Miller, J.
The plaintiff’s petition asserts that it is a
nonresident corporation licensed to do business in the state of Iowa. Pursuant to' such license, it bas established and is now conducting various retail stores in Iowa which constitute a substantial investment on its part. It has reported to and paid the State Board of Assessment and Review the amount of tax due on all sales made in Iowa through the operation of such retail stores. In addition to the business conducted in Iowa, it has for many years and is now conducting a mail-order business through mail-order stores or establishments, all of which are located outside of Iowa. The orders from customers in Iowa are sent to such stores by mail, are there filled, and the merchandise shipped to the purchasers in Iowa. Plaintiff has not collected nor paid a use tax on such mail-order sales made outside of Iowa to customers residing in Iowa. There are numerous firms who maintain no place of business in Iowa who conduct a mail-order business with residents of Iowa in competition with plaintiff, who are not required to and do not collect the use tax on sales made by them. The defendants, acting as the State Board of Assessment and Review, construed the statute as authorizing and empowering them to require plaintiff to collect the use tax on mail-order sales made and consummated outside of Iowa with customers located in Iowa. The board adopted
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resolution, threatening to cancel plaintiff’s license as a retailer and its permit to do business in Iowa for failure to collect and pay the use tax on mail-order sales made outside of Iowa to residents of Iowa.
Plaintiff asserted that the statute, in so far as it purports to authorize such procedure by the board, is unconstitutional in violation of sections 8 and 10 of Article I of the United States Constitution, and section 1 of the 14th Amendment to such Constitution, and is also an attempt on the part of the state of Iowa to make its laws operate extraterritorially. Plaintiff prayed that the board be enjoined from finding that it has failed to comply with the use tax law and from taking any steps to secure the cancellation of its license as a retailer or its permit to do business in Iowa, and for general equitable relief.
A hearing was had and' the court granted a temporary
injunction, restraining the defendants from making any finding that plaintiff bad failed to comply witb tbe provisions of tbe use tax law, or taking any steps to secure tbe revocation of plaintiff’s license as a retailer or permit to do business as a nonresident corporation.
Tbe defendants filed an answer admitting all allegations of tbe petition not specifically denied, modified or qualified. Defendants asserted that tbe state bas tbe power and authority to adopt tbe use tax law and make it applicable to plaintiff’s mail-order business as a condition to its right to continue to do business in Iowa. Various allegations of tbe petition are denied. Tbe effect of tbe answer, however, was primarily to put in issue tbe constitutional questions presented by tbe allegations of tbe petition.
At tbe trial, it was stipulated that tbe plaintiff, in the conducting of its business, made sales of tangible personal property to residents or persons within tbe state of Iowa, by three methods, referred to as types. Type 1 involves sales made in its retail stores located in Iowa, which sales are subject to tbe Iowa sales tax. Type 2 involves special order sales wherein tbe purchaser orders from one of tbe plaintiff’s retail stores in Iowa tangible property not carried in stock by the store, but carried by one of tbe mail-order establishments located outside of Iowa; tbe order is given to tbe local store witb tbe purchase price, which includes transportation charges; tbe store orders tbe shipment to be made direct to tbe purchaser from a mail-order establishment, where tbe order is filled charging tbe local store witb the cost price, plus overhead and transportation charges; tbe purchase price paid to and received by tbe local store is retained by it and included in tbe volume of its gross sales. Type 3 involves mail-order sales. A person or resident of Iowa prepares bis order, or bas it prepared for him, sends it to one of plaintiff’s mail-order establishments located outside of Iowa, with a remittance of tbe purchase price, plus transportation charges, specifying the'means of transportation; tbe order is accepted or refused
at the mail-order establishment; if accepted, the order is filled by direct shipment to the purchaser through the United States mail, or some common carrier specified by the purchaser.
It was stipulated for the purposes of this ease that plaintiff is obligated to collect and has collected and paid the tax imposed upon all sales made by it to residents of Iowa classified as Types 1 and 2, but that as to Type 3 mail-order sales, it failed and refused to collect the use tax imposed by the use tax act.
