dissenting:
In my opinion the Minnesota levy imposed an unconstitutional tax on petitioner’s vehicles of interstate transportation in violation of the commerce clause, and for that reason the judgment below should be reversed.
Petitioner, a Minnesota corporation, is owner of a large number of airplanes which it uses exclusively in interstate transportation moving on regular schedules and over fixed routes extending through eight states between Chicago, Illinois, and the Pacific coast, with the usual landing fields and maintenance bases at intermediate points, including Minneapolis and St. Paul, Minnesota. It is stipulated that on May 1,1939,14% of the total mileage of the prescribed interstate routes was in Minnesota and that 16% of the daily plane mileage of all petitioner’s interstate planes was in that state.
Although the Minnesota statute taxing personal property directs that it shall be listed for taxation on May 1st of each year and assessed for taxation at its value on that date, Minn. Stat. 1941 § 273.01, the state taxing authorities have levied on petitioner, and the Minnesota Supreme Court and this Court have sustained, an annual tax on the full value of all its planes used in interstate commerce which have come into the state at any time during the year. It is evident that if, with the Minnesota tax now sustained, other states are left free to impose a further or comparable tax on the same property for the same tax period, a serious question is raised whether the tax is not a prohibited burden on interstate commerce.
It is no longer doubted that interstate business “must pay its way” by sustaining its fair share of the property *309tax burden which the states in which the interstate business is done may lawfully impose generally on property located within them. See Western Live Stock v. Bureau, 303 U. S. 250, 254-5 and cases cited. Obviously interstate business bears no undue part of that burden if the personal property tax imposed on it by a given state is — like a tax on real estate located there — exclusive of all other property taxes imposed by other states, as is the case with the taxation of vessels, Old Dominion S. S. Co. v. Virginia, 198 U. S. 299; Southern Pacific Ry. v. Kentucky, 222 U. S. 63 and cases cited; cf. N. Y. Central & H. R. R. Co. v. Miller, 202 U. S. 584, or if the tax on its personal property regularly used over fixed routes in interstate commerce, both within and without the taxing state, is fairly apportioned to its use within the state, as has until now been the rule as to railroad cars. Marye v. Baltimore & Ohio R. Co., 127 U. S. 117, 123-4; Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18; American Refrigerator Transit Co. v. Hall, 174 U. S. 70; Union Transit Co. v. Lynch, 177 U. S. 149; Union Transit Co. v. Kentucky, 199 U. S. 194; Germania Refining Co. v. Fuller, 245 U. S. 632; Union Tank Line Co. v. Wright, 249 U. S. 275; Johnson Oil Co. v. Oklahoma, 290 U. S. 158.
If the tax levied here were held to be exclusive of all property taxes imposed on petitioner’s airplanes by other states there could be no serious question of an undue burden on interstate commerce. That question arises now only because the rationale found necessary to support the present tax leaves other states free to impose comparable taxes on the same property used in interstate commerce which Minnesota has already taxed for the entire taxable year and at its full value.
Such, I think, is the necessary consequence of the Court’s decision and judgment now given. They do not sustain the tax on the ground that Minnesota, as the state of petitioner’s domicile, has exclusive power to tax respondent’s *310planes which pass in and out of Minnesota in performance of their interstate functions. They do not deny that the planes are constitutionally subject, to some extent, to personal property taxes by the states through which they pass. Our decisions, as will presently appear, establish that they are, and that vehicles of interstate transportation moving from the state of the owner’s domicile over regular routes within the jurisdiction of other states also acquire a tax situs there, so that, to an extent presently to be considered, they may be taxed by each of the states through which they pass. In fact the record discloses that petitioner’s interstate planes, already taxed by Minnesota for their full value, are in addition subjected to personal property taxes in six of the seven other states through which they fly.
