Chapter XXXIV: Section 10: No State Shall enter into any Treaty, Alliance, or (4)

(13) mechanics engaged in servicing and maintaining equipment of a motor transportation company which is engaged in interstate commerce (Boutell _v._ Walling, 327 U.S. 463 (1946)). Nor does the maxim "_de minimis_" apply to the act. Hence the publishers of a daily newspaper only about one half of one per cent of whose circulation is outside the State of publication are not by that fact excluded from the operation of the act. (Mabee _v._ White Plains Publishing Co., 327 U.S. 178 (1946)). On the other hand, an employee whose work it is to prepare meals and serve them to maintenance-of-way employees of an interstate railroad in pursuance of a contract between his employer and the railroad company is not "engaged in commerce" within the meaning of Sec. 6 and 7 of the Fair Labor Standards Act (McLeod _v._ Threlkeld, 319 U.S. 491 (1943)); nor are maintenance employees of a typical metropolitan office building operated as an independent enterprise, which is used and is to be used for offices by every variety of tenants, including some producers of goods for commerce (10 East 40th St. _v._ Callus, 325 U.S. 578 (1945)); nor are maintenance employees of a building corporation which furnishes loft space to tenants engaged in production for interstate commerce "unless an adequate proportion of such tenants are so engaged." (Schulte _v._ Gangi, 328 U.S. 108 (1946)). _Also_ Section 12 (a) of the Fair Labor Standards Act, which provides that "no producer, * * * shall ship or deliver for shipment in commerce any goods produced in an establishment * * * in or about which * * * any oppressive child labor has been employed * * *" was held inapplicable to a company engaged in the transmission in interstate commerce of telegraph messages, (Western Union _v._ Lenroot, 323 U.S. 490 (1945)). The decision was a five-to-four one. It should be added that the Court has not always been unanimous in favoring coverage by the act. In the Borden case above, Chief Justice Stone, speaking for himself and Justice Roberts, protested, as follows: "No doubt there are philosophers who would argue, what is implicit in the decision now rendered, that in a complex modern society there is such interdependence of its members that the activities of most of them are necessary to the activities of most others. But I think that Congress did not make that philosophy the basis of the coverage of the Fair Labor Standards Act. It did not, by a 'house-that-Jack-built' chain of causation, bring within the sweep of the statute the ultimate _causa causarum_ which result in the production of goods for commerce. Instead it defined production as a physical process. It said in Sec. 3 (j) 'Produced means produced, manufactured, mined, handled, or in any other manner worked on' and declared that those who participate in any of these processes 'or in any process or occupation necessary to' them are engaged in production and subject to the Act." 325 U.S. 679, 685. On the other hand, the holding in 10 East 40th St., above, was a five-to-four decision, and Justice Frankfurter, speaking for the Court took pains to explain that Congress in enacting the Fair Labor Standards Act, "did not see fit, * * *, to exhaust its constitutional power over commerce." 325 U.S. 578-579. _See_ 87 Law Ed. pp. 87-105 for a note reviewing both Supreme Court, lower Federal Court, and State court cases defining "engaged in commerce" as that term is used in the Fair Labor Standards Act.

[466] 50 Stat. 246.

[467] 315 U.S. 110 (1942).

[468] Ibid. 118-119.

[469] 317 U.S. 111 (1942).

[470] 52 Stat. 31.

[471] 317 U.S. at 128-129.

[472] Ibid. 120-124 _passim_. In United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939), the Court sustained an order under the Agricultural Marketing Agreement Act of 1937 (50 Stat. 752) regulating the price of milk in certain instances. Said Justice Reed for the majority of the Court: "The challenge is to the regulation 'of the price to be paid upon the sale by a dairy farmer who delivers his milk to some country plant.' It is urged that the sale, a local transaction, is fully completed before any interstate commerce begins and that the attempt to fix the price or other elements of that incident violates the Tenth Amendment. But where commodities are bought for use beyond State lines, the sale is a part of interstate commerce. We have likewise held that where sales for interstate transportation were commingled with intrastate transactions, the existence of the local activity did not interfere with the federal power to regulate inspection of the whole. Activities conducted within the State lines do not by this fact alone escape the sweep of the Commerce Clause. Interstate commerce may be dependent upon them. Power to establish quotas for interstate marketing gives power to name quotas for that which is to be left within the State of production. Where local and foreign milk alike are drawn into a general plan for protecting the interstate commerce in the commodity from the interferences, burdens and obstructions, arising from excessive surplus and the social and sanitary evils of low values, the power of the Congress extends also to the local sales."' Ibid. 568-569. _See also_ H.P. Hood & Sons _v._ United States, 307 U.S. 588 (1939), another milk case; and Mulford _v._ Smith, 307 U.S. 38 (1939), in which certain restrictions on the sale of tobacco, under the Agricultural Adjustment Act of 1938 (52 Stat. 31), were sustained in an opinion by Justice Roberts, who spoke for the Court in the latter case.

[473] United States _v._ The William, 28 Fed. Cas. No. 16,700, 614, 620-623 _passim_ (1808). Other parts of this opinion are considered below in connection with the prohibiting of interstate commerce. _See also_ Gibbons _v._ Ogden, 9 Wheat. 1, 191 (1824); United States _v._ Marigold, 9 How. 560 (1850).

[474] 289 U.S. 48 (1933).

[475] Ibid. 57, 58.

[476] 5 Stat. 566 Sec. 28.

[477] 9 Stat. 237 (1848).

[478] 24 Stat. 409.

[479] 35 Stat. 614; 38 Stat. 275.

[480] 29 Stat. 605.

[481] 192 U.S. 470 (1904).

[482] 223 U.S. 166 (1912); _cf._ United States _v._ California, 332 U.S. 19 (1947).

[483] 239 U.S. 325 (1915).

[484] Ibid. 329.

[485] 236 U.S. 216 (1915).

[486] Ibid. 222. _See also_ Robert B. Cushman, National Police Power Under the Commerce Clause, 3 Selected Essays on Constitutional Law, 62-79.

[487] Groves _v._ Slaughter, 15 Pet. 449, 488-489 (1841).

The Issue

A little reflection will suffice to show that, as a matter of fact, any regulation at all of commerce implies some measure of power to prohibit it, since it is the very nature of regulation to lay down terms on which the activity regulated will be permitted and for noncompliance with which it will not be permitted. It is also evident that when occasion does arise for an outright prohibition of an activity, the power to enact the required prohibition ordinarily must belong to the body which is vested with authority to regulate it, which in this instance is Congress.

