(dissenting).
In our de novo review I have concluded the record does not support the factual findings in division I of the majority opinion. I therefore respectfully dissent from that division only.
. The significant conduct of the people who populate this record must be viewed against the backdrop of voluminous legislation approved July 1967. 62 G.A., chapters 342 and 348. Among other changes, these enactments extinguished the state tax commission effective January 1,1968, substituted a department of revenue, and raised sales and use taxes from two to three percent. A three percent tax was imposed on gross receipts from 59 enumerated services (§ 422.43, The Code, 1971) which the “retailers”, as in sales of tangible property, were forbidden to absorb (§ 422.49, The Code, 1971) and were required to extract from the service consumer (§ 422.48, The Code, 1971).
The service tax was effective October 1, 1967. 62 G.A., ch. 348, § 35. The state tax commission was charged with administration of the act. Commission chairman Earl A. Burrows, Jr., testified, “we had a relatively short time in which to get information out for the administration of the collection of the taxes, so we would make talks and also invite members of associations or interested people, businessmen or others in to discuss with us the various facets of the law and get their ideas and also get ours. * * * [Tjrying to promulgate rules and regulations was very difficult * * * it was my understanding that we would stay away from the taxability of areas in which interstate commerce would come up.” The rules hastily promulgated September 30, 1967, the day before the tax became operational, were, in the main, merely a repetition of the statute and a loose definition of the respective services affected.
Plaintiff’s members, many of whom provided temporary warehousing of property moving in their interstate transportation business, logically questioned whether under the Commerce Clause, United States Constitution, they were required to charge tax on this part of their business. There had always been an exemption in the sales tax law for “service of transportation serv*774ice,” § 422.45(2), The Code, 1966; and for sales of tangible personal property “which this state is prohibited from taxing under the constitution or laws of the United States * * *.” Section 422.45(1), The Code, 1966. The new legislation amended the latter provision by adding, following the word “property”, the words “services rendered, furnished or performed.” 62 G.A., ch. 348, § 22(1).
Language in a number of federal decisions would have encouraged questions from the new involuntary tax collectors. Helson v. Kentucky, 279 U.S. 245, 252, 49 S.Ct. 279, 281, 73 L.Ed. 683, 687 (1929) (“tax which falls directly upon the use of one of the means by which commerce is carried on directly burdens that commerce”); Puget Sound Stevedoring Co. v. Tax Commission, 302 U.S. 90, 94, 58 S.Ct. 72, 74, 82 L.Ed. 68, 72 (1937) (“The business of loading and unloading being interstate or foreign commerce, the state of Washington is not at liberty to tax the privilege of doing it by exacting in return therefor a percentage of the gross receipts”); Federal Compress & W. Co. v. McLean, 291 U.S. 17, 22, 54 S.Ct. 267, 269, 78 L.Ed. 622, 627 (1934) (“Here the privilege taxed [operating a warehouse] is exercised before interstate commerce begins, hence the burden of the tax upon the commerce is too indirect and remote to transgress constitutional limitations”).
The regulations promulgated by the tax commission totally avoided the above issue. Eminent legislators told members of the plaintiff association it was the legislature’s intent to exempt interstate commerce. It was only natural that Ernest Primmer and others in like position, on the firing line and charged with collecting the tax, should contact the commission. Nor do I understand the department to be asserting here that neither it nor the prior commission had a duty to advise these collectors. Rather it seems to be arguing it had no obligation unless the request was in writing and in any event it could not be estopped by oral advice of its agents. I will touch on these points, infra, but note here the department has never challenged state tax commissioner Burrows’ statement the tax commission had the assigned duty “to help taxpayers know what is to be taxed and what is not.”
So Mr. Primmer on October 3,1967 called the commission and asked for the “top man”. After chairman Burrows was placed on the line Primmer told him “we were in the period now * * * that we were his * * * unpaid tax collector, but we were going to do the job for him as required by law but we needed some guidance * * .” Primmer detailed the warehouse tax problem his moving and storage company encountered because merchandise was sent to his company from out of state suppliers, unloaded in its warehouse, then loaded on company trucks to complete delivery to the ultimate consignee. Burrows replied, “If it came across the state line coming into your warehouse, it is involved in interstate commerce and that is exempt.”
