opinion: CENTRAL GREYHOUND LINES, INC. v. MEALEY et al.
  No. 14.
  Argued October 13, 1947.
  Decided June 14, 1948.
  Tracy H. Ferguson argued the cause for appellant. With him on the brief were George H. Bond and Edward Schoeneck.
  John C. Crary, Jr., Assistant Attorney General of New York, argued the cause for appellees. With him on the brief were Nathaniel L. Goldstein, Attorney General, Wendell P. Brown, Solicitor General, and Irving I. Wax-man, Assistant Attorney General.
  Mr. Justice Frankfurter
  delivered the opinion of the Court.
  This is a proceeding arising out of a determination by the Tax Commission of the State of New York, sustained by the courts of the State, whereby § 186-a of the New York Tax Law was construed to impose a tax on appellant’s gross receipts from transportation between points within the State but over routes that utilize the highways of Pennsylvania and New Jersey. The appellant contends, against contrary conclusions below, that since the taxed transportation was interstate commerce, New York may not constitutionally tax the gross receipts from such transportation. In any event, it submits that the State may validly tax only so much of these gross receipts as are attributable to the mileage within the State. Before dealing with these issues, we must dispose of an objection to our right to deal with them.
  The State urges that the constitutional claims here pressed by the appellant were not passed upon by the New York Court of Appeals. The record does not sustain this challenge to our jurisdiction. The constitutional issues were undeniably raised before the State Tax Commission and on review before the Appellate Division of the Supreme Court, 266 App. Div. 648. The suggestion that these issues were not before the Court of Appeals is based on its statement that the question urged there was “not one of constitutional taxing power but of statutory construction.” 296 N. Y. 18, 24. But the court proceeded to pass upon the constitutional issues and expressly held that “there is no constitutional objection to taxation of the total receipts here. This is not interstate commerce . . . .” 296 N. Y. at 25. Its amended re-mittitur stated explicitly that a question arising under the Commerce Clause of the Constitution “was presented and passed upon,” and that in sustaining the tax the court “held that the aforesaid statute as so construed is not repugnant to that provision of the Federal Constitution.” This amendment was not a retrospective injection of a non-existent federal question, but a formal certification that a federal claim had been presented and was adjudicated by the Court of Appeals. It is properly here for review. § 237 (a) of the Judicial Code, 28 U. S. C. § 344 (a).
  This case serves to remind once more that courts do not adjudicate abstractions, such as, “What is interstate commerce?” Also, it again illustrates that even if it be found that certain transactions in fact constitute interstate commerce, such conclusion does not answer the further inquiry whether a particular assertion of power by a State over such transactions offends the Commerce Clause.
  It is too late in the day to deny that transportation which leaves a State and enters another State is “Commerce . . . among the several States” simply because the points from and to are in the same State. Hanley v. Kansas City Southern R. Co., 187 U. S. 617; Western Union Tel. Co. v. Speight, 254 U. S. 17; Missouri Pacific R. Co. v. Stroud, 267 U. S. 404. In reaching the opposite conclusion the State court relied upon three decisions of this Court: Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192; Ewing v. Leavenworth, 226 U. S. 464; New York ex rel. Cornell Steamboat Co. v. Sohmer, 235 U. S. 549. The Ewing case was based on the Lehigh Valley case; the Cornell Steamboat case relied on the Ewing and the Lehigh Valley decisions. The holding in the Lehigh Valley case was defined with precision by Mr. Justice Holmes in the Hanley case. He accounted for some State decisions which disregarded interstate commerce as a matter of fact, tested by the actual transaction, as “made simply out of deference to conclusions drawn from Lehigh Valley Railroad Co. v. Pennsylvania, 145 U. S. 192, and we are of opinion that they carry their conclusions too far.” He pointed out that in the Lehigh Valley case “the tax 'was determined in respect of receipts for the proportion of the transportation within the State.’ 145 U. S. 201. Such a proportioned tax had been sustained in the case of commerce admitted to be interstate.” Hanley v. Kansas City Southern R. Co., supra, at 621. This limited scope of the Lehigh Valley case was the basis of decision in United States Express Company v. Minnesota, 223 U. S. 335. In that case, the Minnesota Supreme Court had interpreted the Lehigh Valley decision “as allowing a recovery of taxes upon that proportion of the earnings derived from the carriage wholly within the state. This seems to us the safer rule, and avoids any question of taxing interstate commerce, and we adopt and apply it to this case. Nine per cent, of the taxes recovered on this class of earnings should be deducted from the amount of the recovery.” 114 Minn. 346, 350. On writ of error to the Supreme Court of Minnesota, this Court upheld the State court’s application of the Lehigh Valley decision. 223 U.S. 335, 341-42.