There was testimony as to the activities of various competitors of plaintiff, engaged in mail-order business without maintaining any place of business in Iowa. There was also testimony regarding the difficulty of collecting a use tax on mail-order sales made to persons in Iowa through the mail-order establishments of plaintiff located outside of Iowa. ¥e do not undertake to review this testimony because we do not think it has any substantial bearing upon the questions to be decided by us.
The court held that the use tax law, insofar as it purports to authorize the defendants to insist upon plaintiff collecting and paying the use tax on mail-order sales made to persons in Iowa through the mail-order establishments located outside of Iowa, is unconstitutional and void, being contrary to section 8 of Article I of the Constitution of the United States, and section 1 of the 14th Amendment thereto. A permanent injunction was granted restraining defendants from making any finding that plaintiff has failed to comply with the provisions of the Iowa use tax law or taking any action to secure the revocation or cancellation of its sales permit covering the operation of its retail stores in Iowa or its license to do business as a foreign corporation in this state. From this decree defendants have appealed.
The statute involved herein was enacted as chapter 198 of the Acts of the Forty-seventh General Assembly. Some amendments were adopted by' chapters 175 and 182 of the Acts of the Forty-eighth General Assembly. The statute, as amended, appears as chapter 329.4 of the Code, 1939. The
amendments do not appear to materially affect the questions presented by this litigation, and. we will refer- to the statute as it appears in the Code, 1939.
Section 8 of the Act (section 6943.109 of the Code, 1939) provides that every retailer maintaining a place of business in this state and making sales of tangible property for use in this state, not exempt under section 6943.104, exempting sales on which the sales tax is paid or by section 6943.107, having reference to motor vehicles, “shall at the time of making such sales, whether within or without the state, collect the tax imposed by this chapter from the purchaser.” Section 11 of the Act (section 6943.112 of the Code) provides that the tax, required to be collected by the retailer and any tax collected by the retailer pursuant to said section, shall constitute a debt owed by the retailer to the state. Section 21 of the Act (section 6943.122 of the Code) provides that, whenever the retailer maintaining a place of business in this state is a corporation authorized to do business in this state and fails to comply with the provisions of the chapter, a certificate may be made to the secretary of state of a finding that such retailer has failed to comply with such provisions, and the secretary of state shall, upon receipt of such certificate, revoke the permit authorizing the corporation to do business in this state, and shall issue a new permit only when the corporation shall have obtained an order finding that it has complied with its obligations under the chapter.
The question presented is whether section 6943.109, requiring plaintiff to collect the tax on mail-order sales made without the state, is constitutional when considered with the provision that, under section 6943.112, the tax, collected or required to be collected, is a debt of plaintiff and, upon a finding that plaintiff has failed to pay such debt, under section 6943.122, plaintiff’s permit to do business as a foreign corporation in this state must be revoked. We are of the opinion that the court correctly held that the provisions of the chapter, as applied to the mail order sales shown by the record herein, are unconstitutional and, therefore, void.
If the plaintiff limited its activities to conducting a mail-order business such as shown by the record herein, it would not be doing business in this state and the state could not require it to secure a license to do business here. Ryerson & Son v. Schraag, 211 Iowa 558, 561 to 563, 229 N. W. 733; Anderson Bros. v. Sioux Monument Co., 210 Iowa 1226, 1231, 232 N. W. 689. With plaintiff’s activities so limited, it would not be conducting a retail business in Iowa and, therefore, would- not be subject to the requirements of section 6943.109. Defendants contend, however, that, when plaintiff undertakes to do a retail business here, under a permit issued by the secretary of state, the state has the right to attach, as a condition to plaintiff’s right to do business here, a requirement that it collect the use tax on sales made outside of Iowa, as to which sales plaintiff otherwise would have no obligation to this state. The court found otherwise, and correctly so.
