dissenting: While it is true that the Court was considering in the Gernhardt case the claim of an employee of the Port Authority for immunity from tax under an implied constitutional inhibition, I am not persuaded that the language quoted in the majority opinion here should be given the limited interpretation indicated. Surely it was not dictum. It is equally clear that the Court did not consider that it was passing upon a question analogous to the one before it in Brush v. Commissioner, 300 U. S. 352. This, it- seems, should dispose of any idea the Court intended to imply that the claim for immunity was being denied because the services were not being “rendered in connection with the exercise of an essential governmental function * * Rather it appears that the Court was deliberately setting the stage for the dual conclusion immediately following — that if the regulation “be deemed to embrace the employees of a state-owned corporation .such as the Port Authority it was unauthorized by the statute,” and “it is plain that employees of the Port Authority are not employees of the state or a political subdivision of it within the meaning of the regulation * * * ”
The majority, in spite of the Court’s deliberate characterization of the Authority as a “state-owned corporation” and its categorical holding that the employees were not “employees of the state or political subdivision,” conclude that it was a “political subdivision.” This is based upon the presence of four “sovereign functions” — (1) the power of eminent domain; (2) “certain police powers, including the promulgation and enforcement of regulations for the conduct of navigation and commerce * * *”; (3) maintenance of a uniformed police force; and (4) “the power of subpoena.” Before adverting to the sovereign functions which are lacking, let us examine those set out.
The mere fact that a corporation, whether “state-owned” or privately owned, has been given the power of eminent domain falls far short of establishing that it is a “political subdivision.” Railway, express, pipe-line, telephone, lighting, power and similar companies are usually given this power. The test uniformly applied in determining whether it may be exercised is “public use”; but the corporation exercising it need not be, nor does it necessarily become, a “political subdivision.” The preservation of the health, morals, or safety of the inhabitants of a community, usually referred to as the police powers, is of course an attribute of sovereignty. Apparently the only such power possessed by the Port Authority — in any event the only one mentioned by the majority — is “the promulgation and enforcement of regulations for the conduct of navigation and commerce in the area defined as the Port of New York District.” The binding force of these regulations, however, is derived from the concurrence or authorization of the legislatures of the two states, which provide penalties for violation. The power is therefore substantially less than that possessed by an ordinary municipality. The maintenance of a uniformed police force is permitted by the laws of most states, including New York and New Jersey, for protection of private property, e. g., railways, stores, industrial plants, etc., regardless of the fact that they are owned by private corporations. The members of such a force serve in a dual capacity; but in making arrests and in performing actual police duties they are state officers. The power of subpoena, if actually possessed,1 is no more than the power frequently given to tact-finding or administrative bodies to direct that witnesses appear or produce documents. The Port Authority, however, does not have the power to pass upon the validity of process or to enforce compliance.
But the attributes and functions of sovereignty withheld from the Port Authority indicate quite clearly that the two states did not intend to create either one or two “political subdivisions.” Passing the question of the power of one state to create or participate in creating a political subdivision in the other, let us examine the functions withheld.
The corporation is not politically organized. Its inhabitants had no voice in its creation and have none m its administration. It has no power of legislation and can not enact or enforce ordinances. It has no power to levy or collect taxes. Its funds are not subject to the restrictions generally applicable to state funds, the debts created by it are not state debts within the purview of the provisions of the state constitutions limiting the amount and the power to contract state debts, and it has no power to pledge the credit of either state or to impose any obligation upon either except when such power is expressly granted by statute. The bonds issued by it are a direct and general obligation of the Authority, secured by its general reserve fund and by its covenant “to establish and levy such tolls and charges as may be necessary” to insure sufficient revenue to meet the expenses of operation and to pay principal and interest on the bonds. The bonds are, in effect, “self-liquidating,” i. e., payable from tolls, charges, and profits of operation.
Section 22 (b) (4) is a provision granting immunity from tax. As such it should be strictly construed. New Colonial Ice Co. v. Helvering, 292 U. S. 435; Willcuts v. Bunn, 282 U. S. 216; Oklahoma Tax Com. v. United States, 319 U. S. 598. I am not convinced that the bonds issued by the “state-owned corporation,” whose functions seem to be “limited to those of study, analysis, persuasion, recommendation, and petition on the one hand, and to the acquisition, construction and operation of terminal and transportation facilities on the other,”2 are exempt from tax under the statute.
Petitioner’s claim for immunity from tax under the implied prohibition of the constitution is even more tenuous. Helvering v. Gerhardt, supra; Graves v. New York ex rel. O'Keefe, 306 U. S. 466; and Alabama v. King and Boozer, 314 U. S. 1. In my judgment tlie deficiency in tax should be sustained.
Smith and Van Fossan, //., agree with this dissent.It Is stipulated that there has been no judicial test of the validity of the power to issue subpoenas and orders. Apparently such powers were granted by the Legislature of New York; but the statute never became effective by the concurrence of New Jersey. Since the Authority has only such “additional powers as shall be conferred upon it by the legislature of either state concurred in by the legislature of the other,” it is at least debatable whether the power really exists.
Bard, “The Port of New York Authority” op. eit. 15.