After a protracted consideration, involving the re-examination of the authorities, I am unable to concur in the views of the prevailing opinion. I could well stand upon the original opinion written herein, but there are authorities which were not commented upon in that opinion, which lend great strength to the views expressed in the original opinion.
The evidence in the case shows conclusively that the articles were purchased from the Superior Oil Company, to be sent into Louisiana. It was distinctly understood by the buyer and the seller that the articles were to be sent beyond the boundaries of Mississippi, and were not to be consumed in Mississippi. Every citizen in this state, as well as in others, has the right to engage in interstate commerce, and to procure for himself any advantages *Page 389 that may flow from so engaging in such commerce.
The tax here sought to be collected by the state is an excise tax, laid upon the right to exercise the business here involved. The state has no power whatever to tax this right, or to put any restrictions upon it. However, the evidence shows conclusively, I think, that the transaction was not one to evade the state law, but was one of practical necessity to the business of the appellee, the defendant below. The manager of the Superior Oil Company testified that that company was engaged in both intrastate and interstate commerce, and that the interstate commerce constituted a material portion of their business; that that company sold locally in Mississippi, and transported oil and gas to Alabama, and there resold it, but did not personally go into the state of Louisiana to do business, and had no domicile or location in that state.
Among other things, Mr. Royster, the manager, testified:
"At the time we went into this, there was one factory bought a load of one hundred barrels of gasoline, shipped from Louisiana into Biloxi, and the price was four or five cents a gallon cheaper than what we could sell for, and pay the tax. We saw it would make big inroads into our business, and in fact we could not maintain if that kept up, and we made inquiries from our attorney and I think our attorney got advice from the attorney-general that we were in our rights to ship out of the state to meet this competition. By shipping into Louisiana we met Louisiana competition.
"Q. There was competition in Louisiana? A. Yes.
". . . A. The prices fluctuate in Louisiana, and also in Mississippi. There are times when it could be bought for four cents a gallon less and times six cents less than we could sell it for with our tax.
"Q. Were people in Louisiana competing with you for this business at Grant's Pass? A. Yes. *Page 390
"Q. Were they able to make deliveries at Grant's Pass. A. Yes, and were making delivery out into the marsh, would send freight boats out loaded and are doing it now and are factors in it big.
"Q. Could you have sold gasoline that was in Biloxi, except with agreement to deliver it at Grant's Pass? A. No.
"Q. Is that the understanding? A. We agreed if they gave us the whole business, we would deliver it to them according to the understanding that we had with our attorney and the attorney-general we were within the law to do that. We then agreed to keep them supplied with shipments of gasoline to Louisiana at the price, less the tax."
It will thus be seen that it was a practical necessity for the defendant to engage in interstate commerce to successfully carry on the business against competition already existing. The contract of shipment, or receipt or bill of lading — whatever it may be called — set forth in the prevailing opinion, is clearly a contract for interstate shipment of goods or property. In that contract, to make sure that the gasoline would be delivered in Louisiana, and not used or sold in the state of Mississippi, it was provided: "It is further understood and agreed that the property consigned herein remains the property of the said Superior Oil Company until it shall be delivered to consignee or consignee's agent at point of destination."
It is perfectly legitimate to so provide in the contract. One of the liberties of a citizen is the right to make necessary contracts with reference to his business, when it may be necessary or appropriate to enjoy his right or liberty. Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832.
The appellant plants itself upon the proposition that the contract was completely performed when the gasoline was delivered at the wharf to the boat owned by the purchaser of the gasoline, although the gasoline was purchased for the express purpose of being shipped into *Page 391 Louisiana, and despite the fact that title was reserved in the seller until it reached that point.
