concurring:
I agree with the Court’s decision in this case. The four judges who participated in the decision were in agreement on all questions presented for decision except, as the Court’s opinion states, Judge Haymond was unable to agree with the three other judges in relation to Agreed Issue No. 10. He, as the author of the Court’s opinion, has ample precedent among prior decisions of the Court for his having stated in the opinion the basis of his disagreement. Nevertheless, I deem it wise and proper to *278state more fully that which I conceive to be the position of the majority in relation to this portion of the decision.
Agreed Issue No. 10, formulated while the case was in the trial court, is as follows:
“Does Tax Section 2d, in providing inter esse that ‘The measure of this tax shall not include gross income derived from commerce between this state and other states of the United States.’, thereby exclude from taxation under any Tax Section of the statute United Fuel’s gross income from sales of gas under special industrial contracts directly from United Fuel’s transmission pipelines to—
(a) E. I. du Pont de Nemours and Company,
(b) Elk Refining Company, and
(c) Kaiser Aluminum & Chemical Corporation
—in view of the particular facts, including the role of underground storage, involved in the sales and deliveries to each?”
By the brief filed in behalf of United Fuel Gas Company (which hereafter in this opinion may be referred to as United Fuel) and by the amici curiae brief, as well as by oral argument of counsel by whom such briefs were filed, it has been vigorously urged that the stipulated issue in question is not concerned with the question whether the tax involves the Commerce Clause of Article I, Section 8 of the Constitution of the United States. Indeed, counsel, by brief and oral argument, have displayed a degree of impatience with the action of counsel for the defendant in asserting that imposition of the tax here in question is not in violation of the Commerce Clause.
The Court’s opinion makes clear that Agreed Issue No. 10 does not involve the constitutional question, but that it involves only the validity of the tax when considered in relation to the provisions of Code,- 1931, ll-13-2d, as amended, a statute which provides for payment of a tax, commonly referred to as a Business and Occupation Tax, *279“Upon any person engaging or continuing within this state in any public service or utility business, * * *.” (Italics supplied.) The language relied upon by United Fuel is a sentence included in the statute which, so far as pertinent, is as follows: “The measure of this tax shall not include gross income■ derived from commerce between this state and other states of the United States * * *.” (Italics supplied.)
Notwithstanding the narrow character of the question presented for decision by the language of Agreed Issue No. 10, the trial court, in its written opinion, held that the tax was in violation of the statutory provision and also that, under the decision in State ex rel. Battle v. The Baltimore and Ohio Railroad Company, 149 W. Va. 810, 143 S. E.2d 331, “the statute must be literally applied to exclude from the computation of the taxes, not only sales in interstate commerce which would, if taxed, clearly constitute an unreasonable burden thereon under the Constitution, but all gross 'income from any transaction in interstate commerce.” I am of the opinion, as apparently was the trial court, that if it were held that the tax here in question represents a tax upon gross income derived from interstate commerce under the statute, it might with some reason be argued that, under the Baltimore and Ohio Railroad Company case, the tax is, as a matter of course, violative of the Commerce Clause. Nevertheless, the counsel for the taxpayers earnestly urge that the tax is in contravention of the statutory provision and yet strenuously insist that, in considering the validity of the tax, the Commerce Clause is not material in any sense or degree. '
In relation to Agreed Issue No. 10, it is stated in the Court’s opinion that the “finding of the trial court upon the undisputed facts” in this case is entitled to the same weight as the verdict of a jury and cannot be disturbed on this appeal “unless the evidence plainly and decidedly-preponderates against such finding.” The State Road *280Commission of West Virginia v. Oakes, 150 W. Va. 709, 149 S. E.2d 293 and a prior case are cited in the Court’s opinion in support of that proposition. I believe that this well-settled principle of law is not applicable to this case for the reason that the trial court’s “finding” was based upon a stipulated, agreed state of facts and for the additional reason that the trial court’s decision embodied purely a legal proposition arising from the construction of the statute and its application to the undisputed facts. Dunning v. Barlow & Wisler, Inc., 148 W. Va. 206, 211, 133 S. E.2d 784, 788; Lusher v. Sparks, 146 W. Va. 795, 805, 122 S. E.2d 609, 615; Rhinehart & Dennis Co., Inc. v. McArthur, 123 Va. 556, pt. 15 syl., 96 S. E. 829; 5 Am. Jur. 2d, Appeal and Error, Section 825, page 267 and Section 826, page 268.