What, then, are the outstanding differences between such conditional prohibitions of commerce and that with which this resume deals? There seem to be three such differences. First, there is often a difference of _modus operandi_ between the statutes already considered and those about to be considered. The former impinge upon persons or agencies engaged in interstate commerce and their activities in connection therewith, whereas the latter look primarily to things, or the subject matter, of the trade or commerce prohibited. Secondly, there is a difference in purpose between the two categories of Congressional statutes. The purpose of the acts already treated is to lay down the conditions on which a designated branch of commerce among the States may be carried on; that of the acts now to be treated is to eliminate outright a designated branch of trade among the States. In other words, whereas the former acts were, in general, preservative of the commerce which they regulated because of its value to society, the latter regard the commerce which they reach as detrimental to society. The third, and most important difference from the point of view of Constitutional Law, is the difference in relation of the two categories of acts respectively to the reserved powers of the States. The enactments of Congress already dealt with frequently intrude upon the ordinary field of jurisdiction of the States; but when they do so, it is because the acts or things which they thus bring under national control are regarded as "local incidents" of interstate commerce itself. The relation of the enactments about to be considered to the reserved powers of the States is precisely the inverse of this. Their very purpose is to reach and control matters ordinarily governed by the State's police power, sometimes in order to make State policy more effective, sometimes in order to supply a corrective to it.

The Argument Denying Congress' Power To Prohibit Interstate Commerce

The principal argument against the constitutionality of prohibitory Congressional legislation pivoted on the dual conception of the Federal System "The Federal Equilibrium". The Constitution, the argument ran, clearly contemplates two spheres of governmental activity, that of the States, that of the United States; and while the latter government is generally supreme when the two collide with one another in the exercise of their respective powers, yet collision is not contemplated as the rule of life of the system, but the contrary. And since there are these two spheres, the line to be drawn between them, in order to secure harmony instead of collision, should recognize that the objects which the National Government was established to promote are relatively few, while those which the States were retained to advance comprise the principal objectives of government, the protection of the public health, safety, morals, and welfare. The power to promote these ends is, indeed, the very definition of the police power of the States--that power for which all other powers of the States exist. Seriously to impair the police power of the States, or to diminish their autonomy in its employment, would be, in fact to remove their reason for being, and so the reason for the Federal System itself.

So while the power of Congress to regulate commerce among the States and with foreign nations is in terms a single power, in the intention of the framers it comprised two very different powers. In the field of foreign relations, the National Government is completely sovereign, and the power to regulate commerce with foreign nations is but a branch of this sovereign power. The power to regulate commerce among the States is, on the other hand, not a sovereign power except for purposes of commercial advantage; in other respects it is confronted at every turn by the police power of the States, and hence requires to be defined in relation to the known and frequently reiterated objectives of that power.

Indeed, it was urged on the authority of Madison that the power to regulate commerce among the States was not bestowed upon the National Government "to be used for * * * positive purposes," but merely as "a negative and preventive provision against injustice among the States themselves." Madison IV, Letters and Other Writings, 15 (Philadelphia, 1865). Furthermore, it is a power which was designed for the _promotion_ and _advancement_ of commerce, not a power to strike commerce down in order to advance other purposes and programs. Grant that the power to regulate commerce among the States is the power to prohibit it at the discretion of Congress, and you at once endow Congress with power which it may use as a weapon to consolidate substantially all power in the hands of the National Government.

Thus, if Congress may prohibit _ad libitum_ the carrying on of interstate commerce, it may make deprivation of the right to engage in interstate commerce in any of its phases, even the right to move from one State to another, a sanction of ever-increasing efficacy for whatever standards of conduct it may choose to lay down in any field of human action; and since laws passed by Congress in pursuance of its powers are generally supreme over conflicting State laws, these standards would supersede the conflicting standards imposed under the police powers of the States. Henceforth, in effect, the police power would exist solely by "leave and license" of Congress--as "the power to govern men and things" it would be at an end; and by the same token the Federal System, which is the outstanding feature of government under the Constitution, would be at an end. In the First Employers' Liability Cases, (Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908)), the majority of the Court, speaking through Justice White, gave special attention to the Government's argument that though the act, in terms, governed the liability of "every" interstate carrier to "any" of its employees, whether engaged in interstate commerce or not when the liability fell, it was none the less constitutional "because one who engaged in interstate commerce thereby submits all his business concerns to the regulating power of Congress." Justice White answered: "To state the proposition is to refute it. It assumes that because one engages in interstate commerce he thereby endows Congress with power not delegated to it by the Constitution; in other words, with the right to legislate concerning matters of purely State concern. It rests upon the conception that the Constitution destroyed that freedom of commerce which it was its purpose to preserve, since it treats the right to engage in interstate commerce as a privilege which cannot be availed of except upon such conditions as Congress may prescribe, even although the conditions would be otherwise beyond the power of Congress. It is apparent that if the contention were well founded it would extend the power of Congress to every conceivable subject, however inherently local, would obliterate all the limitations of power imposed by the Constitution, and would destroy the authority of the States as to all conceivable matters which from the beginning have been, and must continue to be, under their control so long as the Constitution endures." Ibid. 502-503. _See also_ Justice White's dissenting opinion, for himself, Chief Justice Fuller, and Justices Peckham and Holmes, in Northern Securities Co. _v._ United States, 193 U.S. 197, 396-397 (1904).

The Argument Asserting the Power

The thesis that the power to regulate commerce among the States comprises in general the power to prohibit it turns on the proposition stated by Marshall in his opinion in Gibbons _v._ Ogden, that this power is vested "in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and discretion of Congress," Marshall continued, "their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse." 9 Wheat. 1, 196-197 (1824).

That the National Government is a government of limited powers, the advocates of this view conceded; but the powers which it uncontrovertibly possesses, they urged, may be utilized to promote all good causes, of which fact, it was asserted, the Preamble of the Constitution itself was proof. There the objectives of the Constitution and so, presumably, of the Government created by it, are stated to be "more perfect union," "justice," "domestic tranquillity," "the common defense," "the general welfare," and "liberty." It was to forward these broad general purposes, then, that the commercial power, like its other powers, was bestowed upon the National Government. No doubt it was expected that the States, too, would use the powers still left them to assist the same purposes, which indeed are those of good government always. Yet that circumstance should not operate to withdraw the powers delegated to the National Government from the service of these same ends. The fact, in other words, that the power to govern commerce among the States was bestowed by the Constitution on the National Government should not imply that it thereby became available merely for the purpose of fostering such commerce. It ought, on the contrary, to be applicable, as would be the equivalent power in England or France for instance, to aid and support all recognized objectives of government. _See_ Juilliard _v._ Greenman (Legal Tender Case), 110 U.S. 421, 447-448 (1884). As originally possessed by the several States, the power to regulate commerce with one another included the power to prohibit it at discretion; on what principle, then, it was asked, can it be contended that the power delegated to Congress is not as exhaustive and complete as the power it was designed to supersede? _See_ especially Justice Holmes' dissenting opinion in Hammer _v._ Dagenhart, 247 U.S. 251, 277-281 (1918).

