The statute provides for a tax upon sales and transfers of shares of stock. The claimants are engaged in an investment and securities business in the city of New York. In the course of their business, they agreed to sell shares of stock to two firms, one engaged in business in Philadelphia and the other in Washington, and, thereafter, mailed the securities to banks in Philadelphia and Washington, D.C., for delivery upon payment of sight drafts which were attached. The plaintiffs challenged the validity of the Tax Law of the State of New York (Cons. Laws, ch. 60) in so far as it purports to impose a tax upon the sale or transfer of the stock which the plaintiffs have sold and delivered to persons outside of the State of New York, on the ground that such a tax constitutes an unlawful burden on interstate commerce.
The sellers reside in New York and, unquestionably, the State would have power to tax their personal property here, including property which the plaintiffs intend to use *Page 450 in interstate commerce, until the moment when such property becomes part of a movement in interstate commerce. The purchasers live in other jurisdictions and, unquestionably, such jurisdictions would have power to tax their property immediately after it was delivered in the course of interstate commerce to the purchasers. The Tax Law of New York State, which is challenged, does not, however, attempt to tax the property of the plaintiffs or any exercise of power over such property by them, except in connection with a sale in interstate commerce.
Every transaction in interstate commerce requires the performance of acts in two or more States. Here the contract was made by telephone, telegraph and mail, with the messages originating in one State and received in another State, and the contract of sale became effective only upon exchange of confirmation by the buyer outside of the State and the seller here. The shares of stock were mailed here, passed through other States to the cities where the purchasers did business. Payment was made there and transmitted to the sellers here. Authority of the State, if any, to tax the sale or transfer of the stock must rest upon the fact that the sellers lived here and the State had jurisdiction of the property before it entered into the stream of interstate commerce, or upon the fact that part of the transaction in interstate commerce occurred here.
If the State of New York had power to tax the sale or transfer of this property on such grounds, then it would seem clear that Pennsylvania and the District of Columbia would each have the right to tax the sale or transfer of such securities because the purchaser resides and the transfer is made there. But in such case "interstate commerce would thus be subjected to the risk of a double tax burden to which intrastate commerce is not exposed and which the commerce clause forbids." (Adams ManufacturingCo. v. Storen, 304 U.S. 307, 311, decided May 16, 1938; Gwin,White Prince, Inc., v. Henneford, 305 U.S. 434.) It is said that there is no proof here that, in fact, Pennsylvania or the District of Columbia do impose any tax upon the transfer of the stock *Page 451 outside of this State or that, in this case, the sales have, in fact, been subjected to a tax burden greater than similar sales where purchaser and seller both live in the State of New York and transfer is made there. It is established by a long line of cases, referred to and approved in the two cases cited above, that interstate commerce may not be subjected to the risk of double taxation — whether, in fact, two or more States have joined in imposing multiple taxes is immaterial if the risk of multiple taxation exists. So, in Adams Manufacturing Co. v.Storen (supra) the Supreme Court of the United States declared invalid a State tax on gross income derived by a manufacturer from sales in interstate commerce, saying that the tax "is of such a character that if lawful it may in substance be laid to the fullest extent by states in which the goods are sold as well as those in which they are manufactured" (p. 311). I can find no distinction in principle between the tax there declared invalid and the tax which is here challenged. To sustain this tax we must reject the authority of what was so recently said and decided by the Supreme Court of the United States.
The State, however, relies for authority to a great extent upon the later case of McGoldrick v. Berwind-White Coal Mining Co. (309 U.S. 33). It may hardly be supposed that the majority of the court intended in that case to destroy the force of its previous decisions without even mentioning the decisions which it intended to overrule or weaken. In the last case the opinion by Mr. Justice STONE indicates clearly the factors which induced the court to sustain the tax in that case, though it was a tax on a sale in interstate commerce.
After analyzing the tax there challenged, Mr. Justice STONE pointed out: "The ultimate burden of the tax, both in form and in substance, is thus laid upon the buyer, for consumption, oftangible personal property, and measured by the sales price. Only in event that the seller fails to pay over to the city the tax collected or to charge and collect it as the statute requires, is the burden cast on him. It is conditioned upon events occurring within the state, either transfer of title or possession of the purchased property, *Page 452 or an agreement within the state, `consummated' there * * *" (p. 43).
Then he points out that
"Certain types of tax may, if permitted at all, so readily be made the instrument of impeding or destroying interstate commerce as plainly to call for their condemnation as forbidden regulations. Such are the taxes already noted which are aimed at or discriminate against the commerce or impose a levy for the privilege of doing it, or tax interstate transportation or communication or their gross earnings, or levy an exaction on merchandise in the course of its interstate journey. Each imposes a burden which intrastate commerce does not bear, and merely because interstate commerce is being done places it at a disadvantage in comparison with intrastate business or property in circumstances such that if the asserted power to tax were sustained, the states would be left free to exert it to the detriment of the national commerce.
"The present tax as applied to respondent is without the possibility of such consequences. Equality is its theme. Cf.Henneford v. Silas Mason Co., 300 U.S. 577, 583. It does not aim at or discriminate against interstate commerce. It is laid upon every purchaser, within the state, of goods forconsumption, regardless of whether they have been transported in interstate commerce. Its only relation to the commerce arises from the fact that immediately preceding transfer of possession to the purchaser within the state, which is the taxable event regardless of the time and place of passing title, the merchandise has been transported in interstate commerce and brought to its journey's end. Such a tax has no different effectupon interstate commerce than a tax on the `use' of property which has just been moved in interstate commerce sustained inMonamotor Oil Co. v. Johnson, 292 U.S. 86; Henneford v.Silas Mason Co., supra; Felt Tarrant Mfg. Co. v. Gallagher,306 U.S. 62; Southern Pacific Co. v. Gallagher, 306 U.S. 167, or the tax on storage or withdrawal for use by the consignee of gasoline, similarly sustained in Gregg Dyeing Co. v. Query,286 U.S. 472; *Page 453 Nashville, C. St. L. Ry. Co. v. Wallace, 288 U.S. 249;Edelman v. Boeing Air Transport, 289 U.S. 249, or thefamiliar property tax on goods by the state of destination at theconclusion of their interstate journey. Brown v. Houston,supra; American Steel Wire Co. v. Speed, 192 U.S. 500" (pp. 48, 49). (Italics throughout are ours.)
Here the tax is imposed upon the seller and not the buyer and it has no possible analogy to a "use" tax or a property tax on goods at their destination. If this tax is sustained, then similar sales in interstate commerce may be subjected to the risk of a burden of multiple taxation which might impede or destroy such commerce, and similar taxes have been declared a violation of the Constitution whenever challenged. It is said that the State of New York would have power to require both buyer and seller to pay a tax upon a sale made in intrastate commerce and that sales in interstate commerce may properly be made subject to the same risk that where buyer and seller live in different States, each may be required to pay a tax upon the sale. Perhaps some inscrutable reason might induce a State to require both buyer and seller to pay a sales tax on intrastate commerce and only one to pay a sales tax on interstate commerce. We do not now pass upon the validity of such a tax. Here the State has attempted to subject a sale in interstate commerce to the same single tax which must be paid on other sales and other States would have power, at least as good, to impose a similar sales tax upon the same sale.
The judgment should be reversed, with costs in all courts, and judgment directed for the claimants for the taxes they have paid, with interest.
RIPPEY, SEARS and LEWIS, JJ., concur with FINCH, J.; LEHMAN, Ch. J., dissents in opinion, in which LOUGHRAN and CONWAY, JJ., concur.
Judgment affirmed. *Page 454