But if petitioner’s airplanes, which are taxable for some portion of their value in each of the states in which they carry on interstate transportation over fixed routes and regular schedules, are also taxed for their full value by Minnesota, the state of the domicile, it is evident that merely because they are engaged in interstate commerce they may be subjected to multiple state taxation far in excess of their value, and far beyond any tax which any one of the states concerned could under its established system of taxation impose on vehicles whose movements are confined within its territorial limits. It js a scheme of property taxation on which, so far as the decision now rendered gives us any hint, the commerce clause sets no restriction, but which is so burdensome in its operation as compared with the taxes imposed on intrastate vehicles that few interstate carriers could support it and survive economically.
The case thus sharply presents in a new form the old question whether the commerce clause affords any protection against multiple state taxation of the physical *311facilities used in interstate transportation which, because they move from state to state, are exposed to full taxation in each, save only as the due process and commerce clauses may prevent. Although the question is new in form it is old in substance and this Court has considered it so often in other but similar relationships that the answer here seems plain.
Of controlling significance in this case are certain elementary propositions, so long accepted and applied by this Court that they cannot be said to be debatable here, although they seem not to have been taken into account in deciding this case either here or in the Minnesota Supreme Court. The first is that the constitutional basis for the state taxation of the airplanes, which are chattels, is their physical presence within the taxing state, and not the domicile of the owner. Union Transit Co. v. Kentucky, supra; Johnson Oil Co. v. Oklahoma, supra, 161-2 and cases cited. In this respect, as this Court has often pointed out, the taxation of chattels rests on a different basis than does the taxation of intangibles, which have no physical situs and may be reached by the tax gatherer only through exertion of the power of the state over the person of those who have some legal interest in the intangibles. Union Transit Co. v. Kentucky, supra, 205-6; Schwab v. Richardson, 263 U. S. 88, 92; Frick v. Pennsylvania, 268 U. S. 473, 494; Blodgett v. Silberman, 277 U. S. 1, 16-18; Wheeling Steel Corp. v. Fox, 298 U. S. 193, 209-10; Curry v. McCanless, 307 U. S. 357, 363-6; Graves v. Elliott, 307 U. S. 383; Graves v. Schmidlapp, 315 U. S. 657; State Tax Comm’n v. Aldrich, 316 U. S. 174.
A state may, within the Fourteenth Amendment, tax a chattel located within its limits, although its owner is domiciled elsewhere. Brown v. Houston, 114 U. S. 622; Coe v. Errol, 116 U. S. 517; Pullman’s Car Co. v. Pennsylvania, supra; Old Dominion S. S. Co. v. Virginia, supra. *312But due process precludes the state of the domicile from taxing it unless it is brought within that state’s boundaries. Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 341; Union Transit Co. v. Kentucky, supra; Frick v. Pennsylvania, supra, 489 et seq. It is plain then that for present purposes, and so far as the Fourteenth Amendment is concerned, respondent’s airplanes, which are chattels regularly moving over fixed interstate routes, are subject in some measure to the taxing power of every state in which they regularly stop on their interstate mission.1
In some instances it may be that vehicles of transportation moving interstate are so sporadically and irregularly present in other states that they acquire no tax situs there, Hays v. Pacific Mail S. S. Co., 17 How. 596; St. Louis v. Ferry Co., 11 Wall. 423; Morgan v. Parham, 16 Wall. 471; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409, and hence remain taxable to their full value by the state of the domicile because they are not taxable elsewhere, N. Y. Central & H. R. R. Co. v. Miller, supra; Southern Pacific Co. v. Kentucky, supra. But that is not the case as to any of the planes here involved. And our decisions establish that, except in the case of tangibles which have nowhere acquired a tax situs based on physical presence, and for that reason remain taxable at the domicile even if never present there, the state’s power to tax chattels depends *313on their physical presence and is neither added to nor subtracted from because the taxing state may or may not happen to be the state of the owner’s domicile.
