dissenting. I respectfully dissent. In my view, R.C. 5735.145(B) impermissibly discriminates against interstate commerce, as was properly recognized by this court on the first hearing of this case.
*212I
Section 8, Article I of the Constitution of the United States provides that “[t]he Congress shall have Power * * * to regulate Commerce with Foreign Nations, and among the several States * * The United States Supreme Court has explained that “the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States * * *. * * *[T]he Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States.” Freeman v. Hewit (1946), 329 U.S. 249, 252.
Although the power to lay taxes upon interstate commerce is reserved to the states, a state exercising this power must respect the national interest in free and open interstate trade. “No State, consistent with the Commerce Clause, may ‘impose a tax which discriminates against interstate commerce * * * by providing a direct commercial advantage to local business.’ ” Boston Stock Exchange v. State Tax Comm. (1977), 429 U.S. 318, 329 (quoting Northwestern States Portland Cement Co. v. Minnesota [1959], 358 U.S. 450, 458). “The Commerce Clause forbids discrimination, whether forthright or ingenious.” Best & Co., Inc. v. Maxwell (1940), 311 U.S. 454, 455.
A legitimate legislative purpose does not save a discriminatory statute. As the Supreme Court has made clear: “ ‘[W]hatever [a State’s] ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently.’ ” Hughes v. Oklahoma (1979), 441 U.S. 322, 337, at fn. 17 (quoting Philadelphia v. New Jersey [1978], 437 U.S. 617, 626-627).
It is against this constitutional standard that R.C. 5735.145(B) must be measured, and against which it cannot be upheld.
II
Ohio law requires motor vehicle fuel dealers to pay taxes on all motor vehicle fuel sold, used or distributed in Ohio. See R.C. 5735.05, 5735.25 and 5735.29. As originally enacted in 1981, R.C. 5735.145 granted a credit to dealers against such taxes with respect to fuel containing a blend of not more than ten percent by volume of ethanol, without regard to where the ethanol was produced. Effective January 1, 1985, however, the General Assembly amended R.C. 5735.145, adding subsection (B), which provides:
“The qualified fuel otherwise eligible for the qualified fuel credit shall not contain ethanol produced outside Ohio unless the tax commissioner determines that the fuel claimed to be eligible for credit contains ethanol produced in a state that also grants an exemption, credit or refund from such state’s motor vehicle fuel excise tax or sales tax for similar fuel containing ethanol produced in Ohio; provided, however, that such credit shall not exceed the amount of the credit allowable for qualified fuel containing ethanol produced in Ohio.” (Emphasis added.)
Thus, R.C. 5735.145(B) facially discriminates against interstate commerce. As the majority appears to concede, it also attempts to force other states to enact reciprocal legislation. Accordingly, as the majority recognizes, the statute is subject to the “strictest scrutiny.” See Sporhase v. Nebraska, ex rel. Douglas (1982), 458 U.S. 941, 958; Hughes v. Oklahoma, supra, at 337. Nevertheless, the ma*213jority fails to strictly scrutinize R.C. 5735.145(B). The majority’s analysis is flawed in four separate respects.
A
First, the majority errs in insisting that R.C. 5735.145(B) regulates “evenhandedly,” and in attempting to analogize the cause sub judice to CTS Corp. v. Dynamics Corp. of America (1987), 481 U.S. __, 95 L. Ed. 2d 67, Minnesota v. Clover Leaf Creamery Co. (1981), 449 U.S. 456, and Exxon Corp. v. Governor of Maryland (1978), 437 U.S. 117. The Ohio statute (R.C. 5735.145[B]) is decidedly distinguishable from the statutes at issue in those cases.
In CTS, the Indiana statute gave protection to Indiana corporations from all hostile tender offers; it made no distinction between tender offers coming from within the state and those coming from outside it. Likewise, in Clover Leaf Creamery, the statute at issue simply forbade the sale of milk in nonreturnable, nonrefillable plastic containers; nothing in the statute distinguished between containers made in Minnesota and containers made elsewhere. Finally, in Exxon, the Maryland statute prohibited all producers and refiners of petroleum products from also operating retail gas stations in Maryland; it drew no geographical lines separating those producers or refiners.
