347 U.S.

340
74 S.Ct. 535
98 L.Ed. 744

MILLER BROS. CO.

v.
STATE OF MARYLAND.
No. 160.
Argued Jan. 5, 1954.
Decided April 5, 1954.
Rehearing Denied May 3, 1954.

See 347 U.S. 964, 74 S.Ct. 708.

Mr. William L. Marbury, Baltimore, Md., for appellant.
Mr. Francis D. Murnaghan, Jr., Baltimore, Md., for appellee.
Opinion of the Court by Mr. Justice JACKSON, announced by Mr. Justice
REED.*

Appellant is a Delaware merchandising corporation which only sells directly to

customers at its store in Wilmington, Delaware. It does not take orders by mail
or telephone. Residents of nearby Maryland come to its store and make
purchases, some of which they carry away, some are delivered to them in
Maryland by common carrier, and others by appellant's own truck. Maryland
lays upon its residents an excise tax on 'the use, storage or consumption' in the
State of such articles,1 and it requires every vendor to collect and remit the tax
to the State.2 This the appellant did not do. Finding appellant's truck in
Maryland, the State seized it, and the State's highest court has held it liable for
the use tax on all goods sold in the Delaware store to Maryland residents,
however delivered. 3 This was against appellant's timely contention that the
Maryland taxing act, so construed, conflicts with the federal commerce power
and attempts to extend the power of the State beyond its borders in violation of
the Due Process Clause of the Fourteenth Amendment. The parties have
stipulated facts in detail, and, so far as they seem important, we set them forth
in the Appendix.4

The grounds advanced by Maryland for holding the Delaware vendor liable
come to this: (1) the vendor's advertising with Delaware papers and radio
stations, though not especially directed to Maryland inhabitants, reached, and
was known to reach, their notice; (2) its occasional sales circulars mailed to all
former customers included customers in Maryland; (3) it delivered some
purchases to common carriers consigned to Maryland addresses; (4) it delivered
other purchases by its own vehicles to Maryland locations. The question is
whether these factors, separately or in the aggregate, in each or all of the above
types of sales, establish a state's power to impose a duty upon such an out-ofstate merchant to collect and remit a purchaser's use tax.

It is a venerable if trite observation that seizure of property by the State under

pretext of taxation when there is no jurisdiction or power to tax is simple
confiscation and a denial of due process of law. 'No principle is better settled
than that the power of a state, even its power of taxation, in respect to property,
is limited to such as is within its jurisdiction.' New York, L.E. & W.R. Co. v.
Com. of Pennsylvania, 153 U.S. 628, 646, 14 S.Ct. 952, 958, 38 L.Ed. 846.
'Where there is jurisdiction neither as to person nor property, the imposition of a
tax would be ultra vires and void. If the legislature of a State should enact that
the citizens or property of another State or country should be taxed in the same
manner as the persons and property within its own limits and subject to its
authority, or in any other manner whatsoever, such a law would be as much a
nullity as if in conflict with the most explicit constitutional inhibition.
Jurisdiction is as necessary to valid legislative as to valid judicial action.' City
of St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 430, 20 L.Ed. 192.

But visible territorial boundaries do not always establish the limits of a state's
taxing power or jurisdiction. In the last twenty years, revenue needs have come
to exceed the demands that legislatures feel it expedient to make upon
accumulated wealth or property with fixed location within the state. The states
therefore have turned to taxing activities connected with the movement of
commerce, such as exchange and consumption. If there is some jurisdictional
fact or event to serve as a conductor, the reach of the state's taxing power may
be carried to objects of taxation beyond its borders. When it has the taxpayer
within its power or jurisdiction, it may sometimes, through him, reach his
extraterritorial income or transactions. On the other hand, if it has jurisdiction
of his taxable property or transactions, it may sometimes, through these, reach
the nonresident. Whether this is one of these cases we must inquire.

We are dealing with a relatively new and experimental form of taxation.5

Taxation of sales or purchases and taxation of use or possession of purchases
are complementary and related but serve very different purposes. The former, a

fiscal measure of considerable importance, has the effect of increasing the cost
to the consumer of acquiring supplies in the taxing state. The use tax, not in
itself a relatively significant revenue producer,6 usually appears as a support to
the sales tax in two respects. One is protection of the state's revenues by taking
away from inhabitants the advantages of resort to untaxed out-of-state
purchases. The other is protection of local merchants against out-of-state
competition from those who may be enabled by lower tax burdens to offer
lower prices. In this respect, the use tax has the same effect as a protective tariff
becoming due not on purchase of the goods but at the moment of bringing them
into the taxing states.7 The collection of the use tax from inhabitants is a
difficult administrative problem, and if out-of-state vendors can be compelled
to collect it and remit it to the taxing state, it simplifies administration. But this
raises questions of great importance to particular taxpayers, to the course of
commercial dealing among the states and as to appropriation by other states of
tax resources properly belonging to the state where the event occurs.
6

The practical and legal effect of the Maryland statute as it has been applied to
this Delaware vendor is to make the vendor liable for a use tax due from the
purchaser. In economic consequence, it is identical with making him pay a sales
tax. The liability arises only because of a Delaware sale and is measured by its
proceeds. But at the time of the sale, no one is liable for a Maryland use tax.
That liability arises only upon importation of the merchandise to the taxing
state, an event which occurs after the sale is complete and one as to which the
vendor may have no control or even knowledge, at least as to merchandise
carried away by the buyer. The consequence is that liability against the
Delaware vendor is predicated upon use of the goods in another state and by
another person. We do not understand the State to contend that it could lay a
use tax upon mere possession of goods in transit by a carrier or vendor upon
entering the State, nor do we see how such a tax could be consistent with the
Commerce Clause.

