concurring and dissenting.
While I agree with the results reached by the majority in American Trucking I, No. 11 M.D.Appeal Docket 1985, and American Trucking III, No. 19 M.D.Appeal Docket 1985, I believe the analysis employed by the majority in American Trucking II, No. 12 M.D.Appeal Docket 1985, reflects less than a full comprehension of the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3.
The basic purpose of the Commerce Clause is to prohibit a state from taxing interstate commerce in a manner which discriminates against interstate commerce “by providing a direct commercial advantage to local business.” Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 362, 3 L.Ed.2d 421 (1959). It is thus necessary to examine the Axle Tax for Highway Bridge Improvement Act (“Axle Tax”), Act of December 8, 1982, P.L. 842, No. 234, 75 Pa.C.S. §§ 9901 et seq. (“Act 234”), to determine whether it discriminates in favor of local interests to the derogation of the free flow of interstate commerce.
As recognized by the majority, the seminal case setting forth the mode of analysis under the Commerce Clause is Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). In that case the Supreme Court overruled a series of cases which had held that any state tax on “the privilege of doing business” imposed on a multi-state business was per se unconstitutional. See, e.g., Spector Motor Service, Inc. v. O’Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573 (1951); Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265 (1946). The Court favored an approach which looked to the practical effect of the challenged state tax statute. Complete Auto Transit, Inc. v. Brady, supra 430 U.S. at 279, 97 S.Ct. at 1079. Under this approach a tax is sustained against a Commerce Clause *466challenge when it (1) is applied to an activity with a substantial nexus with the taxing state, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services provided by the state. Id. See also Maryland v. Louisiana, 451 U.S. 725, 754, 101 S.Ct. 2114, 2133, 68 L.Ed.2d 576 (1981), citing Washington Revenue Dept. v. Washington Stevedoring Assn., 435 U.S. 734, 750, 98 S.Ct. 1388, 1399, 55 L.Ed.2d 682 (1978).
It is only when all four conditions of Complete Auto Transit, Inc. v. Brady, supra, are met that a state tax is not per se invalid because it burdens interstate commerce, since interstate commerce may constitutionally be made to pay its way. Maryland v. Louisiana, supra 451 U.S. at 754, 101 S.Ct. at 2133. As stated in Maryland:
A state tax must be assessed in light of its actual effect considered in conjunction with other provisions of the State’s tax scheme. “In each case it is our duty to determine whether the statute under attack, whatever its name may be, will in its practical operation work discrimination against interstate commerce.” Best & Co. v. Maxwell, 311 U.S. 454, 455-456 [61 S.Ct. 334, 335, 85 L.Ed. 275] (1940). See Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 69 [83 S.Ct. 1201, 1203, 10 L.Ed.2d 202] (1963); Gregg Dyeing Co. v. Query, 286 U.S. 472, 478-480 [52 S.Ct. 631, 633-635, 76 L.Ed. 1232] (1932).
Maryland v. Louisiana, supra, 451 U.S. at 756, 101 S.Ct. at 2134.
This standard was succinctly phrased by the Commonwealth Court in American Trucking II, 87 Pa.Commw. 379, 487 A.2d 465 (1985):
Commerce Clause jurisprudence distinguishes between two types of legislation: (1) protectionist measures that are infused with discriminatory purpose or effect and (2) facially neutral acts that regulate evenhandedly to promote legitimate local interests, with incidental effects on interstate commerce. See Philadelphia v. New Jersey, 437 U.S. 617, 624 [98 S.Ct. 2531, 2535, 57 L.Ed.2d 475] (1978). Economic protectionist legislation is subject to a *467“virtually per se rule of invalidity,” while a facially neutral measure is invalidated whenever burdens on interstate commerce clearly outweigh putative local benefits. Id.
Id. 87 Pa.Commw. at 382, 487 A.2d at 467.
It is therefore incumbent upon the reviewing court to determine whether the challenged statute, in practical operation, works discrimination against interstate commerce in purpose or effect.