  In view, however, of some contrariety of views to which the opinion in the Lehigh Valley case has given rise, it calls for a more candid consideration than merely quoting phrases from it congenial to a particular decision. The Lehigh Valley case was this. The Lehigh Valley Railroad Company attacked the validity of a Pennsylvania statute taxing the company’s gross receipts from its line between Mauch Chunk, Pennsylvania, and Phillipsburg, New Jersey. The Pennsylvania Railroad operated a connecting line between Phillipsburg and Philadelphia. The Lehigh and the Pennsylvania had arranged for continuous transportation of through passengers and freight between Mauch Chunk and Philadelphia. The trial court had found, as appears from the record, that the “total receipts from this transportation, seven per cent, of which were collected by the Lehigh Valley Railroad Company at point of shipment and the remainder by the Pennsylvania Railroad Company at point of destination, were apportioned between the companies upon a mileage basis — that is to say, each company’s share was in the proportion that the number of miles carried by it bore to the total number of miles carried.” It sustained the tax on the ground that the transportation was in substance “purely internal.” The Supreme Court of Pennsylvania affirmed on the trial court’s opinion. Lehigh Valley R. Co. v. Commonwealth, 1 Monag. 45, 17Atl. 179.
  When the case got here, the Lehigh Valley contended that the transportation between Mauch Chunk and Phil-lipsburg constituted interstate commerce and therefore beyond the taxing power of Pennsylvania, because Phil-lipsburg, while on the Delaware River border between Pennsylvania and New Jersey, was in New Jersey and reached by the railroad via an interstate bridge. Pennsylvania, on the other hand, ignoring the stretch over the interstate bridge (apparently on the theory of de minimis) insisted that the gross receipts were deemed to be “wholly from traffic within the state” because so treated by the railroad itself. This was based on the fact that the Lehigh Valley and the Pennsylvania Railroad had apportioned the receipts from their through traffic, and the amount of the gross receipts which Pennsylvania taxed was the proportion which the railroads inter se attributed to the Lehigh Valley as its share of the earnings within Pennsylvania. This fiscal arrangement between the two railroads is the explanation and justification for the statement in this Court’s opinion that “The tax under consideration here was determined in respect of receipts for the proportion of the transportation within the State.” 145 U. S. at 201. And so, naturally enough, in the Hanley case the Court called the tax which had been sustained in the Lehigh Valley case “a proportioned tax,” and as such it “had been sustained in the case of commerce admitted to be interstate.” Hanley v. Kansas City Southern R. Co., supra, at 621.
  In support of the proposition that “a proportioned tax had been sustained in the case of commerce admitted to be interstate” the Hanley case invoked Maine v. Grand Trunk R. Co., 142 U. S. 217. Unfortunately, the opinion in Lehigh Valley did not rely on that case. It did not even mention it. This silence is explicable by the fact that only a few months before, in the same term, the Court had sharply divided on this very issue in the Grand Trunk case. In the Lehigh Valley case Mr. Chief Justice Fuller spoke for a unanimous court. One is entitled to infer that such accord was obtainable by not renewing the battle of the Grand Trunk case. It would not be the first time in the history of this Court that agreement could be reached by one mode of reasoning but not by another. Mr. Justice Bradley and his fellow dissenters in the Grand, Trunk case were evidently content to sustain the Pennsylvania tax as a tax on “domestic transportation,” “internal intercourse,” in short as not “interstate commerce,” for thereby they would not bring into question the views so vigorously expressed by them a few months before.
