Madden, Judge,
delivered the opinion of the court:
This is a suit to recover a part of the highway motor vehicle use tax which the plaintiff was required to pay on its highway tractors and trailers for the taxable period July-November 1956. This excise tax upon the use of motor vehicles on the highways was imposed by sections 4481 and 4482 of the Internal Revenue Code of 1954.
The Federal Aid Highway Act of 1956, 70 Stat. 374, 23 U. S. C. 1952 ed., Supp. IV, § 151ff provided for the early completion of the “National System of Interstate Highways” which had been authorized by earlier legislation. To provide funds for the work, section 206 (a) of the Highway Revenue Act of 1956, 70 Stat. 374, 389, added, among- other provisions, sections 4481 and 4482 to the Internal Revenue Code of 1954, 26 U. S. C. 1952 ed. Supp. IV, 4481, 4482. These sections read in part as follows:
SEC. 4481
(a) Imposition of Tam. — A tax is hereby imposed on the use of any highway motor vehicle which (together with the semitrailers and trailers customarily used in connection with highway motor vehicles of the same type as such highway motor vehicle) has a taxable gross weight of more than 26,000 pounds, at the rate of $1.50 a [643]*643year for each 1,000 pounds of taxable gross weight or fraction thereof.
* * ¡s * *
SEC. 4482
(b) Taxable Gross Weight. — For purposes of this subchapter, the term “taxable gross weight”, when used with respect to any highway motor vehicle, means the sum of—
(1) the actual unloaded weight of—
(A) such highway motor vehicle fully equipped for service, and
(B) the semitrailers and trailers (fully equipped for service) customarily used in connection with highway motor vehicles of the same type as such highway motor vehicle, and
_ (2) the weight of the maximum load customarily carried on highway motor vehicles of the same type as such highway motor vehicle and on the semitrailers and trailers referred to in paragraph (1) (B).
Taxable gross weight shall be determined under regulations prescribed by the Secretary or his delegate (which regulations may include formulas or other methods for determining the taxable gross weight of vehicles by classes, specifications, or otherwise).
* * * * *
The Treasury Department issued regulations under the authority given it by section 4482. Section 41.4482 (b)-l of Treasury Regulations on Highway Motor Vehicle Use defined “Taxable Gross Weight” for the purposes of this tax. It said that taxable gross weight is the sum of (1) the actual unloaded weight of the truck or tractor; (2) the actual unloaded weight of any one or more trailers or semitrailers customarily used in combination with the type of tractor involved; and (3) the weight of the maximum load customarily carried on such trailers or semitrailers.
The Treasury Regulations then set out a fixed schedule of “taxable gross weights” which would, for tax purposes, be attributed to certain types of equipment. The schedule for “combination” equipment, i. e., tractors hauling trailers, listed seven classes, designated by the letters D to J. The ones with which we are here concerned are classes D, E and F. Class D covered 2-axled truck-tractors with actual unloaded weight between 5,500 pounds and 7,000 pounds. The regulation attributed to such a tractor and its trailer and the load [644]*644in the trailer a taxable gross weight of 80,000 pounds. Attributed taxable weights of 40,000 pounds and 50,000 were assigned, respectively, to the heavier 2-axled truck-tractors covered by classes E and F.
The plaintiff’s objection to the amount of taxes which it was required to pay on its equipment is that the loads which it actually imposed upon the highways were not as heavy as the attributed weights upon which it was taxed.
The plaintiff’s business was the hauling of household goods as a common carrier under a license for that purpose from the Interstate Commerce Commission. Household goods are much lighter than the merchandise normally carried in trailers used for general hauling purposes. The household goods carried by the plaintiff weighed less than six pounds per cubic foot of the space in the trailers in which they were hauled. Of the total tonnage of goods carried in trucks and trailers in 1954, 1,650,825,000 tons, only about 29,000,000 tons were of goods weighing less than 10 pounds per cubic foot.