“In considering and deciding the constitutionality of a tax imposed and collected by this state, in the light of a provision of the Constitution of the United States, this Court is bound by applicable decisions of the Supreme Court of the United States, even though such decisions are inconsistent with prior decisions of this Court.” State ex rel. Battle v. B. D. Bailey & Sons, Inc., 150 W. Va. 37, pt. 2 syl., 146 S. E.2d 686. In deciding the question presented by Agreed Issue No. 10, we are not restricted by the legal proposition embraced in the quotation appearing immediately above, for the reason that this issue does not involve a constitutional question, but rather the application and effect of the clear language of the statute. 20 Am. Jur. 2d, Courts, Section 225, page 556; 21 C.J.S., Courts, Section 205, page 360. Decisions of the Supreme Court of the United States, therefore, are not directly in point, but are at most persuasive upon the question whether the business operations of United Fuel involved in Agreed Issue No. 10 are local in character and the question whether, in delivering and selling gas to the three industrial customers, United Fuel is earning “gross income derived from commerce between this state and other states of the United States * *
*281It was stipulated that “United Fuel has always been a natural gas company engaged in business in this State as a public utility subject to regulation and in fact regulated by the Public Service Commission of West Virginia * * Its “utility service territory” embraces an area in West Virginia shown on a map which was made a part of the stipulation. It was further stipulated that, in carrying out other objects and purposes, United Fuel has always been engaged, in areas of West Virginia, Kentucky and Ohio, in what the Natural Gas Act denominates a “natural gas company”; that, as such, it has been regulated since 1938 by the Federal Power Commission; and that “Certain other business activities of United Fuel are not regulated.” It is further stated in the stipulation that “The Federal Power Commission has no statutory jurisdiction to regulate the price at which gas is sold to any of said special contract industrial customers.”
It is undisputed that the three industrial consumers here in question are all located within the area of this state in which “United Fuel has always been a natural gas company engaged in business in this State as a public utility subject to regulation and in fact regulated by the Public Service Commission of West Virginia * * *.”
In relation to Agreed Issue No. 7, United Fuel has contended that its sales of gas to all the special contract industrial consumers, including the three industrial consumers involved in Agreed Issue No. 10, constituted private, unregulated business authorized by the Public Service Commission of West Virginia in an exercise of a reviewable discretion and hence does not constitute “the supplying of public services” within the meaning of the statute; and that the measure of the tax prescribed by the statute for the business of “the supplying of public services” includes only gross income derived from utility services rendered under an official utility tariff. These contentions have been unanimously rejected by the Court in the decision of Agreed Issue No. 7. Ac*282cordingly, with respect to Agreed Issue No. 10, it cannot be validly asserted by United Fuel that it acts in any capacity other than as “a public utility subject to regulation and in fact regulated by the Public Service Commission of West Virginia” in making sales of gas to the three industrial consumers here in question, nor can United Fuel validly assert that its sales of gas to these three industrial consumers are not a part of its public utility business. United Fuel does not deny that its sales of gas, under its official utility tariff, to other industrial consumers in its public utility area of this state, with which industrial consumers it does not have special contracts, are sales made as a part of its activity as a public utility. United Fuel does not contend that its gross earnings from the sales of gas to these three industrial consumers are not a part of its gross income as “a natural gas company engaged in business in this State as a public utility * * United Fuel simply contends that these three industrial consumers fall into a different category for tax purposes merely on the basis of its assertion that gas is sold and delivered to them by its transmission lines rather than by its distribution lines, by means of which distribution lines gas is similarly sold and delivered by it as a public utility to other industrial consumers within this state, either under special contracts or under its official utility tariff schedule. It is clear that the bulk of the gas sold and delivered by United Fuel to consumers by means of its distribution lines likewise comes into such lines as a consequence of interstate commerce.