Turning to the statute challenged in American Trucking II, I believe the majority incorrectly focuses upon the plethora of rationalizations submitted in support of the Axle Tax rather than the practical operation of the Axle Tax itself. Section 3 of Act 234 assessed a maximum tax of thirty-six (36) dollars per axle against both foreign-registered and Pennsylvania-registered motor carrier vehicles that travel at least two thousand (2000) miles annually in Pennsylvania having a gross weight or registered gross weight in excess of twenty-six thousand (26,000) pounds. Section 1 of Act 234, however, simultaneously amended section 1916(a) of the Vehicle Code, 75 Pa.C.S. § 1916(a), and beginning with the weight class upon which the Axle Tax is first imposed (twenty-six thousand (26,000) pounds), reduced the annual Pennsylvania truck registration fees in multiples of thirty-six (36) dollars.1
*468The Commonwealth Court found that “[w]hile Section 3 of Act 234 assesses an Axle Tax against all designated vehicles operating in Pennsylvania, Section 1 of Act 234, by authorizing comparable registration fee reductions, negates or mitigates the financial impact of the Axle Tax on Pennsylvania-registered vehicles.” See American Trucking II, supra at 382, 487 A.2d at 467. The court concluded that Act 234 amounted to economic protectionist legislation which facially discriminated against interstate commerce. Id., quoting Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978); Maryland v. Louisiana, supra. I agree.
Appellants concede the unequal financial impact of Act 234. Appellants’ Brief at 12. The primary thrust of appellants’ argument is that the legislative purpose behind Act 234 was to effect a rational restructuring of Pennsylvania’s highway user charges. Id. at 17-18. Appellants place great weight upon the fact that Act 234 impacts the most upon those vehicles which have in the past not paid any Pennsylvania registration fees, i.e., out-of-state vehicles not participating in the IRP program. Id. at 16-17. Appellants also argue that both before and after the enactment of Act 234, Pennsylvania registered trucks pay more money to *469Pennsylvania for the privilege of using its roads then do vehicles registered elsewhere. Id. at 19. Additionally, appellants contend that the restructuring effected by Act 234 will attract more vehicle registration in Pennsylvania. Id. at 20. Nevertheless, as the following Commerce Clause analysis as set forth by decisions of the United States Supreme Court demonstrates, appellants’ factual assertions as to the purpose of Act 234 do not raise that act, which on its face discriminates against interstate commerce, to a level of constitutionality.
The basic fallacy of the majority’s analysis is its acceptance of appellants’ premise that the legislative purpose of Act 234 was to restructure Pennsylvania’s highway user charges. It is notable, however, that there is nothing in the statute itself or in the circumstances surrounding the enactment of Act 234 which adds legitimacy to appellants’ position that it was designed to restructure the tax burden upon the trucking industry in this Commonwealth. In fact, the legislature expressed a clearly parochial purpose, the rehiring of Pennsylvania’s unemployed, for the enactment of the Axle Tax. Section 9907(b) of the tax states:
(b) Purpose of tax. — It is the declared policy of the Commonwealth that the money raised by the tax imposed by this chapter be used, to the greatest extent possible, to provide for the creation of jobs and the rehiring of the unemployed in this Commonwealth. In order to reach this goal, firms with Pennsylvania-based facilities shall be actively solicited to make bids on contracts to furnish products and materials, including, but not limited to, steel and steel products, to be used in the projects funded through the Highway Bridge Improvement Restricted Account.
75 Pa.C.S. § 9907(b) (emphasis added).
Thus, appellants’ argument that the purpose of the Axle Tax was to effect a rational restructuring of tax burdens is specious, and the majority’s reliance upon this assertion rises to no higher level. Moreover, even though the Commonwealth has a legitimate interest in providing employ*470ment for Pennsylvanians, I find that in the instant case the state chose an unconstitutional means to effect this goal.
In Philadelphia v. New Jersey, supra, the State of New Jersey raised the argument that its statute prohibiting the importation of most solid or liquid waste which originated or was collected outside the territorial limits of the State was actually no more than a legislative effort to suppress competition and to stabilize the cost of solid waste disposal for New Jersey residents. Id. at 626, 98 S.Ct. at 2536. In answer to this argument on legislative purpose, the Supreme Court wrote:
This dispute about ultimate legislative purpose need not be resolved, because its resolution would not be relevant to the constitutional issue to be decided in this case. Contrary to the evident assumption of the state court and the parties, the evil of protectionism can reside in legislative means as well as legislative ends. Thus, it does not matter whether the ultimate aim ... is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents’ pocketbooks as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State’s remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey’s ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect [this statute] violates this principle of nondiscrimination.
Id. at 626-27, 98 S.Ct. at 2536-37 (emphasis added).
