Annotation 3 - Article VI

Federal Instrumentalities and Personnel and State Police Power

Federal instrumentalities and agencies have never enjoyed the same degree of immunity from state police regulation as from state taxation. The Court has looked to the nature of each regulation to determine whether it is compatible with the functions committed by Congress to the federal agency. This problem has arisen most often with reference to the applicability of state laws to the operation of national banks. Two correlative propositions have governed the decisions in these cases. The first was stated by Justice Miller in First National Bank v. Commonwealth. 75 ''[National banks are] subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the Nation. All their contracts are governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts are all based on State law. It is only when the State law incapacitates the banks discharging their duties to the government that it becomes unconstitutional.'' 76 In Davis v. Elmira Savings Bank, 77 the Court stated the second proposition thus: ''National banks are instrumentalities of the Federal Government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States. It follows that an attempt by a State to define their duties or control the conduct of their affairs is absolutely void, wherever such attempted exercise of authority expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation, or impairs the efficiency of these agencies of the Federal Government to discharge the duties for the performance of which they were created.'' 78  

Similarly, a state law, insofar as it forbids national banks to use the word ''saving'' or ''savings'' in their business and advertising is void by reason of conflict with the Federal Reserve Act authorizing such banks to receive savings deposits. 79 However, federal incorporation of a railroad company of itself does not operate to exempt it from control by a State as to business consummated wholly therein. 80 Also, Treasury Department regulations, designed to implement the federal borrowing power (Art. I, Sec. 8, cl. 2) by making United States Savings Bonds attractive to investors and conferring exclusive title thereto upon a surviving joint owner, override contrary state community property laws whereunder a one-half interest in such property remains part of the estate of a decedent co- owner. 81 Similarly, the Patent Office having been granted by Congress an unqualified authorization to license and regulate the conduct throughout the United States of nonlawyers as patent agents, a State, under the guise of prohibiting unauthorized practice of law, is preempted from enjoining such activities of a licensed agent as entail the rendering of legal opinions as to patentability or infringement of patent rights and the preparation and prosecution of application for patents. 82  

The extent to which States may go in regulating contractors who furnish goods or services to the Federal Government is not as clearly established as is their right to tax such dealers. In 1943, a closely divided Court sustained the refusal of the Pennsylvania Milk Control Commission to renew the license of a milk dealer who, in violation of state law, had sold milk to the United States for consumption by troops at an army camp located on land belonging to the State, at prices below the minimum established by the Commission. 83 The majority was unable to find in congressional legislation, or in the Constitution, unaided by congressional enactment, any immunity from such price fixing regulations. On the same day, a different majority held that California could not penalize a milk dealer for selling milk to the War Department at less than the minimum price fixed by state law where the sales and deliveries were made in a territory which had been ceded to the Federal Government by the State and were subject to the exclusive jurisdiction of the former. 84 On the other hand, by virtue of its conflict with standards set forth in the Armed Services Procurement Act, 41 U.S.C. Sec. 152, for determining the letting of contracts to responsible bidders, a state law licensing contractors cannot be enforced against one selected by federal authorities for work on an Air Force base. 85  

Most recently, the Court has done little to clarify the doctrinal difficulties. 86 The Court looked to a ''functional'' analysis of state regulations, much like the rule covering state taxation. ''A state regulation is invalid only if it regulates the United States directly or discriminates against the Federal Government or those with whom it deals.'' 87 In determining whether a regulation discriminates against the Federal Government, ''the entire regulatory system should be analyzed.'' 88  

The Doctrine of Federal Exemption From State Taxation

McCulloch v. Maryland .--Five years after the decision in McCulloch v. Maryland that a State may not tax an instrumentality of the Federal Government, the Court was asked to and did reexamine the entire question in Osborn v. United States Bank. 89 In that case counsel for the State of Ohio, whose attempt to tax the Bank was challenged, put forward two arguments of great importance. In the first place it was ''contended, that, admitting Congress to possess the power, this exemption ought to have been expressly asserted in the act of incorporation; and not being expressed, ought not to be implied by the Court.'' 90 To which Marshall replied: ''It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance.'' 91 Secondly, the appellants relied ''greatly on the distinction between the bank and the public institutions, such as the mint or the post office. The agents in those offices are, it is said, officers of government. . . . Not so the directors of the bank. The connection of the government with the bank, is likened to that with contractors.'' 92 Marshall accepted this analogy but not to the advantage of the appellants. He simply indicated that all contractors who dealt with the Government were entitled to immunity from taxation upon such transactions. 93 Thus, not only was the decision of McCulloch v. Maryland reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades.

