348
Stevens, J., dissenting
ad valorem property taxes of general application. We therefore reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, dissenting.
Section 306(1)(d) of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act), 90 Stat. 54, as amended, 49 U. S. C. § 11503(b)(4) (subsection (b)(4)), prohibits States from imposing taxes that discriminate against railroads.1 In
my view, a state tax that fell upon railroad property, but from which comparable nonrailroad property was exempt, would clearly implicate that prohibition. The Court errs in holding that such arrangements are not even subject to challenge under subsection (b)(4).
Because subsection (b)(4) by its terms bars any tax that "discriminates" against rail carriers, it is not surprising that the Courts of Appeals have held that the provision applies to revenue measures that discriminate by imposing taxes on railroad property and exempting similar property owned by others.2 While those courts (and the District Court and
1 As originally enacted, subsection (b)(4) prohibited the States from imposing "any other tax which results in discriminatory treatment of a common carrier by railroad . . . ." 4-R Act, § 306(1)(d), 90 Stat. 54. Pursuant to a recodification in 1978, the current version of subsection (b)(4) speaks of "another tax that discriminates against" a rail carrier. Congress specifically provided that the 1978 recodification "may not be construed as making a substantive change in the laws replaced." 92 Stat. 1466.
2 In addition to the Ninth Circuit's decision in this case, 961 F. 2d 813, 818-820 (1992), see Department of Revenue of Fla. v. Trailer Train Co., 830 F. 2d 1567, 1573 (CA11 1987) (provision targets "discrimination in all its guises" and "requires consideration of tax exemptions in determining whether there has been discriminatory treatment") (citation and internal quotation marks omitted); Oglivie v. State Bd. of Equalization of N. D., 657 F. 2d 204, 209-210 (CA8) (history of provision demonstrates that "its purpose was to prevent tax discrimination against railroads in any form whatsoever," including exemption of nonrailroad property), cert. denied,
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