And, the protagonists of this view continued, if the public health, safety, morals, and general welfare must depend solely upon the police powers of the States, they must in modern conditions, often fail of realization in this country. With goods flowing over State lines in ever-increasing quantities, and people in ever-increasing numbers, how was it possible to regard the States as watertight compartments? At least, then, when local legislative programs break down on account of the division of the country into States, it becomes the clear duty of Congress to adopt supplementary legislation to remedy the situation. In doing so, it is not undermining the Federal System; it is supporting it, by making it viable in modern conditions. The assemblage of the States in one Union was never intended to put one State at the mercy of another. If, however, well considered programs of legislation are rendered abortive in a State in consequence of the flow of commerce into it from other States, then it becomes the duty--certainly it is within the discretion of Congress--which alone can govern commerce among the States, to supply the required relief. _See_ especially Assistant Attorney General Maury's argument. In re Rapier, 143 U.S. 110, 127-129 (1892).

In this connection the advocates of this view cited discussion contemporaneous with Jefferson's Embargo, and under the embargo itself, as supporting their position. In the case of the Brigantine William the validity of the embargo was challenged before the United States District Court of Massachusetts on the ground that the power to regulate commerce did not embrace the power to prohibit it. Judge Davis answered: "It will be admitted that partial prohibitions are authorized by this expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to have been committed? * * * The power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. * * * the national right, or power, under the Constitution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to be unquestionable. * * * The situation of the United States, in ordinary times, might render legislative interferences, relative to commerce, less necessary; but the capacity and power of managing and directing it, for the advancement of great national purposes, seems an important ingredient of sovereignty." And in confirmation of this argument Judge Davis cited the clause of Sec. 9 of article I of the Constitution interdicting a prohibition of the slave trade till 1808. This clause clearly proves that those who framed the Constitution perceived that "under the power of regulating commerce, Congress would be authorized to abridge it, in favour of the great principles of humanity and justice." Fed. Cas. No. 16,700, 614, 621 (1808).

The embargo, to be sure, operated on foreign commerce; but that there is any difference between Congress's power in relation to foreign and to interstate commerce the advocates of the view under consideration denied. The power to "regulate" is the power which belongs to Congress as to the one as well as to the other; and if this comprehends the power to prohibit in the one case, it must equally, by acknowledged principles of statutory construction, comprehend it in the other case as well. Nor in fact, the argument continued, does it make any difference, by approved principles of statutory construction, what purposes the framers of the Constitution may have immediately in mind when they gave Congress power to regulate commerce among the States; the governing consideration is that they gave Congress the power, to be exercised in accordance with its judgment of what are proper occasions for its use. "The reasons which may have caused the framers of the Constitution to repose the power to regulate interstate commerce in Congress do not, however, affect or limit the extent of the power itself." Justice Peckham for the Court in Addyston Pipe & Steel Co. _v._ United States, 175 U.S. 211, 228 (1899).

References

_See_ especially the arguments of counsel In re Rapier, 143 U.S. 110 (1892); Champion _v._ Ames (Lottery Case), 188 U.S. 321 (1903); Hammer _v._ Dagenhart, 247 U.S. 251 (1918); 3 Selected Essays on Constitutional Law, 103, 138, 165, 295, 314, 336. Indeed, regulation of interstate commerce by Congress may take the form of a positive adoption by it of a regime of State regulation in the form of statutes (e.g., pilotage) or of administrative regulations in some degree (as in the Motor Carrier Act of 1935); or Congress may "regulate" through the device of divestment of a subject matter of its interstate character, thus indirectly causing State laws to apply, as was done by the Wilson Act of 1890 in respect to intoxicating liquors, or by the McCarran Act of 1945 following the United States _v._ South-Eastern Underwriters Association, 322 U.S. 533 (1944), in respect to the insurance business. In a sense, Congress may delegate to the States its power to regulate interstate commerce.

[488] 23 Stat. 31.

[489] 32 Stat. 791.

[490] 33 Stat. 1264.

[491] 33 Stat. 1269.

[492] 37 Stat. 315.

[493] 39 Stat. 1165.

[494] Illinois Central R. Co. _v._ McKendree, 203 U.S. 514 (1906). _See also_ United States _v._ DeWitt, 9 Wall. 41 (1870). Of the nature of a quarantine act is the Federal Firearms Act of 1938 (52 Stat 1250).

[495] Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903).

[496] 28 Stat 963.

[497] 143 U.S. 110 (1892).

[498] Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903).

[499] 9 Wheat. 1, 227 (1824).

[500] 114 U.S. 622, 630 (1885).

[501] 26 Stat. 313 (1890); 37 Stat. 699 (1913), "The Webb-Kenyon Act."

[502] 31 Stat. 188 (1900).

[503] 45 Stat. 1084 (1929), "The Hawes-Cooper Act."

[504] 36 Stat. 825 (1910), "The Mann Act."

[505] 41 Stat. 324 (1919).

[506] 47 Stat. 326 (1932).

[507] 48 Stat. 794 (1934).

[508] 48 Stat. 979 (1934).

[509] 54 Stat. 686 (1940).

[510] Hoke _v._ United States, 227 U.S. 308, 322 (1913). In Caminetti _v._ United States, 242 U.S. 470 (1917) the act was held to apply to the case of transportation of a woman for immoral purposes, although no commercial motive was present; and in Cleveland _v._ United States, 329 U.S. 14 (1946), to the transportation of a plural wife by the member of a religious sect a tenet of which is polygamy.

[511] United States _v._ Hill, 248 U.S. 420, 425 (1919).

[512] 247 U.S. 251 (1918).

[513] 39 Stat. 675 (1916).

[514] 247 U.S. at 275.

[515] Ibid. 271-272.

[516] 267 U.S. 432 (1925).

[517] 41 Stat. 324 (1919).

[518] 267 U.S. at 436-439. _See also_ Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 (1937).

[519] United States _v._ Darby, 312 U.S. 100, 116-117 (1941).

[520] Roland Co. _v._ Walling, 326 U.S. 657, 669 (1946).