  It was reasonable enough to disregard the short distance in which the transportation in the Lehigh Valley case went over the interstate bridge on the Delaware River büt otherwise was wholly in Pennsylvania, and to treat it as de minimis when the railroad’s accounting itself treated the receipts as proportioned. “Regulation and commerce among the States both are practical rather than technical conceptions, and, naturally, their limits must be fixed by practical lines.” Galveston, Harrisburg and San Antonio R. Co. v. Texas, 210 U. S. 217, 225. But to label transportation across an interstate stream “local commerce” for some purposes when it is “interstate commerce” in other relations, see, e. g., Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204, is to use loosely terms having connotations of constitutional significance. To call commerce in fact interstate “local commerce” because under a given set of circumstances, as in the Lehigh Valley case, a particular exertion of State power is not rendered invalid by the Commerce Clause is to indulge in a fiction. Especially in the disposition of constitutional issues are legal fictions hazardous, because of the risk of confounding users and not merely readers. The kind of confusion to which the Lehigh Valley opinion has given rise results from employing a needless fiction — calling commerce local which in fact is interstate — as a manner of stating that a particular exercise of State power is not invalid even though it affects interstate commerce. The difficult task of determining whether a phase of commerce, concededly interstate, is subject to a particular incidence of State regulation, through taxation or otherwise, is not lessened by calling interstate commerce local commerce in order to sustain its local control. To state this persistent and protean problem of our federalism in the form of a question-begging fiction, is not to answer it.
  This brings us to the facts of the case before us. New York claims the right to tax the gross receipts from transportation which traverses New Jersey and Pennsylvania as well as New York. To say that this commerce is confined to New York is to indulge in pure fiction. To do so, does not eliminate the relation of Pennsylvania and New Jersey to the transactions nor eliminate the benefits which those two States confer upon the portions of the transportation within their borders. Neither their interests nor their responsibilities are evaporated by the verbal device of attributing the entire transportation to New York. There is no suggestion here that the interstate routes were utilized as a means of avoiding even in part New York’s taxation. Compare, e. g., Eichholz v. Public Service Commission of Missouri, 306 U. S. 268, and Ryan v. Pennsylvania Public Utility Commission, 143 Pa. Super. 517. We are not dealing with a necessary deviation or a calculated detour. Nor is New York seeking to tax transactions physically outside its borders but so trifling in quantity to the New York commerce, of which they form a part, as to be constitutionally insignificant. New York seeks to tax the total receipts from transportation of which nearly 43% of the mileage lay in New Jersey and Pennsylvania. Transactions which to such a substantial extent actually take place in New Jersey and Pennsylvania cannot be deemed legally to take place in New York.