Defendants contend that the tax is a tax upon the use of property in this state, is really a tax upon the purchaser and is not a tax upon the plaintiff at all. Perhaps from a subtle and technical standpoint this may be true, but, if true, it is unimportant. Section 6943.109 requires that the tax be collected when the sale is made. Under the facts herein, the property is then without the state. Section 6943.112 makes the amount of the tax a debt owed by plaintiff and section 6943.122 provides that a failure to pay that debt shall constitute proper grounds for revoking plaintiff’s permit to do business in this state. From any reasonable or practical standpoint, the amount of the tax being made a debt of plaintiff, the statute at least constitutes regulation of plaintiff’s activities outside the state as a condition to it being granted a license to do business in the state. This cannot be done.
In the case of Connecticut General Life Ins. Co. v. Johnson, 303 U. S. 77, 80, 58 S. Ct. 436, 438, 82 L. Ed. 673, the court, through Justice Stone, states:
“But the limits of the state’s legislative jurisdiction to tax, prescribed by the Fourteenth Amendment, are to be ascer
tained by reference to the incidence of the tax upon its objects rather than the ultimate thrust of the economic benefits and. burdens of transactions within the state. As a matter of convenience and certainty, and to secure a practically just operation of the constitutional prohibition, we look to the state power to control the objects of the tax as marking the boundaries of the power to lay it. Hence it is that a state which controls the property and activities within its boundaries of a foreign corporation admitted to do business there may tax them. But the due process clause denies to the state power to tax or regulate the corporation’s property and activities elsewhere. Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194 [26 S. Ct. 36, 50 L. Ed. 150, 4 Ann. Cas. 493]; New York Life Insurance Co. v. Head, 234 U. S. 149 [34 S. Ct. 879, 58 L. Ed. 1259]; New York Life Insurance Co. v. Dodge, 246 U. S. 357 [38 S. Ct. 337, 62 L. Ed. 772, Ann. Cas. 1918E, 593]; St. Louis Compress Co. v. Arkansas, 260 U. S. 346 [43 S. Ct. 125, 67 L. Ed. 297]; Compania General de Tabacos v. Collector, 275 U. S. 87 [48 S. Ct. 100, 72 L. Ed. 177]; Home Insurance Co. v. Dick, 281 U. S. 397 [50 S. Ct. 338, 74 L. Ed. 926, 74 A. L. R. 701]; Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U. S. 143 [54 S. Ct. 634, 78 L. Ed. 1178, 92 A. L. R. 928]; Boseman v. Connecticut General Life Ins. Co., 301 U. S. 196 [57 S. Ct. 686, 81 L. Ed. 1036, 110 A. L. R. 732]; People ex rel. Sea Insurance Co. v. Graves, 274 N. Y. 312, 8 N. E. (2d) 872.”
In the case of Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 204, 26 S. Ct. 36, 37, 50 L. Ed. 150, 4 Ann. Cas. 493, the court states:
“It is also essential to the validity of a tax that the property shall be within the territorial jurisdiction of the taxing power. Not only is the operation of state laws limited to persons and property within the boundaries of the State, but property which is wholly and exclusively within the jurisdiction of another State receives none of the protection for which the tax is supposed to be the compensation.”
In the case of New York Life Ins. Co. v. Dodge, 246 U. S. 357, 375, 38 S. Ct. 337, 340, 62 L. Ed. 772, Ann. Cas. 1918 E, 593, the court states:
“Assuming the policy to be a Missouri contract, we declared that State without power to extend its authority over citizens of New Mexico and into New York and forbid the later agreement there made simply because it modified the first one. We said: ‘It would be impossible to permit the statutes of Missouri to operate beyond the jurisdiction of that State and in the State of New York and there destroy freedom of contract without throwing down the constitutional barriers by which all the States are restricted within the orbits of their lawful authority and upon the preservation of which the Government, under the Constitution, depends.”