The question here is whether this vendor, by its acts or course of dealing, has
subjected itself to the taxing power of Maryland or whether it has afforded that
State a jurisdiction or power to create this collector's liability. Despite the
increasing frequency with which the question arises, little constructive
discussion can be found in responsible commentary as to the grounds on which
to rest a state's power to reach extraterritorial transactions or nonresidents with
tax liabilities. Our decisions are not always clear as to the grounds on which a
tax is supported, especially where more than one exists; nor are all of our
pronouncements during the experimental period of this type of taxation
consistent or reconcilable. A few have been specifically overruled, while others
no longer fully represent the present state of the law. But the course of

decisions does reflect at least consistent adherence to one time-honored

concept: that due process requires some definite link, some minimum
connection, between a state and the person, property or transaction it seeks to
tax.
8

Thus, the Court has frequently held that domicile or residence, more substantial
than mere presence in transit or sojourn, is an adequate basis for taxation,
including income,8 property,9 and death10 taxes. Since the Fourteenth
Amendment makes one a citizen of the state wherein he resides, the fact of
residence creates universally reciprocal duties of protection by the state and of
allegiance and support by the citizen. The latter obviously includes a duty to
pay taxes, and their nature and measure is largely a political matter. Of course,
the situs of property may tax it regardless of the citizenship, domicile or
residence of the owner, the most obvious illustration being a tax on realty laid
by the state in which the realty is located.11 Also, the keeping of tangible 12 or
intangible13 personalty within a state may give it a similar taxable situs there
(sometimes called a business or commercial situs or domicile). Certain
activities or transactions carried on within a state, such as the use14 and sale15 of
property may give jurisdiction to tax whomsoever engages therein, and the use
of highways may subject the use to certain types of taxation.16 These cases
overlap with those in which incorporation by a state17 or permission to do
business there18 forms the basis for proportionate taxation of a company,
including its franchise, capital, income and property. Recent cases in which a
taxable sale does not clearly take place within the taxing state, elements of the
transaction occurring in different states, have presented peculiar difficulties,19
as have those where the party liable for a use tax does not use the product
within the taxing state.20

We are unable to find in any of our cases a precedent for sustaining the liability
asserted by Maryland here. In accordance with the principles of earlier cases, it
was recently settled that Maryland could not have reached this Delaware vendor
with a sales tax on these sales. McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64
S.Ct. 1023, 88 L.Ed. 1304. Can she then make the same Delaware sales a basis
for imposing on the vendor liability for use taxes due from her own
inhabitants? It would be a strange law that would make appellant more
vulnerable to liability for another's tax than to a tax on itself.

10

The decisions relied upon by Maryland do not, in our view, support her. This is
not the case of a merchant entering a state to maintain a branch and engaging in
admittedly taxable retail business but trying to allocate some part of his total
sales to nontaxable interstate commerce. Under these circumstances, the State
has jurisdiction to tax the taxpayer, and all that he can question on Due Process

or Commerce Clause grounds is the validity of the allocation. Cf. Nelson v.

Montgomery Ward & Co., 312 U.S. 373, 61 S.Ct. 593, 85 L.Ed. 897; Nelson v.
Sears, Roebuck & Co., 312 U.S. 359, 61 S.Ct. 586, 85 L.Ed. 888; Norton Co. v.
Department of Revenue, 340 U.S. 534, 71 S.Ct. 377, 95 L.Ed. 517.
11

The nearest support for Maryland's position is General Trading Co. v. State
Tax Comm., 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309. The writer of this
opinion dissented in that case and, whether or not in so doing he made a correct
application of principles of jurisdiction to the particular facts, it is clear that
circumstances absent here were there present to justify the Court's approval of
liability for collecting the tax. That was the case of an out-of-state merchant
entering the taxing state through traveling sales agents to conduct continuous
local solicitation followed by delivery of ordered goods to the customers, the
only nonlocal phase of the total sale being acceptance of the order. Probably,
except for credit reasons, acceptance was a mere formality, since one hardly
incurs the cost of soliciting orders to reject. The Court could properly approve
the State's decision to regard such a rivalry with its local merchants as
equivalent to being a local merchant. But there is a wide gulf between this type
of active and aggressive operation within a taxing state and the occasional
delivery of goods sold at an out-of-state store with no solicitation other than the
incidental effects of general advertising. Here was no invasion or exploitation
of the consumer market in Maryland. On the contrary, these sales resulted from
purchasers traveling from Maryland to Delaware to exploit its less tax-burdened
selling market. That these inhabitants incurred a liability for the use tax when
they used, stored or consumed the goods in Maryland, no one doubts. But the
burden of collecting or paying their tax cannot be shifted to a foreign merchant
in the absence of some jurisdictional basis not present here.

