THOMAS, J.:
The appellant is a broker selling in several south' Florida counties the products of manufacturers he selects. He maintains- no stock, but exhibits samples to prospective customers
who are thus enabled to determine the variety and quality of goods they wish to buy. Other than his samples his equipment consists only of office furniture. The concerns he patronizes have their principal places of business outside the State of Florida. When a customer approaches him relative to the purchase of goods he displays the samples and orders according to the customer’s selection, but in cases where the same merchandise can be obtained from more than one dealer he chooses the one from which the goods will be ordered. He makes no deliveries; pays his own office expenses; and is, presumably,- compensated by the seller when goods are delivered and accepted.
The tax collector sought to collect from him an occupation license tax under Section 5, Chapter 18011, Laws of Florida, Acts of 1937, Sec. 205.59, Florida Statutes, 1941, and F.S.A. The appellant contends that he is engaged in interstate business only, hence exempt from the payment of the license fee. He. charges that such an imposition would affect interstate transactions in violation of the commerce clause of the Federal Constitution (Article I, Sec. 8, cl. 3). The chancellor rejected his prayer for injunction and dismissed his bill with prejudice.
It seems then that appellant is an independent operator who does not claim the authority to bind any dealer; does not undertake to represent any particular purchaser. He merely solicits orders for the purchase of products and then forwards these orders to such jobbers, dealers, or manufacturers as may be able to supply the merchandise to the satisfaction of his customers. As we observed in the very beginning, he is a typical broker.
Our first impression was that payment of an occupation license tax by him could not be considered to burden interstate commerce. We have been obliged to abandon it, however, because of our study of the authorities which we will presently quote, in the light of the following significant features of the record. The bill alleged that plaintiff was “engaged in interstate commerce transactions solely, whereby [he] displays, by samples, goods and products of manufacturing concerns
located beyond the limits of the State of Florida
to various jobbers in Dade County, Florida, for the purpose of inducing said jobbers to place in stock the merchandise and goods sold by said non-resident manufacturers. . . .” His testimony bore out these allegations, for he stated that he sold “for principals
that reside out of the state ”
and he replied in the affirmative to a question by the chancellor himself, “You show samples and have the goods shipped from another territory?”. The construction placed by the chancellor upon this phase of the testimony is clearly shown by the recital in his decree: “Plaintiff . . . desires to continue as a . . . broker . . . selling ... by sample or oral description . . . , the delivery being made from wholesalers, factors and owners
outside of Florida. . .
.” (Italics in this paragraph have been supplied.)
The question then is whether a broker of this character, one who places all orders with concerns beyond the limits of the State, can be required to obtain the occupation license.
Of course, the matter being one of construction and application of the Federal Constitution, it is appropriate that we search for a solution in the decisions of the Supreme Court of the United States.
The question has been often entertained by that tribunal and decided with respect to all sorts of businesses.
It seems clear that if, in his dealings, some orders were placed by appellant with firms situated in this State he could not escape the license. J. E. Raley and Bros. v. Richardson, 264 U. S. 157, 68 L. Ed. 615, 44 Sup. Ct. Rep. 256. In that case the Supreme Court of the United States approved the decision of the Supreme Court of Georgia, 154 Ga. 140, 113 S.E. 531, holding such a license applicable when orders were sent “sometimes to nonresident and sometimes to resident principles.” The former court expressly limited its considera
tion to the effect of the statute on this particular class of brokers, that is, those who send orders to principals in and out of the State, and did not consider that part of the ruling of the Supreme Court of Georgia which had held the license unconstitutional ■ as to those brokers restricting their transactions to dealers domiciled in foreign states. The decision is of special significance to us, however, because it does convince us that a brokerage business identical with the one conducted by the appellant comes within the purview of the constitutional inhibition commonly referred to as the commerce clause.
The same day the Georgia court released the opinion in J. E. Raley & Bros. v. Richardson, supra, they filed also the decision in Crump v. McCord, 154 Ga. 147, 113 S.E. 534, which fully supports the position taken by the appellant in this case. See also 33 Am. Jur., Licenses, page 351. Counsel for appel-lees concedes that the ruling by the chancellor was inharmonious with the decision in the latter case, but he contends that such is not the weight of authority.
