It seems clear that if, in his dealings, some orders were placed by appellant with firms situated in this State he could not escape the license. J.E. Raley and Bros. v. Richardson, 264 U.S. 157, 68 L.Ed. 615, 44 Sup. Ct. Rep. 256. In that case the Supreme Court of the United States approved the decision of the Supreme Court of Georgia, 154 Ga. 140, 113 S.E. 531, holding such a license applicable when orders were sent "sometimes to nonresident and sometimes to resident principles."
The case coincides with the Cooney case. Cf. Western Union Telegraph Co. v. Kansas, 216 U.S. 1, 27. Appellant is compelled to purchase more property by reason of the interstate business than it would if it were engaged in intrastate commerce alone; so that the tax, a fixed percentage of the purchase price of the property, is greater by reason of the interstate business done. Raley Bros. v. Richardson, 264 U.S. 157, distinguished. It is not true that the sale and use taxes are both paid by the purchaser.
Thus, it is not open to the objection held fatal in Leloup v. Mobile, 127 U.S. 640, and Cooney v. Mountain States Telephone Telegraph Co., 294 U.S. 384. "Certainly, one cannot avoid a tax upon a taxable business by also engaging in a non-taxable business." Raley Bros. v. Richardson, 264 U.S. 157, 159. The distinction drawn by those cases between an occupation tax valid because laid only on local business and one void because laid inseparably upon the whole business, is clearly shown in the discussion of the two classes of taxes involved in Bowman v. Continental Oil Co., 256 U.S. 642, 646-647.
Sprout v. South Bend, 277 U.S. 163, 171; East Ohio Gas Co. v. Tax Commission, 283 U.S. 465, 470. Ratterman v. Western Union Telegraph Co., 127 U.S. 411; Pacific Express Co. v. Seibert, 142 U.S. 339; Lehigh Valley R. Co. v. Pennsylvania, 145 U.S. 192; Postal Telegraph Cable Co. v. Charleston, 153 U.S. 692; Osborne v. Florida, 164 U.S. 650; Pullman Co. v. Adams, 189 U.S. 420; Allen v. Pullman Co., 191 U.S. 171; Kehrer v. Stewart, 197 U.S. 60; Ohio Tax Cases, 232 U.S. 576; St. Louis Southwestern Ry. Co. v. Arkansas, 235 U.S. 350; People ex rel. Cornell Steamboat Co. v. Sohmer, 235 U.S. 549; Postal Telegraph Cable Co. v. Richmond, 249 U.S. 252; Postal Telegraph Cable Co. v. Fremont, 255 U.S. 124; Raley Bros. v. Richardson, 264 U.S. 157; East Ohio Gas Co. v. Tax Commission, 283 U.S. 465.State Freight Tax Case, 15 Wall. 232; Pickard v. Pullman Southern Car Co., 117 U.S. 34; Robbins v. Shelby Taxing District, 120 U.S. 489; Philadelphia Southern S.S. Co. v. Pennsylvania, 122 U.S. 326; Leloup v. Mobile, 127 U.S. 640; Crutcher v. Kentucky, 141 U.S. 47; Adams Express Co. v. New York, 232 U.S. 14; Bowman v. Continental Oil Co., 256 U.S. 642; Sprout v. South Bend, 277 U.S. 163, 171; New Jersey Bell Telephone Co. v. State Board of Taxes, 280 U.S. 338.
Nor does the latter clause require that a right or exemption which under the other clause must be accorded to a particular business be also accorded to a similar business not otherwise entitled to it.Raley Bros. v. Richardson, 264 U.S. 157; Packer Corporation v. Utah, 285 U.S. 105, 109; Des Moines National Bank v. Fairweather, 263 U.S. 103, 116-117; Union Bank Trust Co. v. Phelps, 288 U.S. 181, 187. It follows that in none of the suggested views of the pledge can the appellant's charge of unreasonable discrimination be sustained.