12

In this view of the case, we need not consider whether the statute imposes an
unjustifiable burden upon interstate commerce.

13

The judgment appealed from is reversed and the case remanded for further
proceedings not inconsistent herewith.

14

Reversed and remanded. consumption becomes taxable hereunder, shall collect

the tax imposed by this sub-title from the purchaser.' Flack's Md.Ann.Code,
1951, Art. 81, 371.

15

'As used in this sub-title, the following terms shall mean or include:

16

'(k) 'Engaged in business in this State' means the selling or delivering in this

State, or any activity in this State in connection with the selling or delivering in
this State, of tangible personal property for use, storage or consumption within
this State. This term shall include, but shall not be limited to the following acts
or methods of transacting business.
17

'(1) The maintaining, occupying or using, permanently or temporarily, directly

or indirectly, or through a subsidiary or agent, by whatever name called, of any
office, place of distribution, sales or sample room or place, warehouse or
storage place, or other place of business.

18

'(2) The having of any representative, agent, salesman, canvasser, or solicitor

operating in this State for the purpose of selling, delivering, or the taking of
orders for any tangible personal property.' Flack's Md.Ann.Code, Art. 81,
368.

19

'Every vendor required or permitted to collect the tax shall collect the tax
imposed by the provision of this sub-title, notwithstanding the following:

20

'(a) That the purchaser's order or the contract of sale is delivered, mailed, or
otherwise transmitted by the purchaser to the vendor at a point outside of this
State as a result of solicitation by the vendor through the medium of a catalog
or other written advertisement; or

21

'(b) That the purchaser's order or contract of sale made or closed by acceptance
or approval outside of this State or before said tangible personal property enters
this State; or

22

'(c) That the purchaser's order or contract of sale provides that said property
shall be, or it is in fact, procured or manufactured at a point outside of this State
and shipped directly to the purchaser from the point of origin; or

23

'(d) That said property is mailed to the purchaser in this State from a point
outside this State or delivered to a carrier at a point outside this State, F.O.B., or
otherwise, and directed to the vendor in this State, regardless of whether the
cost of transportation is paid by the vendor or by the purchaser; or

24

'(e) That said property is delivered directly to the purchaser at a point outside
this State, if it is intended to be brought to this State for use, storage or
consumption in this State.' Flack's Md.Ann.Code, Art. 81, 373.

25

'The vendor and any other officer of any corporate vendor required or permitted

25

'The vendor and any other officer of any corporate vendor required or permitted
to collect the tax imposed by this sub-title shall be personally liable for the tax
collected, and such vendor shall have the same right in respect to collecting the
tax from the purchaser, or in respect to non-payment of the tax by the
purchaser, as if the tax were a part of the purchase price of the property and
payable at the time of the sale. Any vendor who fails to collect the tax pursuant
to this subtitle and the regulations prescribed hereunder shall, in addition to all
other penalties, be personally liable to the State for the amount uncollected.'
Flack's Md.Ann.Code, 1951, Art. 81, 375.

Miller Brothers Co. v. Maryland, 201 Md. 535, 95 A.2d 286.

'It is hereby stipulated and agreed by and between the attorneys for the above
named parties and on their behalf that:

26

'1. Defendant, Miller Brothers Company, is a corporation organized and

existing under the laws of the State of Delaware with its principal place of
business at Ninth and King Streets, Wilmington, Delaware. It has no resident
agent in Maryland.

27

'2. Defendant is and for all times material to this suit has been engaged in the
retail household furniture business by selling its merchandise from its only
retail store located in Wilmington, Delaware.

28

'3. The only methods of advertising used by the Defendant are the following:

29

'(a) Radio and Television. The Defendant has engaged in no radio or television
advertising of any sort, anywhere, since January 1, 1951. Prior to that date, the
Defendant had limited radio advertising over the Wilmington, Delaware,
stations. In the fall of 1950, for a period of about six weeks, the Defendant had
a small amount of television advertising over Station WDEL-TV in connection
with the broadcasting of football scores. The facilities of those stations are
located in Delaware entirely. In the radio and television advertising the
Defendant has never had any script or copy which made an appeal for out-ofstate business or in any way was designed directly or indirectly to appeal
particularly to Maryland residents. The radio slogan adopted by the Defendant
was 'Furniture Fashion Makers for Delaware'.

30

'(b) Newspapers. The Defendant advertises regularly in the Wilmington

Morning News and the Wilmington Journal every evening. It also advertises

occasionally in the Wilmington Sunday Star. All of these newspapers are

published in Wilmington and undoubtedly have some circulation in some
portions of Maryland. The volume of such circulation is unknown to either the
Plaintiff or the Defendant. In its newspaper advertising the Defendant has never
used advertising copy which mentions Maryland customers or is prepared for
the purpose of directly or indirectly making any special appeal to the Maryland
customers. No advertising has ever been done by the Defendant in any
newspapers published in Maryland.
31

'(c) Use of the Mails. The Defendant uses an automatic card mailing system
and with this system distributes about four pieces a year. These mailing pieces
go out to everyone who has purchased from the Defendant and whose name
and address is on the Defendant's records. This means that Maryland residents
do receive these mailing pieces, but no specific advertising copy has ever been
sent through the mails for the specific purpose of attracting Maryland buyers.
No advertising copy has been sent to Maryland buyers alone and the only
advertising copy which these Maryland buyers receive is that which is sent to
all customers whose names and addresses are on the records.

