This petition is before us for determination upon an agreed statement of facts substantially in the following tenor. The petitioner is a New York corporation, duly qualified to transact business in this state. During the period of the several transactions hereinafter referred to, it was the holder of a plenary export wholesale license issued by the New Jersey Alcoholic Beverage Control. It sells distilled spirits and wines, both wholesale and retail. Upon seven specific occasions during the period, September 22d, 1938, to March 21st, 1939, petitioner sold varying quantities of alcoholic beverages, some to American Export Lines and others to American President Lines, under consignment
Each of the deliveries described above was taxed under R. S. 54:4-3-1 by the acting director of the Beverage Tax Division of the State Tax Department. Petitioner protested the assessments thus levied, and now appeals to this board therefrom, assigning two principal grounds of appeal: (a) the transactions in question are excluded from the operation of the statute by R. S. 54:43-2; (b) if there is any doubt about the effect of section 54:43-2, as thus contended for, such doubt should be resolved against the tax in order to avoid the presumably unintended effect of an unconstitutional tax on exports. The statute, so far as is material, follows:
“54:43-1. There are hereby levied and imposed upon any sale or delivery within this state of alcoholic beverages intended ultimately for consumption the following excise taxes:” (stating rates).
“54:43-2. Ho tax imposed by this subtitle shall be payable on any sale of alcoholic beverages by any licensed manufacturer or by any licensed export wholesaler for resale and consumption outside of this state, or directly for consumption outside of this state, when said sale is accompanied by the actual transportation of such beverages out of this state * * *
Before considering the first of the two contentions urged by petitioner, that being, in our view, conclusive of the issue presented, it may be observed that there is some doubt, in the existing state of the authorities, as to the soundness of the second argument, that based on constitutionality. It has been held that the mere transportation out of the country of a commodity is not an “export” whore the same is consumed
It is to be noted, however, that taxation in the exercise of the proper police powers of the states over traffic in intoxicating liquors is entitled to a breadth of scope sufficient to accomplish reasonably the purpose of regulation, although there result an incidental interference with interstate or foreign commerce in such commodities of a character which would invalidate siich taxation, as applied to the ordinary subject-matter of commercial transport. Ziffrin v. Reeves, 84 L. Ed. 107 (United States Supreme Court, 1939). And see Kidd v. Pearson, 128 U. S. 1; Geer v. Connecticut, 161 Id. 519; Rippey v. Texas, 193 Id. 504; Sligh v. Kirkwood, 237 Id. 52.
Por the reason last stated, if the State of Hew Jersey undertook to tax such transactions as here concern us, we think no constitutional consideration would stand in the way. But we are of the opinion that in section 54:43-2 the legislature has expressly excluded these sales from the tax. There was undoubtedly in each instance a sale by a licensed export wholesaler to a purchaser, under circumstances clearly envisaging consumption outside of the state. And the sales which, under the Uniform Sale of Goods law (R. S. 46:30-25), were not consummated until the delivery of the merchandise on the piers, were in each case accompanied by the actual transportation of the beverages out of the state.
The assessments appealed from are, for the foregoing reasons, set aside and canceled.