1. A state occupation tax, levied on all wholesale dealers in
oil and measured by a percent of the gross amount of their
respective sales made within the state, is not invalid as a burden
on interstate commerce when applied to local sales in the original
packages of oil previously shipped into the state and stored by the
dealer as part of his stock in trade. P.
262 U. S.
508.
2. As regards immunity from state taxation, the distinction
between imports and articles in original packages in interstate
commerce is that, in the one case, the immunity attaches to the
import itself before sale, while, in the other, it depends on
whether the tax regulates or burdens interstate commerce. P.
262 U. S.
509.
Woodrufl v.
Parham, 8 Wall. 123, followed.
Standard Oil Co.
v. Graves, 249 U. S. 389;
Ascren v. Continental Oil Co., 252 U.
S. 444;
Bowman v. Continental Oil Co.,
256 U. S. 642, and
Texas Co. v. Brown, 258 U. S. 466,
qualified.
Affirmed.
Appeal from a decree of the district court dismissing, on final
hearing, the appellants' bill, which sought to enjoin the
enforcement of penalties for failure to make reports of sales of
oil and for failure to pay a state tax in respect
Page 262 U. S. 507
of oil sold in the packages in which it had been originally
shipped into the state.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is an appeal from a decree of a United States district
court under § 238, Judicial Code, in a case in which a law of Texas
is claimed to be in contravention of the Constitution of the United
States. The law in question is Article 7377 of the Revised Civil
Statutes of Texas, approved May 16, 1907. Acts Tex.1907, p. 479. It
provides that every individual, firm, or corporation, foreign or
domestic, engaging as a wholesale dealer in coal oil or other oils
refined from petroleum shall make a quarterly report to the state
comptroller showing the gross amount, collected and uncollected,
from any and all sales made within the state during the quarter
next preceding, and that an occupation tax shall be paid by such
dealer equal to 2 percent of the gross amount of such sales,
collected or uncollected.
From an agreed statement of facts, the following appears:
Sonneborn Bros. is a firm of nonresident merchants selling
petroleum products, with its principal place of business in New
York City. In January, 1910, it opened an office in Dallas, Texas,
and since that time has maintained it and connecting warerooms and
has rented space in a public warehouse at San Antonio, Texas. From
January, 1910, until April 11, 1919, receipts from its total
Page 262 U. S. 508
sales, made through orders received at the Dallas office, have
amounted to $860,801.50. This sum included:
(1) Those from the sale of oil which, when sold, was not in
Texas.
(2) Those from sales of oil to be delivered from Texas out of
the state.
(3) Those arising from the sale of oil shipped into Texas and
afterwards sold from the storerooms in unbroken original
packages.
(4) Those from sales in Texas from broken packages.
The receipts from the first two classes amounted to $643,622.40,
and the state authorities made no effort to tax them. The receipts
from (4) amounted in the period named to $16,549.84, and appellants
do not deny their liability for the tax thereon. The sales made
under (3) of unbroken packages after their arrival in Texas and
after storage in the warerooms or warehouse of appellants amounted
to $217,179.10, and the tax on this, amounting to $4,674.58, is the
subject of the contest here.
The question we have to decide is whether oil transported by
appellants from New York or elsewhere outside of Texas to their
warerooms or warehouse in Texas, there held for sales in Texas in
original packages of transportation, and subsequently sold and
delivered in Texas in such original packages, may be made the basis
of an occupation tax upon appellants when the state tax applies to
all wholesale dealers in oil engaged in making sales and delivery
in Texas.
Our conclusion must depend on the answer to the question: is
this a regulation of, or a burden upon, interstate commerce? We
think it is neither. The oil had come to a state of rest in the
warehouse of the appellants, and had become a part of their stock,
with which they proposed to do business as wholesale dealers in the
state. The interstate transportation was at an end, and, whether,
in the original packages or not, a state tax upon the oil
Page 262 U. S. 509
as property or upon its sale in the state, if the state law
levied the same tax on all oil or all sales of it, without regard
to origin, would be neither a regulation nor a burden of the
interstate commerce of which this oil had been the subject.
This has been established so far as property taxes on the
merchandise are concerned by a formidable line of authorities.
Brown v. Houston, 114 U. S. 622;
Coe v. Errol, 116 U. S. 517;
Pittsburg Coal Co. v. Bates, 156 U.
S. 577;
Diamond Match Co. v. Ontonagon,
188 U. S. 82;
American Steel & Wire Co. v. Speed, 192 U.