We need not consider to what extent the due process clause limits the taxing power of each state through which airplanes or other vehicles of interstate transportation pass, to the taxation of part only of their value, fairly related to their use within the state, or precluded the Minnesota Supreme Court from extending to tangible property moving in more than one state the rule of Curry v. McCanless, supra, and subsequent cases, permitting full taxation of intangibles by each state having a substantial relationship to the interest taxed. For we are dealing here with tangible instrumentalities of interstate commerce, entitled as such to the protection afforded by the commerce clause from unduly burdensome state taxation, even though the tax might otherwise be within the constitutional power of the state. And it is plain, as this Court has often held, that if one state may impose a personal property tax at full value on an interstate carrier’s vehicles of transportation, and other states through which they pass may also tax them for the same tax period, the resulting tax would be destructive of the commerce by imposing on it a multiple tax burden to which intrastate carriers are not subjected.
This Court has never denied the power of the several states to impose a property tax on vehicles used in interstate transportation in the taxing state. It has recognized, as we have seen, that such instruments of interstate transportation, at least if moving over fixed routes on regular schedules, may thus acquire a tax situs in every state through which they pass. And it has met the problem of burdensome multiple taxation by the several states through which such vehicles pass by recognizing .that the due process clause or the commerce clause or both pre-*314elude each state from imposing on the interstate commerce involved an undue or inequitable share of the tax burden. In Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362, 365, we recently considered “the guiding principles for adjustment of the state’s right to secure its revenues and the nation’s duty to protect interstate transportation.” We declared that “The problem to be solved is what portion of an interstate organism may appropriately be attributed to each of the various states in which it functions.” And, in sustaining the tax, apportioned according to mileage, upon the entire property, including rolling stock, of an interstate railroad, imposed by Tennessee, the state of the owner’s domicile, in which its principal business office and over 70% of its trackage was located, we said that the state could not “use a fiscal formula ... to project the taxing power of the state plainly beyond its borders.”
This Court has accordingly held invalid state taxation of vehicles of interstate transportation unless the tax is equitably apportioned to the use of the vehicles within the state compared to their use without, whether the tax is laid by the state of the domicile or another.2 Such an *315apportionment has been sustained when made according to the mileage traveled within and without the state, Pullman’s Car Co. v. Pennsylvania, supra, 26, or the average number of vehicles within the taxing state during the tax period. Marye v. Baltimore & Ohio R. Co., supra; American Refrigerator Transit Co. v. Hall, supra, 82; Union Transit Co. v. Lynch, supra.3
But if the tax is laid without apportionment or if the apportionment, when made, is plainly inequitable so as to bear unfairly on the commerce by compelling the carrier to pay to the taxing state more than its fair share of the tax measured by the full value of the property, this Court has set aside the tax as an unconstitutional burden on interstate commerce, whether it be in form on the rolling *316stock, Union Transit Co. v. Kentucky, supra; Union Tank Line Co. v. Wright, supra; Johnson Oil Co. v. Oklahoma, supra, or on the carrier’s entire property, Fargo v. Hart, 193 U. S. 490; or on a franchise or right to do business, Allen v. Pullman’s Car Co., 191 U. S. 171; Wallace v. Hines, 253 U. S. 66; Southern Ry. Co. v. Kentucky, 274 U. S. 76; cf. Norfolk & Western R. Co. v. Pennsylvania, 136 U. S. 114.
Upon like principles this Court has consistently held that a tax laid by a state on gross receipts from interstate commerce, which is comparable to a property tax at full value on vehicles of interstate transportation, violates the commerce clause unless equitably apportioned. Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217; Oklahoma v. Wells, Fargo & Co., 223 U. S. 298; see Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 453-5; Pullman Co. v. Richardson, 261 U. S. 330, 338-9. To the same effect as to capital stock taxes, see Atchison, T. & S. F. Ry. Co. v. O’Connor, 223 U. S. 280, 285 and cases cited.
In many the tax was held invalid although imposed by the state of the domicile of the taxpayer. Philadelphia & Southern S. S. Co. v. Pennsylvania, 122 U. S. 326, 342, overruling State Tax on Railway Gross Receipts, 15 Wall. 284; Crew Levick Co. v. Pennsylvania, 245 U. S. 292; New Jersey Telephone Co. v. Tax Board, 280 U. S. 338; Fisher’s Blend Station v. Tax Commission, 297 U. S. 650; Puget Sound Co. v. Tax Commission, 302 U. S. 90; Adams Mfg. Co. v. Storen, 304 U. S. 307; Gwin, White & Prince v. Henneford, 305. U. S. 434; see Western Live Stock v. Bureau, supra. The same rule is applied to the taxation by the domicile of goods carried interstate, Case of the State Freight Tax, 15 Wall. 232; Eureka Pipe Line Co. v. Hallanan, 257 U. S. 265; and the taxation of goods in transit generally, Hughes Bros. Co. v. Minnesota, 272 U. S. 469.