Bearing in mind the status of the litigation when it reached us, namely, that it had been alleged and proved, and found by the chancellor, that all dealings by the appellant were conducted with manufacturers or jobbers without the State of Florida, and recalling also recognition by the Supreme Court of the United States that occupation licenses of businesses such as the one conducted by the appellant might be precluded by the commerce clause, we cannot conclude that the ruling in the case of Crump v. McCord, supra, is in discord with the expressions of the Supreme Court of the United States on the subject. Mr. Justice BRANDEIS in the case of Sprout v. City of South Bend, 277 U. S. 163, 72 L. Ed. 833, 48 Sup. Ct. 502, 504, 62 A.L.R. 45, expressed the general rule as follows: “A state may, by appropriate legislation, require payment of an occupation tax from one engaged in both intrastate and interstate commerce.” In support of this pronouncement he cited, J. E. Raley & Bros. v. Richardson, supra, and, incidentally, a case from this Court, Osborne v. Florida, 164 U. S. 650, 41 L. Ed. 586; 17 Sup. Ct. Rep. 214, Which is also reported in 14 So. 588 and 33 Fla. 162. 25
L.R.A. 120, 39 Am. St. Rep. 99. Then he stated the exception: “But in order that the fee or tax shall be valid, it must appear that it is imposed solely on account of the intrastate business; that the amount exacted is not increased because of the interstate business done; that one engaged exclusively in interstate commerce would not be subject to the imposition; and that the person taxed could discontinue the intrastate business without withdrawing also from the interstate business. Further cases relative to the point may be found in the opinion and in 33 Am. Jur., Licenses, page 351.
Mr.
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THOMAS, J.:
The appellant is a broker selling in several south' Florida counties the products of manufacturers he selects. He maintains- no stock, but exhibits samples to prospective customers
who are thus enabled to determine the variety and quality of goods they wish to buy. Other than his samples his equipment consists only of office furniture. The concerns he patronizes have their principal places of business outside the State of Florida. When a customer approaches him relative to the purchase of goods he displays the samples and orders according to the customer’s selection, but in cases where the same merchandise can be obtained from more than one dealer he chooses the one from which the goods will be ordered. He makes no deliveries; pays his own office expenses; and is, presumably,- compensated by the seller when goods are delivered and accepted.
The tax collector sought to collect from him an occupation license tax under Section 5, Chapter 18011, Laws of Florida, Acts of 1937, Sec. 205.59, Florida Statutes, 1941, and F.S.A. The appellant contends that he is engaged in interstate business only, hence exempt from the payment of the license fee. He. charges that such an imposition would affect interstate transactions in violation of the commerce clause of the Federal Constitution (Article I, Sec. 8, cl. 3). The chancellor rejected his prayer for injunction and dismissed his bill with prejudice.
It seems then that appellant is an independent operator who does not claim the authority to bind any dealer; does not undertake to represent any particular purchaser. He merely solicits orders for the purchase of products and then forwards these orders to such jobbers, dealers, or manufacturers as may be able to supply the merchandise to the satisfaction of his customers. As we observed in the very beginning, he is a typical broker.
Our first impression was that payment of an occupation license tax by him could not be considered to burden interstate commerce. We have been obliged to abandon it, however, because of our study of the authorities which we will presently quote, in the light of the following significant features of the record. The bill alleged that plaintiff was “engaged in interstate commerce transactions solely, whereby [he] displays, by samples, goods and products of manufacturing concerns
located beyond the limits of the State of Florida
to various jobbers in Dade County, Florida, for the purpose of inducing said jobbers to place in stock the merchandise and goods sold by said non-resident manufacturers. . . .” His testimony bore out these allegations, for he stated that he sold “for principals
that reside out of the state ”
and he replied in the affirmative to a question by the chancellor himself, “You show samples and have the goods shipped from another territory?”. The construction placed by the chancellor upon this phase of the testimony is clearly shown by the recital in his decree: “Plaintiff . . . desires to continue as a . . . broker . . . selling ... by sample or oral description . . . , the delivery being made from wholesalers, factors and owners
outside of Florida. . .
.” (Italics in this paragraph have been supplied.)
The question then is whether a broker of this character, one who places all orders with concerns beyond the limits of the State, can be required to obtain the occupation license.