In the case of New York Life Ins. Co. v. Head, 234 U. S. 149, 164, 34 S. Ct. 879, 883, 58 L. Ed. 1259, the court, througChief Justice White, states:
“ It is true it has been held that in view of the power of a State over insurance, it might, as the condition of a license given to a foreign insurance company to do business within its borders, impose a condition as to business within the State, which otherwise but for the complete power to exclude would be held repugnant to the Constitution. In- other words that a company having otherwise no right whatever for any purpose to go in without a license would not be heard after accepting the same to complain of exactions upon which the license was conditioned as unconstitutional because of its voluntary submission to the same. But even if it be put out of view that this doctrine has been either expressly or by necessary implication overruled or at all events so restricted as to deprive it of all application to this case (see Harrison v. St. L. & San Francisco R. Co., 232 U. S. 318, 332 [34 Sup. Ct. 333, 58 L. Ed. 621, 626, L. R. A. 1915F, 1187] and authorities there cited,) it here can have no possible application. since such doctrine at best but recognized the power of a State under the circumstances stated to impose
conditions upon the right to do the business embraced by the license and therefore gives no support to the contention here presented which is that a State by a license may acquire the right to exert an authority beyond its borders which it cannot exercise consistently with the Constitution. But the Constitution and its limitations are the safeguards of all the States preventing any and all of them under the guise of license or otherwise from exercising powers not possessed.”
In the case of Home Ins. Co. v. Dick, 281 U. S. 397, 407, 50 S. Ct. 338, 341, 74 L. Ed. 926, 74 A. L. R. 701, the court, through Justice Brandeis, states:
"Second. The Texas statute as here construed and applied deprives the garnishees of property without due process of law. A State may, of course, prohibit and declare invalid the making of certain contracts within its borders. Ordinarily, it may prohibit performance within its borders, even of contracts validly made elsewhere, if they are required to be performed within the State and their performance would violate its laws. But, in the case at bar, nothing in any way relating to the policy sued on, or to the contracts of reinsurance, was ever done or required to be done in Texas. All acts relating to the making of the policy were done in Mexico. All in relation to the making of the contracts of reinsurance were done there or in New York. And, likewise, all things in regard to performance were to be done outside of Texas. Neither the Texas laws nor the Texas courts were invoked for any purpose, except by Dick in the bringing of this suit. The fact that Dick’s permanent residence was in Texas is without significance. At all times here material, he was" physically present and acting in Mexico. Texas was, therefore, without power to affect the terms of contracts so made. Its attempt to impose a greater obligation than that agreed upon and to seize property in payment of the imposed obligation violates the guaranty against deprivation of property without due process of law. Compania General de Tabacos v. Collector of Internal Revenue, 275 U. S. 87 [48 Sup. Ct. 100, 72 L. Ed. 177]: Aetna Life Ins. Co. v.
Dunken, 266 U. S. 389 [45 Sup. Ct. 129, 69 L. Ed. 342]; New York Life Ins. Co. v. Dodge, 246 U. S. 357 [38 Sup. Ct. 337, 62 L. Ed. 772, Ann. Cas. 1918E, 593].”
In the case of Hartford Accident
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Indemnity Co. v. Delta
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Pine Land Co., 292 U. S. 143, 149, 54 S. Ct. 634, 636, 78 L. Ed. 1178, 92 A. L. R. 928, the court, through Justice Roberts, states:
“The Mississippi statutes, so construed, deprive the appellant of due process of law. A state may limit or prohibit the making of certain contracts within its own territory (Hooper v. California, 155 U. S. 648 [15 S. Ct. 207, 39 L. Ed. 297, 5 I. C. C. 610]; Orient Insurance Co. v. Daggs, 172 U. S. 557, 565-6 [19 S. Ct. 281, 43 L. Ed. 552, 555, 556]; New York Life Ins. Co. v. Cravens, 178 U. S. 389, 398-9 [20 S. Ct. 962, 44 L. Ed. 1116, 1123,
1124]);
but it cannot extend the effect of its laws beyond its borders so as to destroy or impair the right of citizens of other states to make a contract not operative within its jurisdiction, and lawful where made. New York Life Ins. Co. v. Head, 234 U. S. 149 [34 S. Ct. 879, 58 L. Ed. 1259]; Aetna Life Ins. Co. v. Dunken, 266 U. S. 389, 399 [45 S. Ct. 129, 69 L. Ed. 342, 349]. Nor may it in an action based upon such a contract enlarge the obligations of the parties to accord with every local statutory policy solely upon the ground that one of the parties is its own citizen. Home Insurance Co. v. Dick, 281 U.S. 397, 407-8 [50 S. Ct. 338, 74 L. Ed. 926, 933, 934, 74 A.L.R. 701].”
