Western Air Lines, Inc. v. Hughes County

• Decision Date: 31 July 1985
• Citation: 372 N.W.2d 106
• Parties: WESTERN AIR LINES, INC., a corporation, et al., Plaintiffs and Appellants, v. HUGHES COUNTY, South Dakota and its Board of Commissioners, et al., Defendants and Appellees. 14560.
• Court: South Dakota Supreme Court

Page 106

372 N.W.2d 106

WESTERN AIR LINES, INC., a corporation, et al., Plaintiffs and Appellants, v. HUGHES COUNTY, South Dakota and its Board of Commissioners et al., Defendants and Appellees.

14560.

Supreme Court of South Dakota.

Argued Oct. 23, 1984.

Decided July 31, 1985.

R.C. Riter and Robert C. Riter, Jr., of Riter, Mayer, Hofer & Riter, Pierre, for plaintiffs and appellants.

John Dewell, Asst. Atty. Gen., Pierre, for defendants and appellees; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

MORGAN, Justice.

The question raised by this appeal is whether 49 U.S.C. § 1513(d) amending the Airport Development Acceleration Act of 1973, preempts SDCL ch. 10-29, Taxation of Airline Flight Property (tax). The appeal involves the various actions of five airlines, Western Air Lines, Republic Airlines, Frontier Airlines, Ozark Air Lines and Continental Airlines (airlines) seeking redress for 1982 taxes assessed by the Department of Revenue of the State of South Dakota (Department) and paid under protest to the various counties of Brown, Beadle, Davison, Hughes, Pennington, Minnehaha, Codington, and Yankton. It also involves an appeal from the State Board of Equalization's denial of a petition to exempt the airlines' flight property from 1983 taxes. Forty-two cases in all were consolidated by stipulation and order of the trial court below. At the pertinent times, the airlines were authorized to and did transact business in South Dakota as air carriers. The trial court affirmed the Department on the appeal, entered judgment for the counties on the suits for rebate, and dismissed airlines' actions on their merits. Airlines appeal and we affirm.

Prior to 1961, any airline operating in South Dakota was only taxed for property located in the state, for fuel purchased in the state, and for the privilege of landing in the state but aircraft were not taxed. In 1961, Chapter 449 of the Session Laws of 1961, the Airline Flight Property Tax, was enacted. Codified as SDCL ch. 10-29, the tax provided for central assessment by Department of all airline flight property used in South Dakota. ¹ The legislation further provided that airline flight property should not be otherwise taxed. SDCL 10-29-2. The assessments are based on the value and use of airline flight property which actually provides service in the state. The three use factors involved in the assessment are set out in SDCL 10-29-10. The revenues realized by the tax are allocated to the airports used by the airline companies and are to be exclusively used for airport purposes, as determined by the local airport governing bodies and approved by the Department of Transportation. SDCL 10-29-15.

The airlines have been paying the tax without protest from its inception or from their entry into the state, whichever comes later, until 1982 when they paid under protest, and suits were commenced for their recovery per SDCL 10-27-2.

In enacting Chapter 72 of the 1978 Session Laws entitled "An Act to provide for the repeal of personal property tax," the legislature, after classifying and exempting certain personal property described as personal effects, household furnishings, home appliances, and sporting and hobby goods, provided that "[p]ersonal property as defined in [SDCL] 10-4-6 which is not centrally assessed is hereby classified for ad valorem tax purposes and is exempt from ad valorem taxation." (Emphasis added.) The Act further provided: "The exemptions created by this Act shall not impair or repeal any tax or fee which heretofore has been authorized to be levied or imposed in lieu of personal property tax." S.D.Sess.L. ch. 72, § 9. These two provisions are now codified as SDCL 10-4-6.1.

In 1982, the United States Congress amended the Airport Development Acceleration Act of 1973. A new section, codified at 49 U.S.C. § 1513(d), generally prohibits burdensome and discriminatory taxation of air carrier transportation property. Specifically, § 1513(d) provides that states may not assess air carrier transportation property at a higher ratio to true market value than the ratio used to assess other commercial and industrial property; or levy or collect an ad valorem property tax on airflight property at a rate in excess of the rate applied to other commercial and industrial property in the same jurisdiction. 49 U.S.C. § 1513(d)(1). The 1982 amendment contains an exception to its preemption of state taxes on airflight property. 49 U.S.C. § 1513(d)(3) provides: "This subsection shall not apply to any in lieu tax which is wholly utilized for airport and aeronautical purposes."

