dissenting. This case is here by virtue of the granting of an application for a writ of certiorari to the Court of Appeals. The issue involved is state taxation. The decision of the Court of Appeals which was adverse to the taxpayer is reported in 129 Ga. App. 347 (199 SE2d 610).
The Georgia Revenue Commissioner assessed taxes, penalty, and interest against Berry under the Georgia Sales and Use Tax Act. Berry, an Ohio corporation, contended that it had not made any taxable "sales” within the State of Georgia so as to be liable for the Georgia sales tax; and it further contended that it had not "used” the subject property (telephone directories) within the State of Georgia so as to be liable for Georgia’s use tax.
Berry appealed the Commissioner’s determination of liability to the Superior Court of Fulton County, a trial was conducted there before the trial judge, and a judgment against Berry and in favor of the Commissioner was rendered. An appeal by Berry to the Georgia Court of Appeals resulted in the affirmance of the judgment of the trial court.
I would reverse the judgment of the Court of Appeals, and I respectfully dissent today from the decision by the majority of this court.
*663During the period under consideration Berry had contracts with telephone companies in Georgia for the sale of advertising to be placed in telephone directories. Pursuant to the terms of these contracts, Berry was obligated to procure the printing of telephone directories and ship or deliver them in Georgia to the individual Georgia companies or, in some instances, to a company’s telephone subscribers as directed by the telephone company.
The printing of the telephone directories at the instance of Berry took place outside of the State of Georgia, and the telephone directories were shipped by the non-resident printers as directed by Berry to the Georgia companies or to the subscribers of the Georgia companies, the companies and the subscribers all being located within the State of Georgia.
Finding of Fact No. 7 by the trial court was as follows: "7. The directories were shipped by the printing company on Berry’s instructions either directly to subscribers of the telephone company or to the telephone company which then redistributed the directories to its subscribers. Berry re-invoiced the telephone company for part of its printing costs in some cases but in others absorbed the entire cost.”
No contention is made in this case that the transactions involved amounted to "sales” so as to be subject to a sales tax under the Georgia Retail Sales and Use Tax Act. At the trial in the trial court the Georgia Commissioner contended: "That’s the nature of the assessment. The tax is not on the sale in the state. It’s for the use of the property in the state.”
Conclusion of law No. 2 contains the following: "Appellant’s transfers of telephone directories instant to such contracts are not sales within the meaning of the Georgia Retailers’ and Consumers’ Sales and Use Tax Act. Consequently, the purchase by Berry outside the State of Georgia was a retail purchase and its transfer of those directories to the telephone companies ultimately employing them is a taxable use under the Act.”
It is therefore clear that the trial court’s basis for liability on the part of Berry was for the "use” of the directories within the State of Georgia. The Georgia Court of Appeals also held that the purchase of the directories by Berry outside of the state, and the transfers of the directories to their ultimate consumers within the State of Georgia "were taxable uses under the Retailers’ and Consumers’ Sales and Use Tax Act.” See L. M. Berry & Co. v. Blackmon, 129 Ga. App. 347, supra.
It is my view that the mere shipment of property owned or *664purchased by the shipper outside of the State of Georgia to parties or consumers located within the State of Georgia cannot subject the out-of-state shipper to a "use” tax levied by the State of Georgia.
In National Bellas Hess v. Dept. of Revenue, 386 U. S. 753 (87 SC 1389, 18 LE2d 505), the Supreme Court of the United States held that the commerce clause prohibits a state from imposing a duty of use tax collection and payment upon a seller whose only connection with customers in the state is by common carrier or by mail.
My reading of the cases in this field of the law convinces me that Georgia does not have the power to impose and collect a "use” tax on an out-of-state shipper of goods, the goods being shipped into the State of Georgia, unless there is some other and additional use of the property within Georgia by the shipper other than mere shipment by common carrier or by mail. In other words, shipment by common carrier or by mail of property into Georgia, without more, does not constitute a "use” of the property by the shipper within the territorial limits of this state. See Miller Bros. Co. v. Maryland, 347 U. S. 340 (74 SC 535, 98 LE 744).
I can understand that if the contracts between Berry and the Georgia companies were held to be sales contracts for property to be delivered in Georgia, and if Berry had the requisite connections with Georgia such as salesmen, agents, or representatives in Georgia, then Georgia could levy and collect a "sales” tax from Berry. See Scripto, Inc. v. Carson, 362 U. S. 207 (80 SC 619, 4 LE2d 660), and Nelson v. Sears, Roebuck & Co., 312 U. S. 359 (61 SC 586, 85 LE 888, 132 ALR 475). But that situation is not present in the case at bar. Berry has been held liable for a "use” tax in Georgia when the only use of the directories by Berry in Georgia consisted of mere shipment by common carrier or mail into this state.
It is my view that Georgia cannot impose upon and collect a "use” tax from Berry in this case, and I would reverse the judgment of the Court of Appeals.
I respectfully dissent.