In the case of St. Louis Cotton Compress Co. v. Arkansas, 260 U. S. 346, 349, 43 S. Ct. 125, 67 L. Ed. 297, the court, through Justice Holmes, states:
“It is true that the State may regulate the activities of foreign corporations within the state, but it cannot regulate or interfere with what they do outside.”
In the case of James v. Dravo Contracting Co., 302 U. S.
134, 139, 58 S. Ct. 208, 211, 82 L. Ed. 155, the court, through Chief Justice Hughes, states:
“It is clear that West Virginia had no jurisdiction to lay a tax upon respondent, with respect to this work done in Pennsylvania. As to the material and equipment there fabricated, the business and activities of respondent in West Virginia consisted of the installation at the respective sites within that State and an apportionment would in any event be necessary to limit the tax accordingly. Hans Rees’ Sons v. North Carolina [283 U. S. 123, 51 S. Ct. 385, 75 L. Ed. 879], supra.”
In the case of Baldwin v. Seelig, 294 U. S. 511, 521, 55 S. Ct. 497, 499, 79 L. Ed. 1032, 101 A. L. R. 55, the court, through Justice Cardozo, states:
“New York has no power to project its legislation into Vermont by regulating the price to be paid in that state for milk acquired there. So much is not disputed. New York is equally without power to prohibit the introduction within her territory of milk of wholesome quality acquired in Vermont, whether at high prices or at low ones. This again is not disputed. Accepting those postulates, New York asserts her power to outlaw milk so introduced by prohibiting its sale thereafter if the price that has been paid for it to the farmers of Vermont is less than would be owing in like circumstances to farmers in New York. The importer in that view may keep his milk or drink it, but sell it he may not.
“Such a power, if exerted, will set'a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon the thing transported. * * *
“If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting, commerce between the states to the power of the nation.”
Other cases might be eitéd and quoted from. To do so
would, unduly prolong this opinion. The foregoing, in our judgment, demonstrate that the position taken by the supreme court of the United States in construing the constitution is such that the decree herein must be affirmed. The state of Iowa has the right to control and tax the property and activities of the plaintiff within its boundaries. It may also' control and tax such property and activities as a condition to permitting plaintiff to do business as a foreign corporation here. But it has no power to regulate plaintiff’s activities outside this state, nor has it the power to regulate such activities as a condition to plaintiff’s right to continue to do business here.
The only activities of plaintiff involved herein are the sales made pursuant to its mail-order business. As to all other activities, for the purposes of this case, plaintiff concedes that the tax must be paid and it has been collected and paid. The mail-order sales, however, do not constitute activities within the state of .Iowa,. nor do such sales constitute doing business within the state. The sales are consummated outside the state of Iowa in each instance. They are separate and distinct from plaintiff’s activities in Iowa. The statute here challenged seeks to impose upon plaintiff the obligation that it “shall'at the time of mak.ing such sales, whether within or without .the state, collect the tax imposed by this chapter from the purchaser.” The sales are made outside of Iowa and the statute requires plaintiff to collect the tax at the time the sales -are made. It clearly seeks to regulate activities of plaintiff outside the state. Under the provisions of section 6943.122, defendants seek to cancel plaintiff’s license as a retailer in this state and its permit to do business here as a foreign corporation for failure to pay a debt which constitutes a regulation of its activities outside of Iowa. Under repeated pronouncements of the supreme court of the United States, hereinbefore reviewed and quoted from, the state of Iowa has no such right. The court correctly so held.
Defendants contend, however, that recent decisions of the supreme court of the United States demonstrate that the precedents herein reviewed and followed have been overruled and are no longer to be considered interpretations of the constitu
tion of the United States. We are unable to agree with such contentions.
