concurring.
I agree that this cause should be reversed for the reasons expressed in that part of the opinion just read pointing out that: respondents, though employees of the New York Port Authority, are citizens of the United States;' *425thé tax levied upon their incomes from the Authority is the same as that paid by other citizens receiving equal net incomes; and payment of this non-discriminatory income tax by respondents cannot impair or defeat in whole or in part the governmental operations of the State of New York. A citizen who receives his income from a State, owes the same obligation to the United States as other citizens who draw their salaries from private sources or the United States and pay Federal income taxes.
While I believe these reasons, without more, are adequate to support the tax, I find it difficult to reconcile this result with the principle announced in Collector v. Day, 11 Wall. 113, and later decisions applying that principle. This leads me to the conclusion that we should review and reexamine the rule based upon Collector v. Day. That course would logically require the entire subject of intergovernmental tax immunity to be reviewed in the light of the efféct of the Sixteenth Amendment authorizing Congress to levy a tax on incomes “from whatever source derived”; and, in that event, the decisions interpreting the Amendment would also be reexamined.1
From time to time, this Court has relied upon a doctrine evolved from Collector v. Day, under which incomes received from State activities thought by the Court to be non-essential are held taxable, while incomes from activities thought to be essential are held non-taxable. The opinion of the Court in this case refers to that doctrine. Application of this test has. created “a zone of debatable ground within which the eases must be put upon one side or the other of the line by what this court has called the gradual process of historical and judicial ‘inclusion and exclusion.’ ” Brush v. Commissioner, 300 U. S. 352, 365. Under this rule the tax status of every state employee re*426mains uncertain until this Court passes upon the classification of his particular employment. The result is a confusion in the field of intergovernmental tax immunity which I believe could be clarified by complete review of the subject. Testing taxability by judicial determination that state governmental functions are essential or nonessential, contributes much to the existing confusion. I believe the present case affords occasion for appropriate and necessary abandonment of such a test, particularly since recent decisions2 have already substantially advanced toward a reexamination of the doctrine of intergovernmental immunity.
The . present controversy illustrates the necessity for further reexamination. New York created the Port Authority with power to engage in activities which that State believed to be essential. Yet, under this test, New York’s determination is not final until reviewed in a tax litigation between the government and a single citizen.
Conceptions of “essential governmental functions” vary . with individual 'philosophies. Some believe that “essential governmental functions’’ include ownership and operation of water plants, power and transportation systems, etc. Others deny that such ownership and operation could ever be “essential governmental functions” on the ground that such functions “could be carried on by private enterprise.” A federal income tax levied against the manager of the state-operated elevated railway company of Boston was sustained even though this manager was a public officer appointed by the, Governor of Massachusetts “with the advice and consent of the council.”3 On the other, hand, the federal government was denied— *427although with strong dissent — the right to collect an income tax from the chief engineer in charge of New York City’s municipally owned water supply.4 An implied constitutional distinction which taxes income of an officer of a state-operated transportation system and exempts income of the manager of a municipal water works system manifests the uncertainty created by the “essential” and “non-essential” test.
There is not, and there cannot be, any unchanging line' of demarcation between essential and non-essential governmental functions. Many governmental functions of today have at some time in the past been ndii-governmental. The genius of our government provides that, withm the sphere of constitutional action, the people— acting not through the courts but through their elected legislative representatives — have the power to determine as conditions demand, what services and functions the public welfare requires.
Surely, the Constitution contains no imperative mandate that public employees — or others — drawing equal salaries (income) should be divided into taxpaying and non-taxpaying groups. Ordinarily such a result is discrimination. Uniform taxation upon those equally able to bear their fair shares of the burdens of government is ,the objective of every just government. The language of the Sixteenth Amendment empowering Congress to “collect taxes on incomes, from whatever source derived” — given its most obvious meaning — is broad enough to accomplish this purpose.
See, Brushaber v. Union Pacific R. Co., 240 U. S. 1; Peck & Co. v. Lowe, 247 U. S. 165, 172; Eisner v. Macomber, 252 U. S. 189; Evans v. Gore, 253 U. S. 245.
See, James v. Bravo Contracting Co., 302 U. S. 134; Helvering v. Bankline Oil Co., 303 U. S. 362; Helvering v. Mountain Producers Corp., 303 U. S. 376 (overruling Gillespie v. Oklahoma, 257 U. S. 501 and Burnet v. Coronado Oil & Gas Co., 285 U. S. 393).
Helvering v. Powers, 293 U. S. 214, 222, 223.
Brush v. Commissioner, 300 U. S. 352; cf., Metcalf & Eddy v. Mitchell, 269 U. S. 514.