# Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc.
## Dissenting Opinion

    Douglas
Supreme Court of the United States
405 U.S. 707
Evansville-Vanderburgh Airport Authority District et al. v. Delta Airlines, Inc., et al.
Certiorari to the Supreme Court of Indiana
No. 70-99. Argued: February 23-24, 1972 --- Decided: April 19, 1972
In No. 70-99 respondents challenged a "use and service charge" of $1 "for each passenger enplaning any commercial aircraft operated from the Dress Memorial Airport" in Evansville, Indiana. The funds were to be used for the improvement and maintenance of the airport. The Indiana Supreme Court, upholding the lower court, held the charge to be an unreasonable burden on interstate commerce in violation of Art. I, § 8, of the Constitution.
In No. 70-212 a New Hampshire statute levied a service charge of $1 for each passenger enplaning a scheduled commercial airliner weighing 12,500 pounds of more, and a 50¢ charge for each passenger enplaning a scheduled aircraft weighing less than 12,500 pounds. Fifty percent of the funds were allocated to the State's aeronautical fund, with the balance going to the municipalities or airport authorities owning the public landing areas. The New Hampshire Supreme Court sustained the constitutionality of the statute.
Held: The charges imposed in these cases are constitutional. Pp. 711-722.
    (a) A charge designed to make the user of state-provided facilities pay a reasonable fee for their construction and maintenance may constitutionally be imposed on interstate and intrastate users alike. Crandall v. Nevada, 6 Wall. 35, distinguished. Pp. 711-717.
    (b) The charges, applicable to both interstate and intrastate flights, do not discriminate against interstate commerce and travel. P. 717.
    (c) Although not all users of the airport facilities are subject to the fees, and there are distinctions among different classes of passengers and aircraft, the charges reflect a fair, albeit imperfect, approximation of the use of the facilities by those for whose benefit they are imposed, and the exemptions are not wholly unreasonable. Pp. 717-719.
    (d) The airlines have not shown the charges to be excessive in relation to the costs incurred by the taxing authorities in constructing and maintaining airports with public funds. New Hampshire's decision to reimburse local expenditures through unrestricted revenues is not a matter of concern to the airlines. Pp. 719-720.
    (e) The charges do not conflict with any federal policies furthering uniform national regulation of air transportation. Pp. 720-721.
    (f) There is no suggestion here that the charges do not advance the constitutionally permissible objective of having interstate commerce bear a fair share of airport costs. P. 722.
No. 70-99, — Ind. —, 265 N.E. 2d 27, reversed.
No. 70-212, 111 N.H. 5, 273 A. 2d 676, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 722. POWELL, J., took no part in the consideration or decision of the cases.
Howard P. Trockman argued the cause for petitioners in No. 70-99. With him on the briefs was James F. Flynn. John K. Mallory, Jr., argued the cause for respondents in No. 70-99 and for appellants in No. 70-212. With him on the brief in No. 70-99 were Fred P. Bamberger, J. Eugene Marans, and Jeffrey R. Kinney. With him on the brief in No. 70-212 were Joseph A. Millimet and Mr. Marans. W. Michael Dunn, Assistant Attorney General of New Hampshire, argued the cause for appellees in No. 70-212. With him on the brief was Warren B. Rudman, Attorney General.
Donald G. Alexander filed a brief for the National League of Cities as amicus curiae urging reversal in No. 70-99.

## Notes

* ↑ Together with No. 70-212, Northeast Airlines, Inc., et al. v. New Hampshire Aeronautics Commission et al., on appeal from the Supreme Court of New Hampshire, argued February 24, 1972.