Counsel for United Fuel correctly assert that the language of Agreed Issue No. 10 involves only the provisions of the statute, but they rely solely on a single isolated sentence in that statute which is negative in character and at all times, in relation to that issue, they have avoided reference to the sentence following immediately thereafter which is affirmative in character. These two sentences are as follows: “The measure of this tax shall not include gross income derived from commerce between *283this state and other states of the United States or between this state and foreign countries. The measure of the tax under this section shall include only gross income received from the supplying of public services.” (Italics supplied.)
The first of the two sentences quoted above, the sole language of the statute upon which United Fuel rests its case in relation to Agreed Issue No. 10, merely represents, in my opinion, a legislative purpose to recognize fully the inhibition imposed upon the states by the Commerce Clause of the Constitution of the United States. Although United Fuel made a vigorous effort, under Agreed Issue No. 7, to escape the force of the second sentence quoted above, this Court, in deciding Agreed Issue No. 7 adversely to United Fuel, unanimously held that its sales of gas under special contracts to industrial consumers located within its utility service territory, to be used by such consumers in their several businesses, constituted a supplying of a public service within the meaning of the statute which, in clear and mandatory language, states that the measure of a tax under the statute “shall” include gross income received from “the supplying of public services.” The phrase, “commerce between this state and other states”, cannot be isolated and considered out of context. In seeking to determine the legislative intent, the statute here in question must be read and considered in its entirety.
In my judgment, United Fuel as a natural gas company engaged in business in this state as a public utility, does not earn a single dime as “gross income derived from commerce”, either interstate or intrastate, in the sales of gas to these three industrial consumers. It is not engaged in any business by which it earns or undertakes to earn a gross income from engaging in commerce as such. It is a public utility engaged in the sale of gas to consumers for a profit. This represents the source of its “gross income”, irrespective of the type of pipeline by *284which the gas is sold and delivered to its consumers within its public service area of this state. The Court has held, on Agreed Issue No. 7, that the sales of gas by United Fuel to these three industrial consumers, located within United Fuel’s public service area in West Virginia, are made by it as a part of its public utility business and that “gross income” thereby earned is earned by it as a public utility, and in no other capacity.
State ex rel. Battle v. The Baltimore and Ohio Railroad Company, 149 W. Va. 810, 143 S. E.2d 331, involved a railroad corporation which, of course, is engaged in the business of transporting goods for a profit in both interstate and intrastate commerce. That corporation, therefore, clearly receives “gross income derived from commerce between this state and other states”. Eureka Pipe Line Company v. The Public Service Commission of West Virginia, 148 W. Va. 674, 137 S. E.2d 200, involved a public utility engaged in the business of transportation of petroleum by pipeline. That public utility also obviously received “gross income derived from commerce”. These two business operations are, by their nature, character and purpose, clearly distinguishable from the business in which United Fuel is engaged. Its gross earnings here in question are not derived from commerce. On the contrary, its gross earnings, so far as Agreed Issue No. 10 is concerned, are derived from its business as a public utility engaged in the sale of natural gas to consumers within this state.
“Where a person claims an exemption from a law imposing a tax, such law must be construed strictly against the person claiming the exemption.” Owens-Illinois Glass Company v. Battle, 151 W. Va. 655, pt. 3 syl., 154 S. E.2d 854. The statute here in question is intended to impose a tax upon “any person engaging or continuing within this state in any public service or utility business,” with the exception of certain businesses therein defined. United Fuel clearly is not in the category of any of the types of public utilities excepted from the application of *285the statute. The statute, I believe, is clear, unambiguous and mandatory in its provisions so far as this case is concerned. If the single sentence of the statute may be considered an exception to its general application, United Fuel has failed to sustain the burden of establishing that it falls within the purview of the exception or exemption for the reason that none of its earnings here in question constitute “gross income derived from commerce between this state and other states of the United States.”
