delivered the following dissenting opinion, in which Delaplaine, J., concurred.
On a federal question our duty is to follow the Supreme Court, not to try to lead it. In the fourth Texas primary case, Smith v. Allwright, 321 U. S. 649, 652, 64 S. Ct. 757, 759, 88 L. Ed. 987, 151 A. L. R. 1110, the court remarked that the district court had denied relief and “the Circuit Court of Appeals quite properly affirmed its action on the authority of Grovey v. Townsend, 295 U. S. 45, 55 S. Ct. 622, 79 L. Ed. 1292, 97 A. L. R. 680 [the third Texas primary case].” The court thereupon overruled Grovey v. Townsend and reversed the action “quite properly” taken by the lower court. We are not at liberty to guess about personalities, changes in personnel, or possible future changes in decisions, or to take the obscurantist attitude that determination of the present status of the authorities amounts to searching into the inscrutable and that we should therefore sustain the tax and let the Supreme Court strike it down if it will. As we have recently said, through Chief Judge Marbury, “If the Supreme Court did not mean what it said, or said more than it should, or what it should not have said, the responsibility is its and not ours.” Goetz v. Smith, 191 Md. 707, 711, 62 A. 2d 602, 604. We may, and should, compare opinions of the court with dissenting opinions to determine the line of demarcation between them and the scope of the decisions of the court.
*220Cases under the Import-Export Clause are few in comparison with the multitude under the Commerce Clause. For the first 150 years of the operation of the Constitution the Import-Export Clause, approximately but to a fluctuating degree, covered in the same way part of the same field as the Commerce Clause. Consequently in a case involving the broader field of the Commerce Clause it was seldom necessary to discuss the Import-Export Clause at all. In Crew Levick Co. v. Commonwealth of Pennsylvania, 245 U. S. 292, 295, 38 S. Ct. 126, 127, 62 L. Ed. 295, in which the court held invalid a gross receipts tax on the business of selling goods in foreign commerce, it was said, “The bare question, then, is whether a state tax imposed upon the business of selling goods in foreign commerce, in so far as it is measured by the gross receipts from merchandise shipped to foreign countries, is in effect a regulation of foreign commerce or an impost upon exports, within the meaning of the pertinent clauses of the Federal Constitution. Although dual in form, the question may be treated as a single one, since it is obvious that, for the purposes of this case, an impost upon exports and a regulation of foreign commece may be regarded as interchangeable terms.” For the last ten years the field covered by the Import-Export Clause has, to an important extent, included taxes not prohibited by the Commerce Clause. The important difference between the coverage of the two clauses is not due to changes in decisions under the Import-Export Clause, with which we are here concerned, but to changes in decisions under the Commerce Clause with which fortunately we are not concerned. With one exception (which will now be mentioned but is not now material) there has been from the first no change in the decisions under the Import-Export Clause. In Brown v. Maryland, 1827, 12 Wheat. 419, 449, 6 L. Ed. 678, it was “supposed” and in Almy v. California, 1861, 24 How. 169, 16 L. Ed. 644, it was assumed, as the basis of an unanimous opinion, that the Import-Export Clause is applicable to “imports” and *221“exports” from one state into another. In Woodruff v. Parham, 1869, 8 Wall. 123, 19 L. Ed. 382, these dicta were discarded and the clause held applicable only to imports from and exports to a foreign country.
On their face the Import-Export Clause and the Commerce Clause suggest two possible differences, (1) the Commerce Clause covers “commerce”, the Import-Export Clause “imports” and “exports”, which conceivably might be construed as meaning only the goods imported or exported, not the busines or process of importation or exportation, (2) the Commerce Clause does not contain any express tax exemption, the Import-Export Clause does. In Brown v. Maryland, supra, the first case under the Import-Export Clause, the first possible difference was negatived. That clause ever since has been construed as exempting from taxation not only the goods imported or exported, but the business and the process of importation or exportation. The second possible difference was never completely excluded, for about 150 years in a varying degree was almost eliminated, but in the last ten years has been definitely affirmed.