*317In Galveston, H. & S. A. Ry. Co. v. Texas, supra, 228, in which a tax on gross receipts of a railway engaged in interstate commerce was condemned because not apportioned, the Court declared, “Of course, it does not matter that the plaintiffs in error are domestic corporations.” The like rule, applied to the taxation by the state of the owner’s domicile of railroad property, including rolling stock, was approved in Nashville, C. & St. L. Ry. v. Browning, supra. And in Bacon v. Illinois, 227 U. S. 504, 511-12, the Court was at pains to point out that the power of a state to tax goods in transit is not affected by the fact that it is or is not the domicile of the owner. These cases clearly establish that, whatever relevance domicile may at times have to the power of a state under the due process clause to tax tangibles, it has none to the question whether the exercise of that power so burdens interstate commerce as to violate the commerce clause.
It cannot be said either in point of practicality or of legal theory that anything is added to Minnesota’s power to tax by reason of the fact that all of petitioner’s aircraft are registered with the Civil Aeronautics Authority with St. Paul, Minnesota, designated as their “home port.” Section 501 of the Civil Aeronautics Act, 52 Stat. 1005, 49 U. S. C. § 521, requiring the registration with the Authority of aircraft, merely provides that a certificate of registration “shall be conclusive evidence of nationality for international purposes.” Neither the statute nor the regulations adopted under it attach any other consequences to the registration of airplanes at a particular “home port.” The much more detailed provisions of R. S. §§ 4141, 4178 as amended, requiring registration of vessels at a particular home port and the painting of the name of that port on the stern of the vessel, have been held irrelevant to state power to tax, even though the port of enrollment is also one at which the vessel regularly calls, St. *318Louis v. Ferry Co., supra; Ayer & Lord Tie Co. v. Kentucky, supra; see Southern Pacific Co. v. Kentucky, supra, 68, 73.
Nor is it of any significance for tax purposes whether Minnesota is “as a business fact the home state of the fleet.” While the existence of a business domicile has been thought to afford a basis for the state taxation of intangibles, on the theory that they have become localized there, Wheeling Steel Corp. v. Fox, supra, 211 et seq., the constitutional bases for the taxation of tangibles and of intangibles are, as we have seen, quite different, and under our decisions, to which we have referred, the only basis for the taxation of tangibles is their physical presence in the taxing jurisdiction. And even the taxation of intangibles of interstate carriers is subject to the rule of apportionment wherever the tax without it would subject the commerce to the burden of multiple state taxation. The “unit rule” for the taxation of interstate carriers applies to tangibles and intangibles alike and requires an equitable apportionment of the tax on both. Adams Express Co. v. Ohio, 165 U. S. 194, 222, 226; 166 U. S. 185, 223-4, 225; Fargo v. Hart, supra, 499; Oklahoma v. Wells Fargo & Co., supra, 300; Wallace v. Hines, supra, 69-70; Southern Ry. Co. v. Kentucky, supra, 81.
Moreover, the difficulties of applying to aircraft a rule of taxation at a “home port” are essentially those which have led, long since, to the abandonment of the idea by this Court as applied to vessels. Compare St. Louis v. Ferry Co., supra; Ayer & Lord Tie Co. v. Kentucky, supra. While it appears from the present record that petitioner maintains at St. Paul, Minnesota, its airplane and engine overhauling base, at which the principal repairs to planes and engines are made, it also operates maintenance bases at Chicago, Illinois, Minneapolis, Minnesota, Fargo, North Dakota, Billings, Montana, and Spokane and Seattle, *319Washington, at which points it maintains crews of mechanics and maintenance equipment. It owns and leases hangars and office space at all of its stopping points, each of which are manned by its employees. On the tax day, May 1, 1939, petitioner’s planes made no scheduled stop in St. Paul. Thus a number of states have a physical relationship to petitioner’s business — by reason of the movement of planes, over the fixed routes, the landing of planes, the maintenance and operation of repair and service equipment, landing fields, hangars, and office buildings, with their attendant employees — which, for practical purposes, is as substantial in nature as that claimed for Minnesota.