The classification alleged to be arbitrary was made in order to comply with the requirement of the Federal Constitution as interpreted and applied by the highest court of the State. Action by a State taken to observe one prohibition of the Constitution does not entail the violation of another. J.E. Raley Bros. v. Richardson, 264 U.S. 157, 160; Des Moines Nat. Bank v. Fairweather, 263 U.S. 103, 116, 117. Compare Dolley v. Abilene Nat. Bank, 179 F. 461, 463, 464. It is a reasonable ground of classification that the State has power to legislate with respect to persons in certain situations and not with respect to those in a different one. Compare Williams v. Walsh, 222 U.S. 415, 420. Laws of Utah, 1921, c. 145, § 1, as amended, Laws of 1923, c. 52, § 1; Laws of 1925, c. 68; Laws of 1930, c. 5, § 1.
A Montana statute (§§ 2382 and 2383 Revised Codes 1921, as amended by c. 186, Laws 1925) levies an excise tax upon distributors and dealers engaged within the state in the business of refining, manufacturing, producing, or compounding gasoline or distillate and selling the same in the state, and also upon those engaged within the state in the business of shipping, transporting, or importing any gasoline or distillate into the state and selling the same in the state after it has been brought to rest therein. The basis of the tax is the sale of gasoline or distillate, and the statute, in that respect, makes no discrimination, except that it properly excludes from the operation of the tax the imported commodity while it continues subject to the commerce clause of the Constitution. Raley Bros. v. Richardson, 264 U.S. 157, 159. Thus far the validity of the statute is conceded. But the contention is that the statute discriminates against the Montana refiner because it is not extended to include gasoline or distillate shipped from other states and consumed or used after it has come to rest in Montana and its status in interstate commerce has ended.
It follows that on the record before us the exaction of the license fee cannot be sustained either as an inspection fee or as an excise for the use of the streets of the city. It remains to consider whether it can be sustained as an occupation tax. A State may, by appropriate legislation, require payment of an occupation tax from one engaged in both intrastate and interstate commerce. Postal Telegraph Cable Co. v. Charleston, 153 U.S. 692; Osborne v. Florida, 164 U.S. 650; Kehrer v. Stewart, 197 U.S. 60; Watters v. Michigan, 248 U.S. 65; Raley Bros. v. Richardson, 264 U.S. 157. Compare Interstate Busses Corporation v. Holyoke Street Ry. Co., 273 U.S. 45; Arnold v. Hanna, 276 U.S. 591. And it may delegate a part of that power to a municipality. Compare Postal Telegraph-Cable Co. v. Richmond, 249 U.S. 252, 257.
Action by a state taken to observe one prohibition of the Constitution does not entail the violation of another [citing cases]". Cf. also J.E. Raley Brothers v. Richardson, 264 U.S. 157, 160, 44 S.Ct. 256, 68 L.Ed. 615. There remains a contention advanced by appellee against the ordinance which the majority opinion does not consider, but which, because I regard the ordinance valid, I must discuss: The ordinance expressly prohibits only commercial advertising and does not mention a dual purpose document of the kind before us. Aside from the fact that, in applying the statute as it did, the city was engaged in a proper administrative function, I would not interpret the statute to permit the distribution of such an artificial hybrid as this, since that would, by pointing the way to easy evasion, utterly destroy the efficacy of the prohibition.
It also seems to be settled that a law or ordinance which taxes such interstate transaction cannot be sustained simply because it is non-discriminatory. Joseph v. Carter Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993; Nippert v. City of Richmond, supra; Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573; Breard v. City of Alexandria, supra; State v. Glasby, 50 Wn. 598, 97 P. 734, 21 L.R.A., N.S., 797, see, 162 A.L.R. 865. See, also, Sanford Service Co. v. City of Andalusia, 256 Ala. 507, 509, 55 So.2d 856. In the case of J. E. Raley Bros. v. Richardson, 264 U.S. 157, 44 S.Ct. 256, 68 L.Ed. 615, the court was considering a statute of Georgia, similar in all material respects to the Alabama statute here applicable There a bill was filed by different classes of complainants. Class A consisted of those whose business as brokers was confined wholly to representing non-resident principals. Complainants who were classed as B were those who in conducting their brokerage business represented state principals as well as out-of-state principals.