292 STONE, C. J., dissenting. now. For here we are confronted with a scheme of taxation imposed on vehicles of interstate transportation located within the taxing state for only a limited and specified part of their active life. For the rest, they are in other states, moving over fixed routes of travel where, under our decisions, they plainly have a tax situs, and where they are in fact taxed in six of the seven states other than Minnesota through which they pass. The tax now sustained is so obviously disproportionate to the protection afforded to the taxed property by the taxing state as to place a constitutionally intolerable burden on interstate commerce. But it is a burden which is capable of equitable adjustment which would satisfy constitutional requirements by the application of the principles of apportionment which this Court has repeatedly sanctioned, and which it is the constitutional duty of the State of Minnesota to apply. The application of these principles does not call for mathematical exactness nor for the rigid application of a particular formula; only if the resulting valuation is palpably excessive will it be set aside. But a reasonable attempt must be made to tax only so much of the value as is fairly related to use within the taxing state. Union Tank Line Co. v. Wright, supra, 282; Great Northern Ry. v. Weeks, supra, 144; Nashville, C. & St. L. Ry. v. Browning, supra, 365. volved rolling stock continuously moving into and out of the taxing state and sustained taxes upon a proportion of the carrier's total rolling stock based respectively upon the track mileage or upon the average number of cars used within the taxing state. Had the Court intended to exempt, from the domicile's power to tax, only property which never came into the domicile it would have been necessary for it to discuss also the contention that the Union Transit Company had been denied the equal protection of the laws because railroads were taxed only upon the value of their rolling stock used within the state determined by the proportionate mileage within the state (pp. 202, STONE, C. J., dissenting. 322 U.S. It is no answer to suggest that the states other than Minnesota have not asserted their constitutional power to tax or that we do not know how or to what extent they have exercised it. The extent to which one state may constitutionally tax the instruments of interstate transportation does not depend on what other states may happen to do, but on what the taxing state has constitutional power to do. The jurisdiction of Minnesota to tax "must be determined on a basis which is consistent with the like jurisdiction of other States." Johnson Oil Co. v. Oklahoma, supra, 162. Minnesota cannot justify its imposition of an undue proportion of the total tax burden which can be imposed on an interstate carrier by saying that other states have taken or may take less than their share of the tax. It is enough that the tax exposes petitioner to "the risk of a multiple burden to which local commerce is not exposed," Adams Mfg. Co. v. Storen, supra, 311; Gwin, White & Prince v. Henneford, supra, 439, and cases cited. To hold otherwise would be to measure Minnesota's power to tax, not by constitutional standards, but by the action of other states over which neither Minnesota nor petitioner has any control and to leave petitioner's tax to be measured from year to year, not according to any legal standard, but by the unpredictable uncontrolled action of other states. The judgment should be reversed and the case remanded for further proceedings in the course of which the state court would be free, if so advised, to inquire to what extent, if at all, the tax may, in harmony with state law, be apportioned in conformity to principles heretofore announced by this Court, and to that extent sustained. MR. JUSTICE ROBERTS, MR. JUSTICE REED, and MR. JUSTICE RUTLEDGE join in this dissent. Opinion of the Court. MCLEOD, COMMISSIONER OF REVENUES, v. J. E. DILWORTH CO. ET AL. CERTIORARI TO THE SUPREME COURT OF ARKANSAS. No. 311. Argued February 4, 1944.-Decided May 15, 1944. A Tennessee corporation which was not qualified to do business in Arkansas, and which had no sales office nor any other place of business in Arkansas, made sales of goods in Tennessee for delivery by common carrier in Arkansas. Though some orders were solicited in Arkansas by traveling salesmen domiciled in Tennessee, all orders were taken subject to acceptance by the corporation in Tennessee; title to the goods passed upon delivery to the carrier in Tennessee; and no collections were made in Arkansas. Held that the imposition by Arkansas of a tax on such transactions, under a statute construed by the state court as levying a sales tax and not a use tax (which construction is accepted here), violated the commerce clause of the Federal Constitution. McGoldrick v. Berwind-White Co., 309 U. S. 33, and Wisconsin v. J. C. Penney Co., 311 U. S. 435, distinguished. Pp. 328, 330. 