S. 500,
192 U. S. 520;
General Oil Co. v. Crain, 209 U.
S. 211;
Bacon v. Illinois, 227 U.
S. 504.
But the argument is that, for articles in original packages, the
sale is a final step in the interstate commerce, and that the owner
may not be taxed upon such sale, because this is a direct burden on
that step. The reasoning is based on the supposed analogy of the
immunity from state taxation of imports from foreign countries
which lasts until the article imported has been sold, or has been
taken from its original packages of importation and added to the
mass of merchandise of the state. This immunity of imports was
established by this Court in
Brown v.
Maryland, 12 Wheat. 419,
25 U. S.
446-447, and was declared in obedience to the
prohibition of the Constitution contained in § 10, Art. I, par. 2,
providing that:
"No state shall, without the consent of the Congress, lay any
imposts or duties on imports or exports except what may be
absolutely necessary for executing its inspection laws."
The holding was that the sale was part of the importation. It is
the article itself to which the immunity attaches, and whether it
is in transit or is at rest, so long as it is in the form and
package in which imported and in the custody and ownership of the
importer, the state may not tax it. This immunity has been enforced
as against
Page 262 U. S. 510
a license or occupation tax on the importer in
Brown v.
Maryland, 12 Wheat. 419, as against a personal
property tax on a stock of wines of a wine dealer to the extent to
which the stock included imported wines in the original packages.
Low v. Austin,
13 Wall. 29, and as against an occupation tax on an auctioneer
measured by his commissions on the sales of such imports,
Cook
v. Pennsylvania, 97 U. S. 566. When,
however, the article imported is sold or is taken from the original
package and exposed for sale, the immunity is gone.
Waring v.
Mobile, 8 Wall. 110;
May v. New Orleans,
178 U. S. 496.
cases subsequent to
Brown v. Maryland show that the
analogy between imports and articles in original packages in
interstate commerce in respect of immunity from taxation fails. The
distinction is that the immunity attaches to the import itself
before sale, while the immunity in case of an article because of
its relation to interstate commerce depends on the question whether
the tax challenged regulates or burdens interstate commerce.
The first of the cases making this distinction is
Woodruff v.
Parham, 8 Wall. 123. In that case, Woodruff, an
auctioneer in Mobile, received, in the course of his general
business for himself and as consignee and agent for others,
merchandise from Alabama and from other states and sold it in
unbroken packages. The City of Mobile, under its charter, levied a
uniform tax on real and personal property, on sales at auction, on
sales of merchandise, and on capital employed in the business in
the city. Woodruff objected to paying any tax on the auction sales
of merchandise from other states in original packages. The question
most considered by the Court was whether merchandise exported from
one state to another was an export which a state was forbidden to
tax by Article I, § 10, par. 3, of the federal Constitution, above
quoted. It was held that it was not, and that the words "imports
and exports" as there used referred to, and included only
merchandise
Page 262 U. S. 511
brought in from, or transported to, foreign countries. The Court
(p.
75 U. S. 140)
further held that such a tax which did not discriminate against the
sales of goods from other states, but was imposed upon sales of all
merchandise, whether its origin was in Alabama or in any other
state, was not "an attempt to fetter commerce among the
states."
At the close of the opinion in
Brown v. Maryland, Chief
Justice Marshall made the remark "that we suppose the principles
laid down in this case apply equally to importations from a sister
state." This was pronounced in
Woodruff v. Parham not to
be a judicial decision of the question, but an
obiter
dictum.
While the opinion by Mr. Justice Miller in
Woodruff v.
Parham is chiefly devoted to showing that exports are limited
to goods sent out of the country, the decision on the interstate
commerce phase of the issue was most fully considered. The adverse
view was pressed with all the learning and force of argument of
John A. Campbell, formerly a Justice of this Court.
Immediately following
Woodruff v. Parham is
Hinson v.
Lott, 8 Wall. 148, in which was at issue the
validity of a provision of the Alabama law that, before it should
be lawful for a dealer introducing spirituous liquors into the
state to offer the same for sale, he must pay 50 cents a gallon
thereon. The provision was sustained as not being an attempt to
burden interstate commerce because, by another section of the same
law, every distiller of the state was required to pay fifty cents a
gallon on all liquor made by him, and the two sections were
complementary in order "to make the tax equal on all liquors sold
in the state."