32

'4. Defendant has made and does make certain sales of tangible personal
property, some of which sales being the subject matter of this action, to
residents of the State of Maryland, who have used, consumed or stored or will
use, consume or store the purchased personal property in the State of Maryland.

33

'5. The transactions between the Defendant and the said Maryland purchasers
are and have been as follows:

34

'(a) It is the Defendant's policy never to accept telephone orders. Most of the
merchandise sold by the Defendant requires personal inspection and selection,
and it is for this reason that telephone orders are refused. The Defendant
maintains no mail-order business and does not make use of coupons in
connection with its newspaper advertising.

35

'(b) The purchaser appears at Defendant's retail store, located in Wilmington,

Delaware. In about thirty per cent (30%) of the sales the exact item selected by
the customer is tagged in the store and that same item is delivered to the
customer from the store, in Wilmington, Delaware. In the remainder of the
sales, an item identical to that selected by the customer is delivered from the
Defendant's storeroom or warehouse in Wilmington, Delaware.

36

'(c) Delivery is made in one of three ways and no other:

37

'(1) The article is taken away by the purchaser. Within the taxable period of
July 1, 1947, through December 31, 1951, tangible personal property sold for
at least $2,500 was delivered in this manner.

38

'(2) The article is delivered in Maryland to the purchaser in a motor vehicle

owned and operated by Defendant, directly from Defendant's store in
Wilmington, Delaware, to the residence of the Maryland purchaser. The cost of
the delivery in such a case is borne by Defendant and no charge therefor is
made to the purchaser. Within the taxable period July 1, 1947, through
December 31, 1951, tangible personal property sold for at least $8,000 was
delivered in this manner.

39

'(3) The article is delivered in Maryland to the purchaser by common carrier to

which delivery is made by Defendant in Wilmington, Delaware. Such common
carrier is usually an independent trucking line authorized to do business as a
commercial carrier by the Interstate Commerce Commission. The cost of the
delivery in such a case is borne by the Defendant and no charge therefor is
made to the purchaser. Within the taxable period July 1, 1947, through
December 31, 1951, tangible personal property sold for at least $1,500 was
delivered in this manner.

40

'6. (a) Payment for some purchases is completed at the time the purchaser
appears at the Defendant's retail store and prior to the delivery.

41

'(b) The Defendant does make sales to some Maryland residents on credit in
exactly the same way as it sells to Delaware residents on credit. In the case of
most of such credit sales to Maryland customers, the Defendant enters into
conditional sales contracts with its Maryland customers in the same way that it
enters into conditional sales contracts with its Delaware customers. In many
other instances, the Defendant notes the terms of the credit transaction on the
sales slip without requiring a conditional sales agreement, and this method of
business is used without any distinction between Maryland and Delaware
customers. This method is frequently designated as a 60 or 90-day charge
account. At no time within the past eight years has the Defendant ever recorded
its conditional sales contracts in Maryland.

42

'(c) The Defendant has never repossessed by legal process any furniture or
other merchandise for any customers in Maryland or elsewhere within the last
fifteen years. The Defendant has on occasion accepted back merchandise which
has not been satisfactory to the customer. In the even of delinquency in
payments, the Defendant uses collection letters, which are sent through the

mails. During the past ten years the Defendant has never instituted legal action
through a Magistrate's or other Court in Maryland, nor has it in that period used
a collection agent in Maryland. The Defendant employs no collectors. The
Maryland customers make payments to the Defendant personally at the store in
Wilmington, Delaware, or by check, cash or money order sent through the
mails.
43

'(d) No C.O.C. deliveries are made.

44

'7. Except to the extent, if any, disclosed above, Defendant does not maintain,
occupy or use, nor has it ever in the past maintained, occupied or used,
permanently or temporarily, directly or indirectly, or through a subsidiary or
agent, by whatever name called, any office, branch, place of distribution, sales
or sample rooms or place, warehouse or storage place, or other place of
business in the State of Maryland.

45

'8. Except to the extent, if any, disclosed above, defendant does not have, nor
has it ever had, any representative, agent, salesman, canvasser or solicitor
operating in the State of Maryland for the purpose of selling or taking any
orders for tangible personal property, or delivering the same.

46

'9. Defendant is not, nor has it ever been, qualified or registered to do business
in the State of Maryland.

47

'10. On or about March 10, 1952, the Comptroller of the State of Maryland
assessed a deficiency in Use Tax against the Defendant in the amount of
$356.40, $240.00 thereof representing the use tax claimed to be due, $32.40
thereof as interest claimed to be due and $84.00 thereof as a penalty claimed to
be due for the tax period from July 1, 1947, through December 31, 1951, based
upon all the sales referred to in paragraph 5 above.