Of course, the matter being one of construction and application of the Federal Constitution, it is appropriate that we search for a solution in the decisions of the Supreme Court of the United States.
The question has been often entertained by that tribunal and decided with respect to all sorts of businesses.
It seems clear that if, in his dealings, some orders were placed by appellant with firms situated in this State he could not escape the license. J. E. Raley and Bros. v. Richardson, 264 U. S. 157, 68 L. Ed. 615, 44 Sup. Ct. Rep. 256. In that case the Supreme Court of the United States approved the decision of the Supreme Court of Georgia, 154 Ga. 140, 113 S.E. 531, holding such a license applicable when orders were sent “sometimes to nonresident and sometimes to resident principles.” The former court expressly limited its considera
tion to the effect of the statute on this particular class of brokers, that is, those who send orders to principals in and out of the State, and did not consider that part of the ruling of the Supreme Court of Georgia which had held the license unconstitutional ■ as to those brokers restricting their transactions to dealers domiciled in foreign states. The decision is of special significance to us, however, because it does convince us that a brokerage business identical with the one conducted by the appellant comes within the purview of the constitutional inhibition commonly referred to as the commerce clause.
The same day the Georgia court released the opinion in J. E. Raley & Bros. v. Richardson, supra, they filed also the decision in Crump v. McCord, 154 Ga. 147, 113 S.E. 534, which fully supports the position taken by the appellant in this case. See also 33 Am. Jur., Licenses, page 351. Counsel for appel-lees concedes that the ruling by the chancellor was inharmonious with the decision in the latter case, but he contends that such is not the weight of authority.
Bearing in mind the status of the litigation when it reached us, namely, that it had been alleged and proved, and found by the chancellor, that all dealings by the appellant were conducted with manufacturers or jobbers without the State of Florida, and recalling also recognition by the Supreme Court of the United States that occupation licenses of businesses such as the one conducted by the appellant might be precluded by the commerce clause, we cannot conclude that the ruling in the case of Crump v. McCord, supra, is in discord with the expressions of the Supreme Court of the United States on the subject. Mr. Justice BRANDEIS in the case of Sprout v. City of South Bend, 277 U. S. 163, 72 L. Ed. 833, 48 Sup. Ct. 502, 504, 62 A.L.R. 45, expressed the general rule as follows: “A state may, by appropriate legislation, require payment of an occupation tax from one engaged in both intrastate and interstate commerce.” In support of this pronouncement he cited, J. E. Raley & Bros. v. Richardson, supra, and, incidentally, a case from this Court, Osborne v. Florida, 164 U. S. 650, 41 L. Ed. 586; 17 Sup. Ct. Rep. 214, Which is also reported in 14 So. 588 and 33 Fla. 162. 25
L.R.A. 120, 39 Am. St. Rep. 99. Then he stated the exception: “But in order that the fee or tax shall be valid, it must appear that it is imposed solely on account of the intrastate business; that the amount exacted is not increased because of the interstate business done; that one engaged exclusively in interstate commerce would not be subject to the imposition; and that the person taxed could discontinue the intrastate business without withdrawing also from the interstate business. Further cases relative to the point may be found in the opinion and in 33 Am. Jur., Licenses, page 351.
Mr. Justice BUTLER, of the Supreme Court of the United States, in East Ohio Gas Company v. Tax Commission of Ohio, 283 U.S. 465, 75 L. Ed. 1171, 51 Sup. Ct. 499, was quite definite in stating the rule: “It is elementary that a state can neither lay a tax on the act of engaging in interstate commerce nor on gross receipts therefrom.” He continued, “And, while a state may require payment of an occupation tax by one engaged in both intrastate and interstate commerce, the exaction in order to be valid must be imposed solely on account of the intrastate business . . . and it must appear that one engaged exclusively in interstate business would not be subject to the imposition and that the taxpayer could discontinue the intrastate business without withdrawing also from the interstate business.”