Woodruff v. Parham was affirmed and applied in
Brown v. Houston, 114 U. S. 622,
where coal mined in Pennsylvania and sent in barges to New Orleans,
to be sold after arrival from those barges, without being landed,
to a
Page 262 U. S. 512
vessel bound to a foreign port was held while awaiting sale to
be subject to taxation by the state as property in Louisiana.
The case of
Woodruff v. Parham has never been
overruled, but has often been approved and followed, as the cases
above cited show. As an authority, it controls the case before us,
and shows conclusively that the tax in question is valid.
The distinction between the immunity from state taxation of
imports in original packages and that of articles coming from
interstate commerce in original packages is again brought out with
emphasis by Mr. Justice White, afterwards Chief Justice, in
American Steel & Wire Co. v. Speed, 192
U. S. 522. In that case, articles of hardware were
shipped by the American Steel & Wire Company from their
factories in the East to Memphis, Tennessee, and there kept in
store in original packages to be distributed to Arkansas and other
states when sold, on orders to be subsequently secured. Memphis,
under a general law, imposed a merchant's tax on the wire company,
based on the average capital invested in the business and included
this stock of original packages in the average. The Court conceded
that, if these goods were "imports," they could not be taxed under
Brown v. Maryland, but said (p.
192 U. S.
519):
"But the goods not having been brought from abroad, they were
not imported in the legal sense, and were subject to state taxation
after they had reached their destination and whilst held in the
state for sale,"
and cited the cases of
Woodruff v. Parham and
Brown
v. Houston. Speaking of these cases, the Justice said:
"Those two cases, decided the one more than 35 and the other
more than 18 years ago, are decisive of every contention urged on
this record depending on the import and the commerce clause of the
Constitution of the United States. The doctrine which the two
Page 262 U. S. 513
cases announced has never since been questioned. It has become
the basis of taxing power exerted for years by all the states of
the Union."
Support for the contention that a state tax on sales of
merchandise in original packages brought in from another state is
to be distinguished from
ad valorem taxes on the
merchandise itself is supposed to be found in the cases of
Leisy v. Hardin, 135 U. S. 100, and
Lyng v. Michigan, 135 U. S. 161. In
those cases, it was held that a law of a state which forbade sales
or merchandise brought in to the state from another state and
subjected it to forfeiture was invalid because freedom to sell was
part of interstate commerce, and interference with such freedom was
an obstruction, and would be so regarded as long as the merchandise
was unsold and in an original package. The reasoning in
Brown
v. Maryland as to the necessity of sale to complete
importation was resorted to by the Court in
Leisy v.
Hardin to sustain the view that a sale was a part of
interstate commerce, and any state action which intercepted the
merchandise brought in before sale in the original package was
void. In drawing the proper line between the valid operation of
state prohibition laws and lawful interstate commerce, Chief
Justice Marhall's conception of that to be drawn between
importation from abroad under the Constitution and state taxation
was adopted. Without questioning the reasoning used to reach the
conclusion in
Leisy v. Hardin, it is enough to point out
the radical difference between state legislation preventing any
sale at all accompanied by forfeiture of the merchandise and a
provision for an occupation tax applicable to all sales of such
merchandise, whether domestic or brought from another state. The
one plainly interferes with or destroys the commerce, the other
merely puts the merchandise on an equality with all other
merchandise in the state, and constitutes no real hindrance to
introducing the merchandise into the state for sale
Page 262 U. S. 514
upon the basis of equal competition. Mr. Justice White, in his
opinion in the
American Steel & Wire Co. v. Speed,
thus distinguished
Leisy v. Hardin from the case then
before the Court. The obstruction to interstate commerce in
Leisy v. Hardin was like that in
Schollenberger v.
Pennsylvania, 171 U. S. 1,
171 U. S. 12, in
Railroad Co. v. Husen, 95 U. S. 465,
95 U. S. 469,
in
Minnesota v. Barber, 136 U. S. 313, in
Brimmer v. Rebman, 138 U. S. 78, in
Scott v. Donald, 165 U. S. 58,
165 U. S. 97, in
Vance v. Vandercook, No. 1, 170 U.
S. 438, and in
American Express Co. v. Iowa,
196 U. S. 133.
Counsel for the appellants cite the case of
Dahnke-Walker
Milling Co. v. Bondurant, 257 U. S. 282,
257 U. S. 290,
as aiding their argument that a tax on a sale of merchandise in an
original package brought from another state is a tax on interstate
commerce, and is different from an
ad valorem property tax
on the merchandise. But that case was not concerned with the power
to tax, but rather with the power of a state to prevent an
engagement in interstate commerce within her limits except by her
leave. The holding there was that a contract for the purchase of a
crop of grain in Kentucky to be delivered at a railway station in
Kentucky for shipment to Tennessee, conformably to a settled course
of business, was an interstate contract which a corporation not
authorized by Kentucky to do business in that state might
nevertheless make and enforce without incurring the penalty of the
state law. It was said in that case (p.