48

'11. Defendant has not applied for a permit nor been authorized by the
Comptroller to collect any use tax under Section 312 of Article 81 of the
Annotated Code of Maryland (1947 Supp.).

49

'12. Defendant has not applied for, nor paid the license fee required to obtain,
nor has been issued, a license pursuant to Sections 331333 of Article 81 of
the Annotated Code of Maryland (1947 Supp.).

50

'13. Except as indicated above, Defendant does not engage and has not engaged

in any activities in the State of Maryland.'

Criz, The Use Tax, 1 (Public Administration Service No. 78, 1941);
Hellerstein, State and Local Taxation, 412, 338; Haig and Shoup, The Sales
Tax in the American States, 83 (1934).

Criz, supra, at 34, 3639. For an example of the revenue features in a

particular state, see McLees, The Use Tax After One Year, 4 Ark.L.Rev. 337,
339 (1950).

Criz, supra, at 12; Hellerstein, supra, at 116, 408409, 418; Jacoby, Retail
Sales Taxation, c. VI (1938).

Maguire v. Trefry, 253 U.S. 12, 40 S.Ct. 417, 64 L.Ed. 739; Lawrence v. State
Tax Comm., 286 U.S. 276, 52 S.Ct. 556, 76 L.Ed. 1102; People of State of
New York ex rel. Cohn v. Graves, 300 U.S. 308, 57 S.Ct. 466, 81 L.Ed. 666;
Guaranty Trust Co. v. Virginia, 305 U.S. 19, 59 S.Ct. 1, 83 L.Ed. 16.
The collection of cases in footnotes 8 through 20 is not intended as a guide to
their holdings but only as an illustration of the types of jurisdictional standards
sanctioned at one time or another by the Court.

Most of these cases deal with intangible property and apply the maxim mobilia
sequuntur personam. Kirtland v. Hotchkiss, 100 U.S. 491, 25 L.Ed. 558;
Darnell v. Indiana, 226 U.S. 390, 33 S.Ct. 120, 57 L.Ed. 267; Hawley v. City of
Malden, 232 U.S. 1, 34 S.Ct. 201, 58 L.Ed. 477; Fidelity & Columbia Trust Co.
v. Louisville, 245 U.S. 54, 38 S.Ct. 40, 62 L.Ed. 145; Citizens National Bank v.
Durr, 257 U.S. 99, 42 S.Ct. 15, 66 L.Ed. 149; Klein v. Board of Tax
Supervisors, 282 U.S. 19, 24, 51 S.Ct. 15, 16, 75 L.Ed. 140; Greenough v. Tax
Assessors of Newport, 331 U.S. 486, 67 S.Ct. 1400, 91 L.Ed. 1621. See Nevada
Bank v. Sedgwick, 104 U.S. 111, 26 L.Ed. 703; Bonaparte v. Tax Court, 104
U.S. 592, 595, 26 L.Ed. 845; Sturges v. Carter, 114 U.S. 511, 521, 5 S.Ct. 1014,
1019, 29 L.Ed. 240; Dewey v. Des Moines, 173 U.S. 193, 19 S.Ct. 379, 43
L.Ed. 665; Kidd v. Alabama, 188 U.S. 730, 731, 23 S.Ct. 401, 47 L.Ed. 669.

10

Blackstone v. Miller, 188 U.S. 189, 23 S.Ct. 277, 47 L.Ed. 439; Bullen v.
Wisconsin, 240 U.S. 625, 36 S.Ct. 473, 60 L.Ed. 830; Blodgett v. Silberman,
277 U.S. 1, 48 S.Ct. 410, 72 L.Ed. 749; Farmers Loan & Trust Co. v.
Minnesota, 280 U.S. 204, 50 S.Ct. 98, 74 L.Ed. 371; Baldwin v. Missouri, 281

U.S. 586, 50 S.Ct. 436, 74 L.Ed. 1056; Beidler v. South Carolina Tax Comm.,
282 U.S. 1, 51 S.Ct. 54, 75 L.Ed. 131; First National Bank of Boston v. Maine,
284 U.S. 312, 52 S.Ct. 174, 76 L.Ed. 313; Curry v. McCanless, 307 U.S. 357,
59 S.Ct. 900, 83 L.Ed. 1339; Graves v. Elliott, 307 U.S. 383, 59 S.Ct. 913, 83
L.Ed. 1356; Graves v. Schmidlapp, 315 U.S. 657, 62 S.Ct. 870, 86 L.Ed. 1097;
Central Hanover Bank & Trust Co. v. Kelly, 319 U.S. 94, 63 S.Ct. 945, 87
L.Ed. 1282. See Carpenter v. Pennsylvania, 17 How. 456, 15 L.Ed. 127;
Wachovia Bank & Trust Co. v. Doughton, 272 U.S. 567, 47 S.Ct. 202, 71 L.Ed.
413; Burnet v. Brooks, 288 U.S. 378, 400405, 53 S.Ct. 457, 463465, 77
L.Ed. 844; Cf. Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct.
185, 82 L.Ed. 268; Pearson v. McGraw, 308 U.S. 313, 60 S.Ct. 211, 84 L.Ed.
293. See also Keeney v. Comptroller of New York, 222 U.S. 525, 537, 32 S.Ct.
105, 108, 56 L.Ed. 299, which involved an excise tax on an inter vivos transfer
of stocks and bonds.
11