Even if we could say on this record that Minnesota and it alone can be regarded as the “home state,” we have no assurance that in taxing planes operated by other and more complex business organizations, one state will have any greater claim to that designation than several others, and the Court’s opinion furnishes no test to guide in the choice among them, if choice has any relevance. Nor does it say that the power to tax vehicles of interstate transportation at the domicile or the “home port” is exclusive. Obviously, unless it is deemed to be thus exclusive it does not foreclose any state within which the planes move on fixed routes from imposing a like tax burden. And if it is deemed to be exclusive the other states must be denied their just claims to collect an equitable tax on property regularly used within them in carrying on an interstate business. North Dakota, for instance, in taxing the planes regularly landing within its borders, is not taxing rights originating in and safeguarded by Minnesota, or exercising any rights attributable to Minnesota. No reason appears why North Dakota should be denied the right to tax the planes to the extent that they are within its borders, or why, to that extent, Minnesota *320has any relationship to them sufficient either to enable it to tax them or to preclude North Dakota from taxing them.
The taxation of vehicles of interstate transportation in a business organized and conducted as is petitioner’s is as capable of apportionment, and the insupportable multiple tax burden on interstate commerce is as readily avoided by apportionment of the tax, as in the case of the taxation of tangible and intangible property of railroads, railroad car supply companies, express companies, and the like which we have repeatedly held to be subject to the rule of apportionment. To refuse now to apply the rule of apportionment to petitioner’s airplanes, after a half century of its application by this Court as the means of avoiding prohibited multiple state tax burdens on vehicles of interstate transportation; to extend to airplanes moving interstate over fixed routes on regular schedules, the rule that intangibles may be taxed at the business domicile whether or not taxed elsewhere; and to revive the abandoned doctrine that vessels may be taxed in full at their home port, while rejecting the correlative rule that they are exempt from taxation elsewhere, is to disregard the teachings of experience and of precedent. It subjects a new and important industry to state tax burdens, essentially discriminatory in their effect on interstate commerce, to which other interstate carriers are not subject and which it was the very purpose of the commerce clause to avoid.
Respondent places its reliance on N. Y. Central & H. R. R. Co. v. Miller, supra. There the Court sustained a franchise tax by the state of domicile including in its measure the full value of freight cars moving in and out of the state, often out of the taxpayer’s possession for an indefinite time, and moving in the service of other roads on their independent business. The decision proceeded on the assumption, not tenable here but which the facts of that case were thought to support, that the cars were not *321shown to have moved so regularly or continuously in any state or group of states outside the domicile as to gain a tax situs there. The Court in distinguishing the case from Pullman’s Car Co. v. Pennsylvania, supra, which sustained a state tax on a foreign railroad corporation, measured by the intrastate mileage of cars passing in and out of the taxing state, said (pp. 597-8):
“But in that case it was found that the ‘cars used in this State have, during all the time for which tax is charged, been running into, through and out of the State.’ The same cars were continuously receiving the protection of the State, and, therefore, it was just that the State should tax a proportion of them. Whether if the same amount of protection had been received in respect of constantly changing cars the same principle would have applied was not decided, and it is not necessary to decide now. In the present case, however, it does not appear that any specific cars or any average of cars was so continuously in any other State as to be taxable there. The absences relied on were not in the course of travel upon fixed routes but random excursions of casually chosen cars, determined by the varying orders of particular shippers and the arbitrary convenience of other roads. Therefore we need not consider either whether there is any necessary parallelism between liability elsewhere and immunity at home.”