205 Ark. 780, 171 S. W. 2d 62, affirmed. CERTIORARI, 320 U. S. 728, to review the affirmance of a judgment dismissing the complaint in two suits (consolidated for trial) to enforce a state tax. Mr. Leffel Gentry for petitioner. Mr. J. Fred Brown, with whom Mr. Allan Davis was on the brief, for the J. E. Dilworth Co.; and Mr. William H. Daggett for the Reichman-Crosby Co., respondents. MR. JUSTICE FRANKFURTER delivered the opinion of the Court. We are asked to reverse a decision of the Supreme Court of Arkansas holding that the Commerce Clause precludes liability for the sales tax of that State upon the transactions to be set forth. Opinion of the Court. 322 U.S. We take the descriptions of these transactions from the opinion under review. Respondents are Tennessee corporations with home offices and places of business in Memphis where they sell machinery and mill supplies. They are not qualified to do business in Arkansas and have neither sales office, branch plant nor any other place of business in that State. Orders for goods come to Tennessee through solicitation in Arkansas by traveling salesmen domiciled in Tennessee, by mail or telephone. But no matter how an order is placed it requires acceptance by the Memphis office, and on approval the goods are shipped from Tennessee. Title passes upon delivery to the carrier in Memphis, and collection of the sales price is not made in Arkansas. In short, we are here concerned with sales made by Tennessee vendors that are consummated in Tennessee for the delivery of goods in Arkansas. For such sales, the Supreme Court of Arkansas had held, in 1939, the State had no power to exact a sales tax, Mann v. McCarroll, 198 Ark. 628, 130 S. W. 2d 721. The Arkansas legislation then in force was Act 154 of 1937. The transactions on which the Collector here seeks to tax extended over periods that bring into question Act 154 (extended by Act 364 of 1939) and a new Statute (Act 386 of 1941), known as the Gross Receipts Act. The Arkansas Supreme Court gave the Act of 1941 the same scope and significance as it attributed to the Act of 1937, that is, an act imposing a retail sales tax and not a use tax. In view of this construction, it has adhered to its earlier decision in Mann v. McCarroll, finding nothing in our intervening decision in McGoldrick v. Berwind-White Co., 309 U. S. 33, requiring a change in its constitutional views. 205 Ark. 780, 171 S. W. 2d 62. To permit further examination of the complicated problems raised by the interplay of federal and state powers we brought the case here. 320 U.S. 728. 327 Opinion of the Court. We agree with the Arkansas Supreme Court that the Berwind-White case presented a situation different from this case and that this case is on the other side of the line which marks off the limits of state power. A boundary line is none the worse for being narrow. Once it is recognized, as it long has been by this Court, that federal and state taxation do not move within wholly different orbits, that there are points of intersection between the powers of the two governments, and that there are transactions of what colloquially may be deemed a single process across state lines which may yet be taxed by the State of their occurrence, "nice distinctions are to be expected," Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 225. The differentiations made by the court below between this case and the Berwind-White case are relevant and controlling. "The distinguishing point between the BerwindWhite Coal case and the cases at bar is that in the Berwind-White Coal case the corporation maintained its sales office in New York City, took its contracts in New York City and made actual delivery in New York City... 205 Ark. at 786. This, according to practical notions of what constitutes a sale which is reflected by what the law deems a sale, constituted a sale in New York and accordingly we sustained a retail sales tax by New York. Here, as the Arkansas Supreme Court continued, "the offices are maintained in Tennessee, the sale is made in Tennessee, and the delivery is consummated either in Tennessee or in interstate commerce with no interruption from Tennessee until delivery to the consignee essential to complete the interstate journey." Because the relevant factors in the two cases decided together with the Berwind-White case were the same as those in Berwind-White, the decision in that case controlled the two other cases. "In both cases the tax was imposed on all the sales of merchandise for which orders were taken |