dissenting.
The pressure of mounting outlays has led the States to seek new sources of revenue, and we have gone far in sustaining state power to tax property and transactions subject to their jurisdiction despite incidental or indirect effects upon interstate commerce. But hitherto we have also maintained the principle that the States cannot lay a direct tax upon that commerce. In the instant case, the Court of Appeals of New York has decided unanimously that the tax as here applied is such a tax and goes beyond the limit of state power. 281 N. Y. 610. See, also, Matter of National Cash Register Co. v. Taylor, 276 N. Y. 208; 11 N. E. 2d 881. I think that the judgment should be affirmed.
The case te one of interstate commerce in its -most obvious form. The Berwind-White Company is _a Pennsylvania corporation engaged in mining coal in that. State. It has a sales office in New York. Its coal is mined from two veins known as “B Seam” and “C Prime Seam.” The coal is sold to New York consumers for plants and steamships. The contracts of sale call for coal from the seller’s mines in Pennsylvania, most of it being of the “B Seam” sort. The contracts are generally for a specified period, orders being given as coal is needed. The pur*60chasers notify the mining company of their requests, whereupon the coal is mined to meet the orders, two days being allowed for mining and five for transportation. The coal is transported from the mines by railroad to a pier in Jersey City where the seller’s barges take the coal and bring it alongside the purchasers’ plant or steamship where delivery is made, the purchasers doing the unloading. There were two purchasers who took delivery outside New York.
The tax is two per cent' of the entire purchase price. The Court of Appeals has described the tax as “two per cent upon receipts from every sale of tangible personal property sold within the City.” Matter of Sears, Roebuck & Co. v. McGoldrick, 279 N. Y. 184, 187; 18 N. E. 2d 25. There can be no doubt as to the incidence of the tax in this instance. The Comptroller of the City has assessed the tax against th'e seller, the Berwind-White Company. The statute requires the seller, under penalty, to file a return of its sales and to pay the tax. To enforce the payment, the property of the seller may be levied upon under a Comptroller’s warrant. It is the. tax so laid that the City now demands. In the Matter of Atlas Television Co., 273 N. Y. 51, 57, 58; 6 N. E. 2d 94, the Court of Appeals held that the contention that the seller was required only to "collect the tax as the agent of the City could not be sustained and hence it was decided that in case of the seller’s insolvency the City was entitled to priority of payment. The court said: “The duty of payment to the city is laid upon the vendor, not the purchaser. His liability is not measured by the amount actually collected from the purchaser but by the receipts required to be included in such return. (§6.) He must pay the tax even if failure to collect is due to no fault of his owm” This statement was repeated in Matter of Merchants Refrigerating Co. v. Taylor, 275 N. Y. 113, 118; 9 N. E. 2d 799, and while it was there said that the *61Atlas case did no.t hold that the sales tax was “imposed” on the vendor, still the court again ruled that the vendor “is under a duty to pay the tax to the city regardless of whether or not the vendor collects it from the purchaser.” Id., p. 124. If the vendor must pay the tax whether or not he can recoup the amount from the purchaser, and the tax, as here, is assessed against the vendor, it would' seem inadmissible to defend the tax upon the ground that it is a tax upon the purchaser. From any point of view, the tax now contested is laid upon interstate sales.
In confiding to Congress the power to regulate interstate commerce, the aim was to provide a free national market, — to pull down and prevent the re-erection of state barriers to the free intercourse between the people of the States. That free intercourse was deemed, and has proved, to be essential to our national economy. It should not be impaired. As we recently said in Baldwin v. Seelig, 294 U. S. 511, 522: “Imposts and -duties upon interstate commerce are placed beyond the power- of a state, without the mention of an exception, by the provision committing commerce of that order to the power of the Congress. . . . Tt is the established doctrine of this court that a state may not, in any form or under any guise, directly burden the prosecution of interstate business’.”
Undoubtedly the problem of maintaining the proper balance between state and national power has been a most difficult one. We have recognized the power of the State to meet local exigencies in protecting health and safety and preventing fraud, as, for example, in the case of quarantine, pilotage and inspection laws, although interstate or foreign commerce is involved; that is, until Congress in the exercise of its paramount authority displaces such local requirements.1 We have also recognized the *62power of the State to tax property subject to its jurisdiction although the property has come from another State, when it is found that interstate commerce has ended and that the property has become, a part of the common mass within the State. We have sustained. the authority of the State to impose occupation taxes when they were deemed to be so measured or apportioned as to relate appropriately to the privilege of transacting an intrastate business. The application of these principles has led to close distinctions.2 But that fact would seem to present no good reason for sweeping away the protection of interstate commerce where the State lays a direct tax upon that commerce as in this case.