The present case raises the question which the Miller case found it unnecessary to decide but which this Court has consistently answered by requiring the apportionment of a tax on vehicles of interstate transportation according to their regular use within and without the taxing state. In the Miller case it appeared that the cars moved not only over the carrier’s own tracks, but also were interchanged with other railroads, and thus, as the Court pointed out, moved about almost at random throughout the United States. No evidence was offered tending to show in what states the cars moved, or with what degree *322of regularity they were present m any particular state or group of states other than New York. The Court was thus not called upon to consider whether New York could tax the cars if they moved between New York and other named states with such regularity that an “average of cars” could be said to be continuously so moving in those other states. Here, on the other hand, it is stipulated and found that all of petitioner’s planes are “continuously engaged in flying from state to state in the course of [petitioner’s] operations” and that those operations are on regular schedules along fixed routes through eight states. The total mileage of regular routes and the total daily mileage on those routes both in Minnesota and outside are definitely stipulated and found. Hence there is no warrant for saying that their presence in each of the states through which they pass is not as regular and continuous in nature as it is in Minnesota. These findings establish that, while no particular plane is permanently within any state, its planes are continuously flying in, and an average number or a percentage of the total is regularly, i. e., “permanently” within, each of the states through which they pass. Here, as was the case in Pullman’s Car Co. v. Pennsylvania, supra, the same planes are “running into, through, and out of” each of the states along petitioner’s routes and an “average” of planes is continuously within each of those states.4
*323We are not now concerned with the proper apportionment of taxable values among the states outside the state of Minnesota. Since the movement of the planes, wherever they go, is over fixed routes and on regular schedules, they acquire a tax situs outside Minnesota to the extent that they do not move within it. Hence the extent to which they move in and are taxable by one state outside Minnesota rather than another is irrelevant. It is enough that the Minnesota tax is for fuE value and that Minnesota’s fiscal formula imposes a prohibited burden on interstate commerce because it is used “to project the tax power of the state plainly beyond its borders,” to reach instruments of interstate commerce which are taxable elsewhere, and that the extent of that projection may be measured by comparing either the plane or the *324route mileage over fixed routes in Minnesota with like mileage over fixed routes in the states outside Minnesota.
Both before and since the Miller case this Court has ruled that vehicles of interstate transportation regularly-moving to and from the state of domicile from and to other states acquire a tax situs in the latter, and that the state of domicile cannot constitutionally levy on them an unapportioned property tax. Union Transit Co. v. Kentucky, supra; Johnson Oil Co. v. Oklahoma, supra; Nashville, C. & St. L. Ry. v. Browning, supra. In Johnson Oil Co. v. Oklahoma, supra, 161-2, where the cars moved from and to Oklahoma to and from various states including Illinois, the state of domicile, we declared that the cars had acquired a tax situs outside Illinois and were to that extent not taxable by Illinois. The court rested its decision on the rule, stated without qualification, that “When a fleet of cars is habitually employed in several States — the individual cars constantly running in and out of each State — it cannot be said that any one of the States is entitled to tax the entire number of cars regardless of their use in other States.” 5 Those cases should control *325now. For here we are confronted with a scheme of taxation imposed on vehicles of interstate transportation located within the taxing state for only a limited and specified part of their active life. For the rest, they are in other states, moving over fixed routes of travel where, under our decisions, they plainly have a tax situs, and where they are in fact taxed in six of the seven states other than Minnesota through which they pass.
The tax now sustained is so obviously disproportionate to the protection afforded to the taxed property by the taxing state as to place a constitutionally intolerable burden on interstate commerce. But it is a burden which is capable of equitable adjustment which would satisfy constitutional requirements by the application of the principles of apportionment which this Court has repeatedly sanctioned, and which it is the constitutional duty of the State of Minnesota to apply. The application of these principles does not call for mathematical exactness nor for the rigid application of a particular formula; only if the resulting valuation is palpably excessive will it be set aside. But a reasonable attempt must be made to tax only so much of the value as is fairly related to use within the taxing state. Union Tank Line Co. v. Wright, supra, 282; Great Northern Ry. v. Weeks, supra, 144; Nashville, C. & St. L. Ry. v. Browning, supra, 365.