In Dahnke-Walker Milling Co. v. C.T. Bondurant, 257 U.S. 282, 42 S. Ct. 106, 66 L. Ed. 239, the court expressly held that, where goods are purchased in one state for transportation to another, the purchase is interstate commerce, quite as much as the transportation. In the opinion (257 U.S. 290, 42 S. Ct. 109, 66 L. Ed. 243) the court said: "The commerce clause of the Constitution, article 1, section 8, clause 3, expressly commits to Congress and impliedly withholds from the several states the power to regulate commerce among the latter. Such commerce 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. Where goods in one state are transported into another for purposes of sale, the commerce does not end with the transportation, but embraces as well the sale of the goods after they reach their destination, and while they are in the original packages. Brown v. Maryland, 12 Wheat. 419, 446, 447, 6 L. Ed. 678, 688, 689; American Steel Wire Co. v. Speed, 192 U.S. 500, 519, 24 S. Ct. 365, 48 L. Ed. 538, 546. On the same principle, where goods are purchased in one state for transportation to another, the commerce includes the purchase quite as much as it does the transportation. American Exp. Co. v. Iowa, 196 U.S. 133, 143, 25 S. Ct. 182, 49 L. Ed. 417, 422. This has been recognized in many decisions construing the commerce clause. Thus it was said in Welton v. Missouri,91 U.S. 275, 280, 23 L. Ed. 347, 349: `"Commerce" is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale, and exchange of commodities.'"
In Kidd v. Pearson, 128 U.S. 1, 20, 9 S. Ct. 6, 10, 32 L. Ed. 346, 350, 2 I.C.R. 232, it was tersely said: "Buying and selling and the transportation incidental thereto constitute commerce." In U.S. v. E.C. Knight Co., 156 U. *Page 392 S. 1, 13, 15 S. Ct. 249, 254, 39 L. Ed. 325, 329, "contracts to buy, sell, or exchange goods to be transported among the several states" were declared "part of interstate trade or commerce." And in Addyston Pipe Steel Co. v. U.S., 175 U.S. 211, 241, 20 S. Ct. 96, 107, 44 L. Ed. 136, 147, the court referred to the prior decisions as establishing that "interstate commerce consists of intercourse and traffic between the citizens or inhabitants of different states, and includes not only the transportation of persons and property and the navigation of public waters for that purpose, but also the purchase, sale and exchange of commodities." In no case has the court made any distinction between buying and selling, or between buying for transportation to another state and transporting for sale in another state. Quite to the contrary, the import of the decisions has been that, if the transportation was incidental to buying or selling, it was not material whether it came first or last.
See, also, United Fuel Gas Co. v. Hallanan, 257 U.S. 277, 42 S. Ct. 105, 66 L. Ed. 234; Eureka Pipe Line Co. v. Hallanan,257 U.S. 265, 42 S. Ct. 101, 66 L. Ed. 227; Lemke v. Farmers' Grain Co., 258 U.S. 50, 42 S. Ct. 244, 66 L. Ed. 458; Hump Hairpin Mfg. Co. v. Emmerson, 258 U.S. 290, 42 S. Ct. 305, 66 L. Ed. 622; Shafer v. Farmers' Grain Co., 268 U.S. 189, 45 S. Ct. 481, 69 L. Ed. 909; Pa. R. Co. v. Sonman S.C. Co., 242 U.S. 120, 37 S. Ct. 46, 61 L. Ed. 189; Binderup v. Pathe Exchange, 263 U.S. 291, 44 S. Ct. 96, 68 L. Ed. 308. In the cases where the goods were f.o.b., cars at place of shipment to be sent into other states was a delivery to consignee at that place. The carrier was the agent of consignee.
It seems to me that the cases cited in the original opinion show beyond question that the instrumentality by which property is conveyed from one state to another does not make any difference, and does not change interstate transportation to intrastate transportation. In U.S. v. Simpson, 252 U.S. 465, 35 S. Ct. 364, 64 L.Ed. *Page 393 665, 10 A.L.R. 510, was a case where the jurisdiction of Congress over the transaction depended upon the interstate commerce power, and the intoxicating liquor in that case was transported in the automobile of the defendant buying the intoxicating liquor for his personal use, and it was there judged to be interstate commerce.
In U.S. v. Hill, 248 U.S. 420, 39 S. Ct. 143, 63 L. Ed. 337, the liquor was carried on the person of the defendant from the state of Kentucky into the state of West Virginia, and was intended for personal use, and not for sale, and it was there held to be interstate commerce.
In the case of Kirmeyer v. Kansas, 236 U.S. 568, 35 S. Ct. 419, 59 L. Ed. 721, Kirmeyer, who lived in Leavenworth, Kan., operated a liquor business just over the river on the Missouri side, and, receiving orders from Leavenworth over the telephone, placed the liquor in his own vehicle, carried it across the river, and there delivered it, was held to be interstate commerce, and the motives were held to be immaterial in that case, although it was adjudged by the state court that the method of conducting the business was a mere sham and fraud upon the state of Kansas, to enable the defendant to carry on illegal business in the state of Kansas, in disregard of its laws prohibiting such business.
