Messrs. Henry Clay True and A. L. Dorsey for plaintiff in error. [244 U.S. 346, 347] Mr. Frank M. Thompson for defendant in error.
Mr. Justice Van Devanter delivered the opinion of the court:
This was a suit by an Indiana corporation to recover money paid under protest as an occupation or privilege tax in Tennessee. The plaintiff had an oil refinery in Illinois and a steel barrel factory in Indiana, and was selling the products of its refinery and factory upon orders taken by traveling salesmen in its employ. For the purpose of filling orders so taken in Maury county, Tennessee, it shipped into that county from its refinery a tank car of oil and from its factory a car of steel barrels. Both cars were billed to the plaintiff at Columbia, in that county, and, after the orders from that place were filled, were rebilled to the plaintiff at Mount Pleasant, in the same county, where the orders from the latter place were filled. At both places the orders were filled directly from the cars by a traveling agent of the plaintiff and the purchase price was collected at the time,-this being what was contemplated when the orders were taken. If the order was for both oil and barrels, the oil was drawn out of the tank car into the barrels and the two were jointly delivered; and if oil alone was ordered, it was drawn from the tank car into barrels otherwise provided by the buyer. When the cars were originally shipped they contained just the quantity of oil and the number of barrels required to fill the orders from the two places, and the plaintiff intended that they should remain at Columbia only long enough to fill the orders from that place and then should be sent to Mount Pleasant, so the orders from that place could also be filled. The quantity of oil and the number of barrels required to fill the orders from Mount Pleasant were in the cars continuously from the time of the original shipment [244 U.S. 346, 348] until the cars reached that place. The plaintiff had no office or local agent in Tennessee, nor any oil depot, storage tank, or warehouse in that state.
The statute, chap. 479, Acts 1909, 4, under which the tax was exacted and paid, provides:
The objection made to the tax, as applied in the circumstances stated, was that it was a tax upon interstate commerce and therefore violative of the commerce clause of the Constitution. In the county court judgment was given for plaintiff, and this was reversed by the supreme court of the state, which held, first, that what was done up to and including the filling of the orders from Columbia was interstate commerce, and the state could not exact a privilege tax therefor consistently with the commerce clause of the Constitution (see Western Oil Ref. Co. v. Dalton, 131 Tenn. 329, 174 S. W. 1138), and, second, that what was done thereafter-rebilling and forwarding the cars from Columbia to Mount Pleasant and then filling the orders from that place-was intrastate commerce and afforded an adequate basis for exacting the tax.
Of the first part of the decision it is enough to say it is supported by a long line of adjudicated cases in this court, among them being these: Caldwell v. North Carolina, 187 U.S. 622 , 47 L. ed. 336, 23 Sup. Ct. Rep. 229; Dozier v. Alabama, 218 U.S. 124 , 54 L. ed. 965, 28 L.R.A.(N.S.) 264, 30 Sup. Ct. Rep. 649; Crenshaw v. Arkansas, 227 U.S. 389 , 57 L. ed. 565, 33 Sup. Ct. Rep. 294; Stewart v. Michigan, 232 U.S. 665 , 58 L. ed. 786, 34 Sup. Ct. Rep. 476.
In the second part of the decision we think the court erred. Unlike Gulf, C. & S. F. R. Co. v. Texas, 204 U.S. 403 , 51 L. ed. 540, 27 Sup. Ct. Rep. 360, this is not a case where, at the time of the [244 U.S. 346, 349] original billing, the shipper had no purpose to continue the transportation beyond the destination then indicated; nor is it a suit, as was that, to penalize a carrier which rightly conformed its action to what was said in the bill of lading. On the contrary, it is a case where the shipper intended from the beginning that the transportation should be continued beyond the destination originally indicated, and where there is nothing which requires that decisive effect be given to the bill of lading. Ordinarily the question whether particular commerce is interstate or intrastate is determined by what is actually done, and not by any mere billing or plurality of carriers, and where commodities are in fact destined from one state to another, a rebilling or reshipment en route does not of itself break the continuity of the movement or require that any part be classified differently from the remainder. As this court often has said, it is the essential character of the commerce, not the accident of local or through bills of lading, that is decisive. Southern P. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498 , 55 L. ed. 310, 31 Sup. Ct. Rep. 279; Railroad Commission v. Worthington, 225 U.S. 101 , 56 L. ed. 1004, 32 Sup. Ct. Rep. 653; Texas & N. O. R. Co. v. Sabine Tram Co. 227 U.S. 111 , 57 L. ed. 442, 33 Sup. Ct. Rep. 229; Railroad Commission v. Texas & P. R. Co. 229 U.S. 336 , 57 L. ed. 1215, 33 Sup. Ct. Rep. 837; Chicago, M. & St. P. R. Co. v. Iowa, 233 U.S. 334, 343 , 58 S. L. ed. 988, 992, 34 Sup. Ct. Rep. 592; South Covington & C. Street R. Co. v. Covington, 235 U.S. 537, 545 , 59 S. L. ed. 350, 353, L.R.A. 1915F, 792, P.U. R.1915A, 231, 35 Sup. Ct. Rep. 158.
Here, when the cars were started from Illinois and Indiana, it was intended by the shipper, as is expressly conceded, that they should be taken to Columbia, Tennessee, where a portion-a definite portion-of the contents of each was to be taken out and delivered, and that the cars, with the remainder of the contents, should proceed to Mount Pleasant in the same state; and this is what actually was done. Columbia was the destination of only a part of the merchandise, not of all. As to part, it was merely the place of a temporary stop en route. The orig- [244 U.S. 346, 350] inal billing to Columbia and the rebilling from there to Mount Pleasant operated in the same way as would an original billing to Mount Pleasant, with the privilege of stopping en route at Columbia to deliver a part of the merchandise. Indeed, it is stipulated that the reason for not billing the cars through to Mount Pleasant in this way was because the carriers receiving the shipments 'would not allow such a stop-over privilege, though the same is allowed on nearly every other kind of shipment.' Certainly the transportation of the merchandise destined to Mount Pleasant was not completed when it reached Columbia; nor was the continuity of its movement broken by its temporary stop at that place. As to that merchandise the journey to Columbia and the journey from there to Mount Pleasant were not independent, each of the other, but in fact and in legal contemplation were connected parts of a continuing interstate movement to the latter place.
It results that the tax was imposed for carrying on interstate commerce, and so was repugnant to the Constitution and void.
The CHIEF JUSTICE dissents, being of opinion that the case is controlled by May v. New Orleans, 178 U.S. 496 , 44 L. ed. 1165, 20 Sup. Ct. Rep. 976.