207 Opinion of the Court. connection, between a state and the person, property or transaction it seeks to tax." We believe that such a nexus is present here. First, the tax is a nondiscriminatory exaction levied for the use and enjoyment of property which has been purchased by Florida residents and which has actually entered into and become a part of the mass of property in that State. The burden of the tax is placed on the ultimate purchaser in Florida and it is he who enjoys the use of the property, regardless of its source. We note that the appellant is charged with no tax-save when, as here, he fails or refuses to collect it from the Florida customer. Next, as Florida points out, appellant has 10 wholesalers, jobbers, or "salesmen" conducting continuous local solicitation in Florida and forwarding the resulting orders from that State to Atlanta for shipment of the ordered goods. The only incidence of this sales transaction that is nonlocal is the acceptance of the order. True, the "salesmen" are not regular employees of appellant devoting full time to its service, but we conclude that such a fine distinction is without constitutional significance. The formal shift in the contractual tagging of the salesman as "independent" neither results in changing his local function of solicitation nor bears upon its effectiveness in securing a substantial flow of goods into Florida. This is evidenced by the amount assessed against appellant on the statute's 3% basis over a period of but four years. To permit such formal "contractual shifts" to make a constitutional difference would open the gates to a stampede of tax avoidance. See Thomas Reed Powell, Sales and Use Taxes: Collection from Absentee Vendors, 57 Harv. L. Rev. 1086, 1090. Moreover, we cannot see, from a constitutional standpoint, "that it was important that the agent worked for several principals." Chief Judge Learned Hand, in Bomze v. Nardis Sportswear, 165 F. 2d 33, 36. The test is simply the nature and extent of the activities of the appellant Opinion of the Court. 362 U.S. in Florida. In short, we conclude that this case is controlled by General Trading Co., supra. As was said there, "All these differentiations are without constitutional significance. Of course, no State can tax the privilege of doing interstate business. See Western Live Stock v. Bureau, 303 U. S. 250. That is within the protection of the Commerce Clause and subject to the power of Congress. On the other hand, the mere fact that property is used for interstate commerce or has come into an owner's possession as a result of interstate commerce does not diminish the protection which he may draw from a State to the upkeep of which he may be asked to bear his fair share." 322 U. S., at 338. Nor do we believe that Florida's requirement that appellant be its tax collector on such orders from its residents changes the situation. As was pointed out in General Trading Co., this is "a familiar and sanctioned device." Ibid. Moreover, we note that Florida reimburses appellant for its service in this regard. Appellant earnestly contends that Miller Bros. Co. v. Maryland, supra, is to the contrary. We think not. Miller had no solicitors in Maryland; there was no "exploitation of the consumer market"; no regular, systematic displaying of its products by catalogs, samples or the like. But, on the contrary, the goods on which Maryland sought to force Miller to collect its tax were sold to residents of Maryland when personally present at Miller's store in Delaware. True, there was an "occasional" delivery of such purchases by Miller into Maryland, and it did occasionally mail notices of special sales to former customers; but Marylanders went to Delaware to make purchases-Miller did not go to Maryland for sales. Moreover, it was impossible for Miller to determine that goods sold for cash to a customer over the counter at its store in Delaware were to be used and enjoyed in Maryland. This led the Court to conclude 207 Opinion of the Court. that Miller would be made "more vulnerable to liability for another's tax than to a tax on itself." 347 U. S., at 346. In view of these considerations, we conclude that the "minimum connections" not present in Miller are more than sufficient here. The judgment is therefore Affirmed. MR. JUSTICE FRANKFURTER, deeming this case to be nearer to General Trading Co. v. State Tax Commission, 322 U. S. 335, than it is to Miller Bros. Co. v. Maryland, 347 U. S. 340, concurs in the result. MR. JUSTICE WHITTAKER, believing that Florida's action denies to appellant due process of law and also directly burdens interstate commerce as held in Miller Bros. Co. v. Maryland, 347 U. S. 340, and in McLeod v. Dilworth Co., 322 U. S. 327, and adhering to his views expressed in Northwestern Cement Co. v. Minnesota, 358 U. S. 450, 477, would reverse the judgment. Per Curiam. 362 U.S. McGANN v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 153. Argued March 3, 1960.-Decided March 21, 1960. Certiorari dismissed as improvidently granted. By appointment of the Court, 361 U. S. 803, Thomas Homer Davis argued the cause and filed a brief for petitioner. Theodore George Gilinsky argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey and Beatrice Rosenberg. PER CURIAM. The writ of certiorari was improvidently granted and must be dismissed. When the case was brought here, on the meager documentation which so often is all that is presented by indigent prisoners seeking review on their own behalf, we assumed that a question involving the construction of 28 U. S. C. § 2255 called for adjudication. After argument, it became clear that the question of construction is not appropriately presented by the record because petitioner's claim upon the merits was fully considered and decided below, and we find his challenge of that action to be so insubstantial as not to have warranted bringing the case here. CITY OF COVINGTON, KENTUCKY, v. PUBLIC SERVICE COMM'N OF KENTUCKY ET AL. APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. No. 628. Decided March 21, 1960. Appeal dismissed for want of a substantial federal question. Charles S. Rhyne and S. White Rhyne, Jr. for appellant. PER CURIAM. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. SMITH ET AL. v. COLUMBIA COUNTY, APPEAL FROM THE SUPREME COURT OF OREGON. No. 645. Decided March 21, 1960. Appeal dismissed for want of a substantial federal question. Reported below: 216 Ore. 662, 341 P. 2d 540. Robert T. Mautz for appellants. Robert Y. Thornton, Attorney General of Oregon, and Carlisle B. Roberts and Theodore W. deLooze, Assistant Attorneys General, for appellees. PER CURIAM. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. 541680 O-60-18 |