We have said in a long line of decisions, that the State cannot tax interstate commerce either by laying the tax upon the business which constitutes such commerce or the privilege of engaging in it, or upon the receipts, as such, derived from it.3 The same principle has been declared in recent cases. In Fisher’s Blend Station v. Tax Commission, 297 U. S. 650, 655, we said: “As appellant’s income is derived from interstate commerce, the tax, measured by appellant’s gross income, is of a type witich *63has long been held to be an unconstitutional burden on interstate commerce.” There, a state occupation tax upon the gross receipts of the owner of a radio station from broadcasting programs to listeners within and beyond the State was held invalid. It was said to be enough that the tax was levied on gross receipts from the proprietor’s “entire operations, which include interstate commerce.” Id., p. 656. In Western Live Stock v. Bureau of Revenue, 303 U. S. 250, a tax on the gross receipts from the sale of advertising by a trade journal was sustained because in the last analysis the tax, like that upon the privilege of manufacturing within the State, was upon the carrying on of a local business in the preparing, printing and publishing a magazine. Id., p. 258. Soon after, we held in Adams Manufacturing Co. v. Storen, 304 U. S. 307, 311, that a state tax could not be constitutionally applied to the gross receipts derived by an Indiana corporation in interstate commerce through the sale of its products manufactured in Indiana to customers in other States. And, but a year ago, in Gwin, White & Prince v. Henneford, 305 U. S. 434, 435, 436, 438, we held invalid a state tax measured by the gross receipts from the business of marketing fruit shipped in interstate commerce from the State of production to places in other States where the sales and deliveries were made and the proceeds collected. If the question now before us is controlled by precedent, the result would seem to be clear.
In relation to the present transaction, it would hardly be contended that New York could tax the transportation of the coal from Pennsylvania to New York or a contract for that transportation. But the movement of the coal-from the one State to the other was definitely required by the contracts of sale and these sales must be regarded as an essential part of the commercial inter*64course contemplated by the commerce clause. Gibbons v. Ogden, 9 Wheat. 1, 188. The tax on the gross receipts of the seller from these sales was manifestly an imposition upon the sales themselves. Whether the tax be small or large, it is plainly to. the extent of it a burden upon interstate commerce; and as it is imposed immediately upon tine gross receipts from that commerce, it is a direct burden. And, as we have often said, where what is taxed is subject to the jurisdiction- of the State, the size of the tax lies within the discretion of the State, and not of this Court. A. Magnano Co. v. Hamilton, 292 U. S. 40, 45. See, also, Alaska Fish Co. v. Smith, 255 U. S. 44, 48.
How then can the laying of such a burden upon interstate commerce be justified? It is urged that there is a ta'xábíe event within the State. That event is said to be the delivery of the coal. But how can that event be deemed to be taxable by the State? The delivery is but the necessary performance of the contract of sale. Like the shipment from the mines, it is an integral part of the interstate transaction. It is said that title to the coal passes to the purchaser on delivery. But the place where the title passes has not been regarded as the test of the interstate character of a sale. We have frequently decided that where a- commodity is mined or manufactured in one State and in pursuance of contracts of sale is delivered for transportation to purchasers in another State, the mere fact that the sale is f. o. b. cars in the seller’s State and the purchaser pays the freight does not make the sale other than interstate.4 And when, as here, the buyer in an interstate sale takes delivery in his own *65State, that delivery in completion of the sale is as properly immune from state taxation as is the transportation to the purchaser’s dock or vessel. Moreover, even if it were possible to sustain a state tax by reason of such delivery within the State, there would still be no ground for sustaining a tax upon the whole of the interstate transaction of which the delivery is only a part, as in the case of a tax upon the entire gross receipts.