Primmer then detailed the warehouse tax problem created by Maytag, which shipped its product to his company’s Davenport warehouse for delivery into both Illinois and Iowa. At that point Burrows put “our attorney” on the telephone who suggested the tax be charged on warehouse services for merchandise which stayed in Iowa, but not on that delivered into Illinois.
Burrows testified it was “very possible" Primmer could have made the telephone call; that the commission was receiving many calls and “we would try to give guidelines for the collector of the tax.” He testified it was his position there would be no warehouse tax collected on goods coming into Iowa or going out of Iowa and on this point among the three commission members “I probably had a majority opinion, if not everybody’s.” Burrows further testified, “we were going to apply the tax to that part of the charges that were attributable to goods that would stay in Iowa.”
Thus regardless of an uncertainty concerning the identity of the commission attorney who participated in the Primmer conversation, the opinions Primmer said he *775received were those held at that time by the state tax commission. The record establishes on a later Des Moines warehouse tour, conducted by representatives of plaintiff organization for Burrows and other commission personnel, Burrows further confirmed his position there should be no tax charged for warehousing merchandise moving in interstate commerce and he then expressed the same advice.
During this time plaintiff organization had only 55 to 65 members and little money. The executive secretary, Frank R. Burns, received $15 per month. An oral “pipeline” for the exchange of information about the new legislation had been established among members of the association through its executive secretary. Primmer testified he fed the pipeline “in reverse”, relaying the information he received from the commission to Burns, who confirmed the information “pretty well dovetailed” with “what had been given to an attorney for the Iowa Motor Truck Association.” (Emphasis supplied.) There is a clear inference to be drawn from the record that the substance of the Primmer telephone consultation, fed back into what he termed the “pipeline”, reached the members of plaintiff association.
January 1,1968, the state tax commission went out of existence. The department of revenue stood in its place and William H. Forst had just arrived in Iowa to be its director. Burrows remained as deputy to the director. Members of plaintiff organization had not yet received any written guidelines, rules or regulations relating to the impact of the commerce clause on their tax collection duties. They were confronted with a new “top man”.
Another tour of Des Moines warehouses was conducted by plaintiff for director Forst. Several persons from the industry were present, including executive secretary Burns of Blue Line Storage and Dave Little of Merchants Transfer and Storage. The department of revenue was represented by director Forst, Everett A. Sheldahl, director of the department’s sales and use tax division, Donald E. Cunningham, assistant sales tax director, and probably others whose identity in the record is uncertain.
Forst testified the warehousemen “were concerned about the many different kinds of services that they provided and which of these services would be taxed and which might be exempt”, they were “definitely looking for advice and direction as to what they should do.” Several times in his testimony Forst stated he could not recall giving them any ruling. He did volunteer “I may have made a statement that these goods are obviously in interstate consignment * * * but I don’t recall making any positive statement on the levy * * * .” On several occasions he carefully limited his response, relying on the department’s failure to issue a “formal ruling”, which he defined as a written ruling. He finally ventured, “Well, to my knowledge, I cannot recall any or all positions taken in relation to tangible personal property moving in interstate commerce and services performed on that property.”
Assistant sales tax director Cunningham agreed the warehousemen obtained little information from Forst on this tour. He testified they reported they were not collecting anything except “what was purely intrastate or local warehouse.” They “wanted some guidance.” Cunningham viewed with some awe that Forst “didn’t give a direct answer on anything. * * * I admired * * * his kind of defense.” He quoted Forst as saying “We will give you something,” because “they needed some finalities somewhere along the line.”
Sales and use tax division director Shel-dahl also conceded the warehousemen on the Forst tour wanted a determination of which services they had to “collect and pay taxes on.” While he could not recall Forst’s exact words, he got the impression “as long as it came in interstate and was labeled to go out interstate and continued on in interstate * * * [it] would be exempt from the tax.” The apparent inconsistency between the Cunningham and Sheldahl testi*776mony may be explained by the fact the group was not together at all times during the tour.
