1. With the exception that the commodities are different, the business transactions of this nonresident were in all material respects precisely the same as those in Suttles v. Owens-Illinois Glass Co., 206 Ga. 849 (59 S. E. 2d 392); Redwine v. Dan River Mills, 207 Ga. 381 (61 S. E. 2d 771); and Redwine v. U. S. Tobacco Co., 209 Ga. 725 (75 S. E. 2d 556). In each of those cases it was held that there was no “doing business” in this State and, hence, Georgia could not tax choses in action or income arising from such business. This case is controlled by those decisions unless the contention of the State that the commodity here being whisky entitles the State to tax the income arising from the privilege but not a right, which is not protected by the commerce clause of the Constitution. We reject this contention. That selling whisky in conformity with the law is more than a mere privilege and is protected by the Constitution was held in Mayor &c. of Savannah v. Savannah Distributing Co., 202 Ga. 559 (43 S. E. 2d 704). While that decision does not have the concurrence of all the Justices it is supported by Schlesinger v. City of Atlanta, 161 Ga. 148 (129 S. E. 861), and McWhorter v. Settle, 202 Ga. 334 (43 S. E. 2d 247). That the twenty-first amendment denies to liquor the full protection of the commerce clause of the Constitution in order to allow States to burden it with regulatory laws, was held in Atkins v. Manning, 206 Ga. 219 (56 S. E. 2d 260). See also Scott v. State, 187 Ga. 702 (3), 704 (2 S. E. 2d 65). But we are not here dealing with (a) the legality of the sales of whisky involved, (b) the protection of either the whisky or its sale by the commerce clause, or (c) whether the sales were made under a privilege or a right. Irrespective of which way each of these matters may be decided, this case would still be controlled by a decision as to whether or not the taxes sought to be recovered were paid on business done in this State. Therefore, we refuse to be diverted from this decisive question by consideration of the enumerated and numerous other irrelevant matters argued by counsel for the State. Since the law (Ga. L. 1937-38, Ex. Sess., p. 103) requires a license before any sale of whisky can be made in this State, and since in perfect harmony with that law there has been in force throughout the period of time covered by this suit a regulation of the Revenue Commissioner *773requiring that all whisky sold becomes the property of the purchaser f. o. b. shipping point, it is simply illogical and unreasonable to contend that selling whisky by a nonresident who has no license to sell it in Georgia, upon orders taken in Georgia and approved by the Commissioner in conformity with the regulations, is doing business in Georgia and subjects the income arising therefrom to income tax by Georgia.
From what has been ruled it must be held that the court did not err in overruling the demurrer to the petition to recover income taxes paid, under the facts pointed out. Therefore, a ruling on the constitutionality of the Code sections, which is raised by the petition, becomes unnecessary.
2. But the Commissioner filed a plea to estop the petitioner from prosecuting this suit. This plea is based upon a written instrument signed by the taxpayer and a Deputy Director of the Department of Revenue, Income Tax Unit. Had this instrument been executed by an official of the State, empowered by law to execute it, the plea would be good, for the law believes in keeping one’s word and meeting obligations, and it will so rule when possible. But the office of Revenue Commissioner is statutory and its powers must be conferred by statute. The attorneys for the State cite 43 Am. Jur. 219 for support of the contention that a deputy officer can perform all duties of the principal. We do not even go far enough to reach that contention because we are met at the very beginning with the fact that the instrument here relied upon was executed by neither the Revenue Commissioner nor a Deputy Revenue Commissioner. The law of this State does not empower the Deputy Director, Department of Revenue, Income Tax Unit, to execute on behalf of the State the contract here relied upon. The General Assembly obviously construed the statute as we do, else there would have been no need for the enactment of the amendment of 1951 wherein the office of Deputy Commissioner was created and given powers broad enough to include this contract. Ga. L. 1951, pp. 614, 616. The contract, being invalid, was binding upon no one, and the plea based thereon was properly' dismissed on demurrer.
Judgment affirmed.
All the Justices concur, except Head, J., who dissents.