Petitioner strongly insists that in substance the tax here should be regarded as the same as a use tax the validity of which this Court has sustained. Henneford v. Silas Mason Co., 300 U. S. 577; Southern Pacific Co. v. Gallagher, 306 U. S. 167. But in the Henneford case, Mr. Justice Cardozo, in speaking for the Court, was most careful to show that the use tax was upheld because it was imposed after interstate commerce had come to an end. In making this distinction, the Court clearly recognized that a tax imposed directly upon interstate commerce would be beyond the state’s power, and the tax was sustained as one upon property which had come to rest within the State and like other property was subject to its jurisdiction. The Court said: “The tax is not upon the operations of interstate commerce, but upon the privilege of use after commerce is at an end. . . . The privilege of use is only one attribute, among many, of the bundle of privileges that make up property or ownership.” Id., p. 582. And later, in Puget Sound Co. v. State Tax Commission, 302 U. S. 90, 92, 94, Mr. Justice Cardozo in delivering the opinion of the Court, after showing that the business of the company, so far as it consisted of the loading and discharge of cargoes by longshoremen subject to its own control, was interstate or foreign commerce, concluded that the State was “not ■ at liberty to tax the privilege of doing it by exacting in return therefor a percentage of the gross receipts.” He observed that “De*66cisions to that effect are many and controlling.” The fact that a use tax, sustained as a tax upon an attribute of property which is subject to the jurisdiction of the State, may have an incidental or indirect effect upon interstate commerce, and thus in the opinion of commentators may tend to discourage, interstate transactions, is certainly no excuse for going further and upholding the action of States which, looking with a jealous eye upon the freedom of interstate commerce, attempt to lay a direct tax upon that commerce.
The point was clearly brought out by Mr. Justice Holmes, speaking for the Court in Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 227, when he referred to the necessity of maintaining the distinction between taxation of property within the State, which had long been upheld, and taxation of interstate business, which had been condemned. He observed-that “When a legislature is trying simply to Value property, it is less likely to attempt to or effect injurious regulation than when it is aiming directly at the receipts from interstate commerce.” Accordingly a state tax upon gross receipts which included receipts from interstate business was held invalid.
The ground most strongly asserted for sustaining. the tax in the present case is that it is non-discriminatory. Undoubtedly a state tax may be bad because it is so laid as to involve a hostile discrimination against interstate commerce. But does it follow that a State may lay a direct tax upon interstate commerce because it is free to tax its own commerce in a similar way? Thus, a State may tax intrastate transportation, but it may not tax interstate transportation. The State may tax intrastate sales,5 but can the State tax interstate sales in order to promote its local business? It would seem to be extra*67ordinary if a State could escape the restriction against direct impositions upon interstate commerce by first laying exactions upon its own trade and then insisting that in order to make its local policy completely effective it must be allowed to lay similar exactions upon interstate trade. That would apparently afford a simple method for extending state power into what has hitherto been regarded as a forbidden field. Moreover, it may or may not be in the interest of the State to promote domestic trade in a given commodity. The State may seek by its taxing scheme to restrict such trade and the mere equivalency of a tax upon domestic business would not prevent the injurious effect upon interstate transactions. See A. Magnano Co. v. Hamilton, supra.
So, while recognizing .that a tax discriminating against interstate commerce is necessarily invalid, it has long been held by this Court in the interest of the constitutional freedom of that commerce that a direct tax upon it is not saved because the same or a similar tax is laid also upon intrastate commerce. The Court dealt specifically-with that question in Robbins v. Shelby County Taxing District, 120 U. S. 489, 497, saying: “Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state.” See, also, Cooney v. Mountain States Telephone Co., 294 U. S. 384, 393, 394. And very jecently, in Adams Manufacturing Co. v. Storen, supra, p. 312, where a tax on; the gross receipts derived from interstate sales was held invalid, we said explicitly: “The opinion of the State Supreme Court stresses the generality and nondiscriminatory character of the exaction, but it is settled that this will not save the tax if it directly burdens interstate commerce.”