257 U. S. 290)
that--
"Where goods in one state are transported into another for
purposes of sale, the commerce does not end with the
transportation, but embraces as well the sale of the goods after
they reach their destination, and while they are in the original
packages.
Brown v. Maryland, 12 Wheat.
419,
25 U. S. 446-447;
American Steel & Wire Co. v. Speed, 192 U. S.
500,
192 U. S. 519. On the same
principle, where goods are purchased in one state for
transportation to another, the
Page 262 U. S. 515
commerce includes the purchase quite as much as it does the
transportation.
American Express Co. v. Iowa, 196 U. S.
133,
196 U. S. 143."
But this language has no relevancy to show that a tax without
discrimination on goods after the transportation ceases is a burden
on interstate commerce, a proposition negatived in the
American
Steel & Wire Co. case it cites, or that a different rule
should apply to an
ad valorem property tax from that in
case of a tax on sales.
Many of the sales by the appellants were made by them before the
oil to fulfill the sales was sent to Texas. These were properly
treated by the state authorities as exempt from state taxation.
They were in effect contracts for the sale and delivery of the oil
across state lines. The soliciting of orders for such sales is
equally exempt. Such transactions are interstate commerce in its
essence, and any state tax upon it is a regulation of it and a
burden upon it.
Robbins v. Shelby County Taxing District,
120 U. S. 489;
Asher v. Texas, 128 U. S. 129;
Stoutenburgh v. Hennick, 129 U. S. 141,
129 U. S. 147;
Caldwell v. North Carolina, 187 U.
S. 622;
Rearick v. Pennsylvania, 203 U.
S. 507;
Brennan v. Titusville, 153 U.
S. 289;
Dozier v. Alabama, 218 U.
S. 124;
Crenshaw v. Arkansas, 227 U.
S. 389;
Stewart v. Michigan, 232 U.
S. 665;
Western Oil Co. v. Lipscomb,
244 U. S. 346.
So too, a tax upon the gross receipts from interstate
transportation or transmission, whether receipts from intrastate
transportation or transmission are equally taxed or not, is an
unlawful tax because a direct burden upon interstate commerce.
Case of State Weight
Tax, 15 Wall. 232,
82 U. S.
276-277;
Fargo v. Michigan, 121 U.
S. 230,
121 U. S. 244;
Philadelphia & So. Steamship Co. v. Pennsylvania,
122 U. S. 326,
122 U. S. 336;
Leloup v. Port of Mobile, 127 U.
S. 640,
127 U. S. 648;
McCall v. California, 136 U. S. 104,
136 U. S. 109;
Galveston, Harrisburg & San Antonio Ry. Co. v. Texas,
210 U. S. 217,
210 U. S. 227;
Crew Levick Co. v. Pennsylvania, 245 U.
S. 292.
Page 262 U. S. 516
A state tax upon merchandise brought in from another state or
upon its sales, whether in original packages or not, after it has
reached its destination and is in a state of rest is lawful only
when the tax is not discriminating in its incidence against the
merchandise because of its origin in another state. This
distinction is illustrated in the difference between those cases
which uphold the validity of a tax upon peddlers engaged in selling
merchandise from out of the state which they carry with them, like
those of
Machine Co. v. Gage, 100 U.
S. 676;
Ement v. Missouri, 156 U.
S. 296;
Baccus v. Louisiana, 232 U.
S. 334, and
Wagner v. Covington, 251 U. S.
95, on the one hand, and that of
Welton v.
Missouri, 91 U. S. 275, in
which a peddler's tax was held bad because it was levied only on
goods from other states, on the other.
Ward v.
Maryland, 12 Wall. 418,
79 U. S. 429;
Guy v. Baltimore, 100 U. S. 434,
100 U. S.
442-443;
Tierman v. Rinker, 102 U.
S. 123;
Webber v. Virginia, 103 U.
S. 344,
103 U. S. 350,
and
Walling v. Michigan, 116 U. S. 446, are
other instances showing the invalidity of state tax laws
discriminating against merchandise brought in from other
states.