The majority concludes the only warehouse inspection Burrows took was the Forst tour in February of 1968. Burrows testified he toured one warehouse in 1967 and Mr. Forst took a subsequent tour. Forst testified to a single tour of two warehouses in February 1968. As above noted, Cunningham and Sheldahl from the department were along. Sheldahl and Cunningham separately denied any recollection of Burrows accompanying them. Forst testified “ * * * A1 Burrows may have been on the trip with us. That is quite possible, but again I can’t resurrect anything that would speak directly to that.” The only person present who placed Burrows on the Forst tour was plaintiff’s executive secretary Burns. Immediately after so stating he gave the following testimony:
“Q. Was Mr. Cunningham on the tour? A. Yes. There was some that met us at the luncheon. Now it is a possibility that maybe this is where I became confused, because we had lunch with these people afterwards.”
The inference is that Burrows may have met the group for lunch, although he did not repeat his warehouse visit., Majority’s conclusion there was only one tour which was made by both Burrows and Forst is against the great weight of the evidence.
When director Forst did not comply with his promise to “give you something,” Burns and Darrell Dickinson, vice president of Mid-America Lines Public Warehouses Household Goods Division of Kansas City, Missouri and a member of the plaintiff’s board of directors, paid him an office call. Burns places the time in March or April of 1969, Dickinson in late 1968 or early 1969. Both testified Sheldahl was present. Burns testified they explained to Forst again exactly how they were handling the tax, and further,
“Well, our primary purpose — As you know, we had not received a written order in regard to the interpretation of this thing * * * so we went to him again and asked if an order could be given, and he was not in a position at that time, because of the lawsuits involved, to issue an order. We asked him at that time point blank whether he thought we should go to the Legislature and possibly tie onto one of the bills that were being proposed at that time. His answer to us was that we had no problem and there would be no reason for us to spend our money.”
As a result of that meeting, plaintiff organization did not pursue any legislation.
Dickinson’s recollection of the meeting was fully as specific. Forst could not recollect this meeting or anything about it. While it seemed to him there were two meetings, he testified, “Well, quite possibly if there had been a second meeting we would have had it here because we would have already been to the field to look at it. But I can’t recall a second meeting, nor can I find any evidence of a second meeting.” The department never produced its division director Sheldahl to refute the testimony of Burns and Dickinson, although both placed him at the conference. Nor was Sheldahl’s attention ever directed to this meeting Dickinson and Burns testified about at trial. Sheldahl’s only testimony was on plaintiff’s pre-trial discovery deposition. At the most he only gave a negative response to the question, “Did you have any other discussions with any group of warehousemen other than the one you described in February of 1968?” (Emphasis supplied.) Of course, the evidence discloses he was only an observer and did not participate in the discussion with Dickinson and Burns.
The majority not only overlooks the department’s failure to produce Sheldahl’s testimony about this meeting, it refuses to give any weight to the testimony of Burns and Dickinson regarding Forst’s statements at this second meeting because “Forst directly contradicted this testimony.” I find no direct contradicting testimony in the *777record. As in the case of Sheldahl, Forst’s attention was never directed to the testimony of Burns and Dickinson in this regard. While some of his statements inferentially contradict their testimony, other statements are evasive.
The majority’s second reason for discounting the Burns-Dickinson testimony is that this court had filed the Lee Enterprises decision and there was no longer any reason for Forst to delay a written guideline. But the Lee Enterprises case was still in litigation and on its way to the United States Supreme Court. Our opinion was filed November 12,1968. December 26, 1968, when the petition for rehearing was pending here, plaintiffs filed application for stay of procedendo upon- any final decision adverse to them until final determination by the United States Supreme Court. Following a ruling adverse to the Lee Enterprises plaintiffs on their petition for rehearing, we entered an order staying procedendo and continuing the lower court injunction against collecting the tax from plaintiffs upon their posting a $100,000 bond, which was filed. June 4, 1969, the service tax on advertising was repealed. 63 G.A., ch. 248. June 12, 1969, the appeal to the United States Supreme Court was dismissed on appellant’s motion. Without question, at the time of the Burns-Dickinson-Forst-Sheldahl meeting, the department was still very much involved in the Lee Enterprises litigation.
Thus the two reasons majority assigns for disbelieving the clear, explicit and detailed testimony of Burns and Dickinson concerning Forst’s representations are not supported by the facts.