We have directed attention to a vice in imposing direct taxes upon interstate commerce in that such taxes might *68be imposed with equal right by every State which the commerce touches. This has been observed with respect to taxes upon gross receipts from interstate transactions. In Western Live Stock v. Bureau of Revenue, supra, p. 256, we said: “The multiplication of state taxes measured by the gross receipts from interstate transactions would spell the destruction of interstate commerce and renew the barriers to interstate trade which it was the object of the commerce clause to remove.” See, also, Gwin, White & Prince v. Henneford, supra. But petitioner has insisted that in the present case there is no danger of multiple taxation in that New York puts its tax upon an event which cannot occur in any other State. Of course the delivery of the coal in New York is an event which cannot occur in another State. Just' as New York cannot tax the shipment of coal from the mines in Pennsylvania or the transshipment of the coal in New Jersey, so neither Pennsylvania nor New Jersey can tax the delivery in New York. Petitioner’s argument misses the point as to the danger of multiple taxation in relation to interstate commerce. The shipment, the transshipment and the delivery of the coal are but parts of a unitary interstate transaction. They are integral parts of an interstate sale. If, because of the delivery in New York, that State can tax the gross receipts from the sale, why cannot Pennsylvania by reason of the shipment of the coal in that State tax the gross receipts there? That would not be difficult, as the seller is a Pennsylvania corporation and, in fact, in many, if not in most, instances, the purchase price of the goods shipped to New York is there received. The point is not that the delivery in New York is an event which cannot be taxed by other States, but that the authority of New' York to impose a tax on that delivery cannot properly be recognized without also recognizing the authority of other States to tax *69the parts of the interstate transaction which take place within their borders. If New York can tax the delivery, Pennsylvania can tax the shipment and New Jersey the transshipment. And the latter States, respectively, would be as much entitled to tax the gross receipts from the sales as would New York. Even if it were assumed that the gross receipts from the interstate sales could be apportioned so that each State could tax such portion of the receipts as could be deemed to relate to the part of the transaction within its territory, still this would not help New York here, as there has been no attempt at apportionment. The taxation of the gross receipts in New York, on any appropriate view of what pertains to the interstate sales, would seem clearly to involve the danger of multiple taxation to which we have adverted in recent decisions.
Doubtless much can be said as to the desirability of a comprehensive system of taxation through the cooperation of the Union and the States so as to avoid the differentiations which beset the application of the commerce clause and thus to protect both state and national governments by a just and general scheme for raising revenues. However important such a policy may be, it is not a matter for this Court. We have the duty of maintaining the immunity of interstate commerce as contemplated by the Constitution. That immunity. still remains an essential buttress of the Union; and a free national market, so far as it can be preserved without violence to state power over the subjects within state jurisdiction, is' not less now than heretofore a vital concern' of the national economy.
The tax as here applied is open to the same objection as a tariff upon the entrance of the coal into the State of New York, or a state tax upon the privilege of doing an interstate business, and in my view it cannot be sus*70tained without abandoning principles long established and a host of precedents soundly based.
Mr. Justice McReynolds and Mr. Justice Roberts join in this opinúSee cases collected in Minnesota Rate Cases, 230 U. S. 352, 403-411.
See Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 254-257.
Minnesota Rate Cases, 230 U. S. 352, 400; State Freight Tax Case, 15 Wall. 232; Robbins v. Shelby Taxing District, 120 U. S. 489; Philadelphia & Southern Mail S. S. Co. v. Pennsylvania, 122 U. S. 326; Leloup v. Mobile, 127 U. S. 640; McCall v. California, 136 U. S. 104; Brennan v. Titusville, 153 U. S. 289; Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217; Western Union Telegraph Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56; Meyer v. Wells, Fargo & Co., 223 U. S. 298; Crenshaw v. Arkansas, 227 U. S. 389; Crew-Levick Co. v. Pennsylvania, 245 U. S. 292; Sonneborn Bros. v. Cureton, 262 U. S. 506, 515; Fisher’s Blend Station v. Tax Commission, 297 U. S. 650, 655; Puget Sound Co. v. State Tax Commission, 302 U. S. 90; Adams Manufacturing Co. v. Storen, 304 U. S. 307, 311; Gwin, White & Prince v. Henneford, 305 U. S. 434, 439.
Savage v. Jones, 225 U. S. 501, 520; Pennsylvania R. Co. v. Clark Coal Co., 238 U. S. 456, 465, 468; Carter v. Carter Coal Co., 298 U. S. 238, 320; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U. S. 453, 463.
Woodruff v. Parham, 8 Wall. 123; Sonneborn Bros. v. Cureton, 262 U. S. 506, 515, 516; Wiloil Corp. v. Pennsylvania, 294 U. S. 169, 175.