I dissent.
Neither the due process clause nor the commerce clause nor the tonnage clause of the United States Constitution precludes state taxation on an apportioned basis of aircraft flown in interstate commerce. (Braniff Airways v. Nebraska State Board of Equalization, 347 U.S. 590, 600 [74 S.Ct. 957, 98 L.Ed. 967] ; see also Flying Tiger Line, Inc. v. County of Los Angeles, 51 Cal.2d 314, 318 [333 P.2d 323].) They do not preclude equivalent taxation of aircraft owned by foreign domiciliaries flown in foreign commerce.
“So far as due process is concerned the only question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing State. [Citation.] Those requirements are satisfied if the tax is fairly apportioned to the commerce carried on within the State.” (Ott v. Mississippi etc. Barge Line, supra, 336 U.S. 169, 174; Braniff Airways v. Nebraska State Board of Equalization, supra, 347 U.S. 590, 600.) Since plaintiff’s relationship to California is no different from that of airlines *44engaged solely in interstate commerce, and since the “opportunities, benefits, or protection conferred or afforded” are not affected by the locations of plaintiff’s out-of-state termini, the due process clause does not preclude the taxation of its aircraft.
Nor does the commerce clause or the tonnage clause exempt the instrumentalities of foreign commerce from state ad valorem property taxes. (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 206 [5 S.Ct. 826, 29 L.Ed. 158]; Old Dominion Steamship Co. v. Virginia, 198 U.S. 299, 305-306 [25 S.Ct. 686, 49 L.Ed. 1059] ; Pullman’s Palace Car Co. v. Pennsylvania, 141 U.S. 18, 22-23 [11 S.Ct. 876, 35 L.Ed. 613] ; see also Wheeling etc. Transportation Co. v. Wheeling, 99 U.S. 273, 279-280 [25 L.Ed. 412].) Once their situs is determined, a state may apply its own tax rate and collection procedures. It is idle here to discuss the pros and cons of national uniformity. It could be achieved only if the states were declared powerless to tax instrumentalities of foreign commerce at all or were empowered to tax them only pursuant to federal legislation.
The issue is whether there is discrimination against foreign commerce. Obviously there is no discrimination if a state taxes migratory property used in such commerce in the same way it taxes migratory property used in interstate commerce. Moreover, it precludes discrimination against interstate commerce. Plaintiff nevertheless contends that since the United States Supreme Court cannot compel foreign countries to apportion their taxes by taking into account the absences from home of their domiciliarles’ migratory property, taxation here even on an apportioned basis may lead to discriminatory cumulative burdens on foreign commerce. This argument erroneously attributes to such taxation the risk of discrimination. Actually it is attributable to the freedom of foreign countries, not permitted to. our own states, to adopt rules of their own that can result in multiple burdens. The court cannot prevent foreign countries from taxing instrumentalities of foreign commerce owned by their domiciliaries even if those instrumentalities are permanently located here, just as it cannot prevent foreign countries from taxing American aircraft temporarily abroad even though they have been taxed at full value at the domicile of their owners here. It is without power to compel independent nations to adopt a uniform *45nondiscriminatory system of taxation. It does not follow that the states must forego the power to impose taxes that are not in themselves discriminatory. It hears noting that Congress remains free to prohibit altogether state taxation of instrumentalities of foreign commerce. Alternatively, treaties could govern such taxation to preclude the risk of discrimination.
