# Petition for Writ of Certiorari — Los Angeles County v. Scandinavian Airlines System, Inc. (No. 354) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1205%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 ## Text IN THE. Supreme Court of the Cinited States October Term, 1961 fF. No. ev ~ THE COUNTY OF LOS ANGELES and the CITY OF LOS ANGELES, Pi litione oe VS, ) BC ANDINAVIAN ATRLEAES SVS- TEM, INC. a New York corporation, Re sponds ie. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF CALIFORNIA. HAROLD W. KENNEDY, County Counsel and ALFRED CHARLES DE FLON. Deputy County Counsel Hadl ot Nediiadmistration DOW Wrest Temple Street Los Aneeles P2. California Aflorie AS for Petitioners. WESTERN PRINTING COMPANY WHITTIER OXBCW 86-1722 TOPICAL INDEX Payre Opinions Below Bn ramen ) | Grounds “pon Which Dainidition of this owt Is Invoked =... a Questions Presented for iow 5 oO TO Constitutional Provisions, Treaties silk Statutes Involved —.... Re gi ese Se wea. Pintemet of the Case... .................. | The Facts ......... a een eae Reasons for Granting Writ 20. 1. Summary of Argument 000000 |... 2. The Commerce Clause Does Not Prohibit the Subject Tax Beeause (1) It Is Not Diserimin- atory, (2) It Does Not Constitute a Direct Bur- den on Foreign Commerce, and (3) It Does Not Constitute the Basis for Taxation Constituting Multiple Burdens” Upon Foreign Commerce. .. 3. The Instant Tax Does Not Constitute a Duty of Tonnage Because It Ils An Ad Valorem Tax Apportioned According to the Benefits, Oppor- tunities and Protections Afforded the Respond- I ns wis 4, No Treaty to Which the United States Is a Party Exempts the Subject Airplanes from State Tax- ERO Na aa TE ONT ERYCR er Le The Instant Tax Does Not Exceed the Limita- tions Imposed Upon the States by Due Process Clause, Fourteenth Amendment, United States Constitution see NEE Ac re a Conelusion 2 14 24 il Index TABLE OF CASES AND AUTHORITIES CITED Cases Page American Stevedores v. Porello, 330 U.S. 446, 452- 453, 91 L. Ed. 1011, 1017-1018 (1947) 00... Best and Co. v. Maxwell, 311 U.S. 454, 85 L. Ed. 275 (1940) . ekki Braniff Sieger. Nebraska State Board, 347 U S. 500, 98 L. Ed. 967 (1954) ......... ... ae 8, 19, 20, Burnett v. Brooks, 288 U.S. 378, 77 L. Ed.845 ....... 12, Caminetti v. United States, 242 U.S. 470, 490, 61 L. Ed. 442, 455 (1917) . Chicago v. Willett Cipasicn. ‘344 U. S. 514, 97 L. Ed. 509 (1953) PSone os Coe v. Errol, 116 U.S. 517, 99 L. Ed. 115 (1886) . Cooley v. Board of Wardens of Philadelphia, : How. (53 U.S.) 298, 13 L. Ed. 996 (1851) ............... Flying Tiger Line, Inc., v. County of Los Angeles, D1 Cal. 2d 314, 333 P. 2d 323 (1958) 0. 3, Freeman v. Hewit, 329 U.S. 249, 253, 91 L. Ed. 265, 272 (1946) . oaks ee CoE 16, 22, : Galveston, H. & Ss. ee R. Co. v es 210 U.S. 217, 225 52 L. Ed. 1031, 1036 (1908) noc. | Hays v. Pacific Mail S. 8. Co., 17 How. (58 U.S.) 596, 15 L. Ed. 254 (1855). ccc 9, 12, 17, 2 Memphis Steam Laundry v. Stone, 342 U.S. 389, 395, 96 L. Ed. 436 441 (1952) occ cece Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 166, 98 L. Ed. 583, 591 (1953)... Morgan v. Parham, 16 Wall (83 U.S.) 471, o1 L. Ea. 303 (1873) ou... GG Reena ee ite a eter AA ie fa 28 .. 1d bieitex 1 Page Nippert ve City of Richmond, 327 U.S. 416, 425, GW) L. Ed. 760. 705 (1946)... ets ' Northwest Airlimes, Ine. ve Minnesota, 399 it s. 292 SSL. Ed. we 2 | Gee eee | a Old Dominion S. S. Co. v. Virginia, 198 U.S. 299, 305, 49 L. Ed. nce, 1062 (1905) ....... ....... TUNE OOUee Ld Ott v. Mississippi Valley Barge Line Co., 336 SUS 169, 174. 93 L. Ed. 585, 589 (1949)... 30 Passenger Cases, 7 How. (48 U.S.) 282, 402, 12 L. Kd. 702, 752 (1849) . Seba ge Wetcon arise ds hoa ean 15 Portland Cement Co. v. er 308 U.S. 450, 458,3 L. Ed. 2d 421,427 (1954)........ Rae Par eens 1 Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 695-696, 39 L. Ed. ses 315 (1895) .......... 15, 16 Pullman’s Palace Car Co. . Commonwealth of Pennsylvania, 141 U.S. 18, _ 35 L. Ed. 613, 616 fg eres PRT LAT MN ting LPT A eel oP RR ET NOTRE "ER NC 15 Slick Airways v. County of bie Angeles, 140 Cal. App. 2d 311, 295 P. 2d 46 (1956) . ........... Bs State Tonnage Tax Cases, 12 Wall. (79 US.) 204. 207-214, 20 L.. Bd. SHU, Sis (1A)... 13, 3. Transportation Co. v. Wheeling, 99 U.S. 273, 283, 25 t.. Fd, 493 400 (ISB) on ... ae ee United States v. Bennett, 232 U.S. 299, 58 LL, Ed. 612 (1914) Boe eee Reiley rar Neg s. sire 21 Western Live Stock v. Bureau et Give Te, 303 U. S. 25, 255-256, 83 1.. Ed. 424, S28 (1907)... OH Western Union Telegraph geil Vv. Taggert, 163 TLS. 1. 14. 41 LL. Fd. 49. 54 (1896) 5 lV Index Page West Point Wholesale Grocery Co. v. City of Opel- ika, 354, U.S. 390, 1 L. Ed. 2d 1420 (1957) .. ........... Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, i, Oe oe Authorities Beale, Jurisdiction to Tax, 32 Harvard Law Review __. Spereeannnonne esata casotnecn eiesasiaMiahag AE. ecasteaasevcralecaaions .18, : California Constitution, Article XIII, See. 1 ....... California Constitution, Article XIII, See. 10 ....... California Revenue and Taxation Code, Sec. 201 .... Convention and Protocol between the United States of America and Sweden, 54 Stat. 1759, T. S. No. SR iet Sacer aed aie Hl mies See EMMONS SS 4, 13, Lowndes, Spurious Conceptions of the Constitu- tional Law of Taxation, 471 Harvard Law Review oe a a ee 92, Note: Multiple Taxation: The Implications of Burnett v. Brooks, 47 Harvard Law. Review 307... : Note: ‘Taxation—Inheritance Taxes—Power of a State to Tax Intangible Property Owned by Dom- iciled in a Foreign Country, 84 U. Penn. Law Re- i) NE FE ciniisiiatassgianes pendix A at 34-35. Thus the Caltorna Court lenoOres the eases of this Court and holds that an ad) valorem property tax is proseribed by the Tonnage Clause. That the distant tax isa perniutted ad valorem: proaperty tas and nota Duty of Tonnage clearly appears froma epi ions of this Court: (Panes levied by a State upon ships and vessels owned by the citizens of the State as prop crty, bascd ona valuation of the same as pre porta, are not within the prohibition of the: Constitution. buat at is equally clear and undeniable that tines levied bya State upon ships and. vessels as cuistruments of com meree and navigation are within that clause of the im strtument whieh prohibits the States from: levying any duty of tonnage, Without the consent of Congress. — (emphasis added) State Tonwige Tar Cases, V2 Wall. (TO US.) DOE PID-214, 20 1. Bd S70, 573 CISTI. See alse Treas portation Conv. Wheeling, 99 EUS, 273, 288. P51. Bd. 412. 415 C1879). 4. No Treaty to Which the United States Is a Party Exempts the Subject Airplanes from State Tax- ation. The Califorma Court as a greand for holding the subject tax invalid: states that the treaty: between the United States and Sweden forbids such tax: * bn our opinion, the language of the various treaties and agree ments clearly eliminates the possibility of loeal prop erty taxation only insofar as concerns Those urplanes awned and registered in Sweden 696 AC. at 30, 23 —26— P. 2d at 43, App. A at 45-4). The Swedish-American treaty relied upon as exempting airplanes of Swedish domiciliaries from taxation is the “Convention and Protocol Between the United States of Amertea and Sweden” respecting double taxation effective January 1, 1940, 54 Stat. 1759, ULS. Treaty Seres No. 958, Ap- pendix (. Article | of said treaty recites: The taxes referred to in this Convention are: “(a) Inthe case of the United States of Amer- 1ea: (1) The Federal income taxes, includ- Ing surtaxes and excess-profits taxes. (2) The Federal capital stock tax. “(b) In the case of Sweden: (1) The National income and property tax, including surtax. (2) The National special pr:-certy tax. (3) The communal income tax. “It is mutually agreed that the present Con- vention shall also apply to any other or additional taxes imposed by either contracting State, subse- quent to the date of signature of this Convention, upun substantiaily the same bases as the taxes enumerated herein.” It is plain from the above that the treaty does not apply to State property taxation. But the California Court then refers to Article NIU, subdiv. (2) of said treaty for support of its conclusion that said treaty a; som renders respondent's Swedish planes iuntne from the subject tar: “Tn the case of all other forms of property, the tax may be levied only in that contracting state where the taxpayer has his residence or, in the case of a corporation or other entity, in the contracting State where the corporation or other entity has been created or organized.” In concluding that said Swedish treaty exempts plaintiff from the subject tax as applied to Swedish owned Planes the California Court does viclence to the precise, explicit language of Art. Lo of the treaty pro- viding that it applies only to the Swedish ** National special property tax’ CArt. [) and such ‘other or additional taxes imposed by cither contracting State, subsequent to the date of signature of this Convention, upon substantially the same bases as the taxes enumer- ated herein’ -- which, of course, would include any property taxes thereafter imposed by the United States or the States. Where said treaty refers in Art. NETL subdiv. 