[521] Polish Alliance _v._ Labor Board, 322 U.S. 643, 650 (1944). _Cf._ the opinion of Chief Justice Vinson for the Court in Bus Employees _v._ Wisconsin Board, 340 U.S. 383 (1951).

[522] Federalist No. 32.

[523] 9 Wheat. 1, 11, 226 (1824).

[524] Madison, IV, Letters and Other Writings, 14-15 (Philadelphia, 1865).

[525] 9 Wheat. 1, 203.

[526] 9 Wheat. at 210-211.

[527] 9 Wheat. at 13-14; _also_ ibid. 16.

[528] 9 Wheat. 17-18, 209.

[529] 12 Wheat. 419 (1827).

[530] 12 How. 299 (1851).

[531] Congressional regulation of commerce, however, does not have to be uniform. The uniformity rule is a test of the invalidity of State legislation affecting commerce, not the validity of Congressional legislation regulating commerce. Clark Distilling Co. _v._ W.M.R. Co., 242 U.S. 311, 327 (1917); Currin _v._ Wallace, 306 U.S. 1, 14 (1939); Prudential Ins. Co. _v._ Benjamin, 328 U.S. 408 (1946).

[532] Simpson _v._ Shepard, 230 U.S. 352 (1913).

[533] Ibid. 400-402.

[534] McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176, 188-189 (1940). F.D.G. Ribble's _State and National Power Over Commerce_ (Columbia University Press, 1937) is an excellent study both of the Court's formulas and of the arbitral character of its task in this field of Constitutional Law. On the latter point, see especially Chapters X and XII. The late Chief Justice Stone took repeated occasion to stress the "balancing" and "adjusting" role of the Court when applying the commerce clause in relation to State power. _See_ his words in South Carolina State Highway Dept. _v._ Barnwell Bros., 303 U.S. 177, 184-192 (1938); California _v._ Thompson, 313 U.S. 109, 113-116 (1941); Parker _v._ Brown, 317 U.S. 341, 362-363 (1943); and Southern Pacific _v._ Arizona, 325. U.S. 761, 766-770 (1945). _See also_ Justice Black for the Court in United States _v._ South-Eastern Underwriters Assoc., 322 U.S. 533, 548-549 (1944).

[535] 12 Wheat. 419 (1827).

[536] Compare, for example, May _v._ New Orleans, 178 U.S. 496 (1900); and the recent case of Hooven & Allison Co. _v._ Evatt, 324 U.S. 652 (1945). In the latter case the benefits of the original package doctrine were extended to imports from the Philippine Islands title to which did not vest in the importer until their arrival in the United States.

[537] Freeman _v._ Hewit, 329 U.S. 249, 251 (1946).

[538] Philadelphia & R.R. Co. _v._ Pennsylvania (State Freight Tax Case), 15 Wall. 232 (1873).

[539] Headnotes. Said the Court: "The rule has been asserted with great clearness, that whenever the subjects over which a power to regulate commerce is asserted are in their nature national, or admit of one uniform system or plan of regulation, they may justly be said to be of such a nature as to require exclusive legislation by Congress. Surely transportation of passengers or merchandise through a State, or from one State to another, is of this nature. It is of national importance that over that subject there should be but one regulating power, for if one State can directly tax persons or property passing through it, or tax them indirectly by levying a tax upon their transportation, every other may, and thus commercial intercourse between States remote from each other may be destroyed." 15 Wall. at 279-280, citing Cooley _v._ Port Wardens, 12 How. 299 (1851); Gilman. _v._ Philadelphia, 3 Wall. 713 (1866); Crandall _v._ Nevada, 6 Wall. 35, 42 (1868).

[540] 116 U.S. 517 (1886).

[541] Ibid. 527.

[542] Heisler _v._ Thomas Colliery Co., 260 U.S. 245 (1922).

[543] 262 U.S. 172 (1923).

[544] Ibid. 178. _See also_ Diamond Match Co. _v._ Ontonagon 188 U.S. 82 (1903).

[545] Hope Natural Gas Co. _v._ Hall, 274 U.S. 284 (1927). _See also_ American Manufacturing Co. _v._ St. Louis, 250 U.S. 459 (1919) in which there was imposed a license tax on manufacture of goods computed upon the amount of sales of the goods.

[546] 286 U.S. 165 (1932).

[547] Coverdale _v._ Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938).

[548] Toomer _v._ Witsell, 334 U.S. 385 (1948).

[549] Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282 (1921). Here a Tennessee corporation, in pursuance of its practice of purchasing grain in Kentucky to be transported to and used in its Tennessee mill, made a contract for the purchase of wheat, to be delivered in Kentucky on the cars of a public carrier, intending to forward it as soon as delivery was made. It was held that the transaction was in interstate commerce, notwithstanding the contract was made and to be performed in Kentucky; and that the possibility that the purchaser might change its mind after delivery and sell the grains in Kentucky or consign it to some other place in that State did not affect the essential character of the transaction. Interstate commerce, said the Court, "is not confined to transportation from one State to another, but comprehends all commercial intercourse between different States and all the component parts of that intercourse." Ibid. 290. Followed in Lemke _v._ Farmers Grain Co., 258 U.S. 50 (1922); and Flanagan _v._ Federal Coal Co., 267 U.S. 222 (1925).

[550] Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921).

[551] United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921).

[552] Ibid. 281. _See also_ State Tax Commission _v._ Interstate Natural Gas Co., 284 U.S. 41 (1931) holding invalid a State privilege tax imposed on a foreign corporation selling to distributors in the State natural gas piped in from another State, whose only activity was the use of a thermometer and meter and reduction of pressure to permit vendee to draw off the gas. "The work done by the plaintiff is done upon the flowing gas to help the delivery and seems to us plainly to be an incident to the interstate commerce between Louisiana and Mississippi." Ibid. 44.

[553] 12 Wheat. 419 (1827).

[554] Ibid. 449.

[555] 8 Wall. 123 (1860).

[556] Ibid. 140.

[557] 114 U.S. 622 (1885). _See also_ Pittsburgh & S. Coal Co. _v._ Bates, 156 U.S. 577 (1895).

[558] 114 U.S. at 632-633.

[559] Ibid. 634.

[560] _See_ Wagner _v._ Covington, 251 U.S. 95 (1919).

[561] Brimmer _v._ Rebman, 138 U.S. 78 (1891); Patapsco Guano Co. _v._ Board of Agriculture, 171 U.S. 345 (1898); Red "C" Oil Mfg. Co. _v._ Board of Agriculture, 222 U.S. 380 (1912); Savage _v._ Jones, 225 U.S. 501 (1912); Foote & Co. _v._ Stanley, 232 U.S. 494 (1914).