Plaintiff also contends that for purposes of ad valorem taxation, aircraft flying in foreign commerce are logically indistinguishable from ships sailing the high seas and hence taxable only at the domicile of their owners. When the home-port rule was formulated for the taxation of ships in interstate as well as foreign commerce, there had yet to be developed the concept of taxation on an apportioned basis. (See Ott v. Mississippi etc. Barge Line, 336 U.S. 169, 173 [69 S.Ct. 432, 93 L.Ed. 585]; Ayer & Lord Co. v. Kentucky, 202 U.S. 409, 421 [26 S.Ct. 679, 50 L.Ed. 1082]; Southern Pacific Co. v. Kentucky, 222 U.S. 63, 69 [32 S.Ct. 13, 56 L.Ed. 96]; St. Louis v. Wiggins Ferry Co., 11 Wall. (U.S.) 423, 431-432 [20 L.Ed. 192] ; Morgan v. Parham, 16 Wall. (U.S.) 471, 478 [21 L.Ed. 303] ; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 206 [5 S.Ct. 826, 29 L.Ed. 158]; Hays v. Pacific Mail Steamship Co., 17 How. (U.S.) 596, 597-599 [15 L.Ed. 254] ; Old Dominion Steamship Co. v. Virginia, 198 U.S. 299, 305 [25 S.Ct. 686, 49 L.Ed. 1059].) The rule was abandoned in favor of apportioned taxes as to vessels plying inland waters in Ott v. Mississippi etc. Barge Line, 336 U.S. 169 [69 S.Ct. 432, 93 L.Ed. 585], (See also Standard Oil Co. v. Peck, 342 U.S. 382, 384 [72 S.Ct. 309, 96 L.Ed. 427, 26 A.L.R2d 1371].) In leaving open the question of ocean carriage, the court in no way suggested that the taxation of either ocean carriage or inland carriage would depend upon whether it was interstate or foreign commerce. Thereafter, in Braniff Airways, Inc. v. Nebraska State Board of Equalization, 347 U.S. 590 [74 S.Ct. 757, 98 L.Ed. 967], when the analogy between the high seas bordering the nation and the airspace above the nation was urged against apportioned taxation of aircraft, the court nevertheless held that aircraft flying in interstate commerce could be taxed on an apportioned basis. This court adopted the same rule with respect to aircraft flying in foreign commerce in Flying Tiger Line, Inc. v. County of Los Angeles, 51 Cal.2d 314 [333 P.2d 323]. (See also Slick Airways v. County of Los Angeles, 140 Cal.App.2d 311, 315 [295 P.2d 46].)
*46In the Flying Tiger ease all members of the court agreed that aircraft flying in foreign commerce could not be taxed at full value at the domicile of the owner in California if they also had attained a taxable situs elsewhere. In contrast, the majority in the present case invoke the home-port doctrine for the conclusion that aircraft regularly flying into California from the foreign domiciles of their owners attain no taxable situs here and that taxation on an apportioned basis is therefore unconstitutional. Rationally, however, the home-port doctrine should apply to all aircraft regularly flying in foreign commerce or to none. If the home-port doctrine is applicable to all aircraft regularly flying in foreign commerce, the Flying Tiger case must be overruled.
The Braniff case broke away from the home-port doctrine when it upheld an apportioned tax on aircraft flown in interstate commerce. There is no more reason to invoke the doctrine for aircraft regularly flying in foreign commerce and bearing an identical relationship to the nondomiciliary state into which they fly. If as plaintiff contends, aircraft cannot logically be distinguished from ships, it is the home-port doctrine, not the Braniff decision, that must give way.
Plaintiff contends, further, that the treaties between the United States and the Scandinavian countries with respect to double taxation preclude ad valorem property taxation of its aircraft in California. (See Convention and protocol between the United States of America and Sweden respecting double taxation, dated March 23, 1939, ratified August 2, 1939, proclaimed December 12, 1939, and effective January 1, 1940, 54 Stat. 1759, T.S. No. 958, 199 L.N.T.S. 17; Convention between the United States of America and Denmark respecting double taxation, dated May 6, 1948, and effective December 1, 1948, 62 Stat. 1730, T.I.A.S. No. 1854; Convention between the United States of America and the Kingdom of Norway for the avoidance of double taxation, dated June 13, 1949, 2 U.S.T. [1951] pt. 2, p. 2323, T.I.A.S. No. 2357; 2 U.S.T. [1951] pt. 2, p. 2353, T.I.A.S. No. 2358.) It notes that each treaty provides that income from the operation of aircraft shall be taxed only in the home country of such aircraft (Treaty with Denmark, art. V; Treaty with Norway, art. V; Treaty with Sweden, art. IV). It contends that this policy of reciprocity on taxation of income connotes a like reciprocity as to local property taxation. There is no merit in plaintiff’s contention. The draftsmen of the treaties were *47familiar with both national and local taxation of property as well as of income (Treaty with Sweden, art I; Treaty with Denmark, arts. I, XVI; Treaty with Norway, art. I), and they carefully specified the taxes to which the treaties applied and the limitations on the taxing powers of the respective nations. Under these circumstances it is not reasonable to infer that restrictions on income taxation connoted restrictions on property taxation; such an inference would require reading provisions into the treaties that were knowingly omitted.