Applicability of Doctrine to Federal Securities .--The first significant extension of the doctrine of the immunity of federal instrumentalities from state taxation came in Weston v. Charleston, 94 where Chief Justice Marshall also found in the supremacy clause a bar to state taxation of obligations of the United States. During the Civil War, when Congress authorized the issuance of legal tender notes, it explicitly declared that such notes, as well as United States bonds and other securities, should be exempt from state taxation. 95 A modified version of this section remains on the statute books today. 96 The right of Congress to exempt legal tender notes to the same extent as bonds was sustained in Bank v. Supervisors, 97 over the objection that such notes circulate as money and should be taxable in the same way as coin. But a state tax on checks issued by the Treasurer of the United States for interest accrued upon government bonds was sustained since it did not in any way affect the credit of the National Government. 98 Similarly, the assessment for an ad valorem property tax of an open account for money due under a federal contract, 99 and the inclusion of the value of United States bonds owed by a decedent, in measuring an inheritance tax, 100 were held valid, since neither tax would substantially embarrass the power of the United States to secure credit. 101 A state property tax levied on mutual savings banks and federal savings and loan associations and measured by the amount of their capital, surplus, or reserve and undivided profits, but without deduction of the value of their United States securities, was voided as a tax on obligations of the Federal Government. Apart from the fact that the ownership interest of depositors in such institutions was different from that of corporate stockholders, the tax was im posed on the banks which were solely liable for payment thereof. 102  

Income from federal securities is also beyond the reach of the state taxing power as the cases now stand. 103 Nor can such a tax be imposed indirectly upon the stockholders on such part of the corporate dividends as corresponds to the part of the corporation's income which is not assessed, i.e., income from tax exempt bonds. 104 A State may constitutionally levy an excise tax on corporations for the privilege of doing business, and measure the tax by the property of net income of the corporation, including tax exempt United States securities or the income derived therefrom. 105 The designation of a tax is not controlling. 106 Where a so-called ''license tax'' upon insurance companies, measured by gross income, including interest on government bonds, was, in effect, a commutation tax levied in lieu of other taxation upon the personal property of the taxpayer, it was still held to amount to an unconstitutional tax on the bonds themselves. 107  

Taxation of Government Contractors .--In the course of his opinion in Osborn v. United States Bank, 108 Chief Justice Marshall posed the question: ''Can a contractor for supplying a military post with provisions, be restrained from making purchases within any state, or from transporting the provisions to the place at which the troops were stationed? Or could he be fined or taxed for doing so? We have not yet heard these questions answered in the affirmative.'' 109 Today, the question insofar as taxation is concerned is answered in the affirmative. While the early cases looked toward immunity, 110 in James v. Dravo Contracting Co., 111 by a 5-to-4 vote, the Court established the modern doctrine. Upholding a state tax on the gross receipts of a contractor providing services to the Fed eral Government, the Court said that '''[I]t is not necessary to cripple [the State's power to tax] by extending the constitutional exemption from taxation to those subjects which fall within the general application of non-discriminatory laws, and where no direct burden is laid upon the governmental instrumentality, and there is only a remote, if any, influence upon the exercise of the functions of government.''' 112 A state-imposed sales tax upon the purchase of goods by a private firm having a cost-plus contract with the Federal Government was sustained, it not being critical to the tax's validity that it would be passed on to the Government. 113 Previously, it had sustained a gross receipts tax levied in lieu of a property tax upon the operator of an automobile stage line, who was engaged in carrying the mails as an independent contractor 114 and an excise tax on gasoline sold to a contractor with the Government and used to operate machinery in the construction of levees on the Mississippi River. 115 While the decisions have not set an unwavering line, 116 the Court has in recent years hewed to a very restrictive doctrine of immunity. ''[T]ax immunity is appropriate in only one circumstance: when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned.'' 117 Thus, New Mexico sustained a state gross receipts tax and a use tax imposed upon contractors with the Federal Government which operated on ''advanced funding,'' drawing on federal deposits so that only federal funds were expended by the contractors to meet their obligations. 118  