[562] Standard Oil Co. _v._ Graves, 249 U.S. 389 (1919); Askren _v._ Continental Oil Co., 252 U.S. 444 (1920); Bowman _v._ Continental Oil Co., 256 U.S. 642 (1921); Texas Co. _v._ Brown, 258 U.S. 466 (1922).

[563] Sonneborn Bros. _v._ Cureton, 262 U.S. 506 (1923). Reviewing cases. _Cf._ Phipps _v._ Cleveland Refining Co., 261 U.S. 449 (1923).

[564] _See_ pp. 178, 238-239.

[565] Eastern Air Transport, Inc. _v._ South Carolina Tax Comm'n., 285 U.S. 147, 153 (1932).

[566] Rast _v._ Van Deman and Lewis, 240 U.S. 342 (1916). _See also_ Tanner _v._ Little, 240 U.S. 369 (1916), and Pitney _v._ Washington, 240 U.S. 387 (1916) upholding a Washington statute imposing a prohibitive license tax upon merchants using trading stamps or coupons redeemable in merchandise.

[567] Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); Emert _v._ Missouri, 156 U.S. 296 (1895); Singer Sewing Machine Co. _v._ Brickell, 233 U.S. 304 (1914); Wagner _v._ City of Covington, 251 U.S. 95 (1919); Caskey Baking Co. _v._ Virginia, 313 U.S. 117 (1941).

[568] 197 U.S. 60 (1905). _See also_ Armour Packing Co. _v._ Lacy, 200 U.S. 226 (1906).

[569] 91 U.S. 275 (1876); _see also_ Ward _v._ Maryland, 12 Wall. 418 (1871).

[570] _See_ Cook _v._ Pennsylvania, 97 U.S. 566 (1878); Guy _v._ Baltimore, 100 U.S. 434 (1880); Tiernan _v._ Rinker, 102 U.S. 123 (1880); Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); Webber _v._ Virginia, 103 U.S. 344 (1881); Walling _v._ Michigan, 116 U.S. 446 (1886); Darnell & Son Co. _v._ Memphis, 208 U.S. 113 (1908), where was held void a property tax on lumber which discriminated in favor of the local product: Bethlehem Motor Corp. _v._ Flynt, 256 U.S. 421 (1921), where a license tax on distributors was held to be invalidated by the provision made for a rebate under conditions that could be met only by manufacturers within the taxing State.

[571] Coe _v._ Errol, 116 U.S. 517 (1886).

[572] Ibid. 525.

[573] General Oil Co. _v._ Crain, 209 U.S. 211 (1908).

[574] American Steel & Wire Co. _v._ Speed, 192 U.S. 500 (1904); Bacon _v._ Illinois, 227 U.S. 504 (1913); Susquehanna Coal Co. _v._ South Amboy, 228 U.S. 665 (1913); Minnesota _v._ Blasius, 290 U.S. 1 (1933); Independent Warehouses _v._ Scheele, 331 U.S. 70 (1947).

[575] Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933).

[576] Edelman _v._ Boeing Air Transport, Inc., 289 U.S. 249 (1933). The Court also upheld a tax on the sale of gasoline for use by an air transport line in conducting interstate transportation across the State in Eastern Air Transport, Inc. _v._ South Carolina Tax Comm., 285 U.S. 147 (1932).

[577] Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939).

[578] Pacific Telephone & Telegraph Co. _v._ Gallagher, 306 U.S. 182 (1939).

[579] Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939), as formulated in the headnotes; _see also_ Monamotor Oil Co. _v._ Johnson, 292 U.S. 86 (1934).

[580] Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936); McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940). In Helson _v._ Kentucky, 279 U.S. 245 (1929), the Court held that gasoline purchased in Illinois and used in an Illinois-Kentucky ferry could not be taxed by Kentucky, being, as it were, a part of the ferry, an instrument of commerce between the two States. _See also_ Kelley _v._ Rhoads, 188 U.S. 1 (1903); Champlain Realty Co. _v._ Brattleboro, 260 U.S. 366 (1922); Hughes Bros. Timber Co. _v._ Minnesota, 272 U.S. 469 (1926); Carson Petroleum Co. _v._ Vial, 279 U.S. 95 (1929).

[581] 120 U.S. 489 (1887).

[582] Corson _v._ Maryland, 120 U.S. 502 (1887); Asher _v._ Texas, 128 U.S. 129 (1888); Stoutenburgh _v._ Hennick, 129 U.S. 141 (1889); Brennan _v._ Titusville, 153 U.S. 289 (1894); Stockard _v._ Morgan, 185 U.S. 27 (1902); Crenshaw _v._ Arkansas, 227 U.S. 389 (1913); Rogers _v._ Arkansas, 227 U.S. 401 (1913); Stewart _v._ Michigan, 232 U.S. 665 (1914); Western Oil Refining Co. _v._ Lipscomb, 244 U.S. 346 (1917); Cheney Bros. _v._ Massachusetts, 246 U.S. 147 (1918).

[583] Caldwell _v._ North Carolina, 187 U.S. 622 (1903).

[584] Norfolk & W.R. Co. _v._ Sims, 191 U.S. 441 (1903).

[585] Rearick _v._ Pennsylvania, 203 U.S. 507 (1906); Dozier _v._ Alabama, 218 U.S. 124 (1910); Davis _v._ Virginia, 236 U.S. 697 (1915).

[586] 203 U.S. at 512.

[587] Real Silk Hosiery Mills _v._ Portland, 268 U.S. 325 (1925).

[588] Heyman _v._ Hays, 236 U.S. 178 (1915). _See also_ Hump Hairpin Co. _v._ Emmerson, 258 U.S. 290 (1922), holding that business done by a corporation through orders which were approved in a State where its tangible property and offices were located, but which were first taken by its salesmen in other States, was interstate, although the tax involved was sustained.

[589] Ficklen _v._ Shelby County Taxing District, 145 U.S. 1, 21 (1892).

[590] New York ex rel. Hatch _v._ Reardon, 204 U.S. 152 (1907); _Cf._ Nathan _v._ Louisiana, 8 How. 73 (1850).

[591] Ware _v._ Mobile County, 209 U.S. 405 (1908). _See also_ Brodnax _v._ Missouri, 219 U.S. 285 (1911).

[592] 222 U.S. 210 (1911).

[593] 233 U.S. 16 (1914).

[594] Ibid. 23. _See also_ Superior Oil _v._ Mississippi ex rel. Knox, 280 U.S. 390 (1930).