  Of course we are dealing here with “interstate commerce.” Of course Congress did not exceed its power to regulate such commerce when in the Motor Carrier Act of 1935 it explicitly included commerce such as that before us within the scope of that Act: “The term ‘interstate commerce’ means commerce between any place in a State and any place in another State or between places in the same State through another State, whether such commerce moves wholly by motor vehicle or partly by motor vehicle and partly by rail, express, or water.” 49 Stat. 543, 544, 49 U. S. C. § 303 (a) (10). In a case like this nothing is gained, and clarity is lost, by not starting with recognition of the fact that it is interstate commerce which the State is seeking to reach and candidly facing the real question whether what the State is exacting is a constitutionally fair demand by the State for that aspect of the interstate commerce to which the State bears a special relation. See Union Brokerage Co. v. Jensen, 322 U. S. 202, and Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28. Such being the real issue inevitably “nice distinctions are to be expected.” Galveston, Harrisburg and San Antonio R. Co. v. Texas, supra, at 225. But such distinctions would be clearer and more reasonably made if, for instance, a fiat privilege tax applied by a municipality to an express company shipping packages between points within a State, but over routes which for a very short distance pass out of the State, had been frankly sustained on the ground that the tax did not burden interstate commerce in the constitutional sense rather than on the ground that it was not interstate commerce. Compare Ewing v. Leavenworth, supra, with Kirmeyer v. Kansas, 236 U. S. 568. Again, it would have made for a less dialectical, if not more coherent, development of the law to sustain a New York gross receipts tax on a New York corporation, engaged in towing vessels between ports in the State of New York on the Hudson River traversing the New Jersey side but not touching its shore, on the ground that upon the facts of that case, and more particularly New Jersey’s relation to the transactions (very different from those now before us), New York was not burdening interstate commerce, rather than to hold that “transportation between the ports of the State is not interstate commerce, excluded from the taxing power of the State, because as to a part of the journey the course is over the territory of another State.” Compare New York ex rel. Cornell Steamboat Co. v. Sohmer, supra, at 560, with Cornell Steamboat Co. v. United States, 321 U. S. 634.
  It is significant that, so far as we are advised, no State other than New York seeks to tax the unapportioned receipts from transportation going through more than one State, (except to an extent so insignificant as to be disregarded), merely because such transportation returns to the State of its origin. If New Jersey and Pennsylvania could claim their right to make appropriately apportioned claims against that substantial part of the business of appellant to which they afford protection, we do not see how on principle and in precedent such a claim could be denied. This being so, to allow New York to impose a tax on the gross receipts for the entire mileage — on the 57.47% within New York as well as the 42.53% without— would subject interstate commerce to the unfair burden of being taxed as to portions of its revenue by States which give protection to those portions, as well as to a State which does not. This is not to conjure up remote possibilities. Pennsylvania’s claim to tax a portion of appellant’s gross receipts from the transportation which New York has taxed is not a matter of speculation. Apparently, Pennsylvania has so taxed since 1931. Penn. Laws 1931, No. 255, as amended by Act of June 5, 1947, No. 204. New York does not deny that Pennsylvania in fact so taxes, though there is dispute as to the meaning of the formula by which she does so. But even if neither Pennsylvania nor New Jersey sought to tax their proportionate share of the revenue from this transportation, such abstention would not justify the taxing by New York of the entire revenue. Freeman v. Hewit, 329 U. S. 249, 256. By its very nature an unapportioned gross receipts tax makes interstate transportation bear more than “a fair share of the cost of the local government whose protection it enjoys.” Id. at 253. The vice of such a tax is that it lays “a direct burden upon every transaction in [interstate] commerce by withholding, for the use of the State, a part of every dollar received in such transactions.” Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 297; see Adams Manufacturing Co. v. Storen, 304 U. S. 307, 311; Freeman v. Hewit, supra; Joseph v. Carter and Weekes Stevedoring Co., 330 U. S. 422.
  However, while the New York courts have construed the statute as levying an unapportioned gross receipts tax on this transaction, the entire tax need not fall. The tax may be “fairly apportioned” to the “business done within the state by a fair method of apportionment.” Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 255. There is no dispute as to feasibility in apportioning this tax. On the record before us the tax may constitutionally be sustained on the receipts from the transportation apportioned as to the mileage within the State. See Ratterman v. Western Union Telegraph Co., 127 U. S. 411, 427-28. There is no question as to the fairness of the suggested method of apportionment. Compare Maine v. Grand Trunk R. Co., supra, with New Jersey Bell Telephone Co. v. State Board of Taxes and Assessments, 280 U. S. 338; cf. Wallace v. Hines, 253 U. S. 66. Both appellant and appellee have indicated here that, as a matter of construction, the statute under consideration permits such apportionment, but that is a matter for the New York courts to determine.
  The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
  Mr. Justice Rutledge concurs in the result.