*326It is no answer to suggest that the states other than Minnesota have not asserted their constitutional power to tax or that we do not know how or to what extent they have exercised it. The extent to which one state may constitutionally tax the instruments of interstate transportation does not depend on what other states may happen to do, but on what the taxing state has constitutional power to do. The jurisdiction of Minnesota to tax “must be determined on a basis which is consistent with the like jurisdiction of other States.” Johnson Oil Co. v. Oklahoma, supra, 162. Minnesota cannot justify its imposition of an undue proportion of the total tax burden which can be imposed on an interstate carrier by saying that other states have taken or may take less than their share of the tax. It is enough that the tax exposes petitioner to “the risk of a multiple burden to which local commerce is not exposed,” Adams Mfg. Co. v. Storen, supra, 311; Gwin, White & Prince v. Henneford, supra, 439, and cases cited. To hold otherwise would be to measure Minnesota’s power to tax, not by constitutional standards, but by the action of other states over which neither Minnesota nor petitioner has any control and to leave petitioner’s tax to be measured from year to year, not according to any legal standard, but by the unpredictable uncontrolled action of other states.
The judgment should be reversed and the case remanded for further proceedings in the course of which the state court would be free, if so advised, to inquire to what extent, if at all, the tax may, in harmony with state law, be apportioned in conformity to principles heretofore announced by this Court, and to that extent sustained.
Mr. Justice Roberts, Mr. Justice Reed, and Mr. Justice Rutledge join in this dissent.We need not consider here whether the jurisdiction of a state over air above it — as distinguished from the control of a private landowner over air above his land — affords a basis for taxation of planes which regularly fly over the state but do not regularly land within its borders. For in six of the seven states, other than Minnesota, over which petitioner’s airplanes regularly fly, they also make regular scheduled landings. Plainly those states have jurisdiction to tax a proportionate part of their value and to that extent the judgment of the Minnesota Supreme Court, permitting taxation in full by the domicile, is erroneous, and the cause should be remanded for further proceedings.
The rule, generally applied, that vessels are taxable only by the domicile, Hays v. Pacific Mail S. S. Co., 17 How. 596, 597; St. Louis v. Ferry Co., 11 Wall. 423, 430, 431-2; Morgan v. Parham, 16 Wall. 471, 475; Transportation Co. v. Wheeling, 99 U. S. 273, 279-80; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409, 421; Southern Pacific Co. v. Kentucky, 222 U. S. 63, 68, 69, 77, is no exception to these rules. For vessels ordinarily move on the high seas, outside the jurisdiction of any state, and merely touch briefly at ports within a state. Hence they acquire no tax situs in any of the states at which they touch port, and are taxable by the domicile or not at all. See Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18, 23; Southern Pacific Co. v. Kentucky, supra, 75. The suggestion in the earlier cases, see Hays v. Pacific Mail S. S. Co., supra, 600; St. Louis v. Ferry Co., supra; Morgan v. Parham, supra, that vessels were to be taxed exclusively at the home port, whether or not it was the domicile, was rejected in Ayer & Lord Tie Co. v. Kentucky, supra, and Southern *315Pacific Co. v. Kentucky, supra, and has never been revived. But where the vessels operate wholly on waters within one state, they have been held to be taxable there, Old Dominion S. S. Co. v. Virginia, 198 U. S. 299, and not at the domicile, Southern Pacific Co. v. Kentucky, supra, 67, 72, a result which, like the rule of apportionment in taxing railroad cars, avoids the burden of multiple taxation.