The plaintiff kept actual records of the weight of the equipment and loads of 19 of its vehicles during the tax period here in question. These records show that the Class D vehicles, to which the taxing authorities attributed a weight of 30,000 pounds, in fact weighed from 25,800 to 29,000 pounds; that the Class E vehicles, to which a weight of 40,000 pounds was attributed, in fact weighed from 28,400 to 31,600 pounds; that the Class F vehicles, to which a weight of 50,000 pounds was attributed, in fact weighed from 27,700 to 37,100 pounds. The parties have stipulated for the purposes of this litigation that these figures are accurate, and are typical of what would be shown by actual records of the experience of all of the approximately 332 trucks in the plaintiff’s fleet.
The plaintiff urges that the discrepancy between the actual weight of its equipment and loads and the artificially set weights, on the basis of which the plaintiff’s taxes were imposed was so great that it rendered the classification illegal. The parties have stipulated that:
In developing the taxable gross weight figures used in the Regulations, no attempt was made to distinguish between the various types of goods capable of being hauled [645]*645or types of transportation services being provided by each particular type and weight of power unit or between the densities of load per cubic foot customarily hauled by the many different groups of carriers within the truclnng industry.
Congress in section 4481 imposed a tax at the rate of $1.,50 a year for each 1000 pounds of gross weight or fraction thereof. That provision would not seem to authorize the taxing authorities to tax loaded combinations weighing, as did the plaintiff’s Class F units, from 27,700 to 37,100 pounds as if they weighed 50,000 pounds. But Congress in section 4482 relieved the taxing authorities of the probably impossible task of actually weighing the equipment and loads by writing a definition of “taxable gross weight” which permitted generalization by the taxing authorities. They could tax as if there were a trailer of the kind “customarily used in connection with” the tractor, and as if it were loaded with “the maximum load customarily carried” on such a trailer by such a tractor. Congress further provided, in the same section 4482 that:
Taxable Gross weight shall be determined under regulations prescribed by the Secretary or his delegate (which regulations may include formulas or other methods for determining the taxable gross weight of vehicles by classes, specifications, or otherwise).
The parties have stipulated that the figures used by the Treasury Department fairly and accurately represent average maximum loaded weights for the trucking industry as a whole, for tractors of classes D, E, and F. Our question then is whether the generalizations embodied in this classification, which have, perhaps, the effect of taxing accurately, or perhaps undertaxing, a carrier which customarily carries cases of canned fruits or vegetables, for example, is valid as to the plaintiff, which, being caught within the generalization, is made to pay taxes upon weights greatly in excess of its actual loads.
If a statute itself specifies classes, the things at the bottom of the class may be, of course, very different from those at the top of the class, if the class is a large one. The statute is no worse for that, unless there is no rational basis for giving the same legal treatment to things so unlike. When the legis[646]*646lature delegates to the executive the authority to make generalizations or classifications, that authority is not as broad as the power of the legislature itself. Legislative classification need only withstand the test of constitutionality. But classification by the executive, under delegated authority, should be consistent with the intent of the legislature. There is no reason to suppose that the legislature intended that the executive, as its delegate, should press its classification to the verge of irrationality, which the legislature has the constitutional power to do, but in fact rarely does.
The parties have stipulated that maintenance and construction costs of highways are affected not only by the actual weight of the vehicles, but by the width, height and length of the vehicles, the distribution of gross weight per axle, and the frequency of occurrence of axle loads in the traffic stream. Since Congress measured the tax by weight, we think the Treasury Department had no authority, if it did so, to attribute fictitious weight to vehicles because they were wide or high or long or had only one axle instead of two or more or were numerous on the roads.
We think that the schedule of classes set up in the Treasury Regulations was authorized, and perhaps required, by the statute itself. The discrepancy between actual and artificially attributed weights, of which the plaintiff complains, relates not to the weight of the tractors or the unloaded trailers, but to the weight of the loads carried in the trailers. But section 4482 (b) (2) says that the load element in the “taxable gross weight” shall be:
The weight of the maximum load customarily carried on * * * the semitrailers and trailers referred to in paragraph (1) (B).