The Court has never had a case in which a state attempted a direct tax on land
located in another state. See Union Refrigerator Transit Co. v. Kentucky, 199
U.S. 194, 204, 26 S.Ct. 36, 37, 50 L.Ed. 150. Instead, the cases in point speak
of the problem by way of dicta or deal with interests attached to the realty, such
as incorporeal hereditaments. See Witherspoon v. Duncan, 4 Wall. 210, 18
L.Ed. 339; In re State Tax on Foreign-Held Bonds, 15 Wall. 300, 319, 21 L.Ed.
179; Savings & Loan Society v. Multnomah County, 169 U.S. 421, 18 S.Ct.
392, 42 L.Ed. 803; Paddell v. City of New York, 211 U.S. 446, 29 S.Ct. 139, 53
L.Ed. 275; First National Bank v. Maine, 284 U.S. 312, 326, 52 S.Ct. 174, 176,
76 L.Ed. 313; Senior v. Branden, 295 U.S. 422, 55 S.Ct. 800, 79 L.Ed. 1520.
Cf. Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U.S. 385, 23 S.Ct.
463, 47 L.Ed. 513; Central R. Co. v. Jersey City, 209 U.S. 473, 28 S.Ct. 592,
52 L.Ed. 896.

12

Coe v. Errol, 116 U.S. 517, 524, 6 S.Ct. 475, 476, 29 L.Ed. 715; Adams
Express Co. v. Ohio State Auditor, 165 U.S. 194, 226227, 17 S.Ct. 305, 311,
41 L.Ed. 683; American Refrigerator Transit Co. v. Hall, 174 U.S. 70, 19 S.Ct.
599, 43 L.Ed. 899; Union Refrigerator Transit Co. v. Lynch, 177 U.S. 149, 20
S.Ct. 631, 44 L.Ed. 708; Carstairs v. Cochran, 193 U.S. 10, 24 S.Ct. 318, 48
L.Ed. 596; Old Dominion S.S. Co. v. Virginia, 198 U.S. 299, 25 S.Ct. 686, 49
L.Ed. 1059; Hannis Distilling Co. v. Mayor and City Council, 216 U.S. 285, 30
S.Ct. 326, 54 L.Ed. 482; Johnson Oil Refining Co. v. Oklahoma ex rel.
Mitchell, 290 U.S. 158, 54 S.Ct. 152, 78 L.Ed. 238; City Bank Farmers Trust
Co. v. Schnader, 293 U.S. 112, 55 S.Ct. 29, 79 L.Ed. 228; Ott v. Mississippi
Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585. See Hays v.
Pacific Mail S.S. Co., 17 How. 596, 15 L.Ed. 254; City of St. Louis v. Wiggins
Ferry Co., 11 Wall. 423, 20 L.Ed. 192; Morgan v. Parham, 16 Wall. 471, 21

L.Ed. 302; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 210211, 5
S.Ct. 826, 831, 832, 29 L.Ed. 158; Marye v. Baltimore & O.R. Co., 127 U.S.
117, 123, 8 S.Ct. 1037, 1039, 32 L.Ed. 94; Pullman's Palace Car Co. v.
Pennsylvania, 141 U.S. 18, 22, 11 S.Ct. 876, 877, 35 L.Ed. 613; Pittsburgh, C.,
C. & St. L.R. Co. v. Backus, 154 U.S. 421, 427428, 14 S.Ct. 1114, 1117, 38
L.Ed. 1031; Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 609, 613,
622, 19 S.Ct. 553, 559, 561, 564, 43 L.Ed. 823 (bridge); Diamond Match Co. v.
Ontonagon, 188 U.S. 82, 23 S.Ct. 266, 47 L.Ed. 394; Fargo v. Hart, 193 U.S.
490, 24 S.Ct. 498, 48 L.Ed. 761; Delaware, L. & W.R. Co. v. Pennsylvania,
198 U.S. 341, 25 S.Ct. 669, 49 L.Ed. 1077; Union Refrigerator Transit Co. v.
Kentucky, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150; Thompson v. Kentucky,
209 U.S. 340, 347, 28 S.Ct. 533, 536, 52 L.Ed. 822; Gromer v. Standard
Dredging Co., 224 U.S. 362, 371372, 32 S.Ct. 499, 502, 503, 56 L.Ed. 801;
Wells, Fargo & Co. v. Nevada, 248 U.S. 165, 167, 37 S.Ct. 62, 63, 63 L.Ed.
190; Union Tank Line Co. v. Wright, 249 U.S. 275, 39 S.Ct. 276, 63 L.Ed. 602;
Frick v. Pennsylvania, 268 U.S. 473, 45 S.Ct. 603, 69 L.Ed. 1058; Treichler v.
Wisconsin, 338 U.S. 251, 70 S.Ct. 1, 94 L.Ed. 37; Standard Oil Co. v. Peck,
342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427. Whether the property is sufficiently
situated in the state to become part of the general mass of taxable property or
whether it is merely in transit is frequently treated as an interstate commerce
question rather than a jurisdictional one. E.g., Brown v. Houston, 114 U.S. 622,
632 633, 5 S.Ct. 1091, 1096, 29 L.Ed. 257; Pittsburg & Southern Coal Co. v.
Bates, 156 U.S. 577, 588589, 15 S.Ct. 415, 419, 39 L.Ed. 538; Kelley v.
Rhoads, 188 U.S. 1, 23 S.Ct. 259, 47 L.Ed. 359; General Oil Co. v. Crain, 209
U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754; Champlain Realty Co. v. Brattleboro, 260
U.S. 366, 43 S.Ct. 146, 67 L.Ed. 309. As to the situs of personalty within
various counties of a single state, see Columbus Southern R. Co. v. Wright, 151
U.S. 470, 14 S.Ct. 396, 38 L.Ed. 238.
13