Appellants' chief argument to sustain their contention that a
sale of merchandise in the original package made after it is
brought into the state from another state is exempt from state
taxation is based upon the language of the opinions in certain
recent cases in this Court. They are
Standard Oil Co. v.
Graves, 249 U. S. 389;
Askren v. Continental Oil Co., 252 U.
S. 444,
Bowman v. Continental Oil Co.,
256 U. S. 642, and
Texas Co. v. Brown, 258 U. S. 466.
Oil Co. v. Graves was a case of excessive inspection
fees. The law of Washington in that case required inspection and
labeling before sale, and punished sales without them. The supreme
court of the state said the law could be sustained as an excise law
on selling oil in the state. The opinion contains this passage:
Page 262 U. S. 517
"In this case, the amended complaint alleges that the oils were
shipped into Washington from California. They are brought there for
sale. This right of sale as to such importations is protected . . .
by the federal Constitution, certainly while the same are in the
original receptacles or retainers in which they are brought into
the state."
The Court said finally:
"We reach the conclusion that the statute imposing these
excessive inspection fees in the manner stated upon all sales of
oils brought into the state in interstate commerce necessarily
imposes a direct burden upon such commerce, and is therefore
violative of . . . the federal Constitution."
There is nothing in the statement of the case to show the
details of the importations of oil, and nothing to indicate how
much, if any, of the oil imported had been ordered before shipment
into the state, or how much sold after importation. The remark of
the Court as to original receptacles or retainers therefore is not
shown to have been necessary to the conclusion.
The case of
Askren v. Continental Oil Co. involved the
validity of a law, called an inspection law, imposing a license tax
upon those selling gasoline in the state, and an excise tax of 2
cents a gallon on the sale or use of it. The inspectors' duties
were to see to the execution of the act and the excess of receipts
after payment of their salaries and expenses went into the road
fund of the state. The case was decided on the averments of the
bill, which described complainant's business of two kinds: first
that of selling oil to customers in tanks, and also in barrels and
packages containing not less than two 5-gallon cans, without
breaking them, and second of selling gasoline from such tanks and
cans in quantities desired by the purchaser. There was nothing to
show whether the first kind of business was done on orders lodged
before importation or after.
Page 262 U. S. 518
The Court, however, said:
"As to the gasoline brought into the state in the tank cars, or
in the original packages, and so sold, we are unable to discover
any difference in plan of importation and sale between the instant
case and that before us in
Standard Oil Co. v. Graves,
249 U. S.
389, in which we held that a tax, which was in effect a
privilege tax, as is the one under consideration, providing for a
levy of fees in excess of the cost of inspection, amounted to a
direct burden on interstate commerce. In that case, we reaffirmed
what had been often adjudicated heretofore in this Court -- that
the direct and necessary effect of such legislation was to impose a
burden upon interstate commerce; that, under the federal
Constitution, the importer of such products from another state into
his own state for sale in the original packages had a right to sell
the same in such packages without being taxed for the privilege by
taxation of the sort here involved."
If the orders for such sales in original packages were given
before importation, the conclusion reached by the court that they
were protected against an excise or license tax is in accord with
all of the cases already cited, though the fact that they were
delivered in the original packages would not give them any
additional immunity. It should be noted that, in this opinion, the
case of
Wagner v. Covington, 251 U. S.
95, is quoted approvingly and followed, although in that
case a tax was upheld on merchandise brought in from Ohio by the
seller and sold there in the original packages. In the absence of
specification as to when ordered, we cannot be sure that the case
was wrongly decided, but only that the language used contained
implications which cannot be sustained.
The case of
Bowman v. Continental Oil Co. was the same
case as the
Askren case, the representatives of the state
having changed. The
Askren case had come here on an appeal
from an interlocutory injunction, and was
Page 262 U. S. 519
decided on the averments of the bill. When the case went back,
an answer was filed and the case was heard, and it turned out that
only five percent of the business was in tank cars and unbroken
packages sold, and that 95 percent was in sales of gasoline in
quantities desired. The main point decided in the
Bowman
case was that a license tax law which imposed a lump tax as a
condition of doing business, part of which it was unlawful under
the federal Constitution to tax, must be declared void though the
other part of the business might have been properly the subject of
such a tax. As to the excise tax, the Court directed the injunction
to issue with respect to the imposition
"upon sales of gasoline brought from without the state into the
State of New Mexico and there sold and delivered to customers in
the original packages, whether tank cars, barrels, or other
packages, and in the same form and condition as when received by
the plaintiff in that state."