Similarly taxes by the state of domicile or other states on the carrier’s entire property including rolling stock have been sustained if apportioned according to mileage, Pittsburgh, C., C. & St. L. Ry. Co. v. Backus, 154 U. S. 421; Adams Express Co. v. Ohio, 165 U. S. 194, 166 U. S. 185; American Express Co. v. Indiana, 165 U. S. 255; Adams Express Co. v. Kentucky, 166 U. S. 171; Wells, Fargo & Co. v. Nevada, 248 U. S. 165; St. Louis & E. St. L. Ry. Co. v. Hagerman, 256 U. S. 314; Southern Ry. Co. v. Watts, 260 U. S. 519; Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362, or a combination of relevant factors, Rowley v. Chicago & N. W. Ry. Co., 293 U. S. 102; Great Northern Ry. Co. v. Weeks, 297 U. S. 135. Likewise gross receipts taxes, if properly apportioned or otherwise limited to receipts from business done within the state, have been upheld, Erie Ry. Co. v. Pennsylvania, 21 Wall. 492; Maine v. Grand Trunk Ry. Co., 142 U. S. 217, as explained in Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 226; United States Express Co. v. Minnesota, 223 U. S. 335; Cudahy Packing Co. v. Minnesota, 246 U. S. 450; Pullman Co. v. Richardson, 261 U. S. 330; cf. New York, L. E. & W. R. Co. v. Pennsylvania, 158 U. S. 431.
It is true that here there is no evidence of the average number of planes present within Minnesota or any other state during the tax year. But where the movement through the state is regular and continuous, as it is here and was not in the Miller case, apportionment may be made by showing the plane mileage or route mileage within and without the state. Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18; Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362, and cases cited.. The Minnesota court here did not rest its decision on the ground that petitioner had sought to apportion by mileage instead of by average number of cars, and had introduced no evidence to support the latter type of apportionment. If it had it might well have *323remanded the cause to permit any deficiencies of proof to be remedied. It held rather that regardless of the nature of proof of apportionment Minnesota, as the state of the domicile, could tax the cars for their entire value.
In this respect also the ease is unlike the Miller case. There, as the record reveals, the carrier’s evidence showed only the car mileage within and without the state, and its owned track mileage within and without the state. But since the cars moved over irregular routes without fixed schedules, car mileage afforded no basis of apportionment, without proof also that the cars were present in particular states with sufficient regularity to acquire a tax situs there. Owned track mileage likewise failed to afford a basis of apportionment, in the absence of some proof that the tracks were regularly used by the cars in question. Nor did the carrier lack opportunity to make fuller proof. The cause as it came here involved five successive tax years, as to each of which the carrier was afforded a hearing with opportunity to introduce evidence. The carrier having failed despite this repeated opportunity to introduce evidence which would, on any theory of apportionment, support a conclusion that any particular proportion of cars had acquired a tax situs elsewhere, this Court, as it pointed out, was not called upon to apply the rule of Pullman’s Car Co. v. Pennsylvania, supra, or to consider whether, consistently with the commerce clause, property used as an instrumentality of commerce may be subjected to the risk of double taxation.
In Union Transit Co. v. Kentucky, 199 U. S. 194, it appeared that the cars of the Transit Company, the taxpayer, moved in and out of Kentucky, the state of domicile. The Transit Company disclaimed on the record any effort to prove that it had any cars which never came within the state, and sought to establish the number “permanently located” outside it only by proof of gross earnings within and without the state. In holding that the state of domicile could not tax tangible personal property “permanently located in other states” (p. 201), it is clear that the Court was limiting the taxing power of the state of domicile to the extent that the cars moving between Kentucky and other states had, under the rule of apportionment, gained a tax situs outside the state because they were “located and employed” there (p. 211). This is evident from its citation (p. 206) of Pullman’s Car Co. v. Pennslyvania, 141 U. S. 18, and American Refrigerator Transit Co. v. Hall, 174 U. S. 70, as cases involving property “permanently located” in the taxing states. Both cases in*325volved rolling stock continuously moving into and out of the taxing state and sustained taxes upon a proportion of the carrier’s total rolling stock based respectively upon the track mileage or upon the average number of cars used within the taxing state. Had the Court intended to exempt, from the domicile’s power to tax, only property which never came into the domicile it would have been necessary for it to discuss also the contention that the Union Transit Company had been denied the equal protection of the laws because railroads were taxed only upon the value of their rolling stock used within the state determined by the proportionate mileage within the state (pp. 202, 211).