Until 1869 the Import-Export Clause was assumed to give an express tax exemption to transportation in foreign or interstate commerce. In 1873 there were decided the State Freight Tax, 15 Wall. 232, 21 L. Ed. 146, and the State Tax on Railway Gross Receipts, 15 Wall. 284, 21 L. Ed. 164, the former holding invalid a tax on freight, including interstate freight, at graduated rates per ton on different articles, the second sustaining a Pennsylvania tax on railway gross receipts, including receipts from interstate commerce. The opinions in both cases were delivered by the same justice, but only four justices concurred in both decisions, which were essentially irreconcilable. After repeated subsequent decisions consistent with the State Freight Tax, the State Tax on Railway Gross Receipts was in effect overruled in Philadelphia & Southern M. Steamship Co. v. Pennsylvania, 1887, 122 U. S. 326, 7 S. Ct. 1118, 30 L. Ed. 1200.
*222Thereafter until about ten years ago it was held that interstate commerce, and specifically gross receipts from such commerce, were exempt from state taxation, with one important but elusive exception, viz., a gross receipts tax, by whatever name called, if it amounts to no more than the ordinary tax upon property or a just equivalent therefor is not unconstitutional. State of Maine v. Grand Trunk Railroad Co., 1891, 142 U. S. 217, 12 S. Ct. 121, 163, 35 L. Ed. 994, as explained in. Postal Telegraph Cable Co. v. Adams, 1895, 155 U. S. 688, 15 S. Ct. 360, 39 L. Ed. 311, and Galveston, Harrisburg & San Antonio Railway Co. v. Texas, 1908, 210 U. S. 217, 23 S. Ct. 638, 52 L. Ed. 1031. Such a permitted tax has been called a commutation tax, 210 U. S. at page 226, 28 S. Ct. at page 639, and, by counsel in the instant case, an “in lieu” tax. For about ten years, beginning with McGoldrick v. Berwind-White Coal Mining Co., 1940, 309 U. S. 33, 60 S. Ct. 388, 84 L. Ed. 565, 128 A. L. R. 876, the court has narrowed the effect of the Commerce Clause as prohibiting taxes which burden interstate commerce. The court still holds that, “From the Commerce Clause itself, there comes * * * an abridgment of the state’s power to tax within its territorial limits. This has arisen from long-continued judicial interpretation that, without congressional action, the words themselves of the Commerce Clause forbid undue interferences by the States with interstate commerce4 and that this rule applies in full force to an unapportioned5 tax on the gross proceeds from interstate business6 where the taxes were not in lieu of ad valorem taxes on property.7 [Citing cases in footnotes 4, 5, 6 and 7.]” Joseph v. Carter & Weakes Stevedoring Co., 330 U. S. 422, 427, 67 S. Ct. 815, 818, 91 L. Ed. 993. In the case just quoted a state tax on the gross receipts of a stevedoring corporation from work on ships engaged in interstate and foreign commerce was held unconstitutional under the Commerce Clause. The statement quoted is appreciably narrower than it might have been before the Berwind-White case.
*223In Richfield Oil Corporation v. State Board of Equalization, 329 U. S. 69, 67 S. Ct. 156, 160, 91 L. Ed. 80, decided a few months before the Joseph case, the court indicated the change that had occurred in the recent Commerce Clause cases, and, what is more important and, I think, decisive in the instant case, the difference in this respect between the Commerce Clause and the Import-Export Clause. “* * * the Commerce Clause is cast, not in terms of a prohibition against taxes, but in terms of a power on the part of Congress to regulate commerce. It is well established that the Commerce Clause is a limitation upon the power of the States, even in absence of action by Congress. [Citing cases]. But the scope of the limitation has been determined by the Court in an effort to maintain an area of trade free from state interference and at the same time to make interstate commerce pay its way. As recently stated in McGoldrick v. Berwind-White Coal Mining Co., supra, 309 U. S. at page 48, 60 S. Ct. 388, 84 L. Ed. 565, 128 A. L. R. 876, the law under the Commerce Clause has been fashioned by the Court in an effort 'to reconcile competing constitutional demands, that commerce between the states shall not be unduly impeded by state action, and that the power to lay taxes for the support of state government shall not be unduly curtailed.’ That accommodation has been made by upholding taxes designed to make interstate commerce bear a fair share of the cost of the local government from which it receives benefits (see e. g. Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 254-255, 58 S. Ct. 546, 548, 549, 82 L. Ed. 823, 115 A. L. R. 944, and cases cited; McGoldrick v. Berwind-White Coal Mining Co., supra) and by invalidating those which discriminate against interstate commerce, which impose a levy for the privilege of doing it, which place an undue burden on it. [Citing cases].” After thus describing the somewhat tenuous line between taxes which are prohibited and those which are permitted under the Commerce Clause, the court then makes plain *224that there is no exception at all from the unqualified tax 'exemption under the Import-Export Clause.