2. to property taxes it must refer to the Swedish "Na- tional special property tax’ and such other property taxes enacted by Sweden or the United States after the date of the signature of said convention, Sueh con- Struetion of said treaty as we here suggest does not do Solenee to any portion of the language of the treaty as does the interpretation by the majority of the Cah- -_— 23— fornia Supreme Court. Further, our interpretation ts consistent with the position taken by the Senate For- eign Relations Committee when urging ratification of said United States treaty with Sweden: **(‘TJhe United States makes no agreement respecting any of our State or local taxes”’ (Report of the Senate Foreign Rela- tions Comm., Exec. K, 76th Congress, Ist Session (1939). Statements by legislative committees are ma- terial facts to be considered in interpreting their works if such are ambiguous. .lmerican Stevedores v. Porello, 330 U.S. 446, 452-453, 91 L. Ed. 1011, 1017-1018 (1947) : Caminetti v. United States, 242 U.S. 470, 490, 61 L. Ed. 442, 455 (1917). The California Supreme Court further holds that the Swedish-American treaty (which it asserts exempts Swedish planes from the instant tax), because of the juxtaposition of the federal Commerce Clause, alsy causes the exemption of the Danish and Norwegian planes from the instant tax. The California Court says that for California to tax Danish and Norwegian planes when the Swedish planes are exempt from taxation by treaty would be for California to discriminate with respect to foreign commerce—which is forbidden by the Commerce Clause. Such, of course, is an erroneous argument. The Commerce Clause does not guarantee equal treatment of instruments of commerce in all cases. It merely forbids discriminatory treatment by the States. The applicable California laws apply equal- Iv to the planes of all legal entities in respondent air- 29 line s position. Tf unequal treatment is afforded Dan- Ish and Norwegian citizens because of the taxation of their aireraft and the exemption of Swedish aircraft. such diseriniantion has been wrought only by federal Treaty. The California Court’s argument can easily he disproved by refernece to the more familiar field of interstate comunerce. If in the exereise of its com- mereial power the federal Coneress cho: - to exempt one type of property moving in interstate Commerce from State taxation, certainly the argument would not he vahd that all other property moving in interstate conmnerce is therefore and thereby exempt from. all State taxation. Such ivalid conclusion, however, is the necessary consequence of the position of the Cali- fornia Court. 5. The Instant Tax Does Not Exceed the Limitations Imposed Upon the States by Due Process Clause, Fourteenth Amendment, United States Constitu- tion. Respondent airline has urged herem that the mstant tax offends the requirements of Due Process, Four- teenth Amendment, CoS. Constitution OR. Cl Tr... 6). The aivline’s argument has been principally that the possibility of multiple taxation is forbidden by Due Process, Fourteenth Amendment, as well as by the Commerce Clause, and that. because the domicilary Hations possess the power te tax the subject aircraft = at full value, any taxation by the States would submit said aircraft to the possibility of multiple taxation. See opinion herein of the California District Court of Appeal, 6 Cal. Rptr. at 696, Appendix B at 3. This Court has said that **So far as due process is concerned the only question is whether the tax in practical oper- ation has relation to opportunities, benefits, or pro- tection conferred or afforded by the taxing State.”’ Ott v. Mississippi Valley Barye Line Co., 336 U.S. 169, 174, 93 L. Ed. 585, 589 (1949). Also to the same effect are Wisconsin v. J. C. Penney Co., 311 U.S. 435, 44, 85 L. Ed. 267 (1940); Braniff Airways v. Nebraska State Board, 347 U.S. 590, 600, 98 L. Ed. 967, 977. And, as already noted hereinabove the tax practices of an- other jurisdiction are immaterial in determining the power of a State to tax under limitations of the Due Process and Commerce Clauses. Freeman v. Hewit, 329 U.S. 249, 256, 91 L. Ed. 265, 274; Northwest Atr- lines, Inc. v. Minnesota, 322 U.S. 292, 326, 88 L. Ed. 1283, 1303; Coe v. Errol, 116 U.S. 517, 524, 29 L. Ed. 715, 717-718. Thus it world seem that the instant tax apportioned according to the time respondent’s planes are Within Los Angeles County clearly conforms to requirements of Due Process, Fourteenth Amendment. a CONCLUSION For the reasons above-stated it is respectfully sub- tuitted that the judgment of the California Supreme Court should be reversed. HAROLD W. KENNEDY, County Counsel And ALFRED CHARLES DE FLON, Deputy County Counsel Counsel for Petitioners, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1205%3A2. Public record. Not legal advice.