If this covered gasoline that was ordered by the purchaser
before importation, it was right. If it covered gasoline, whether
in original packages or not, which was sold after it reached its
destination, then it is not in accord with the law as we understand
it to be under the authorities we have cited. There is nothing in
the case as disclosed either in the statements of facts in the
Askren or the
Bowman case to show what the fact
was in this regard.
It is hardly to be supposed that the Court intended in these
cases to overrule or narrowly to distinguish the cases of
Woodruff v. Parham, Hinson v. Lott, Brown v. Houston, Pittsburg
Coal Co. v. Bates, American Steel & Wire Co. v. Speed, and
Wagner v. City of Covington without mentioning them,
especially when we find that, in
Texas Co. v. Brown,
258 U. S. 466,
258 U. S. 476,
they are quoted approvingly and followed. That case involved the
question whether an inspection law resulting in receipts greatly in
excess of the cost of inspection, and construed
Page 262 U. S. 520
by the Georgia Supreme Court to be an excise tax was valid in
its application to oil shipped into Georgia from Texas and stored
in Georgia for distribution and sale. It was held to be a valid
tax. The case was rightly decided, and for the right reason; but,
in seeking to distinguish the previous cases, the opinion uses this
language:
"Appellant insists that
Standard Oil Co. v. Graves,
249 U. S.
389, is inconsistent with the imposition of inspection
fees on a revenue basis upon goods brought from another state,
however held or disposed of in Georgia. That decision, however,
extended the exemption from such fees of goods brought from state
to state no further than 'while the same are in the original
receptacles or containers in which they are brought into the state'
(pp.
249 U. S. 394-395), and so
it was interpreted in
Askren v. Continental Oil Co.,
252 U. S.
444,
252 U. S. 449."
Upon full consideration and after a reargument, we cannot think
this extension of the exemption referred to, if intended to apply
to oil sold after arrival in the state, to be justified either in
reason or in previous authority, and, to this extent, the opinions
in the cases cited are qualified.
The cases all involved the validity of statutes providing for
excessive inspection fees and the question of saving the statute as
an excise law applicable to part of the sales of the oil was an
incidental one. The facts upon which the line between taxable and
nontaxable sales could be correctly drawn do not appear fully in
any of the cases, or to have been discussed by counsel. This is
what has led to a confusion as to the real distinctions, and to
observations in the opinions which, unless much restricted in their
application, constitute a departure from theretofore established
principles.
In
Woodruff v.
Parham, 8 Wall. 137, Mr. Justice Miller gives an
illustration of the injustice which would arise if the
constitutional immunity from state taxation as to
Page 262 U. S. 521
imports from abroad were to be held to apply to imports from one
state to another. It correctly describes the result if the
interstate commerce clause were to afford the same immunity:
"The merchant of Chicago who buys his goods in New York and
sells at wholesale in the original packages may have his millions
employed in trade for half a lifetime and escape all state, county,
and city taxes, for all that he is worth is invested in goods which
he claims to be protected as imports from New York. Neither the
state nor the city which protects his life and property can make
him contribute a dollar to support its government, improve its
thoroughfares, or educate its children. The merchant in a town in
Massachusetts who deals only in wholesale, if he purchases in New
York, is exempt from taxation. If his neighbor purchase in Boston,
he must pay all the taxes which Massachusetts levies with equal
justice on the property of all its citizens."
This argument is as strong today as when it was written, and it
would be a source of confusion and injustice if, through too broad
expressions in a few opinions, a different conclusion from that to
which it should carry us were to obtain.
The decree of the district court is
Affirmed.
MR. JUSTICE McREYNOLDS, concurring.
I am unable to concur in all said to support the conclusion
adopted by the Court. To me, the result seems out of harmony with
the theory upon which recent opinions proceed. There is unfortunate
confusion concerning the general subject, and certainly some
pronouncement that can abide is desirable.
Apparently no great harm, and possibly some good, will follow a
flat declaration that, irrespective of analogies and
Page 262 U. S. 522
for purposes of taxation, we will hold interstate commerce ends
when an original package reaches the consignee and comes to rest
within a state, although intended for sale there in unbroken form.
It may be said that the effect on interstate commerce is not
substantial and too remote notwithstanding the rather clear logic
of
Brown v.
Maryland, 12 Wheat. 419, to the contrary and the
much discussed theory respecting freedom of interstate commerce
from interference by the states, announced and developed long after
Woodruff v.
Parham, (1868) 8 Wall. 123. Logic and taxation are
not always the best of friends.