The essence of United Fuel’s claim is, I believe, that the gas in question was received into United Fuel’s pipeline and storage facilities as a consequence of its previous transportation in interstate commerce; and that the interstate character of the transportation was not changed or interrupted before the sale of such gas and the delivery thereof by transportation to and upon the premises of the three several industrial consumers through United Fuel’s pipeline facilities. After delivery of the gas by United Fuel through its own pipelines which extended-to and upon the premises of the three several industrial consumers, it was there metered by means of facilities belonging to United Fuel. There, upon the premises of each of the three several consumers, the gas was delivered, metered and sold. The gas belonged to United Fuel until it passed over the consumer’s premises in each case and the sale and delivery of the gas was there finally consummated after the volume of gas had been determined by metering facilities owned by United Fuel. Transportation of the gas, or “commerce”, was there terminated.
From the time and place gas was delivered into United Fuel’s pipeline facilities, whether in this state or at a nearby point in Kentucky, the sale thereof to United Fuel had been fully consummated. Thereafter the gas was subject to its exclusive possession, control and ownership. From any of the points of delivery to United Fuel of gas which had reached such points as a consequence of prior interstate commerce, United Fuel, in the three instances here in question, was simply transporting its *286own gas, in its own facilities and for its own business purposes as a public utility engaged in the delivery and sale of gas to consumers for a profit. It derives no “gross income” simply from the commerce aspect of transporting its own gas, for its own business purposes, through its own facilities. It receives its gross earnings from the ultimate sale of gas to the consumers within this state. Its gross income from the sales of gas to the three industrial consumers was not enhanced or otherwise affected by the incidental element of transportation which was essential in its business of sale and delivery of gas to the three industrial consumers.
“Interstate commerce continues as such until the goods shipped therein reach the point where the parties originally intended that the movement should finally end, and the further local movement by the consignee of the goods in furtherance of a valid business conducted by him constitutes intrastate commerce.” Gambino v. Jackson, 150 W. Va. 305, pt. 3 syl., 145 S. E. 2d 124. The obligation of the prior shipper of the gas in interstate commerce was to deliver it to United Fuel, the consignee and purchaser of the gas. The subsequent transportation of the gas for sale to the three industrial consumers was a mere incident of United Fuel’s local, intrastate business. The initial shipper or shippers of the gas to United Fuel had no privity of contract with the three industrial consumers.
The tax here in question has no relation to the sale and delivery of the gas to United Fuel by interstate commerce. The tax is not directed at prior transportation, sale and delivery of gas to United Fuel. The tax here in question is upon United Fuel’s privilege of making sales of gas1 to consumers on a local, intrastate basis in West Virginia.' The measure of the tax is based on gross income earned by United Fuel from sale of gas to consumers within this state in carrying on its local, intrastate business. - This local transportation ends when the gas is delivered to each of the three industrial consumers • for *287consumption by it in its industrial operation. None of the gas involved in Agreed Issue No. 10 is transported by United Fuel from this state to any other state. The case in this, respect is quite different from such cases as West Virginia Pipe Line Co. v. State of West Virginia, 95 W. Va. 285, 120 S. E. 759.
Taxes of this general character, imposed upon taxpayers doing business in this state, have been upheld notwithstanding the fact that interstate commerce is in some measure involved incidentally in the primary function of performance within this state of a business which is local and intrastate in character. A wholly incidental and minor involvement of interstate commerce does not destroy or alter the primary character of the performance of a business which is local and intrastate in its nature and purpose. Gambino v. Jackson, 150 W. Va. 305, 145 S. E.2d 124; State ex rel. Battle v. B. D. Bailey & Sons, Inc., 150 W. Va. 37, 146 S. E.2d 686; Norfolk and Western Railway Company v. Field, 143 W. Va. 219, 100 S. E.2d 796; Arslain v. Alderson, 126 W. Va. 880, 30 S. E.2d 533.
For reasons stated, I am of the opinion that the gross income received by United Fuel from sales of gas to the three industrial consumers in question, under the stipulated facts of this case, does not involve “gross income derived from commerce between this state and other states of the United States”; that the income thus received by United Fuel is “gross income received from supplying public services”, on a local, intrastate basis; and that, therefore, the tax in question was legally assessed by the defendant tax commissioner.
I have been authorized by Judge Browning and Judge Caplan to state that they agree with the views expressed in this, concurring opinion.