The case of Monamotor Oil Co. v. Johnson, 292 U. S. 86, 54 S. Ct. 575, 78 L. Ed, 1141, involved the collection of a use tax in Iowa. However, the fact situation was very different from that presented by the record herein. At page 90 of 292 U. S., page 577 of 54 S. Ct., 78 L. Ed. 1141, Justice Roberts states the facts as follows:
“The appellant is an Arizona corporation whose business is the buying, manufacturing, blending and selling of gasoline and kindred products, including the importation into Iowa of gasoline by tank cars, trucks and other containers, for resale to consumers and to dealers who sell to consumers, and the exportation of gasoline to other states; the maintenance of storage facilities in Iowa, from which deliveries are made in that and other states, and the maintenance of a refinery at Carter Lake, Iowa, where gasoline is blended and compounded and shipped to points in Iowa and other states. Prior to April, 1932, gasoline was refined at this plant. The corporation maintains numerous service stations in Iowa which sell to consumers.”
It will be noted from the above statement of facts that the use tax which the appellant was required to collect pertained-to gasoline and kindred products sold and delivered by it in connection with its activities within the state of Iowa. The question presented for our consideration was not involved in that decision.
The case of Wiloil Corp. v. Pennsylvania, 294 U. S. 169, 55 S. Ct. 358, 79 L. Ed. 838, was similar to the Monamotor Oil Co. case. The facts involved in that case are stated by Justice Butler, at page 172 of 294 U. S., page 359 of 55 S. Ct., 79 L. Ed. 838, as follows:
“Appellant, a Pennsylvania corporation having its principal place of business in Pittsburgh, sells liquid fuels at wholesale and is a distributor as defined by the act. The tax in controversy was laid at three cents per gallon upon the contents of
13 tank cars sold and delivered by it. All were ordered through its agent in Philadelphia for delivery to purchasers at that city or at Essington, Pennsylvania. The order specified a price per gallon ‘f. o. b. Wilmington, Del., plus
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tax,’ and were subject to, "and received, appellant’s approval' at its office in Pitts-burgh.”
- From the foregoing quotation, it will be noted that the tax .involved in that case pertained to activities of appellant within the state of Pennsylvania.
The case of Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412, 57 S. Ct. 772, 81 L. Ed. 1193; 112 A. L. R. 293, involved a; tax upon chain stores located in and operated by the Great. Atlantic. & Pacific Tea Company in the state of Louisiana. The property was located in and the activities were, conducted, in the taxing state.
The case of Felt & Tarrant Mfg. Co. v. Gallagher, 306 U. S. 62, 65, 59 S. Ct. 376, 377, 83 L. Ed. 488, involved, the collection of a use tax on property sold by the appellant through its gen: eral, agents, who were doing business in the state of California. In setting forth the facts, Justice McReynolds quotes from the statement made by the lower court in 23 F. Supp. 186, as follows:
“ ‘That each of these two general agents maintains an office-in this state, the lease to such office designating the plaintiff as lessee therein, the rent for the same being paid by plaintiff, while all other expenses of maintaining such office are paid by the general agent. As soon as an order is accepted a particular machine is appropriated for that purpose in plaintiff’s shipping department in Illinois. All machines sold for delivery in California are shipped from one of plaintiff’s distributing points outside of the State. Sometimes machines are forwarded directly to the purchasers, while in other instances, in order to secure reduced freight charges, large groups of machines are shipped to the general agent who makes delivery to the respective purchasers.’ ”
It will be noted from the above quotation that the sales involved were solicited by agents in California, and in many instances the deliveries were made by the same agent in California. The tax, therefore, pertained to activities of the appellant through its general agents and their subagents, who were undertaking to do business for appellant in the state of California.
The case of Henneford v. Silas Mason Co., 300 U. S. 577, 57 S. Ct. 524, 81 L. Ed. 814, did not involve the vendor of personal property at all. It sustained a tax levied by the state of Washington against the owner of machinery and other property brought into the state of Washington and then being used in connection with the construction of the Grand Coulee Dam. The question there presented was entirely different than that which now confronts us.