The writer of this opinion cannot repel the temptation to state that in his personal opinion injustice may be caused by the rule that imposition of a license upon the appellant and those similarly situated would tend to work injustice, and that he has the inclination, sympathetic with the ruling of the chancellor, to follow the case of State v. Stein, 240 Ala. 324, 199 So. 13, but it is prohibited from doing so out of deference to late decisions of the Supreme Court of the United States, some of which have been cited. Unfairness of the rule is suggested because two brokers, one falling in one class and one falling in the other, as described in J. E. Raley & Bros. v. Richardson, supra, and engaged in the same business, may not be required to pay the same license tax. The one dealing exclusively with out-of-state persons escapes the tax,, while the one dealing wholly with principals within the state or with
some principals within and some without the state is forced to pay it. Thus there could occur a discrimination against the latter to prevent a discrimination against the former.
This introduces the history of the decisions of the Supreme Court of the United States, which it is thought may not have been duly considered by the Supreme Court of Alabama in State v. Stein, supra. A point of fact and another of law in the reported decision in that case become quite prominent in analyses of the current as distinct from the past decisions. For instance, it was stressed that in the case of Graybar Electric Company v. Curry, 238 Ala. 116, 189 So. 186, the same court had held a company taxable which had ordered “equipment direct from out-of-state manufacturers, who shipped the goods direct to the customer within the state,” [240 Ala. 324, 199 So. 14] payment being made by the customer, not the shipper, but to the broker. More important, principal authority for the decision in State v. Stein, supra, was Hinson v. Lott, 19 L. Ed. 387, 8 Wall. 148, 75 U. S. 148, where Mr. Justice MILLER, writing for the Supreme Court of the United States, expressed the law as we think it now should be: “ ‘As the effect of the act is such as we have described, and it institutes no legislation which discriminates against the products of sister States, but merely subjects them to the same rate of taxation which similar articles pay that are manufactured within the State, we do not see in it an attempt to regulate commerce, but an appropriate and legitimate exercise of the taxing power of the States’.” So the Supreme Court of Alabama in 1940 quoted language which the Supreme Court of the United States employed in 1869.
Difficulty arises in following the former court because between those years there seems to have been considerable expansion by the latter court of the basis for determining whether taxation imposed by states offended against the commerce clause. Evidently when the opinion was written in Hinson v. Lott, supra, such a burden could be imposed so long as there was no discrimination in favor of the products of a state against the products of sister states. Applied to this case such a construction would result in a holding that appellant could not complain of the license tax required of
him if an identical tax were collected from a competitor having his orders filled by firms within the State.'
We'have spoken of the change in the bases of interpretations of the commerce clause. Evidently this occurred between 1872, when the opinion was written in Osborne v. Mobile, 21 L. Ed. 470, 16 Wall. 479, 83 U. S. 479, and 1888, when the opinion was written in Leloup v. Mobile, 32 L. Ed. 311, 127 U. S. 640, 8 S. Ct. 1380, 1383. Although the facts in those cases were unlike the ones' here, nevertheless the principle announced is of utmost importance in determining the present controversy. In the latter case the court, with admirable candor, observed that in the preceding fifteen years it had often felt it necessary to re-examine “the commercial power of Congress” and sometimes “to modify in some degree certain dicta and decisions that have occasionally been made in the intervening period.” Then came the significant statement: “In our opinion such a construction of the Constitution leads to the conclusion that no State has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, and the reason is that such taxation is a' but den on that commerce, and amounts to a regulation of it, which belongs solely to Congress.” Thus the criterion for the determination of the validity of a license became a matter of regulation as well as one of discrimination.
Summarizing, then, it appears from the record that it was alleged, proved, arid found that the appellant solicited orders within this State which were forwarded only to principals located without the State. In the case originally cited the Supreme Court of the United States obviously considered a business of the kind followed by appellant as being within the sphere of operation of the commerce clause. Had appellant occasionally sent the orders of his customers to manufacturers within the State he could not have avoided payment of the occupational" license tax, but, having restricted his dealings to corporations outside the limits of the State, he engaged exclusively in interstate commerce rind under late decisions of the Supreme Court of the United States the pay
ment of the license tax would constitute “a burden on that commerce” hence- “a regulation of it, which belongs solely to Congress.” Leloup v. Mobile, supra.
Accordingly the decree is reversed;
TERRELL, ADAMS and SEBRING, JJ., concur.
BUFORD, C. J., BROWN and CHAPMAN, JJ., dissent.