airport facilities is sanctioned:

by federal statute. 49 U.S.C.A. § 1110 (4). ~

We conclude that the charge int ‘question is what it

purports to be, a fee for the use of facilities furnished

by the public. Its incidence depends upon an event

which is wholly intrastate, namely the emplanement

“ of passengers within this jurisdiction at a facility pub-

, liely provided and supported ; the burden upon the car-

rier is minimal, and. is not claimed to. exceed reason-

Able compensation for the use provided. Aero-Transit

Co. v. Comm’rs, 382 U.S. 495 supra; Capitol Grey- 7

hound Lines v. Brice, 389 U.S. 542, 94 L. Ed. 1058, 70:

S. Ct. 806 (1950) ; Bode v. Barrett, 344 U.S. 583, 97

_ L. Ed. 567, 73 S. Ct. 468 (1953) ; Annot., 97 L. Ed. 573

(1953); Annot.; 17 A.L.R. 2d 421 (1951).

The fees imposed are valid and collectible, and a de-

' claratory-judgment in favor of the defendant Director

should be entered accordingly..

| | Judgment hd the defendants.

_. All concurred.

it} ) ‘

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