The Supreme Court of the United States has consistently found parochial legislation such as Act 234 invalid, regardless of the ultimate legislative goal. See, e.g., Toomer v. Witsell, 334 U.S. 385, 403-04, 68 S.Ct. 1156, 1165-66, 92 L.Ed. 1460 (1948) (goal to create jobs by keeping industry *471within the State); Edwards v. California, 314 U.S. 160, 173-74, 62 S.Ct. 164, 166-67, 86 L.Ed. 119 (1941) (attempt to preserve the State’s financial resources from depletion by fencing out indigent immigrants); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 522-24, 55 S.Ct. 497, 500-01, 79 L.Ed. 1032 (1935) (aim was to assure a steady supply of milk by erecting barriers to allegedly ruin outside competition). These cases show that the presence of a presumably legitimate goal, i.e., rehiring of unemployed Pennsylvanians, does not constitutionalize a state statute which operates to discriminate against vehicles solely because of their origin. Act 234, by effecting a tax burden only upon those out-of-state vehicles with no financial nexus to Pennsylvania’s registration fee, imposes a tax based solely upon out-of-state origin.
In response to the majority’s observations that Act 234 impacts most upon out-of-state vehicles which have not in the past paid any of Pennsylvania’s registration fee, and that the “reallocation” effected by Act 234 will attract more vehicle registration in Pennsylvania, I counter that these observations do nothing more than to demonstrate the discriminatory nature of Act 234. As I previously quoted, “[t]he basic purpose of the Commerce Clause is to prohibit a state from taxing interstate commerce in a manner which discriminates against interstate commerce ‘by providing a direct commercial advantage to local business.’ ” Northwestern States Portland Cement Co. v. Minnesota, supra 358 U.S. at 458, 79 S.Ct. at 362. State legislatures can neither protect local businesses nor seek to induce businesses to locate in the state by way of burdening only interstate commerce. See Maryland v. Louisiana, supra; Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977); Best & Co., Inc. v. Maxwell, 311 U.S. 454, 61 S.Ct. 334, 85 L.Ed. 275 (1940). Thus, the majority’s observations manifest the very evils the Commerce Clause was designed to protect against.
The majority relies heavily on the fact that Pennsylvania-registered vehicles pay more fees to Pennsylvania than do *472out-of-state registered vehicles. What the majority ignores, however, is that every state maintains a system for registering trucks and every state imposes fees and taxes in conjunction with such registration. Just as Pennsylvania-registered vehicles pay a registration fee to the state of Pennsylvania, so do out-of-state registered vehicles pay such a fee in their respective jurisdictions. Naturally, a state has a rational basis for exacting more fees from in-state-registered vehicles than from out-of-state registered vehicles. Thus, the majority’s revelation of the “operative fact” that Pennsylvania-registered vehicles are subject to $940.00 in registration fees which the foreign-registered, non-IRP counterparts are not subject to, comes as no startling surprise. The practical operation of Act 234, which does not restructure the entire Pennsylvania user fee system, does not serve to achieve equal treatment, rather it serves instead to shift an additional financial burden only upon interstate commerce.2 The protectionist nature of this legislation is evident and cannot be ignored. Should every state impose such a tax to burden only out-of-state registered vehicles, the impact upon interstate commerce would indeed be crippling.3
Appellants attempt to hinge the legal determination of the constitutionality of Act 234 upon the fact that Pennsylvania is a member of the IRP, an interstate compact. Those out-of-state vehicles participating in the IRP program are also benefited by the decrease in the registration fees under Act 234. This argument erroneously assumes that *473the Commerce Clause analysis is somehow based upon the percentage of discrimination effected by the statute. See Maryland v. Louisiana, supra 451 U.S. at 760, 101 S.Ct. at 2136.4 As the following facts demonstrate, however, the discrimination effected by Act 234 is substantial, notwithstanding, or rather because of, the presence of the IRP compact.
Vehicles registered in IRP jurisdictions pay to each member state in which the vehicle travelled that year, a percentage of the state’s registration fee apportionally related to the miles travelled in that state compared to the vehicle’s total mileage for that year. Of the total 403,656 vehicles upon which the 1983 axle tax was paid, 83,118 (21%) were Pennsylvania-registered and 126,466 (31%) were from other IRP jurisdictions. See Letter from the Office of the Attorney General, dated May 1, 1984 at R. 321, et seq. The remaining 194,072 (48%) vehicles upon which the Axle Tax was paid by residents of non-IRP jurisdictions who owned out-of-state registered vehicles. Id. The large size of this latter figure is explained by the fact that Pennsylvania, although an IRP state, is completely surrounded by non-IRP jurisdictions.