Tappan v. Merchants' National Bank, 19 Wall. 490, 499 500, 22 L.Ed. 189;
Adams Express Co. v. Ohio State Auditor, 166 U.S. 185, 17 S.Ct. 604, 41
L.Ed. 965; City of New Orleans v. Stempel, 175 U.S. 309, 20 S.Ct. 110, 44
L.Ed. 174; Bristol v. Washington County, 177 U.S. 133, 20 S.Ct. 585, 44 L.Ed.
701; State Board of Assessors v. Comptoir National D'Escompte, 191 U.S. 388,
24 S.Ct. 109, 48 L.Ed. 232; Metropolitan Life Ins. Co. v. New Orleans, 205
U.S. 395, 27 S.Ct. 499, 51 L.Ed. 853; Liverpool & London & Globe Ins. Co. v.
Board of Assessors, 221 U.S. 346, 31 S.Ct. 550, 55 L.Ed. 762; Orient Ins. Co.
v. Board of Assessors, 221 U.S. 358, 31 S.Ct. 554, 55 L.Ed. 769; Wheeler v.
Sohmer, 233 U.S. 434, 34 S.Ct. 607, 58 L.Ed. 1030; Rogers v. Hennepin
County, 240 U.S. 184, 36 S.Ct. 265, 60 L.Ed. 594; State of Iowa v. Slimmer,
248 U.S. 115, 39 S.Ct. 33, 63 L.Ed. 158; Safe Deposit & Trust Co. v. Virginia,
280 U.S. 83, 50 S.Ct. 59, 74 L.Ed. 180; Com. of Virginia v. Imperial Coal Sales

Co., 293 U.S. 15, 55 S.Ct. 12, 79 L.Ed. 171; Wheeling Steel Corp. v. Fox, 298
U.S. 193, 56 S.Ct. 773, 80 L.Ed. 1143; New York ex rel. Whitney v. Graves,
299 U.S. 366, 57 S.Ct. 237, 81 L.Ed. 285; First Bank Stock Corp. v. Minnesota,
301 U.S. 234, 57 S.Ct. 677, 81 L.Ed. 1061. See Northern Cent. Railroad Co. v.
Jackson, 7 Wall. 262, 19 L.Ed. 88; Adams Express Co. v. Kentucky, 166 U.S.
171, 17 S.Ct. 527, 41 L.Ed. 960; Scottish Union & National Ins. Co. v.
Bowland, 196 U.S. 611, 619 620, 25 S.Ct. 345, 347, 49 L.Ed. 619; Buck v.
Beach, 206 U.S. 392, 27 S.Ct. 712, 51 L.Ed. 1106; Selliger v. Kentucky, 213
U.S. 200, 29 S.Ct. 449, 53 L.Ed. 761; Brooke v. City of Norfolk, 277 U.S. 27,
48 S.Ct. 422, 72 L.Ed. 767. Cf. Board of Assessors v. New York Life Ins. Co.,
216 U.S. 517, 523, 30 S.Ct. 385, 386, 54 L.Ed. 597. In some of these cases, the
property would appear to be tangible as well as intangible in nature.
14

This is generally discussed as in interstate commerce question. E.g., Bowman v.

Continental Oil Co., 256 U.S. 642, 41 S.Ct. 606, 65 L.Ed. 1139; Eastern Air
Transport, Inc., v. South Carolina Tax Comm., 285 U.S. 147, 52 S.Ct. 340, 76
L.Ed. 673; Gregg Dyeing Co. v. Query, 286 U.S. 472, 52 S.Ct. 631, 76 L.Ed.
1232; Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77
L.Ed. 730; Edelman v. Boeing Air Transport, Inc., 289 U.S. 249, 53 S.Ct. 591,
77 L.Ed. 1155; Monamotor Oil Co. v. Johnson, 292 U.S. 86, 54 S.Ct. 575, 78
L.Ed. 1141; Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81
L.Ed. 814. See also footnote 20.