Although the department knew the ware-housemen were collecting tax only on storage of property moving in intrastate commerce, no mass audits were made until after the Lee Enterprises appeal was dismissed. In a classic Freudian slip, Forst testified that in the department there was “discussion after the Lee Enterprises case that we needed to revise our — not revise our position, but to enforce the rule.” At another time, he said, “I do recall only saying with Mr. Briggs prior to leaving — and that would have been in late 1969 — that the audits in the warehousing area, you know, we had to do because we had to address ourselves to that policy that we had never issued any rule on.”
The warehouse audits got underway in 1971 after Briggs became the department director. He had not been a party to the prior advice given the warehousemen. Apparently the “rules” quoted by the majority were insufficient even for the field auditors. According to Sheldahl, they had questions and needed “guidelines”. The response was not adoption of rules or regulations but the communication (Sales and Use Tax Bulletin) to the field staff dated January 28, 1972. More than four years after the service tax went into effect, the department finally stated in writing its position on seven different warehousing services or situations, declaring some taxable and some exempt.
A close analysis of Forst’s deposition demonstrates, contrary to department’s argument, that he never told the warehouse-men that if they did not collect the tax on storage of interstate goods, they proceeded at their own risk. Forst said that was the position he took with the advertising people. On cross-examination he was asked point-blank, “Did you tell that to the ware-housemen?” to which he responded, “Well, I don’t know that I told that to the ware-housemen. * * * I do not recall telling them that. That is the only area [warehousing] that I can see that I would have said something that sounded as positive as what they are saying that I said.”
Overall, Forst’s testimony was evasive and inconsistent. He continually hedged by stating the department issued no “formal ruling”. The implication is plain he did not consider anything he or any other employee said to be binding unless it was reduced to writing. Although conceding the ware-housemen may have orally requested a formal ruling he maintained if they had only made a written request for a formal ruling *778it would have been given. But on three occasions in his testimony, he maintained the department would not take any position because the constitutionality of the levy was before the supreme court.
There is no shred of evidence in this record the warehousemen were ever told they should submit a written request for ruling, or that a “formal” ruling only awaited such demand. What does come through from all the evidence is the clear impression they received oral but no written guidelines from the commission in 1967 because of the chaotic state of that body and its employees following the massive legislation. After the Lee Enterprises case was instituted (December 12, 1967) the department was reluctant to reduce to writing what it was telling the warehousemen for fear the litigation might be adversely affected.
Burns testified because plaintiff organization had no funds an ad hoc committee prevailed upon the Motor Truck Association to lend assistance of its lawyer in attempting to “find out what their [commission] thinking would be in regard to our storage portions of our business that were in interstate commerce.” This prevailed until “we received a final notice from [the attorney] through the Motor Truck Association in the spring of ’68.” The reference is apparently to a communication in March or April of 1968 from the attorney to the truck association, dealing incidentally with service tax on storage and setting out the same guidance Burrows gave the warehousemen.
The majority asserts plaintiff association’s members relied on this information from the attorney, not the advice of Burrows and Forst. This is belied by the fact the warehousemen from the beginning collected tax only on storage of goods moving intrastate, six months prior to the lawyer’s communication. This was in direct conformance with the opinion then held by the majority of the commission. It goes against all reason to assert that opinion was not communicated to the warehousemen. Neither is there any evidence the plaintiff hired an attorney to obtain a “formal” ruling, or that he was employed by plaintiff at the time Forst claims to have made the alleged statement to the attorney relating to warehousing service tax following the Lee Enterprises case.
The record is plain that Burrows, a department lawyer, and Forst all made oral representations to the warehousemen upon which they reasonably relied. But taking the worst possible view of the evidence from plaintiff’s standpoint, then it must be conceded that although repeatedly pressed for guidelines the department played a cat- and-mouse game with the warehousemen, in which they were forced to either collect and remit the tax at the peril of a class action by consumers if they were wrong, or not collect it and pay it themselves upon assessment and levy by the commission if that course of action proved to be in error. Nor am I persuaded by defense counsel’s suggestion in oral argument the plaintiff could have sued the department to obtain written guidelines. Those whom the state placed on the cutting edge of tax collection ought to have been furnished guidelines and I am convinced in this instance they were, albeit in the form of oral advice.