And paragraph (1) (B) describes the trailers as:
The semitrailers and trailers * * * customarily used in connection with * * * [tractors] of the same type as [the tractor in the combination that is being taxed] H» H»
It was Congress itself which made the artificial classification. It said that, to determine the tax, you need look only at the type of the tractor. The kind of trailer you, for tax purposes, hitch to it has nothing to do with what this tractor is [647]*647actually going to haul, but only with, what tractors of this type customarily haul. And likewise as to the load which is artificially loaded in the artificially hitched trailer. It is not the actual load which is going to be hauled. It is the maximum load customarily carried in a trailer of the kind which has been artificially hitched to the tractor.
Our question, then, is whether Congress has the power, under the Constitution, to make this kind of a classification for the purpose of imposing an excise tax. We think the case presents no serious constitutional question. The plaintiff urges that it presents the problem of an attempted legislatively created irrebuttable presumption of a fact which is contrary to the actual fact. It cites Heiner v. Donnan, 285 U. S. 312, and other cases holding that legislatures do not have that creative power.
In the instant situation Congress recognized, as does the plaintiff, that it would be impracticable to weigh actual loads for the purpose of assessing the tax. It was a tax payable once a year. Practically, it had to be based on capacities of equipment. Congress might have provided that if a taxpayer could prove that it was in the kind of business in which it never used the equipment up to its weight capacity, or that under its Interstate Commerce Commission license it could not lawfully so use its equipment, the tax should be reduced accordingly. Whether such differential treatment of various classes of highway users would have created administrative difficulty and expense disproportionate to the benefits resulting from it was a problem for Congress, not for the courts.
The plaintiff’s petition will be dismissed.
It is so ordered.
Laramore, Judge/ Whitaker, Judge, and Jones, Chief Judge, concur.
FINDINGS OF FACT
The court makes findings of fact, based upon the stipulation of the parties, and the briefs and argument of counsel, as follows:
1. Plaintiff was the registered owner and operator of the motor vehicles involved in this proceeding at all relevant times.
[648]*6482. Although plaintiff, to a very limited extent, used the vehicles here in issue to haul some new furniture, said vehicles were otherwise exclusively used by plaintiff in the business of hauling household goods as a common carrier under the authority of the Interstate Commerce Commission. Yehicles which were primarily used to haul new furniture were eliminated from the claims for refund.
3. All of the motor vehicles involved herein fall within categories “D”, “E” and “F” of Treasury Eegulations on Highway Motor Vehicle Use, § 41.4482 (b)-l. (Internal Revenue Code of 1954)
4. (a) Stipulated Schedule 1, annexed hereto, contains a summary of statistical data gathered.by the plaintiff with respect to 19 vehicles selected at random from among the vehicles whose tax status is here in issue.
(b) To the extent that the said statistics may become relevant to the determination of the amount of any refund, in the event of a judgment for the plaintiff, it is agreed that neither party shall be bound by the said statistics, but rather that the amount of any refund shall be determined after a detailed audit by the Internal Revenue Service in connection with a computation under Rule 38 (c) of the Rules of the Court of Claims.
(c) To the extent that they may be relevant to the question of liability as distinguished from the question of the amount of liability, it is agreed that the actual weight figures and cubic foot capacities shown in stipulated Schedule 1 are approximately correct and may be treated as undisputed and as representative of the statistics for the other vehicles in issue, as listed in Pages 1 through 8a, inclusive, of the Appendix to plaintiff’s petition.
(d) The data presented in Exhibit C (p. 15a) of the Appendix to plaintiff’s petition with respect to motor vehicles withdrawn from use after July 1, 1956, are approximately correct and may be treated as undisputed insofar as the question of liability as distinguished from the question of the amount of liability is concerned. To the extent that the said statistics may become relevant to the determination of the amount of any refund, in the event of a judgment for the [649]*649plaintiff, it is agreed that neither party shall be bound by the said statistics, but rather that the amount of any refund shall be determined after a detailed audit by the Internal Kevenue Service in connection with a computation under Rule 38 (c) aforesaid.
5. While plaintiff has in its possession the necessary data of record to present the details of actual ladings for all the vehicles involved in the lawsuit in the same manner presented in the sample, the cost of assembling and tabulating the data was such that a sampling technique became necessary from a practical standpoint. The administration of the highway motor vehicle use tax on the basis of records of actual ladings for each vehicle would entail great inconvenience for this taxpayer, for other taxpayers similarly situated, and for the Treasury Department and would entail a cost equal to, or in excess of, revenue collections.