Of course, Congress may statutorily provide for immunity from taxation of federal contractors generally or in particular programs. 119  

Taxation of Salaries of Employees of Federal Agencies .--Of a piece with James v. Dravo Contracting Co. was the decision in Graves v. New York ex rel. O'Keefe, 120 handed down two years later. Repudiating the theory ''that a tax on income is legally or economically a tax on its source,'' the Court held that a State could levy a nondiscriminatory income tax upon the salary of an employee of a government corporation. In the opinion of the Court, Justice Stone intimated that Congress could not validly confer such an immunity upon federal employees. ''The burden, so far as it can be said to exist or to affect the government in any indirect or incidental way, is one which the Constitution presupposes; and hence it cannot rightly be deemed to be within an implied restriction upon the taxing power of the national and state governments which the Constitution has expressly granted to one and has confirmed to the other. The immunity is not one to be implied from the Constitution, because if allowed it would impose to an inadmissible extent a restriction on the taxing power which the Constitution has reserved to the state governments.'' 121 Chief Justice Hughes concurred in the result without opinion. Justices Butler and McReynolds dissented and Justice Frankfurter wrote a concurring opinion in which he reserved judgment as to ''whether Congress may, by express legislation, relieve its functionaries from their civic obligations to pay for the benefits of the State governments under which they live.'' 122  

That question is academic, Congress having consented to state taxation of its employees' compensation as long as the taxation ''does not discriminate against the . . . employee, because of the source of the . . . compensation.'' 123 This statute, the Court has held, ''is coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity.'' 124  

Ad Valorem Taxes Under the Doctrine .--Property owned by a federally chartered corporation engaged in private business is subject to state and local ad valorem taxes. This was conceded in McCulloch v. Maryland, 125 and confirmed a half century later with respect to railroads incorporated by Congress. 126 Similarly, a property tax may be levied against the lands under water which are owned by a person holding a license under the Federal Water Power Act. 127 However, when privately owned property erected by lessees on tax exempt state lands is taxed by a county at less than full value, and houses erected by contractors on land leased from a federal Air Force base are taxed at full value, the latter tax, solely by reason of the discrimination against the United States and its lessees, is rendered void. 128 Likewise, when under state laws, a school district does not tax private lessees of state and municipal realty, whose leases are subject to termination at the lessor's option in the event of sale, but does levy a tax, measured by the entire value of the realty, on lessees of United States property utilized for private purposes and whose leases are terminable at the option of the United States in an emergency or upon sale, the discrimination voided the tax collected from the latter. ''A state tax may not discriminate against the Government or those with whom it deals'' in the absence of significant differences justifying levy of higher taxes on lessees of federal property. 129 Land conveyed by the United States to a corporation for dry dock purposes was subject to a general property tax, despite a reservation in the conveyance of a right to free use of the dry dock and a provision for forfeiture in case of the continued unfitness of the dry dock for use or the use of land for other purposes. 130 Also, where equitable title has passed to the purchaser of land from the Government, a State may tax the equitable owner on the full value thereof, despite retention of legal title; 131 but, in the case of reclamation entries, the tax may not be collected until the equitable title passes. 132 In the pioneer case of Van Brocklin v. Tennessee, 133 the State was denied the right to sell for taxes lands which the United States owned at the time the taxes were levied, but in which it had ceased to have any interest at the time of sale. Similarly, a State cannot assess land in the hands of private owners for benefits from a road improvement completed while it was owned by the United States. 134  

In 1944, with two dissents, the Court held that where the Government purchased movable machinery and leased it to a private contractor the lessee could not be taxed on the full value of the equipment. 135 Twelve years later, and with a like number of Justices dissenting, the Court upheld the following taxes imposed on federal contractors: (1) a municipal tax levied pursuant to a state law which stipulated that when tax exempt real property is used by a private firm for profit, the latter is subject to taxation to the same extent as if it owned the property, and based upon the value of real property, a factory, owned by the United States and made available under a lease permitting the contracting corporation to deduct such taxes from rentals paid by it; the tax was collectible only by direct action against the contractor for a debt owed, and was not applicable to federal properties on which payments in lieu of taxes are made; (2) a municipal tax, levied under the authority of the same state law, based on the value of the realty owned by the United States, and collected from a cost-plus-fixed- fee contractor, who paid no rent but agreed not to include any part of the cost of the facilities furnished by the Government in the price of goods supplied under the contract; (3) another municipal tax levied in the same State against a federal subcontractor, and computed on the value of materials and work in process in his possession, notwithstanding that title thereto had passed to the United States following his receipt of installment payments. 136  

