Cite as: 510 U. S. 332 (1994)
Stevens, J., dissenting
The ban on discriminatory rates and assessments targets two patent and historically common forms of discrimination. In order to find discrimination in rates or assessment ratios, a court need only compare the rates and assessments applicable to railroads to the rates and assessments of other owners of comparable property. That inquiry would be complicated indeed if the courts were required to divine the "rates" and "assessments" governing property that is exempt from tax. It is not surprising, then, that the strict bars against disparate rates and assessments exclude from the comparison class property that is not taxed at all.
Congress' exclusion of exempted property from the comparison class for purposes of subsections (b)(1)-(3) does not determine the scope of subsection (b)(4), for that provision does not depend on the limited definition of "commercial and industrial property" that governs its neighbors. Reading subsection (b)(4) to require judicial scrutiny of state exemption schemes creates no disharmony with subsections (b)(1)-(3) unless one assumes that the test of "discrimination" under subsection (b)(4), like the per se rules against differential rates and assessments, prohibits all but the most minor differentials in tax treatment between railroad property and owners of similar property. That assumption is unwarranted.
The statute before the Court today (like the statute it construed in Davis) does not contain a definition of the term "discrimination," but that familiar concept and the policies of the 4-R Act provide guidance. Like the statute at issue in Davis, the 4-R Act protects taxpayers who often have little voice in the policy decisions of the taxing State, and whose situation makes them likely targets for unfavorable treatment.3 The prohibition of discrimination should be
3 Railroads' high rates of fixed investment and their immobile assets leave them less able than other interstate enterprises to restrain state taxation by threatening to pull up their stakes and leave. See Burlington Northern R. Co. v. Superior, 932 F. 2d 1185, 1186 (CA7 1991).
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