6. The statistics which form the basis of the taxable gross weight schedule contained in Treasury Regulations, § 41.4482 (b)-l, were gathered and evaluated by or under the direction of Mr. Carl Saal, Chief of Traffic Operations Division, Office of Research, Bureau of Public Roads, United States Department of Commerce. The said Mr. Saal has been employed in the Bureau of Public Roads since 1935 and has performed supervisory functions since 1937.
7. In arriving at the taxable gross weights prescribed in the said Regulations as promulgated by the Treasury Department many factors and many types of evidence were considered, including but not limited to:
(a) Data submitted by various trucking groups.
(b) Bureau of Public Roads loadometer weight studies.
(c) Field data of the Bureau of Public Roads obtained by interviewing carriers.
(d) Manufacturers’ specifications, particularly gross vehicle weight ratings, and chassis weights.
(e) State weight limits.
(f) Technical knowledge of officials of the Bureau of Public Roads.
8. After the publication of proposed regulations, public hearings were held by the Treasury Department and there[650]*650after, partly in response to evidence presented at such bearings, the Treasury Department made adjustments in the taxable gross weight schedule.
9. For purposes of the taxable gross weight schedule, all highway motor vehicles are divided into three categories as follows:
(a) Single unit vehicles.
(b) Powered vehicles for use in trailer combinations.
(c) Buses.
10. Within these three categories, the powered vehicles are further classified by the number of axles and by actual unloaded weights. The categories and classes referred to above are standard ones for various statistical purposes and are recognized by the Bureau of Public Roads.
11. The object of the investigations and studies conducted by Mr. Saal or under his supervision was to determine the maximum load customarily carried or hauled by powered vehicles of varying actual unloaded weights in each of the three categories.
12. In developing the taxable gross weight figures used in the Regulations, no attempt was made to distinguish between the various types of goods capable of being hauled or types of transportation services being provided by each particular type and weight of power unit or between the densities of load per cubic foot customarily hauled by the many different groups of carriers within the trucking industry.
13. In promulgating the taxable gross weight schedule contained in the Treasury Regulations, the Treasury Department used averages for the trucking industry as a whole with respect to each of the three categories referred to above, and it is agreed that the figures used by the Treasury Department fairly and accurately represent such averages for the trucking industry as a whole insofar as the parties hereto are concerned. This agreement is based upon industry-wide characteristics of trucking, as would be testified to by an expert of the Bureau of Public Roads, pertinent portions of which are presented in Schedule 2, annexed hereto.
14. In the purchase of a truck, the purchaser normally purchases from the manufacturer a chassis or truck-tractor hav[651]*651ing a designated wheel base and hauling capacity. The purchase of a semitrailer or trailer is an entirely separate transaction in which the purchaser purchases from a bodybuilder or trailer manufacturer a trailer or semitrailer having a designated capacity and other special characteristics. As long as the physical hauling capacity of the truck-tractor is not to be exceeded, it is capable of being used with any combination of semitrailer or trailer.
15. Semitrailers vary in length from approximately 16 feet to a maximum of approximately 40 feet, but because of legal overall length limits in the majority of states, the largest semitrailer in standard use in such states is 35 feet in length. Semitrailers also vary in height, length, and weight.
16. Truck-tractors for use in combination with trailers or semitrailers also vary considerably as to weight and size.
17. For the purpose of achieving maximum speed and efficiency of operation, haulers of household goods customarily use a truck-tractor and a semitrailer or trailer of a weight and size that is greater than that used by other truckers in transporting loads of equivalent poundage.
18. The semitrailers used by plaintiff are specially designed for hauling household goods and are commercially unsuitable for hauling general merchandise, which is ordinarily hauled in semitrailers that are designed to withstand rough usage.
19. The shipping densities of general merchandise cargo vary from approximately 6 to 55 pounds per cubic foot. The loads actually carried by each of the 19 vehicles in the sample during the five months here in issue was less than 6 pounds per cubic foot in each instance.