In stark contrast, R.C. 5735.145 (B) contains an explicit distinction between ethanol produced in Ohio and ethanol produced in states not granting a reciprocal tax credit. R.C. 5735.145(B) is thus plainly discriminatory on its face. Repetitious assertion by the majority that R.C. 5735.145(B) regulates “evenhandedly” is no substitute for analysis of the law.
Certainly the majority cannot muster support for such assertions from CTS, supra. In that case, the United States Supreme Court explained, in a passage only partially quoted by the majority:
“The principal objects of dormant Commerce Clause scrutiny are statutes that discriminate against interstate commerce. * * * The Indiana Act is not such a statute. It has the same effects on tender offers whether or not the offeror is a domiciliary or resident of Indiana. * * *
“* * * Because nothing in the Indiana Act imposes a greater burden on out-of-state offerors than it does on similarly situated Indiana offerors, we reject the contention that the Act discriminates against interstate commerce.” (Emphasis added.) Id. at _, 95 L. Ed. 2d at 84.
Nor can the majority rely upon Clover Leaf Creamery, supra, wherein the Supreme Court emphasized:
“Minnesota’s statute does not effect ‘simple protectionism,’ but ‘regulates evenhandedly’ by prohibiting all milk retailers from selling their products in plastic, nonreturnable milk containers, without regard to whether the milk, the containers, or the sellers are from outside the State. This statute is therefore unlike statutes discriminating against interstate commerce, which we have consistently struck down.” (Emphasis added.) Id. at 471-472.
With all deference to the majority, R.C. 5735.145(B) is not a statute that imposes a burden upon businesses which, coincidentally, happen to be located outside Ohio. R.C. 5735.145(B) is a gun, aimed at businesses located outside Ohio.
B
In its attempt to wish away the distinction between R.C. 5735.145(B) and the statutes in CTS, Clover Leaf Creamery and Exxon, the majority *214seizes oh the credit given to ethanol producers in states that do grant reciprocal tax credits. Referring to those producers, the majority boasts that R.C. 5735.145(B) “does not give an advantage solely to Ohio producers.” (Emphasis added.) The majority apparently believes that a statute which grants a commercial advantage to in-state businesses does not discriminate against interstate commerce unless the advantage is granted “solely” to the in-state businesses. Contrary to this belief, the constitutional infirmity of R.C. 5735.145(B) is aggravated by its forced reciprocity provision.
The majority’s position is undermined by Great A & P Tea Co. v. Cot-trell (1976), 424 U.S. 366. In A & P, the Mississippi regulation at issue permitted the importation of milk produced in another state only if that state accepted milk produced in Mississippi on a reciprocal basis. Thus, as with R.C. 5735.145(B), the regulation did not “solely” protect in-state businesses. Milk producers outside Mississippi were also protected if their state allowed the importation of milk from Mississippi. Nevertheless, the United States Supreme Court struck down the mandatory reciprocity provision because upholding it would “ ‘invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause.’ ” Id. at 380 (quoting Dean Milk Co. v. Madison [1951], 340 U.S. 349, 356).2
The majority acknowledges that the forced reciprocity provision in R.C. 5735.145(B) is a “thorny problem,” but rationalizes it away on the premise that a decision favorable to appellant would cause other states’ reciprocal tax credit programs to “fall like a row of dominos.” However, the United States Supreme Court has emphasized that the tax laws of other states are irrelevant to a determination of whether a particular state’s statute violates the Commerce Clause. See Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue (1987), 483 U.S. ____, 97 L. Ed. 2d 199, 210, wherein the court proclaimed, as to the tax therein at issue:
“The facial unconstitutionality of Washington’s gross receipts tax cannot be alleviated by examining the effect of legislation enacted by its sister States.”