In what is known as the "white slave" cases the jurisdiction in the Federal Government over the offense depended upon the commerce clause of the Federal Constitution. By the act of June 25, 1910, 36 Stat. at Large 825, chap. 395, U.S.C. title 18, section 397, it was made a criminal offense against the Federal government to transport women or girls in interstate commerce for immoral purposes. The statute was upheld as constitutional in Hoke v. U.S., 227 U.S. 308, 33 S. Ct. 281, 57 L. Ed. 523, 43 L.R.A. (N.S.) 906, Ann. Cas. 1913E, 905; Athanasaw v. U.S.,227 U.S. 326, 33 S. Ct. 285, 57 L. Ed. 528, Ann. Cas. 1913E, 911; Bennett v. U.S., *Page 394 227 U.S. 333, 33 S. Ct. 288, 57 L. Ed. 531; Harris v. U.S., 227 U.S. 340, 33 S. Ct. 289, 57 L. Ed. 534.
In Caminetti v. U.S., 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L.R.A. 1917F, 502, Ann. Cas. 1917B, 1168, it was held to be immaterial, in the transportation of the woman in question, that there was no expectation of pecuniary gain, and that the woman was so transported for the purpose only of being the mistress or concubine of the defendant.
See, also, authorities in the case notes to U.S. v. Simpson, in 10 A.L.R. at page 512, citing U.S. v. Burch (D.C.) 226 F. 974, where it was held that the transportation of a woman by automobile from one state to another for any unlawful purpose was interstate commerce. In this opinion, the court said: "And the transportation of persons has long been held to be commerce. Interstate commerce then is, among other things, the passage of persons or property from one state to another. It does not necessarily, or indeed at all, involve the idea of a common carrier, or the payment of freight or fare. Interstate commerce being, therefore, in so far as applicable here, the passage of persons from one state to another, the declaration of the act, `that any person who shall transport any woman in interstate commerce,' is equivalent to the declaration `that any person who shall transport any woman from one state to another.' It was any transportation from state to state, for the purposes mentioned, that Congress intended to prohibit, and did prohibit, and not such transportation by common carrier alone. In these days it is just as easy to transport a woman or girl by automobile as by rail, and the former method may in many cases be much more expeditious and clandestine than the latter."
In the case at bar there is no dispute whatever that each and all of the shipments were actually carried from Biloxi to Grant's Pass, Louisiana, in the original package, and there resold by the consignee to fishing boats operating in the Louisiana marshes. It seems to me so *Page 395 clear that the transaction here involved is interstate commerce, that it is difficult to appreciate the contrary view. The only authority, as I understand the prevailing opinion, relied upon by the majority of the court, is Browning v. Waycross, 233 U.S. 16, 34 S. Ct. 578, 58 L. Ed. 829. With due deference to my learned Associates, I think that case supports my view, rather than the view of the majority of the court. At pages 19 and 20, 233 U.S., page 831, 58 L.Ed. (34 S. Ct. 579), the court said: "The general principles by which it has been so frequently determined that a state may not burden by taxation or otherwise the taking of orders in one state for goods to be shipped from another or the shipment of such goods in the channels of interstate commerce upto and including the consummation by delivery of the goods at thepoint of shipment have been so often stated as to cause them to be elementary and as to now require nothing but a mere outline of the principle." (Italics supplied.)
In that case the goods had been shipped and delivered to the purchaser, but the contract called for in addition to the delivery of the goods at destination, that the seller would place the rods upon the building which they were purchased to serve, and the question is not whether the transportation from the buyer to the seller was interstate commerce, but whether the business of erecting the rods or attaching them to the building was a local business. The court held that it was not an interstate commerce transaction to engage in the business of putting the rods upon the building. Of course, the erecting of buildings, and the placing of fixtures on them, is not a part of interstate commerce, as it is entirely severable and separate therefrom, and becomes a business or occupation.
It seems to me that there is no case at all which supports the prevailing opinion, when the facts established by this record are considered as being in good faith. There is nothing whatever, as I see the record, that establishes, or even tends to establish, bad faith of the *Page 396 parties to the contract, if that is indeed material at all. Contracts are presumed to be legal and valid, and to be entered into honestly, and for the purpose of legitimate business or uses.