The recent case of McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33, 60 S. Ct. 388, 84 L. Ed. 343, sustains a tax levied by the city of New York on sales made in the city of New York. The products were sold and delivered in that city. The tax pertained to activities within the jurisdiction of the taxing body.
By reason of the foregoing, we are satisfied that the recent decisions of the supreme court of the United States, cited to us by defendants, do not involve the question that confronts us and the decisions do not overrule the precedents which we consider controlling here.
Our position is somewhat fortified by the recent case of McCarroll v. Dixie Greyhound Lines, 309 U. S. 176, 179, 60 S. Ct. 504, 506, 84 L. Ed. 441. The opinion was delivered by Justice McReynolds. Chief Justice Hughes, Justice Roberts, Justice Reed and Justice Stone concurred specially in an opinion prepared by Justice Stone. The court held that an Arkansas statute which prohibited entry into the state of any automobile or truck carrying over 20 gallons of gasoline until the state tax thereon of 6% cents per gallon had been paid, was unconstitutional as applied to certain busses operated by the appellee
in the states of Tennessee, Arkansas and Missouri. The opinion of Justice McReynolds states as follows:
“The often announced rule is that while generally a state may not directly burden interstate commerce by taxation she may require all who use her roads to make reasonable compensation therefor. Hendrick v. Maryland, 235 U. S. 610, 622 [35 S. Ct. 140, 142, 59 L. Ed. 385]; Interstate Transit, Inc. v. Lindsey, supra, [283 U. S. 183] 185, 186, [51 S. Ct. 380, 381, 75 L. Ed. 953]; Bingaman v. Golden Eagle Western Lines, 297 U. S. 626, 628 [56 S. Ct. 624, 80 L. Ed. 928].
“Here, the revenue officer demanded payment of appellee on account of gasoline to be immediately transported over the roads of Arkansas for consumption beyond. If, considering all the circumstances, this imposition reasonably can be regarded as proper compensation for using the roads it is permissible. But the facts disclosed are incompatible with that view.”
The concurring opinion of Justice Stone states as follows:
“Since the subject taxed, gasoline introduced into the state in the tank of a vehicle, for use solely in propelling it in interstate commerce, is immune from state taxation except for a limited state purpose, the exaction of a reasonable charge for the use of its highways, it is not enough that the tax when collected is expended upon the state’s highways. It must appear on the face of the statute or be demonstrable that the tax as laid is measured by or has some fair relationship to the use of the highways for which the charge is made. Sprout v. City of South Bend, 277 U. S. 163, 170 [48 S. Ct. 502, 504, 72 L. Ed. 833, 62 A. L. R. 45]; Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, 186 [51 S. Ct. 380, 381, 75 L. Ed. 953]; Bingaman v. Golden Eagle Western Lines, 297 U. S. 626, 628 [56 S. Ct. 624, 80 L. Ed. 928]; Morf v. Bingaman, 298 U. S. 407 [56 S. Ct. 756, 80 L. Ed. 1245]; Ingels v. Morf, 300 U. S. 290, 294 [57 S. Ct. 439, 441, 81 L. Ed. 653].”
Justice Stone concludes as follows:
‘ ‘ There are ways enough in which the state can take its lawful toll without any suppression of the commerce which it taxes. In laying an exaction as a means of collecting compensation for the use of its highways the state must tax the commerce as it is done, and not as it might be done if the state could control it. Appellant cannot justify an unlawful exaction by insisting that it would be lawful if the taxpayer were to relinquish some of the commerce which the Constitution protects from state interference.”
While the question presented in the case last quoted from is different than the question that now confronts us, it seems apparent that the decision there made was prompted by some of the principles of law which are recognized and applied in the precedents which we deem controlling here. Accordingly, the decision strengthens our conviction that such precedents have not been overruled and are still binding upon us. The decree appealed from is in accord with such precedents. It must be and it is affirmed. — Affirmed.
Sager, Hake, Bliss and Oliver, JJ., concur.
Hamilton, C. J., and Mitchell, Richards, and Stiger, JJ., dissent.