In sustaining the first tax, the Court held that it was imposed, not on the Government or on its property, but upon a private lessee, that it was computed by the value of the use to the contractor of the federally leased property, and that it was nondiscriminatory; that is, it was designed to equalize the tax burden carried by private business using exempt property with that of similar businesses using taxed property. Distinguishing the Allegheny case, the Court maintained that in this older decision, the tax invalidated was imposed directly on federal property and that the question of the legality of a privilege on use and possession of such property had been expressly reserved therein. Also insofar as the economic incidents of such tax on private use curtails the net rental accruing to the Government, such burden was viewed as insufficient to vitiate the tax. 137  

Deeming the second and third taxes similar to the first, the Court sustained them as taxes on the privilege of using federal property in the conduct of private business for profit. With reference to the second, the Court emphasized that the Government had reserved no right of control over the contractor and, hence, the latter could not be viewed as an agent of the Government entitled to the immunity derivable from that status. 138 As to the third tax, the Court asserted that there was no difference between taxing a private party for the privilege of using property he possesses, and taxing him for possessing property which he uses; for, in both instances, the use was private profit. Moreover, the economic burden thrust upon the Government was viewed as even more remote than in the administration of the first two taxes. 139  

Federal Property and Functions .--Property owned by the United States is, of course, wholly immune from state taxation. 140 No State can regulate, by the imposition of an inspection fee, any activity carried on by the United States directly through its own agents and employees. 141 An early case, the authority of which is now uncertain, held invalid a flat rate tax on telegraphic messages, as applied to messages sent by public officers on official business. 142  

Federally Chartered Finance Agencies: Statutory Exemptions .-- Fiscal institutions chartered by Congress, their shares and their property, are taxable only with the consent of Congress and only in conformity with the restrictions it has attached to its consent. 143 Immediately after the Supreme Court construed the statute authorizing the States to tax national bank shares as allowing a tax on the preferred shares of such a bank held by the Reconstruction Finance Corporation, 144 Congress passed a law exempting such shares from taxation. The Court upheld this measure, saying: ''When Congress authorized the states to impose such taxation, it did no more than gratuitously grant them political power which they theretofore lacked. Its sovereign power to revoke the grant remained unimpaired, the grant of the privilege being only a declaration of legislative policy changeable at will.'' 145 In Pittman v. Home Owners' Corp., 146 the Court sustained the power of Congress under the necessary and proper clause to immunize the activities of the Corporation from state taxation; and in Federal Land Bank v. Bismarck Co., 147 the like result was reached with respect to an attempt by the State to impose a retail sales tax on a sale of lumber and other building materials to the bank for use in repairing and improving property that had been acquired by foreclosure or mortgages.

The State's principal argument proceeded thus: ''Congress has authority to extend immunity only to the governmental functions of the federal land banks; the only governmental functions of the land banks are those performed by acting as depositories and fiscal agents for the federal government and providing a market for government bonds; all other functions of the land banks are private; petitioner here was engaged in an activity incidental to its business of lending money, an essentially private function; therefore 26 cannot operate to strike down a sales tax upon purchases made in furtherance of petitioner's lending functions.'' 148 The Court rejected this argument and invalidated the tax saying: ''The argument that the lending functions of the federal land banks are proprietary rather than governmental misconceives the nature of the federal government with respect to every function which it performs. The federal government is one of delegated powers, and from that it necessarily follows that any constitutional exercise of its delegated powers is governmental. . . . It also follows that, when Congress constitutionally creates a corporation through which the federal government lawfully acts, the activities of such corporation are governmental.'' 149  

Similarly, the lease by a federal land bank of oil and gas in a mineral estate, which it had reserved in land originally acquired through foreclosure and thereafter had conveyed to a third party, was held immune from a state personal property tax levied on the lease and on the royalties accruing thereunder. The fact that at the time of the conveyance and lease, the bank had recouped its entire loss resulting from the foreclosure did not operate to convert the mineral estate and lease into a non-governmental activity no longer entitled to exemption. 150 However, in the absence of federal legislation, a state law laying a percentage tax on the users of safety deposit services, measured by the bank's charges therefore, was held valid as applied to national banks. The tax, being on the user, did not, the Court held, impose an intrinsically unconstitutional burden on a federal instrumentality. 151  