It is contended, however, that article XIII of the Swedish treaty makes the rule governing income taxation applicable to the property taxes imposed on the Swedish-owned aircraft in this ease. Article XIII provides:
“In the case of taxes on property or increment of property the following provisions shall be applicable:
“(1) If the property consists of: (a) Immovable property and accessories appertaining thereto; (b) Commercial or industrial enterprises, including maritime shipping and air transport undertakings; the tax may be levied only in that contracting State which is entitled under the preceding Articles to tax the income from such property.
“(2) In the ease of all other forms of property, the tax may be levied only in that contracting State where the taxpayer has his residence or, in the case of a corporation or other entity, in the contracting State where the corporation or other entity has been created or organized.
‘ The same principles shall apply to the United States capital stock tax with respect to corporations of Sweden having capital or other property in the United States of America.” Article XIII must be read together with article I, which provides:
“The taxes referred to in this Convention are:
“ (a) In the case of the United States of America: (1) The Federal income taxes, including surtaxes and excess-profit taxes. (2) The Federal capital stock tax.
“(b) In the case of Sweden: (1) The National income and property tax, including surtax. (2) The National special property tax. (3) The communal income tax.
“It is mutually agreed that the present Convention shall also apply to any other or additional taxes imposed by either contracting State, subsequent to the date of signature of this Convention, upon substantially the same bases as the taxes enumerated herein. ...”
*48Article I thus excludes local property taxation in the United States from the ambit of the treaty and makes clear, as the Senate Foreign Relations Committee stated in urging ratification of the treaty, that “the United States makes no agreement respecting any of our State or local taxes.” (Report of the Senate Foreign Relations Com., Exec. Rep. No. 18, 76th Cong., 1st Sess. 1939; see also Bittker and Ebb, Taxation of Foreign Income [1960], p. 512.) Had it been the intention to include such taxes, they would have been specifically mentioned as were the Swedish national property taxes and communal income tax. A matter so vital as restrictions on the taxing power of the states and their subdivisions would hardly have been left to implication from the provisions of article XIII, which are directly referable to Swedish property taxes and the United States capital stock tax.
An interpretation of article XIII as applicable only to the taxes defined in article I does not render the general language of article XIII governing property taxation meaningless insofar as the United States is concerned, for that language states the principles that shall also apply to the United States capital stock tax or “any other or additional taxes imposed by [the United States] . . . subsequent to the date of signature of this Convention, upon substantially the same bases. . . .” (Art. I.) Such an interpretation gives effect to both articles and avoids conflict between them. (See City of Long Beach v. Vickers, 55 Cal.2d 153, 162 [10 Cal.Rptr. 359, 358 P.2d 687]; Hough v. McCarthy, 54 Cal.2d 273, 279 [353 P.2d 276].)
Finally, plaintiff contends that the Legislature has not provided for the taxation of aircraft on an apportioned basis. Section 404 of the Revenue and Taxation Code provides that “All taxable property, except State assessed property, shall be assessed by the assessing agency of the taxing agency where the property is situated.” (See also Rev. & Tax Code, §§ 201, 405.) The word “situated” in this section refers not to mere physical presence on tax day, but to the situs of property within the state necessary to give jurisdiction to tax. (Brock & Co. v. Board of Supervisors, 8 Cal.2d 286, 289-290 [65 P.2d 791, 110 A.L.R. 700].) Since a properly apportioned part of migratory property regularly used in interstate or foreign commerce in the state has such a situs, the Legislature has provided for its assessment and taxation. (See Flying Tiger Line, Inc. v. County of Los Angeles, 51 *49Cal.2d 314 [333 P.2d 323]; Slick Airways v. County of Los Angeles, 140 Cal.App.2d 311 [295 P.2d 46].)
It bears emphasis that this ease involves, not the wisdom of local taxation of foreign aircraft flying in foreign commerce, but the question whether the United States Constitution prohibits a state from taxing such aircraft as it taxes other property that comes into the state. When, as here, there is no such constitutional prohibition, this court has no choice but to uphold the state constitution and statutes. It is not for us to determine whether reciprocal exemptions away from home and exclusive taxation at the domicile would foster commerce, simplify tax administration, and fairly divide tax revenues among the jurisdictions that aircraft link. Such a decision involves policies that properly can be crystallized only in legislation or treaties. A court ventures beyond its appropriate bounds when it- crystallizes its own views of tax policy as constitutional doctrine.
Gibson, C. J., concurred.