The Supreme Court in Tyler Pipe Industries emphasized: “ ‘The immunities implicit in the Commerce Clause and the potential taxing power of a State can hardly be made to depend, in the world of practical affairs, on the shifting incidence of the varying tax laws of the various States at a particular moment.’ ” Id. at _, 97 L. Ed. 2d at 210, fn. 11 (quoting Freeman v. Hewit, supra, at 256, and Armco Inc. v. Hardesty [1984], 467 U.S. 638, 645, at fn. 8).
Therefore, the majority’s attempt to escape from the facial discrimination of R.C. 5735.145(B) lands it squarely within the briar patch of forced reciprocity.
C
In its claim that R.C. 5735.145(B) is constitutional because it does not effect a complete ban upon the importation of ethanol from non-reciprocating states, the majority errs again. Even if it is assumed that the practical effect *215of a competitive disadvantage of twenty-five cents per gallon of ethanol is not tantamount to a complete ban, the majority’s claim nonetheless fails because it rests upon the false premise that a complete ban is necessary to constitute a Commerce Clause violation.
In numerous cases, the United States Supreme Court has invalidated discriminatory state taxes without requiring that they be so drastic as to erect an impenetrable barricade to commerce at the state border. See, e.g., Tyler Pipe Industries, supra; Bacchus Imports, Ltd. v. Dias (1984), 468 U.S. 263; Armco, supra; Maryland v. Louisana (1981), 451 U.S. 725; Boston Stock Exchange, supra.3
Indeed, the law on discriminatory state taxes has been established for at least a century. In Walling v. Michigan (1886), 116 U.S. 446, 455, the court declared:
“A discriminatory tax imposed by a State operating to the disadvantage of the products of other States when introduced into the first mentioned State, is, in effect, a regulation in restraint of commerce among the States, and as such is a usurpation of the power conferred by the Constitution upon the Congress of the United States.”4
Thus, the alleged absence of a complete ban upon the importation of ethanol by R.C. 5735.145(B) does not save this statute.
III
The majority makes its fourth and final error when it suggests that this court, if it finds R.C. 5735.145(B) unconstitutional, must then invalidate all of R.C. 5735.145. There is no merit in this suggestion. This court could, and should, hold that R.C. 5735.145(B) alone is invalid. The result of such holding would be that the tax credit of R.C. 5735.145 would be available to dealers with respect to all ethanol sold, used, or distributed in Ohio — not just for ethanol which originates in Ohio or in a state which grants reciprocal tax credits to Ohio producers. That result, unlike the one reached by the majority, would accomplish the evenhanded treatment mandated by the Commerce Clause.
The United States Supreme Court recently emphasized in Tyler Pipe Industries, supra: “ ‘The conclusion is inescapable: equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state.’ ” Id. at _, 97 L. Ed. 2d at 213 (quoting Halliburton Oil Well Cementing Co. v. Reily [1963], 373 U.S. 64, 70). Because R.C. 5735.145(B) fails to satisfy that condition precedent, I must respectfully dissent.
Sweeney, Acting C.J., and Locher, J., concur in the foregoing dissenting opinion.See, also, Best & Co., Inc. v. Maxwell, supra, wherein the United States Supreme Court held unconstitutional a North Carolina privilege tax imposed upon businesses which displayed merchandise for sale in that state but which were not “regular retail merchants” therein. As with R.C. 5735.145(B), the invalid North Carolina tax favored all in-state sellers and some out-of-state sellers.
State regulations, as opposed to taxes, also need not effect a total ban upon importation to impermissibly burden or discriminate against interstate commerce. See Hunt v. Washington State Apple Advertising Comm. (1977), 432 U.S. 333, wherein the court invalidated a facially neutral North Carolina statute requiring closed containers of out-of-state apples to bear no quality grade markings showing other than the applicable federal grade. Such regulation plainly did not completely ban the importation of out-of-state apples, but it did put their growers at a competitive disadvantage.
This passage was recently quoted with approval in Bacchus Imports, supra, at 271.