Royalties .--In 1928, the Court went so far as to hold that a State could not tax as income royalties for the use of a patent issued by the United States. 152 This proposition was soon overruled in Fox Film Corp. v. Doyal, 153 where a privilege tax based on gross income and applicable to royalties from copyrights was upheld. Likewise a State may lay a franchise tax on corporations, measured by the net income from all sources and applicable to income from copyright royalties. 154  

Immunity of Lessees of Indian Lands .--Another line of anomalous decisions conferring tax immunity upon lessees of restricted Indian lands was overruled in 1949. The first of these cases, Choctaw, O. & G. R. Co. v. Harrison, 155 held that a gross production tax on oil, gas, and other minerals was an occupational tax, and, as applied to a lessee of restricted Indian lands, was an unconstitutional burden on such lessee, who was deemed to be an instrumentality of the United States. Next, the Court held the lease itself a federal instrumentality immune from taxation. 156 A modified gross production tax imposed in lieu of all ad valorem taxes was invalidated in two per curiam decisions. 157 In Gillespie v. Oklahoma, 158 a tax upon net income of the lessee derived from sales of his share of oil produced from restricted lands also was condemned. Finally a petroleum excise tax upon every barrel of oil produced in the State was held inapplicable to oil produced on restricted Indian lands. 159 In harmony with the trend to restricting immunity implied from the Constitution to activities of the Government itself, the Court overruled all these decisions in Oklahoma Tax Comm. v. Texas Co. and held that a lessee of mineral rights in restricted Indian lands was subject to nondiscriminatory gross production and excise taxes, so long as Congress did not affirmatively grant him immunity. 160  

Summation and Evaluation

Although McCulloch v. Maryland and Gibbons v. Ogden were expressions of a single thesis, the supremacy of the National Government, their development after Marshall's death has been sharply divergent. During the period when Gibbons v. Ogden was eclipsed by the theory of dual federalism, the doctrine of McCulloch v. Maryland was not merely followed but greatly extended as a restraint on state interference with federal instrumentalities. Conversely, the Court's recent return to Marshall's conception of the powers of Congress has coincided with a retreat from the more extreme positions taken in reliance upon McCulloch v. Maryland. Today, the application of the supremacy clause is becoming, to an ever increasing degree, a matter of statutory interpretation; a determination whether state regulations can be reconciled with the language and policy of federal enactments. In the field of taxation, the Court has all but wiped out the private immunities previously implied from the Constitution without explicit legislative command. Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g., that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly construed.

Clause 3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.


[Footnote 75]   76 U.S. (9 Wall.) 353 (1870).

[Footnote 76] Id., 362.

[Footnote 77]   161 U.S. 275 (1896).

[Footnote 78] Id., 283.

[Footnote 79] Franklin Nat. Bank v. New York, 347 U.S. 273 (1954).

[Footnote 80] Reagan v. Mercantile Trust Co., 154 U.S. 413 (1894).

[Footnote 81] Free v. Bland, 369 U.S. 663 (1962).

[Footnote 82] Sperry v. Florida, 373 U.S. 379 (1963).

[Footnote 83] Penn Dairies v. Milk Control Comm., 318 U.S. 261 (1943).

[Footnote 84] Pacific Coast Dairy v. Dept. of Agriculture, 318 U.S. 285 (1943). See also Paul v. United States, 371 U.S. 245 (1963).

[Footnote 85] Leslie Miller, Inc. v. Arkansas, 353 U.S. 187 (1956).

[Footnote 86] North Dakota v. United States, 495 U.S. 423 (1990). The difficulty is that the case was five-to-four with a single Justice concurring with a plurality of four to reach the result. Id., 444. Presumably, the concurrence agreed with the rationale set forth here, disagreeing only in other respects.

[Footnote 87] Id., 435. Four dissenting Justices agreed with this principle, but they also would invalidate a state law that ''actually and substantially interferes with specific federal programs.'' Id., 448, 451-452.

