This case is before us for consideration after rehearing was granted pursuant to the opinions being filed herein on November 16th, 1933.
The ordinance was set out in the original majority opinion. The stipulation of facts was also set out in the majority opinion.
Mr. Chief Justice DAVIS in his specially concurring opinion heretofore filed clearly states the fundamental infirmity of the ordinance.
That this ordinance attempts to confer extra-territorial jurisdiction on the municipality cannot be doubted.
While the question of interstate commerce is not involved here, the question that is involved is analogous to the question which is presented when a State statute attempts to authorize the exercise of power which affects interstate commerce and the State thereby attempts to exercise extraterritorial jurisdiction. The fact that the State is attempting to exercise exra-territorial jurisdiction is what brings the statute into conflict with the inhibition against legislation affecting interstate commerce. In a note following Wagner v. City of Covington, 251 U.S. 95, 64 Law Ed. 157, page 159, it is said:
"A municipal ordinance imposing a license tax upon peddlers is invalid, as a restraint upon interstate commerce, in so far as it is made to apply to the solicitor for a non-resident tea house, who solicits orders for teas, coffees, etc., when such orders are sent to the home office, where they are put up in packages according to the quantities designated by the solicitor, but without the purchaser's name being written on the package, and are shipped back to the solicitor, who gets them from the railroad station, delivers them to the purchasers, collecting the price. Jewel Tea Co. v. Lee's Summit, 189 Fed. 280. The Court stated that the shipment *Page 630 of goods from the home office to the solicitor, the draying of them from the depot to the street in front of the customer's house and the carrying them into the house, are all parts of one transaction, and that transaction is interstate commerce. A shipment like that cannot be divided into parts, so as to make one or more parts an intrastate shipment. They must all be taken and regarded as one shipment, and when across a State line it is an interstate shipment, and is covered by the commerce clause of the Federal Constitution."
Upon the same reasoning, we come to the conclusion that when a salesman takes an order in the City of Cocoa, which order is sent to the City of Jacksonville for approval and is there approved by the dealer and the order is then shipped to the City of Cocoa, either by truck or otherwise, and there delivered to the purchaser, that such transaction can not be divided into parts so as to make one or more parts of the transaction amenable to the ordinances of the City of Cocoa, while the other parts of the transaction occurred beyond the jurisdiction of the City and cannot be reached by an ordinance imposing a municipal tax in the City of Cocoa thereon. They must all be taken and regarded as constituting one transaction or shipment of goods from a vendor in one municipality to a vendee in another municipality. And, for this reason, the transaction is not within the jurisdiction of the vendee's municipality. For other analogous cases involving transactions coming within the purview of the interstate commerce clause of the Federal Constitution, see the note above cited.
In Buck, Trustee, v. Beach, 206 U.S. 392, 51 Law Ed. 1106, the Supreme Court of the United States said:
"Generally, property, in order to be subject to taxation, must be within the jurisdiction of the power assuming to *Page 631 tax. State Tax on Foreign-held Bonds, 15 Wall. 300, 21 Law Ed. 179; New York, L. E. W. R. Co. v. Pennsylvania, 153 U.S. 628, 646, 38 L.Ed. 846, 852, 14 Sup. Ct. Rep. 952; Savings L. Soc. v. Multnomah County, 169 U.S. 421, 427, 42 L.Ed. 803, 805, 18 Sup. Ct. Rep. 392; Louisville J. Ferry Co. v. Kentucky,188 U.S. 385, 47 L.Ed. 513, 23 Sup. Ct. Rep. 463; Delaware, L. W. R. Co. v. Pennsylvania, 198 U.S. 342, 49 L.Ed. 1077, 25 Sup. Ct. Rep. 669; Union Refrigerator Transit Co. v. Kentucky,199 U.S. 194, 50 L.Ed. 150, 26 Sup Ct. Rep. 36; Metropolitan Life Ins. Co. v. New Orleans, 205 U.S. 395, ante, 853, 27 Sup. Ct. Rep. 499."
The City of Cocoa is not authorized, and we seriously doubt that it could be authorized by legislative enactment, to levy a tax on a business or occupation transacted or performed in some other municipality.
In Wagner v. City of Covington, supra, the Court said:
"The distinction between State regulation of peddlers and the attempt to impose like regulations upon drummers who solicit sales of goods that are to be thereafter transported in interstate commerce has always been recognized. In Robbins v. Shelby Taxing Dist., 120 U.S. 489, 30 L.Ed. 694, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592, Mr. Justice BRADLEY, who spoke for the Court, said (P. 497):
" 'When goods are sent from one State to another for sale, or in consequence of a sale, they become part of its general property, and amenable to its laws; provided that no discrimination be made against them as goods from another State, and that they be not taxed by reason of being brought from another State, but only taxed in the usual way as other goods are. Brown v. Houston, 114 U.S. 622, 29 L.Ed. 257, 5 Sup. Ct. Rep. 1091; Howe Mach. Co. v. Gage, 100 U.S. 676, 25 L.Ed. 754. But to tax the sale *Page 632 of such goods, or the offer to sell them, before they are brought into the State, is a very different thing and seems to us clearly a tax on interstate commerce.'
"See also Crenshaw v. Arkansas, 227 U.S. 389, 399, 400, 57 L.Ed. 565, 568, 569, 33 Sup. Ct. Rep. 294, where the distinction was clearly set forth. And in all the 'drummer cases' the fact has appeared that there was no selling from a stock of goods carried for the purpose, but only a solicitation of sales, with or without the exhibition of samples; the goods sold to be thereafter transported from without the State." (Citing numerous cases.)
By analogy what was said in that case applies here.
It was stated at the bar of this Court that the legislative Act under which the municipality purported to impose the license tax had been materially amended by the Legislature of 1933. Such amended Act is not before us and we do not here express any opinion either as to its lawful application or validity.
For the reasons stated, the judgment heretofore entered reversing and remanding the cause is adhered to.
DAVIS, C. J., and WHITFIELD, TERRELL and BUFORD, J. J., concur.
ELLIS and BROWN, J. J., concur specially.