In 1958 when Professor Davis published his “Administrative Law Treatise” he stated, § 17.06, p. 519:
“What the law of estoppel of governmental units most needs is a larger measure of judicial freedom from the rigidity of the oft-repeated statements that a state or local government cannot be es-topped. Equity courts should restore their own power to determine whether or not in any particular circumstances justice requires resort to the doctrine of equitable estoppel. The fortunate fact is that a good many recent holdings do apply that doctrine to governmental units.”
A large number of decisions supporting the last quoted sentence are cited and discussed at pages 520-525.
By date of publication of this “Administrative Law Treatise 1970 Supplement” Professor Davis could say, § 17.09, p. 607:
*779“The movement toward allowing estop-pel of governmental units continues. Federal courts often allow the government or its officers to be estopped, and the highest courts of New York, Illinois and California hold municipalities to be estopped.”
Among the more recent cases cited and discussed in K. Davis, Administrative Law Treatise, 1970 Supplement § 17.03, pp. 588— 591, § 17.06, pp. 594-597 are: United States v. Fox Lake State Bank, 366 F.2d 962, 965-966 (7 Cir. 1966) (government held es-topped to bring action under Civil False Claims Act against a bank); Schuster v. Commissioner, 312 F.2d 311 (9 Cir. 1962) (Commissioner of Internal Revenue held es-topped to impose tax liability on trustee bank where Commissioner audited, determined trust not taxable, which determination was relayed to the bank by the beneficiary which then delivered corpus to beneficiary); Simmons v. United States, 308 F.2d 938, 945 (5 Cir. 1962) (holding government may be estopped in a tax case by unpublished advice by a local tax official); Rand v. Andreatta, 60 Cal.2d 846, 36 Cal.Rptr. 846, 389 P.2d 382 (1964) (estoppel may be used in a proper case to excuse the late filing of claims against public entities or the filing of such claims in a defective form); Trustees of Internal Improvement Fund v. Lobean, 127 So.2d 98 (Fla.1961) (estoppel by deed operates against State of Florida); Johnson v. Oregon State Tax Commission, 248 Or. 460, 435 P.2d 302 (1967) (county assessor estopped from assessing because he had misled the taxpayer).
The majority concedes S & M Finance Co. Fort Dodge v. Iowa State Tax Comm’n, 162 N.W.2d 505 (Iowa 1968) left open the question whether equitable estoppel in a proper case would be applied against the state where, as here, the persons to whom the representations were made were essentially tax collectors for the state. Although in a five-to-four decision we refused to apply the doctrine in S & M Finance Co., the facts make that case clearly inapposite. There the taxpayer obtained preliminary advice from a field agent. The record neither disclosed the “nature of his work nor the extent of his authority.” Id. at 511. Here the warehousemen went directly to the “top man”. There the erroneous oral advice was promptly corrected by a written communication. Here the oral advice was corrected four years later. Nothing in S & M Finance Co. prevents us from providing plaintiff relief in this case.
Many of the older estoppel decisions from other jurisdictions articulating hard-bitten rules in the state’s favor, must be cautiously viewed in light of a modern movement recognizing the state’s responsibility for its agents’ acts in course of their employment. This duty was extended to torts by the Iowa legislature in 1965. 61 G.A., ch. 79. It was extended to contracts by this court in 1973. Kersten Co., Inc. v. Department of Social Services, 207 N.W.2d 117 (Iowa 1973). These enlightened concepts are restless in the company of department’s theory these unpaid tax collectors had no right to rely on advice offered by the head of the state’s tax collection agency.
On October 7, 1971, there was a meeting between Director Briggs and Darrell Dickinson, Ernest Primmer, and others of the association’s leadership. According to Dickinson, “We went down what we termed to be at that time the Forst ruling, and Mr. Briggs was very emphatic that he had a totally] different concept of what was interstate commerce and that what we were telling him was just null and void, that it had no bearing on it since we had no formal rulings.” The association was then relying on oral representations from two prior heads of the tax collection agency. Upon receiving this advice from the new “top man” they could no longer reasonably rely on the prior advice.
I would hold the department estopped from requiring the association’s members to pay the tax they were advised not to collect on charges for warehousing property moving in interstate transit from October 1, *7801967 to October 7, 1971. Of course, following the May 8, 1969 amendment, storage in Iowa of goods destined out of state would be exempt in any event. 63 G.A., ch. 247, § 2.
MOORE, C. J., and RAWLINGS and HARRIS, JJ., join in this dissent.