[Footnote 88] Ibid. That is, only when the overall effect, when balanced against other regulations applicable to similarly situated persons who do not deal with the government, imposes a discriminatory burden will they be invalidated. The concurring Justice was doubtful of this standard.Id., 444 (Justice Scalia concurring).

[Footnote 89]   22 U.S. (9 Wheat.) 738 (1824).

[Footnote 90] Id., 865.

[Footnote 91] Ibid.

[Footnote 92] Id., 866.

[Footnote 93] Id., 867.

[Footnote 94]   27 U.S. (2 Pet.) 449 (1829), followed in New York ex rel. Bank of Commerce v. New York City, 67 U.S. (2 Bl.) 620 (1863).

[Footnote 95] 12 Stat. 709, 710, 1 (1863).

[Footnote 96] 31 U.S.C. Sec. 3124. The exemption under the statute is no broader than that which the Constitution requires. First National Bank v. Bartow County Bd. of Tax Assessors, 470 U.S. 583 (1985). The relationship of this statute to another, 12 U.S.C. Sec. 548, governing taxation of shares of national banking associations, has occasioned no little difficulty. American Bank & Trust Co. v. Dallas County, 463 U.S. 855 (1983); Memphis Bank & Trust Co. v. Garner, 459 U.S. 392 (1983).

[Footnote 97]   74 U.S. (7 Wall.) 26 (1868).

[Footnote 98] Hibernia Savings Society v. San Francisco, 200 U.S. 310, 315 (1906).

[Footnote 99] Smith v. Davis, 323 U.S. 111 (1944).

[Footnote 100] Plummer v. Coler, 178 U.S. 115 (1900); Blodgett v. Silberman, 277 U.S. 1, 12 (1928).

[Footnote 101] Accord: Rockford Life Ins. Co. v. Illinois Dept. of Revenue, 482 U.S. 182 (1987) (Tax including in an investor's net assets the value of federally-backed securities (''Ginnie Maes'') upheld, since it would have no adverse effect on Federal Government's borrowing ability).

[Footnote 102] Society for Savings v. Bowers, 349 U.S. 143 (1955).

[Footnote 103] Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136, 140 (1927).

[Footnote 104] Miller v. Milwaukee, 272 U.S. 713 (1927).

[Footnote 105] Provident Institution v. Massachusetts, 73 U.S. (6 Wall.) 611 (1868); Society for Savings v. Coite, 73 U.S. (6 Wall.) 594 (1868); Hamilton Company v. Massachusetts, 73 U.S. (6 Wall.) 632 (1868); Home Ins. Co. v. New York, 134 U.S. 594 (1890); Werner Machine Co. v. Director of Taxation, 350 U.S. 492 (1956).

[Footnote 106] Macallen v. Massachusetts, 279 U.S. 620, 625 (1929).

[Footnote 107] Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136 (1927).

[Footnote 108]   22 U.S. (9 Wheat.) 738 (1824).

[Footnote 109] Id., 867.

[Footnote 110] The dissent in James v. Dravo Contracting Co., 302 U.S. 134, 161 (1937), observed that the Court was overruling ''a century of precedents.'' See, e.g., Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928) (voiding a state privilege tax on dealers in gasoline as applied to sales by a dealer to the Federal Government for use by Coast Guard). It was in Panhandle that Justice Holmes uttered his riposte to Chief Justice Marshall: ''The power to tax is not the power to destroy while this Court sits.'' Id., 223 (dissenting).

[Footnote 111]   302 U.S. 134 (1937).

[Footnote 112] Id., 150(quoting Willcuts v. Bunn, 282 U.S. 216, 225 (1931)).

[Footnote 113] Alabama v. King & Boozer, 314 U.S. 1 (1941), overruling Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928), and Graves v. Texas Co., 298 U.S. 393 (1936). See also Curry v. United States, 314 U.S. 14 (1941). ''The Constitution . . . does not forbid a tax whose legal incidence is upon a contractor doing business with the United States, even though the economic burden of the tax, by contract or otherwise, is ultimately borne by the United States.'' United States v. Boyd, 378 U.S. 39, 44 (1964) (sustaining sales and use taxes on contractors using tangible personal property to carry out government cost-plus contract).

[Footnote 114] Alward v. Johnson, 282 U.S. 509 (1931).

[Footnote 115] Trinityfarm Const. Co. v. Grosjean, 291 U.S. 466 (1934).