[595] Chassaniol _v._ Greenwood, 291 U.S. 584 (1934).

[596] Wiloil Corp. _v._ Pennsylvania, 294 U.S. 169, 173 (1935); _see also_ Minnesota _v._ Blasius, 290 U.S. 1 (1933).

[597] 309 U.S. 33 (1940).

[598] Best & Co. _v._ Maxwell. 311 U.S. 454, 455 (1940).

[599] 300 U.S. 577 (1937). _Cf._ Hinson _v._ Lott, 8 Wall. 148 (1869). Here was involved a tax of fifty cents per gallon on all spiritous liquors brought into the State. Comparing the tax with a similar one imposed upon liquors manufactured in the State, the Court upheld the statute. "The taxes were complementary and were intended to effect equality."

[600] 300 U.S. at 583-584. Some subsequent use tax cases in the Henneford pattern are the following: Bacon & Sons _v._ Martin was decided in a unanimous _per curiam_ opinion. It involved a Kentucky statute which imposed a tax "on the 'receipt' of cosmetics in the State by any Kentucky retailer" equal to twenty per cent of the invoice price plus transportation cost, if any to the Kentucky dealer. The Kentucky court held that "the imposition of the tax against the retailer is not on the act of receiving the cosmetics, but on the sale and use thereof, after the retailer has received them." On this interpretation the Supreme Court sustained the tax. Obviously, other things being equal, there is little difference between a tax on receiving and a tax on possession a moment later. 305 U.S. 380 (1939). In Felt & Tarrant Manufacturing Co. _v._ Gallagher, 306 U.S. 62 (1939), a California use tax was upheld applicable to a nonresident corporation which solicited orders from California purchasers through agents for whom it hired offices in the State and took orders subject to the vendor's approval. In Nelson _v._ Sears, Roebuck & Company and Nelson _v._ Montgomery Ward & Company, 312 U.S. 359 and 373 (1941) it was held that a foreign corporation which maintained retail stores in Iowa could be validly required to collect an Iowa use tax in respect of mail orders sent by Iowa purchasers to out-of-state branches of the corporation and filled by direct shipment by mail or common carrier from those branches to the purchasers. In General Trading Company _v._ State Tax Commission, 322 U.S. 335 (1944), also involving the Iowa tax, it was held that a company carrying on no operations in Iowa other than the solicitation of orders by traveling salesmen was liable for collection of the tax on goods sold to Iowa residents, even though the corporation was not licensed to do business in the State and the orders were forwarded for acceptance to Minnesota where they were filled by direct shipment to Iowa customers.

[601] 309 U.S. 33 (1940).

[602] Ibid. 53-54.

[603] Ibid. 57, citing Ficklen _v._ Shelby County Taxing District, 145 U.S. 1 (1892); Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); and Wagner _v._ Covington, 251 U.S. 95 (1919). In the first it was held that the Robbins case did not apply to a firm of agents and brokers maintaining an office and samples throughout the year in the taxing district. The other two cases were totally irrelevant.

[604] 309 U.S. 70 and 430.

[605] Ibid. 414.

[606] 322 U.S. 327 (1944).

[607] Ibid. 330.

[608] Ibid. 332.

[609] 327 U.S. 416 (1946).

[610] Ibid. 417-418.

[611] Ibid. 435.

[612] Memphis Steam Laundry _v._ Stone, 342 U.S. 389 (1952).

[613] Norton Co. _v._ Dept. of Revenue, 340 U.S. 534 (1951), although decided by a closely divided Court, further confirms this impression.

[614] 9 Wheat. 1, 217-219 (1824).

[615] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849).

[616] Henderson _v._ Mayor of New York, 92 U.S. 259 (1876); New York _v._ Compagnie Generale Transatlantique, 107 U.S. 59 (1883).

[617] 6 Wall. 35 (1868).

[618] Ibid. 49.

[619] 114 U.S. 196 (1885).

[620] Ibid. 203.

[621] _See_ Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204 (1894); _also_ Edwards _v._ California, 314 U.S. 160 (1941), the decision in which represents the exact inverse of that in the Crandall Case, being based by the majority on the commerce clause, while several of the Justices preferred to put it on the broader grounds invoked by Justice Miller in the Crandall Case.

[622] Western Union Telegraph Company _v._ Texas, 105 U.S. 460 (1882) State Freight Tax Case, 15 Wall. 232 (1873) and Pensacola Telegraph Co. _v._ Western Union Telegraph Co., 96 U.S. 1 (1878) were the precedents principally relied on.

[623] 8 Wall. 168 (1869).

[624] Ibid. 181.

[625] Ibid. 182.

[626] 15 Wall. 232, 233-234, 278-279 (1873).

[627] 127 U.S. 640 (1888).

[628] Ibid. 645.

[629] Crutcher _v._ Kentucky, 141 U.S. 47 (1891).

[630] Ibid. 57.

[631] 266 U.S. 555 (1925).

[632] 268 U.S. 203 (1925); followed in Cudahy Packing Co. _v._ Hinkle, 278 U.S. 460 (1929). _Cf._, however, Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250, 255 (1938).

[633] Anglo-Chilean Nitrate Sales Corp. _v._ Alabama, 288 U.S. 218 (1933).

[634] Cooney _v._ Mountain States Telephone & Telegraph Co., 294 U.S. 384 (1935).

[635] Fisher's Blend Station _v._ State Tax Commission, 297 U.S. 650, 656 (1936).

[636] Puget Sound Stevedoring Co. _v._ Tax Commission of Washington, 302 U.S. 90 (1937).

[637] Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938).