20. For the year 1954, statistics gathered by the Bureau of Public Roads show that in the United States trucking industry as a whole:
(a) approximately 9% of the cargoes carried had shipping densities of less than 25 pounds per cubic foot;
(b) approximately 39% of the cargoes carried had shipping densities of between 25 and 50 pounds per cubic foot;
(c) approximately 17% of the cargoes carried had shipping densities of between 50 and 100 pounds per cubic foot;
[652]*652(d)approximately 35% of the cargoes carried had shipping densities of more than 100 pounds per cubic foot.
21. The total tonnage carried in trucks in 1954 amounted to approximately 1,650,825,000 tons. Of this total, some 29,000,000 tons were accounted for by cargoes which had shipping densities of less than 10 pounds per cubic foot, and these cargoes consisted of sixteen types of commodities including household goods. Of the 29,000,000 tons, 929,000 tons consisted of household goods. While the total figures have been the subject of variance since 1954, the percentage distribution of cargo load densities has not varied substantially in the years since 1954.
22. In the transportation of cargoes such as household goods, the truck-tractor used to haul a 28-foot semitrailer can be and frequently is used interchangeably to haul a 32-foot or 35-foot semitrailer.
23. Maintenance and construction costs of highways are affected not only by the actual weight of the vehicles which are to use the highway, but also by factors such as but not limited to:
(a) Width of vehicle,
(b) Height of vehicle,
(c) Length of vehicle,
(d) Distribution of gross weight per axle, and
(e) Frequency of occurrence of axle loads in the traffic stream.
24. The 1951 Handbook of the Society of Automotive Engineers, Inc., lists as “commercial bodies applicable to trucks or trailers” the following:
(a) Platform body
Stake body
(b) Hack body
Stock rack
(c) Express body
Pickup body
id) Canopy body
(e) Screen side body
(f) Brewers body
[653]*653(g) Camel back or dray body
(h) Ice body
(i) Lumber body
(j) Pulp wood body
(k) Log body
(l) Glaziers body
(m)Oil field body
(n) Riggers body
(o) Dump body
(p) Garbage and refuse body
(q) Hopper body
(r) Wr(s) Utilities body (t) Panel body
(s) Utilities body
(t) Panel body
Sedan delivery body
A Multi-stop body
(u) Van body
Insulated van body
Ventilated van body
Furniture van body
(vl Open top box body
(w)Grain body.
(x)Ice cream body
(y)Bottlers body
(z)Automobile transporter body
(aa) Armored car body (not military)
(bb) Tank body
Street flusher or sprinkler body
(cc) Concrete mixer or agitator body
(dd) Bituminous material distributor body
(ee) Horse van body
(ff) Bus body
[654]*654Schedule 1
SAMPLE DATA ON 19 MOTOR VEHICLES USED BY NORTH AMERICAN VAN LINES, INC.
Schedule 2
In the United States trucking industry as a whole:
(a) a two axle truck-tractor with actual unloaded weight of at least 5,500 pounds and less than 7,000 pounds customarily has, when used in connection with the trailer or semitrailer customarily used with such truck-tractor, a loaded weight of 80,000 pounds.
(b) a two axle truck-tractor with actual unloaded weight of at least 7,000 pounds and less than 9,000 pounds customarily has, when used in connection with the trailer or semitrailer customarily used with such truck-tractor, a loaded weight of 40,000 pounds.
[655]*655(c) a two axle truck-tractor with actual weight of more than 9,000 pounds, when used in connection with the trailer or semitrailer customarily used with such truck-tractor, customarily has a loaded weight of 50,000 pounds.
(d) the actual fully loaded weights of the type of vehicle described in subparagraph (a) normally vary from approximately 23,000 pounds to 35,000 pounds.
(e) the actual fully loaded weights of the type of vehicle described in subparagraph (b) normally vary from approximately 29,000 pounds to 44,000 pounds.
(f) the actual fully loaded weights of the type of vehicle described in subparagraph (c) normally vary from approximately 34,000 pounds to 52,000 pounds.
CONCLUSION OP LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and its petition is dismissed.