Hence, those jurisdictions most immediate to Pennsylvania and most likely to travel on Pennsylvania highways are fully impacted by the Axle Tax. Those out-of-state vehicles derive no benefit from the corresponding decrease in registration fees under Act 234, and pay Axle Tax fees to further the parochial purpose of providing employment for Pennsylvania residents. By contrast, Pennsylvania-registered vehicles as well as those vehicles participating in the IRP program are practically fully exempt from the tax because of the corresponding decrease in registration fees under Act 234.
*474The legal issue presented by the case at bar is synonymous with that presented in Maryland v. Louisiana, supra, which involved Louisiana’s tax on the “first use” of any natural gas brought into Louisiana which was not previously subjected to taxation by another State or the United States. The primary effect of the tax, which was imposed on pipeline companies, was on gas produced in the federal Outer Continental Shelf (OCS) and then piped to processing plants in Louisiana and, for the most part, eventually sold to out-of-state consumers. The first-use tax statute (Act) as well as provisions of other Louisiana statutes, provided a number of exemptions from and credits for the tax whereby Louisiana consumers of OCS gas for the most part were not burdened by the tax, but it uniformly applied to gas moving out of the State.
The Supreme Court of the United States found Louisiana’s First Use Tax unconstitutional under the Commerce Clause using the following analysis:
In this case, the Louisiana First-Use Tax unquestionably discriminates against interstate commerce in favor of local interests as the necessary result of various tax credits and exclusions. No further hearings are necessary to sustain this conclusion. Under the specific provisions of the First-Use Tax, OCS gas used for certain purposes within Louisiana is exempted from the Tax____ Competitive users in other States are burdened with the Tax. Other Louisiana statutes, enacted as part of the First-Use Tax package, provide important tax credits favoring local interests. Under the Severance Tax Credit, an owner paying the First-Use Tax on OCS gas receives an equivalent tax credit on any state severance tax owed in connection with production in Louisiana____ On its face, this credit favors those who both own OCS gas and engage in Louisiana production. The obvious economic effect of this Severance Tax Credit is to encourage natural gas owners involved in the production of OCS gas to invest in mineral exploration and development within Louisiana rather than to invest in further OCS *475development or in production in other states. Finally, under the Louisiana statutes, any utility producing electricity with OCS gas, any natural gas distributor dealing in OCS gas, or any direct purchaser of OCS gas for consumption by the purchaser in Louisiana may recoup any increase in the cost of gas attributable to the First-Use Tax through credits against various taxes or a combination of taxes otherwise owed to the State of Louisiana____ Louisiana consumers of OCS gas are thus substantially protected against the impact of the First Use Tax---- OCS gas moving out of the State, however, is burdened with the First-Use Tax.
451 U.S. at 756-58, 101 S.Ct. at 2134-35 (footnote omitted, emphasis added).
The above analysis is persuasive that Act 234 facially discriminates against interstate commerce by virtually insulating operators of locally, but not foreignly registered vehicles from its financial impact. Like the Louisiana scheme, the Pennsylvania Axle Tax directly discriminates in favor of local interests. The reductions in multiples of thirty-six (36) dollars correspond to the number of axles ordinarily required on vehicles within each affected weight class. The result is that in almost all instances, the registration fee reductions exactly offset the impact of the Axle Tax upon carriers operating vehicles that are registered in Pennsylvania. The practical effect of the reductions is to exempt Pennsylvania-registered vehicles from the Axle Tax.
Two recent decisions of the Supreme Court of the United States also mandate a finding of unconstitutionality in the instant case. In Bacchus Imports, Ltd. v. Dias, Director of Taxation of Hawaii, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), the State of Hawaii imposed a 20% excise tax on sales of liquor at wholesale. To encourage the development of the Hawaiian liquor industry, however, a brandy distilled from the root of an indigenous shrub of Hawaii, and a fruit wine manufactured in the State were exempted from the tax. The Supreme Court held that the tax exemption for the brandy and the fruit wine violated the *476Commerce Clause because it had both the purpose and effect of discriminating in favor of local products. The Court found it insignificant that the sales of the exempted beverages constituted only a small part of the total liquor sales in Hawaii. It stated that as long as there is some competition between the exempt beverages and the non-exempt products from outside the State, there was a discriminatory effect. The Court also stated that it is irrelevant to the Commerce Clause inquiry that the legislature’s motivation was the desire to aid the makers of the locally produced beverages rather than to harm out-of-state producers.
Similarly, in Westinghouse Electric Corporation v. Tully, 466 U.S. 388, 104 S.Ct. 1856, 80 L.Ed.2d 388 (1984), the Court held unconstitutional a New York tax scheme which not only provided an incentive for increased business activity in New York, but also penalized increases in shipping activities in other states. The Court held that whether the New York tax diverted new business into the State or merely prevented current business from being diverted elsewhere, it was still a discriminatory tax that creates an advantage for firms operating in New York by placing a discriminatory burden,on commerce to its sister states.