[Footnote 116] United States v. Allegheny County, 322 U.S. 174 (1944) (voiding property tax that included in assessment the value of federal machinery held by private party); Kern-Limerick v. Scurlock, 347 U.S. 110 (1954) (voiding gross receipts sales tax applied to contractor purchasing article under agreement whereby he was to act as agent for Government and title to articles purchased passed directly from vendor to United States).

[Footnote 117] United States v. New Mexico, 455 U.S. 720, 735 (1982). See South Carolina v. Baker, 485 U.S. 505, 523 (1988).

[Footnote 118] ''[I]mmunity may not be conferred simply because the tax has an effect on the United States, or even because the Federal Government shoulders the entire economic burden of the levy.'' United States v. New Mexico, 455 U.S. 720, 734 (1982).

[Footnote 119] James v. Dravo Contracting Co., 302 U.S. 134, 161 (1937); Carson v. Roane-Anderson Co., 342 U.S. 232, 234 (1952); United States v. New Mexico, 455 U.S. 720, 737 (1982). Roane-Anderson held that a section of the Atomic Energy Act barred the collection of state sales and use taxes in connection with sales to private companies of personal property used by them in fulfilling their contracts with the AEC. Thereafter, Congress repealed the section for the express purpose of placing AEC contractors on the same footing as other federal contractors and the Court upheld imposition of the taxes. United States v. Boyd, 378 U.S. 39 (1964).

[Footnote 120]   306 U.S. 466 (1939), followed in State Comm. v. Van Cott, 306 U.S. 511 (1939). This case overruled by implication Dobbins v. Erie County, 41 U.S. (16 Pet.) 435 (1842), and New York ex rel. Rogers v. Graves, 299 U.S. 401 (1937), which held the income of federal employees to be immune from State taxation.

[Footnote 121] Id., 487.

[Footnote 122] Id. 492.

[Footnote 123] 4 U.S.C. Sec. 111. The statute, part of the Public Salary Tax Act of 1939, was considered and enacted contemporaneously with the alteration occurring in constitutional law, exemplified by Graves. That is, in Helvering v. Gerhardt, 304 U.S. 405 (1938), the Court had overruled precedents and held that Congress could impose nondiscriminatory taxes on the incomes of most state employees, and the 1939 Act had as its primary purpose the imposition of federal income taxes on the salaries of all state and local government employees. Feeling equity required it, Congress included a provision authorizing nondiscriminatory state taxation of federal employees. Graves came down while the provision was pending in Congress. See Davis v. Michigan Dept. of the Treasury, 489 U.S. 803, 810 -814 (1989).

[Footnote 124] Id., 813. This case struck down, as violative of the provision, a state tax imposed on federal retirement benefits but exempting state retirement benefits. See also Barker v. Kansas, 112 S.Ct. 1619 (1992) (similarly voiding a state tax on federal military retirement benefits but not reaching state and local government retirees).

[Footnote 125]   17 U.S. (4 Wheat.) 316, 426 (1819).

[Footnote 126] Thomson v. Pacific Railroad, 76 U.S. (9 Wall.) 579, 588 , (1870); Union Pacific R. Co. v. Penistion, 85 U.S. (18 Wall.) 5, 31 (1873).

[Footnote 127] Susquehanna Power Co. v. Tax Comm. (No. 1), 283 U.S. 291 (1931).

[Footnote 128] Moses Lake Homes v. Grant County, 365 U.S. 744 (1961).

[Footnote 129] Phillips Chemical Co. v. Dumas School Dist., 361 U.S. 376, 383 , 387 (1960). In Offutt Housing Co. v. Sarpy County, 351 U.S. 253 (1956), a housing company was held liable for county personal property taxes on the ground that the Government had consented to state taxation of the company's interest as lessee. Upon its completion of housing accommodations at an Air Force Base, the company had leased the houses and the furniture therein from the Federal Government.

[Footnote 130] Baltimore Shipbuilding Co. v. Baltimore, 195 U.S. 375 (1904).

[Footnote 131] Northern Pacific R. Co. v. Myers, 172 U.S. 589 (1899); New Brunswick v. United States, 276 U.S. 547 (1928).

[Footnote 132] Irwin v. Wright, 258 U.S. 219 (1922).

[Footnote 133]   117 U.S. 151 (1886).