[638] McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940). _See also_ the following cases in which the Court found a tax to be an unconstitutional interference with the interstate commerce privilege: Tax on maintenance of office in Pennsylvania for use of stockholders, officers, employees, and agents of railroad not operating in Pennsylvania but a link in a line operating therein, Norfolk & W.R. Co. _v._ Pennsylvania, 136 U.S. 114 (1890); license tax on sale of liquor as applied to a sale out of State by mail, Heyman _v._ Hays, 236 U.S. 178 (1915); tax on pipe lines transporting oil or gas produced in State but which might pass out of State, Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921); United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921); Kentucky tax on gasoline purchased in Illinois and used in an Illinois-Kentucky ferry, Helson & Randolph _v._ Kentucky, 279 U.S. 245 (1929); tax laid on privilege of operating a bus in interstate commerce because not imposed solely as compensation for use of highways or to defray expenses of regulating motor traffic, Interstate Transit, Inc. _v._ Lindsey, 283 U.S. 183 (1931); tax on gas pipe line whose only activity in State was the use of a thermometer and reduction of pressure to permit a vendee to draw off gas, State Tax Commission _v._ Interstate Natural Gas Co., 284 U.S. 41 (1931)--but see East Ohio Gas Co. _v._ Tax Commission, 283 U.S. 465 (1931); gasoline tax imposed per gallon of gasoline imported by interstate carriers as fuel for use in their vehicles within the State as well as in their interstate travel, Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936). _See also_, for reiteration of the basic rule that the commerce clause forbids States to tax the privilege of engaging in interstate commerce, Gwin, White & Prince _v._ Henneford, 305 U.S. 434, 438-439 (1939). In California _v._ Thompson, 313 U.S. 109 (1941), the Court, overruling Di Santo _v._ Pennsylvania, 273 U.S. 34 (1927), sustained, as not a "revenue measure," but "a measure to safeguard the traveling public by motor vehicle," who are "particularly unable" to protect themselves against overreaching by those "engaged in a business notoriously subject to abuses," a California statute requiring that agents for this type of transportation take out a license for both their interstate and their intrastate business.

[639] 216 U.S. 1 (1910). _Cf._ Osborne _v._ Florida, 164 U.S. 650 (1897), involving an express business; in Pullman Company _v._ Adams, 189 U.S. 420 (1903); and in Allen _v._ Pullman's Palace Car Co., 191 U.S. 171 (1903). Here State taxes levied on the local business of companies engaged also in interstate commerce were sustained "on the assumption" that the companies in question were free to abandon their local business.

[640] _See also_ Pullman Co. _v._ Kansas ex rel. Coleman, 216 U.S. 56 (1910); Ludwig _v._ Western Union Teleg. Co., 216 U.S. 146 (1910); Atchison, T. & S.F.R. Co. _v._ O'Connor, 223 U.S. 280, 285 (1912).

[641] 245 U.S. 178 (1917). _Cf._ Baltic Mining Co. _v._ Massachusetts, 231 U.S. 68 (1914); Kansas City Ry. _v._ Kansas, 240 U.S. 227 (1916); and Kansas City, M. & B.R. Co. _v._ Stiles, 242 U.S. 111 (1916). In each of these a tax like that involved in Looney _v._ Crane was sustained, in the first two because the statute set a maximum limit to the tax; in the third because the amount collected under the act was held to be "reasonable." The ideology of these decisions is clearly opposed to that of the cases treated in the text. The rule in Looney _v._ Crane Co. was held not applicable in the case of a West Virginia corporation doing business in Illinois and owning practically all of its property there. An Illinois tax on the local business, which was measured by the total capitalization of the company was sustained, it being shown further that the tax was little more than it would have been if levied at the same rate directly on the property of the company that was in Illinois. Hump Hairpin Mfg. Co. _v._ Emmerson, 258 U.S. 290 (1922).

[642] 246 U.S. 135 (1918). _See also_ Locomobile Co. of America _v._ Massachusetts, 246 U.S. 146 (1918); Cheney Brothers Co. _v._ Massachusetts, 246 U.S. 147 (1918); Union Pacific R.R. Co. _v._ Pub. Service Comm., 248 U.S. 67 (1918).

[643] 246 U.S. at 141.

[644] 277 U.S. 163 (1928).

[645] Ibid. 171.

[646] 294 U.S. 384 (1935).

[647] 297 U.S. 403 (1936).

[648] Ibid. 415. Headnote 6.

[649] 8 Wall. 168, 181 (1869). _See also_ Bank of Augusta _v._ Earle, 13 Pet. 519 (1839); and Security Mut. L. Ins. Co. _v._ Prewitt, 202 U.S. 246 (1906).

[650] _See_ Atlantic Lumber Co. _v._ Commissioner, 298 U.S. 553 (1936); Southern Natural Gas Corp. _v._ Alabama, 301 U.S. 148 (1937); Atlantic Refining Co. _v._ Virginia, 302 U.S. 22 (1937); Coverdale _v._ Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938); Ford Motor Co. _v._ Beauchamp, 308 U.S. 331 (1939); Treasury of Indiana _v._ Wood Corp., 313 U.S. 62 (1941); Wheeling Steel Corp. _v._ Glander, 337 U.S. 562, 571 (1949); _Cf._ however, James _v._ Dravo Contracting Co., 302 U.S. 134 (1937); Memphis Natural Gas Co. _v._ Stone, 335 U.S. 80, 85-86 (1948).

[651] Philadelphia & R.R. Co. _v._ Pennsylvania (State Freight Tax Case), 15 Wall. 232 (1873).

[652] Prudential Ins. Co. _v._ Benjamin, 328 U.S. 408, 418 (1946).

[653] 12 Wheat. 419 (1827).

[654] Philadelphia & R.R. Co. _v._ Pennsylvania, 15 Wall. 284 (1873).

[655] Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326 (1887).

[656] Western Union Tel. Co. _v._ Massachusetts, 125 U.S. 530 (1888).

[657] Ibid. 547.

[658] _See_ Railroad Co. _v._ Peniston, 18 Wall. 5, 30-31 (1873).

[659] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891).

[660] Ibid. 26.

[661] 165 U.S. 194; upon rehearing 166 U.S. 185 (1897).

[662] 166 U.S. at 220.

[663] _See_ Justice Holmes' language in Galveston, Harrisburg, & S.A. Ry. Co. _v._ Texas, 210 U.S. 217, 225, 227 (1908). _See also_ Cudahy Packing Co. _v._ Minnesota 246 U.S. 450 (1918); and Pullman Co. _v._ Richardson, 261 U.S. 330 (1923); and Virginia _v._ Imperial Coal Sales Co., 293 U.S. 15 (1934).

[664] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891).

[665] Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894); Cleveland, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 439 (1894).

[666] Western Union Teleg. Co. _v._ Taggart, 163 U.S. 1 (1896). _See also_ Western Union Teleg. Co. _v._ Massachusetts, 125 U.S. 530 (1888).

[667] Adams Express Co. _v._ Ohio, 165 U.S. 194 (1897), upon rehearing 166 U.S. 185 (1897).

[668] Great Northern Railway Co. _v._ Minnesota, 278 U.S. 503 (1929).

[669] Nashville, C. & St. L. Railway _v._ Browning, 310 U.S. 362 (1910).

[670] Ibid. 366, citing Union Tank Line Co. _v._ Wright, 249 U.S. 275 (1919); Wallace _v._ Hines, 253 U.S. 66 (1920); Southern R. Co. _v._ Kentucky, 274 U.S. 76 (1927).

