# United States v. Township of Muskegon/Opinion of the Court

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* Dissenting Opinion Whittaker
United States Supreme Court
355 U.S. 484
United States v. Township of Muskegon
Argued: Nov. 14, 1957. --- Decided: March 3, 1958
As the Government points out in its jurisdictional statement 'this appeal presents precisely the same basic question' as is raised in No. 26, United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, also decided today. That question is whether Public Act 189, of 1953, of the State of Michigan is unconstitutional as applied to a corporation using government property in connection with a business conducted for its own private gain.
In this case the United States owns a manufacturing plant at Muskegon, Michigan. In 1952 it granted Continental Motors Corporation the right to use this plant in the course of performing several supply contracts Continental had with the Government. No rent was charged as such but Continental agreed not to include any part of the cost of the facilities furnished by the Government in the price of the goods supplied under the contracts.
On January 1, 1954, Continental was assessed a tax under Public Act 189. As in No. 26, this tax was levied because of Continental's use of tax-exempt property in its private business and was measured by the value of the exempt property which it was then using. Continental refused to pay the tax and this suit was brought by state authorities in a state court to recover the amount assessed. The United States intervened, contending that the tax was invalid because it imposed a levy on government property. But the lower court rejected this contention and entered judgment for the plaintiffs. The Michigan Supreme Court affirmed, 346 Mich. 218, 77 N.W.2d 799. We noted probable jurisdiction of an appeal from this decision by both Continental and the United States, 352 U.S. 963, 77 S.Ct. 357, 1 L.Ed.2d 319, and now affirm the judgment below on the basis of our decision in No. 26.
There are only two factual differences between this case and No. 26. First, Continental is not using the property under a formal lease but under a 'permit'; second, Continental is using the property in the performance of its contracts with the Government. We do not believe that either fact compels a different result.
Constitutional immunity from state taxation does not rest on such insubstantial formalities as whether the party using government property is formally designated a 'lessee.' Otherwise immunity could be conferred by a simple stroke of the draftsman's pen. The vital thing under the Michigan statute, and we think permissibly so, is that Continental was using the property in connection with its own commercial activities. The case might well be different if the Government had reserved such control over the activities and financial gain of Continental that it could properly be called a 'servant' of the United States in agency terms. But here Continental was not so assimilated by the Government as to become one of its constituent parts. It was free within broad limits to use the property as it thought advantageous and convenient in performing its contracts and maximizing its profits from them.
If under certain conditions the State can tax Continental for use of government property in connection with its business conducted for profit-and as set forth in No. 26 we are of the opinion that it can-the fact that Continental was carrying out a contract with the Government does not materially alter the case. Continental was still acting as a private enterprise selling goods to the United States. In a certain loose way it might be called an 'instrumentality' of the United States, but no more so than any other private party supplying goods for his own gain to the Government. In a number of cases this Court has upheld state taxes on the activities of contractors performing services for the United States even though they were closely supervised in performing these functions by the Government. See, e.g., James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155; Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3; Curry v. United States, 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9; Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663, 90 L.Ed. 793.
The Curry case seems squarely in point. There a contractor acting pursuant to a cost-plus contract with the United States purchased certain materials. These materials were shipped to a government construction project where they were used by the contractor in the performance of the contract. By agreement title to the materials passed to the Government as soon as they were shipped by the vendor. The State imposed a tax on the contractor, based on the value of the materials, for using them after they had been delivered to the work site. This Court unanimously upheld that state use tax, although it clearly amounted to a tax on the use of government property in performing a government contract.
Affirmed.
Mr. Justice WHITTAKER, with whom Mr. Justice BURTON joins, dissenting.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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