“It seems clear that we cannot write any such qualification into the Import-Export Clause. It prohibits every State from laying ‘any’ tax on imports or exports without the consent of Congress. Only one exception is created — ‘except what may be absolutely necessary for executing its inspection Laws.’ The fact of a single exception suggests that no other qualification of the absolute prohibition was intended. It would entail a substantial revision of the Import-Export Clause to substitute for the prohibition against ‘any’ tax a prohibition against ‘any discriminatory’ tax. As we shall see, the question as to what is exportation is somewhat entwined with the question as to what is interstate commerce. But the two clauses, though complementary, serve different ends. And the limitations of one cannot be read into the other.” 329 U. S. at pages 75-76, 67 S. Ct. at page 160.
“We cannot, therefore, read the prohibition against ‘any’ tax on exports as containing an implied qualification.” 329 U. S. at page 78, 67 S. Ct. at page 161. In the Richfield case the court held unconstitutional under the Import-Export Clause application of a California gross receipts sales tax to an export shipment.
As a decision under the Import-Export Clause the Richfield case is not qualified, but reaffirmed, by the Joseph case. In the Joseph case five justices broadened the invalidation of the tax to include interstate commerce as well as imports and exports, seven condemned it as to imports and exports. It is impossible to escape Professor Powell’s interpretation of the opinions in this respect. 60 Harvard Law Review 744. Though the majority opinion does not mention the Import-Export Clause it cites the Crew Levick case to the very page quoted, supra, where the court said the two questions were one. Reason and authority may be surveyed in vain without finding any ground for holding that a tax, invalid under the Commerce Clause, could be valid, as to imports or exports, under the Imports-Exports Clause.
*225A tax on gross receipts from carriage of goods is manifestly a tax on exportation. Transportation is not an incident, direct or indirect, of commerce or exportation. It is commerce and exportation. The Export Clause (as far as it goes) is identical in scope with the Import-Export Clause. In Thames & Mersey Marine Ins. Co. v. United States, 237 U. S. 19, 35 S. Ct. 496, 59 L. Ed. 821, Ann. Cas. 1915D, 1087, a stamp tax on marine insurance policies on exports was held unconstitutional. The court said, “The rise in rates for insurance as immediately affects exporting as an increase in freight rates, and the taxation of policies insuring cargoes during their transit to foreign ports is as much a burden on exporting as if it were laid on the charter parties, the bills of lading, or the goods themselves. Such taxation does not deal with preliminaries, or with distinct or separable subjects; the tax falls upon the exporting process.” 237 U. S. at page 27, 35 S. Ct. at page 499. The major premise, that a tax on freight is a tax on exports, was taken as axiomatic.
Under the Commerce Clause, since the recent cases and perhaps before, it may be that the Maryland gross receipts tax is constitutional as an “in lieu” tax. Canton, but not Western Maryland, disputes this proposition on the facts, but the fact question, I think, is not adequately presented on the record. So far as imports and exports are concerned, the question as to the Commerce Clause is immaterial. In the Import-Export Clause “the prohibition against ‘any’ tax on imports and exports contains no implied qualification.” It matters not, therefore, what is the present scope or extent of the “in lieu” qualification or exception to the cases condemning gross receipts taxes under the Commerce Clause. Before the instant cases no question as to the constitutionality of the gross receipts tax under the Import-Export Clause has ever been raised.
I think the tax, as to imports and exports, is unconstitutional and the judgment should be reversed.
Judge Delaplaine authorizes me to say that he concurs in this opinion.