The trial court determined that SDCL ch. 10-29 meets the requirements of 49 U.S.C. § 1513(d)(3), concluding as a matter of law that the tax imposed, being an in lieu tax under the provisions of SDCL 10-4-6.1 used solely for airport and aeronautical purposes, SDCL 10-29-15, does not violate the provisions of 49 U.S.C. § 1513(d) and is an appropriate tax upon the airlines under state and federal law.

The airlines raise two issues on their appeal. First, is the tax imposed by SDCL ch. 10-29 "in lieu" of another valid tax so as to be authorized under 49 U.S.C. § 1513(d)(3)? Second, does the airline flight property tax imposed under SDCL ch. 10-29 discriminate against appellant airlines and is it violative of 49 U.S.C. § 1513(d)(1)?

The basic issue before us is whether the tax conflicts with § 1513(d) and thus violates the supremacy clause. Our inquiry is based on the assumption that, "absent the clear and manifest intent of Congress, the reserved powers of the States are not superseded by federal legislation." Lead-Deadwood School Dist. v. Lawrence Cty., 334 N.W.2d 24, 25 (S.D.1983). The full enactment of § 1513(d) reads as follows:

(1) The following acts unreasonably burden and discriminate against interstate commerce and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them:

(A) assess air carrier transportation property at a value that has a higher ratio to the true market value of the air carrier transportation property than the ratio that the assessed value of other commercial and industrial property of the same type in the same assessment jurisdiction has to the true market value of the other commercial and industrial property;

(B) levy or collect a tax on an assessment that may not be made under subparagraph (A) of this paragraph; or

(C) levy or collect an ad valorem property tax on air carrier transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction.

(2) In this subsection--

(A) "assessment" means valuation for a property tax levied by a taxing district (B) "assessment jurisdiction" means a geographical area in a State used in determining the assessed value of property for ad valorem taxation;

(C) "air carrier transportation property" means property, as defined by the Civil Aeronautics Board, owned or used by an air carrier providing air transportation;

(D) "commercial and industrial property" means property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to a commercial or industrial use and subject to a property tax levy; and

(E) "State" shall include the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the District of Columbia, the territories or possessions of the United States, and political agencies of two or more States.

(3) This subsection shall not apply to any in lieu tax which is wholly utilized for airport and aeronautical purposes.

Obviously, it was not the intent of Congress to preclude all ad valorem taxes on air carriers' property. An ad valorem tax which meets certain balancing requirements in relation to other commercial and industrial property would be acceptable under (d)(1), as would an "in lieu tax" wholly utilized for airport and aeronautical purposes under (d)(3).

Inasmuch as the trial court found the tax to fall within the latter classification, we will review that first. The trial court relied on the history of central assessments of utilities and the provisions of SDCL 10-4-6.1, supra, referring to taxes or fees authorized to be levied or imposed in lieu of personal property tax to determine the tax was an "in lieu" tax. With that conclusion, we must disagree.

We first define the term "in lieu tax." It is not defined in the statute nor is it a term in common usage. "Lieu tax" means instead of, or, a substitute for, and it is not an additional tax. Black's Law Dictionary 832 (5th Ed. 1979), citing Lebeck v. State, 62 Ariz. 171, 156 P.2d 720 (1945). In Lebeck, the citizens of Arizona had adopted a constitutional amendment substituting a license tax (lieu tax) on motor vehicles for personal property ad valorem taxes on such vehicles.

In the case at bar, however, the tax is not a substitute for an ad valorem personal property tax. It is in fact the first imposition of personal property tax on the airline flight property. It is an additional tax to the personal property taxes theretofore existing; nor does the reference in SDCL 10-4-6.1 to "in lieu" change that obvious fact.

"The name by which a tax is described in the statute is, of course, immaterial. Its character must be determined by its incidents...." Goodenough v. State, 328 Mich. 56, 66, 43 N.W.2d 235, 239 (1950), quoting Dawson v. Kentucky Distilleries Co., 255 U.S. 288, 292, 41 S.Ct. 272, 274, 65 L.Ed. 638, 645 (1921).

We therefore hold that the trial court erred in determining that the tax was an in lieu tax, but we further hold that the trial judge arrived at the right result of upholding the tax, but for the wrong reason. In our opinion, the tax is a valid imposition under the balancing test previously referred to under § 1513(d)(1).

Unlike the provision of (d)(3), the terminology of (d)(1) is clear and unambiguous. Subparagraph (A) essentially prohibits a...