Under the standard set forth in Complete Auto Transit, Inc. v. Brady, supra, a statute which discriminates against interstate commerce cannot be sustained. As previously noted, “[a] state tax must be assessed in light of its actual effect considered in conjunction with other provisions of the State’s tax scheme.” Maryland v. Louisiana, supra 451 U.S. at 756, 101 S.Ct. at 2134. The key determination is whether, in practical effect, the statute will work discrimination against interstate commerce. Complete Auto Transit, Inc. v. Brady, supra 430 U.S. at 279, 97 S.Ct. at 1079; Best & Co. v. Maxwell, supra 311 U.S. at 455-56, 61 S.Ct. at 334-35. Here, although the thirty-six (36) dollar per axle is a tax imposed upon all vehicles of designated classes, whether foreign or Pennsylvania registered, the corresponding reductions in Pennsylvania registration fees demonstrate a legislative intent to provide a direct commercial *477advantage to local business. See Northwestern States Portland Cement Co. v. Minnesota, supra 358 U.S. at 458, 79 S.Ct. at 362. I thus conclude that Act 234 is a protectionist measure infused with discriminatory purpose and effect. See Philadelphia v. New Jersey, supra. As the Supreme Court observed in Best & Co., Inc. v. Maxwell, supra, “[t]he Commerce Clause forbids discrimination, whether forthright or ingenious.” Id. 311 U.S. at 455, 61 S.Ct. at 335.
Accordingly, I would affirm the order of the Commonwealth Court entered in American Trucking II, docketed at No. 12 M.D. Appeal Docket 1985, and hold that the Axle Tax is unconstitutional to the extent that it discriminates against interstate commerce by providing a direct commercial advantage to Pennsylvania-registered truckers.
McDERMOTT, J., joins in this concurring and dissenting opinion.. The reductions correspond to the number of axles most commonly used and minimally required by law in each weight class. See 75 Pa.C.S. § 4941. The following schedule is illustrative:
AMOUNT
CLASS WEIGHT REDUCED
9 26,001-30,000 $ 72
10 30,001-33,000 72
11 33,001-36,000 72
12 36,001-40,000 72
13 40,001-44,000 108
14 44,001-48,000 108
15 48,001-52,000 108
16 52,001-56,000 108
17 56,001-60,000 108
18 60,001-64,000 144
*468AMOUNT
CLASS WEIGHT REDUCED
19 64,001-68,000 144
20 68,001-73,280 144
21 73,281-76,000 180
22 76,001-78,000 180
23 78,001-78,500 180
24 78,501-79,000 180
25 79,001-80,000 180
Except in a few instances, the reductions created by the Act were intended to and did exactly offset the impact of the Axle Tax upon motor carrier vehicles registered in Pennsylvania. For example, under the annual registration fee schedule in force just prior to the Act, a five-axle truck tractor and trailer combination registered in Pennsylvania for a maximum weight of 80,000 pounds was subject to a one-year registration fee of $1125. For the 1983 Axle Tax registration year, that same five-axle combination still was only subject to a total fee of $1125. The reduced registration fee was $945 and the five-axle combination was subject to a tax of $36 per axle, or an Axle Tax of $180. The total ($945 + $180 = $1,125) is exactly the same amount as the registration fee prior to the passage of the Act.
. The majority's reasoning leads them to the inherently inconsistent statement that the "easing" of the burden on Pennsylvania registered vehicles does not favor local commerce. See p. 855. Earlier in the majority opinion it is noted that in reducing the Pennsylvania registration fees, it was "intended to lessen the burden imposed upon ‘local commerce.’ ’’ Id. at 853.
. Moreover, contrary to the majority’s implication that the out-of-state registered vehicles have in the past received a "free ride" on the roads of Pennsylvania, foreign registered vehicles are subject to payment of inter alia: (a) special hauling permit fees; (b) the Fuel Use Tax; (c) the Motor Carriers’ Road Tax; (d) the Oil Company Franchise Tax; (e) the Gross Receipts Tax; and (f) the Liquid Fuels Tax. Joint Stipulation of Facts at R. 308-09.
. In Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981), the Supreme Court wrote, "[w]e need not know how unequal the Tax is before concluding that it unconstitutionally discriminates.” Id. at 760, 101 S.Ct. at 2136.