[671] Atlantic Lumber Co. _v._ Commissioner, 298 U.S. 553 (1936). _Cf._ Alpha Portland Cement Co. _v._ Massachusetts, 268 U.S. 203 (1925).

[672] 142 U.S. 217 (1891).

[673] Ibid. 227-228.

[674] Citing Pickard _v._ Pullman Southern Car Co., 117 U.S. 34 (1886); Leloup _v._ Port of Mobile, 127 U.S. 640 (1888); Crutcher _v._ Kentucky, 141 U.S. 47 (1891); Philadelphia & S. Mail Steamship Co. _v._ Pennsylvania, 122 U.S. 326 (1887).

[675] Galveston, Harrisburg & S.A.R. Co. _v._ Texas, 210 U.S. 217 (1908).

[676] Ibid. 226.

[677] Postal Telegraph Cable Co. _v._ Adams, 155 U.S. 688, 697 (1895). _See also_ Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940), in which was sustained a five percent gross earnings tax on all railroads operating in the State, payable in lieu of all other taxes and found to have "a fair relation to the property employed in the State."

[678] New Jersey Bell Telephone Co. _v._ State Bd. of Taxes & Assessments, 280 U.S. 338 (1930).

[679] Bass, Ratcliff & Gretton _v._ State Tax Com., 266 U.S. 271 (1924).

[680] Matson Navigation Co. _v._ State Board, 297 U.S. 441 (1936). _See also_ International Shoe Co. _v._ Shartel, 279 U.S. 429 (1929).

[681] Ford Motor Co. _v._ Beauchamp, 308 U.S. 331 (1939).

[682] International Harvester Co. _v._ Evatt, 329 U.S. 416 (1947).

[683] Galveston, Harrisburg & San Antonio R. Co. _v._ Texas, 210 U.S. 217 (1908).

[684] Wallace _v._ Hines, 253 U.S. 66 (1920).

[685] _See_ pp. 194, 202. _See also_ Interstate Oil Pipe Line Co. _v._ Stone, 337 U.S. 662 (1949) for an extensive review and evaluation of cases.

[686] Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940). _See also_ Wisconsin and Michigan Ry. _v._ Powers, 191 U.S. 379 (1903); United States Express Co. _v._ Minnesota, 223 U.S. 335 (1912). _See_ note 13 to Justice Rutledge's opinion in Freeman _v._ Hewit, 329 U.S. at pp. 265-266.

[687] Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938). _See also_ United States Express Co. _v._ Minnesota, 223 U.S. 335 (1912); Dept. of Treasury of Indiana _v._ Wood Corp., 313 U.S. 62 (1941); Dept. of Treasury of Indiana _v._ Mfg. Co., 313 U.S. 252 (1941); Harvester Co. _v._ Dept. of Treasury, 322 U.S. 340 (1944).

[688] Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938).

[689] Meyer _v._ Wells, Fargo & Co., 223 U.S. 298 (1912); _also_ the following note.

[690] Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326 (1887); Ratterman _v._ Western Union Teleg. Co., 127 U.S. 411 (1888); Western Union Teleg. Co. _v._ Alabama Board of Assessment (Seay), 132 U.S. 472 (1889); Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938); Gwin, White & Prince _v._ Henneford, 305 U.S. 434 (1939). _Cf._ Fargo _v._ Michigan (Fargo _v._ Stevens), 121 U.S. 230 (1887), as explained in Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938).

[691] Lockhart, Gross Receipts Taxes on Interstate Transportation and Communication, 57 Harvard L. Rev. 40, 65, 66 (1943); Galveston, H. & S.A.R. Co. _v._ Texas, 210 U.S. 217 (1908); New Jersey Bell Teleph. Co. _v._ State Bd. of Taxes and Assessments, 280 U.S. 338 (1930). But _Cf._ Nashville, C. and St. L. Ry. _v._ Browning, 310 U.S. 362 (1940). In both the Galveston and New Jersey Telephone Company cases, although the taxable events all occurred within the taxing State, the possibility of multiple taxation was nevertheless present. _See also_ Puget Sound Stevedoring Co. _v._ State Tax Commission, 302 U.S. 90 (1937), the decision in which might have been rested upon the clause of the Constitution forbidding the States to tax exports. _See also_ Richfield Oil Corp. _v._ State Board of Equalization, 329 U.S. 69 (1946).

[692] Fisher's Blend Station _v._ State Tax Comm., 297 U.S. 650 (1936); Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938).

[693] _See_ p. 193.

[694] _See_ pp. 150-160.

[695] _See_ p. 189.

[696] 303 U.S. 250 (1938).

[697] Ibid. 254.

[698] Ibid. 255-256.

[699] 305 U.S. 434 (1939).

[700] Ibid. 439-440.

[701] 305 U.S. at 455 (1939).

[702] _See_ McCarroll _v._ Dixie Greyhound Lines, Inc., 309 U.S. 176, 188-189 (1940).

[703] Freeman _v._ Hewit, 329 U.S. 249 (1946).

[704] 329 U.S. 249.

[705] The Court relied particularly on Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938) in which the multiple taxation test had been used.

[706] Justice Black dissented without opinion. Justice Douglas, speaking also for Justice Murphy, contended that the sale had been local, and that the only interstate agency employed had been the mails, an argument which squares badly with the attitude of the same Justices in United States _v._ South-Eastern Underwriters Assoc., 322 U.S. 533 (1944).

[707] 330 U.S. 422 (1947), reaffirming Puget Sound Stevedoring Co. _v._ Tax Comm., 302 U.S. 90 (1937).

[708] 330 U.S. at 433.

[709] Justices Murphy, Douglas, and Rutledge thought the decision correct as to receipts from foreign commerce. Speaking for them, Justice Douglas made an effort to resurrect Maine _v._ Grand Trunk R. Co., 142 U.S. 217 (1891). Justice Black dissented without opinion.

[710] 334 U.S. 653.

[711] Ibid. 663, citing Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938); and Ratterman _v._ Western Union Teleg. Co., 127 U.S. 411 (1888).

[712] 335 U.S. 80.

[713] 337 U.S. 662, 666, 677-678, 680.

[714] _See supra_, pp. 196, 204-207.

[715] 247 U.S. 321 (1918).

[716] Ibid. 328-329.

[717] Shaffer _v._ Carter, 252 U.S. 37 (1920).

[718] Underwood Typewriter Co. _v._ Chamberlain, 254 U.S. 113 (1920); Bass, Ratcliff & Gretton _v._ State Tax Commission, 266 U.S. 271 (1924).