[Footnote 134] Lee v. Osceola Imp. Dist., 268 U.S. 643 (1925).

[Footnote 135] United States v. Allegheny County, 322 U.S. 174 (1944).

[Footnote 136] United States v. City of Detroit, 355 U.S. 466 (1958). The Court more recently has stated that Allegheny County ''in large part was overruled'' by Detroit. United States v. New Mexico, 455 U.S. 720, 732 (1982).

[Footnote 137] United States v. City of Detroit, 355 U.S. 478, 482 , 483 (1958). See also California Bd. of Equalization v. Sierra Summit, 490 U.S. 844 (1989).

[Footnote 138] United States v. Township of Muskegon, 355 U.S. 484 (1958).

[Footnote 139] City of Detroit v. Murray Corp., 355 U.S. 489 (1958). In United States v. County of Fresno, 429 U.S. 452 (1977), these cases were reaffirmed and applied to sustain a tax imposed on the possessory interests of United States Forest Service employees in housing located in national forests within the county and supplied to the employees by the Forest Service as part of their compensation. A State or local government may raise revenues on the basis of property owned by the United States as long as it is in possession or use by the private citizen that is being taxed.

[Footnote 140] Clallam County v. United States, 263 U.S. 341 (1923). See also Cleveland v. United States, 323 U.S. 329, 333 (1945); United States v. Mississippi Tax Comm., 412 U.S. 363 (1973); United States v. Mississippi Tax Comm ., 421 U.S. 599 (1975).

[Footnote 141] Mayo v. United States, 319 U.S. 441 (1943). A municipal tax on the privilege of working within the city, levied at the rate of one percent of earnings, although not deemed to be an income tax under state law, was sustained as such when collected from employees of a naval ordinance plant by reason of federal assent to that type of tax expressed in the Buck Act. 4 U.S.C. Sec. Sec. 105-110. Howard v. Commissioners, 344 U.S. 624 (1953).

[Footnote 142] Telegraph Co. v. Texas, 105 U.S. 460, 464 (1882).

[Footnote 143] Des Moines Bank v. Fairweather, 263 U.S. 103, 106 (1923); Owensboro National Bank v. Owensboro, 173 U.S. 664, 669 (1899); First Nat. Bank v. Adams, 258 U.S. 362 (1922); Michigan Nat. Bank v. Michigan, 365 U.S. 467 (1961).

[Footnote 144] Baltimore Nat. Bank v. Tax Comm., 297 U.S. 209 (1936).

[Footnote 145] Maricopa County v. Valley Bank, 318 U.S. 357, 362 , (1943).

[Footnote 146]   308 U.S. 21 (1939).

[Footnote 147]   314 U.S. 95 (1941).

[Footnote 148] Id., 101.

[Footnote 149] Id., 102.

[Footnote 150] Fed. Land Bank v. Kiowa County, 368 U.S. 146 (1961).

[Footnote 151] Colorado Bank v. Bedford, 310 U.S. 41 (1940).

[Footnote 152] Long v. Rockwood, 277 U.S. 142 (1928).

[Footnote 153]   286 U.S. 123 (1932).

[Footnote 154] Educational Films Corp. v. Ward, 282 U.S. 379 (1931).

[Footnote 155]   235 U.S. 292 (1914).

[Footnote 156] Indian Oil Co. v. Oklahoma, 240 U.S. 522 (1916).

[Footnote 157] Howard v. Gipsy Oil Co., 247 U.S. 503 (1918); Large Oil Co. v. Howard, 248 U.S. 549 (1919).

[Footnote 158]   257 U.S. 501 (1922).

[Footnote 159] Oklahoma v. Barnsdall Corp., 296 U.S. 521 (1936).

[Footnote 160]   336 U.S. 342 (1949). Justice Rutledge, speaking for the Court, sketched the history of the immunity lessees of Indian lands from state taxation, which he found to stem from early rulings that tribal lands are themselves immune. The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867); The New York Indians, 72 U.S. (5 Wall.) 761 (1867). One of the first steps taken to curtail the scope of the immunity was Shaw v. Oil Corp., 276 U.S. 575 (1928), which held that lands outside a reservation, though purchased with restricted Indian funds, were subject to state taxation. Congress soon upset the decision, however, and its act was sustained in Board of Comm. v. Seber, 318 U.S. 705 (1943). Clause 3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

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