15

People of State of New York ex rel. Hatch v. Reardon, 204 U.S. 152, 158
159, 27 S.Ct. 188, 189190, 51 L.Ed. 415. See Department of Treasury v.
Wood Preserving Corp., 313 U.S. 62, 61 S.Ct. 885, 85 L.Ed. 1188; McLeod v.
J. E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304; Cf. Sonneborn
Bros. v. Cureton, 262 U.S. 506, 43 S.Ct. 643, 67 L.Ed. 1095; Graniteville Mfg.
Co. v. Query, 283 U.S. 376, 51 S.Ct. 515, 76 L.Ed. 1126 (creation of
promissory notes). See also footnote 19.

16

Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222; Interstate Busses
Corp. v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed. 551; Continental
Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155; Hicklin v.
Coney, 290 U.S. 169, 54 S.Ct. 142, 78 L.Ed. 247. See Hendrick v. Maryland,
235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385; Clark v. Poor, 274 U.S. 554, 47 S.Ct.
702, 71 L.Ed. 1199; Cf. Sprout v. South Bend, 277 U.S. 163, 48 S.Ct. 502, 72
L.Ed. 833; Interstate Transit, Inc., v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75
L.Ed. 953; Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001;
Bode v. Barrett, 344 U.S. 583, 73 S.Ct. 468, 97 L.Ed. 567.

17

Society for Savings v. Coite, 6 Wall. 594, 607, 18 L.Ed. 897; In re Delaware

Railroad Tax, 18 Wall. 206, 231, 21 L.Ed. 888; Henderson Bridge Co. v.
Kentucky, 166 U.S. 150, 17 S.Ct. 532, 41 L.Ed. 953; Corry v. Mayor and
Council of Baltimore, 196 U.S. 466, 25 S.Ct. 297, 49 L.Ed. 556; Ayer & Lord
Tie Co. v. Kentucky, 202 U.S. 409, 26 S.Ct. 679, 50 L.Ed. 1082; People of
State of New York ex rel. New York C. & H.R.R. Co. v. Miller, 202 U.S. 584,
26 S.Ct. 714, 50 L.Ed. 1155; Southern Pacific Co. v. Kentucky, 222 U.S. 63, 32
S.Ct. 13, 56 L.Ed. 96; Kansas City Ft. S. & M.R. Co. v. Botkin, 240 U.S. 227,
232, 235, 36 S.Ct. 261, 262, 263, 60 L.Ed. 617; Kansas City, M. & B.R. Co. v.
Stiles, 242 U.S. 111, 118119, 37 S.Ct. 58, 6061, 61 L.Ed. 176; Cream of
Wheat Co. v. County of Grand Forks, 253 U.S. 325, 40 S.Ct. 558, 64 L.Ed.
931; Schwab v. Richardson, 263 U.S. 88, 44 S.Ct. 60, 68 L.Ed. 183; Matson
Navigation Co. v. State Board of Equalization, 297 U.S. 441, 56 S.Ct. 553, 80
L.Ed. 791; Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506, 514516, 58
S.Ct. 295, 299, 82 L.Ed. 392; Newark Fire Ins. Co. v. State Board of Tax
Appeals, 307 U.S. 313, 59 S.Ct. 918, 83 L.Ed. 1312; Northwest Airlines, Inc. v.
Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283. See Baker v. Baker,
Eccles & Co., 242 U.S. 394, 400 401, 37 S.Ct. 152, 154, 61 L.Ed. 386;
Maxwell v. Bugbee, 250 U.S. 525, 539540, 40 S.Ct. 2, 6, 63 L.Ed. 1124;
State Tax Comm. v. Aldrich, 316 U.S. 174, 62 S.Ct. 1008, 86 L.Ed. 1358. In
many of these cases the company was also doing business in the state of
incorporation.
18

State Railroad Tax Cases (Taylor v. Secor), 92 U.S. 575, 603, 23 L.Ed. 663;
Horn Silver Mining Co. v. New York, 143 U.S. 305, 12 S.Ct. 403, 36 L.Ed.
164; Baltic Mining Co. v. Massachusetts, 231 U.S. 68, 34 S.Ct. 15, 58 L.Ed.
127; St. Louis Southwestern R. Co. v. Arkansas, 235 U.S. 350, 364, 35 S.Ct.
99, 103, 59 L.Ed. 265; Equitable Life Assurance Society v. Pennsylvania, 238
U.S. 143, 35 S.Ct. 829, 59 L.Ed. 1239; Underwood Typewriter Co. v.
Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165; Pullman Co. v.
Richardson, 261 U.S. 330, 43 S.Ct. 366, 67 L.Ed. 682; Bass, Ratcliff &
Gretton, Ltd. v. State Tax Comm., 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282;
Great Northern R. Co. v. Minnesota, 278 U.S. 503, 49 S.Ct. 191, 73 L.Ed. 477;
Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 424427, 57 S.Ct.
772, 776778, 81 L.Ed. 1193; Atlantic Refining Co. v. Virginia, 302 U.S. 22,
2931, 58 S.Ct. 75, 7879, 82 L.Ed. 24; Illinois Central R. Co. v. Minnesota,
309 U.S. 157, 60 S.Ct. 419, 84 L.Ed. 670; State of Wisconsin v. J. C. Penney
Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267; International Harvester Co. v.
Wisconsin Department of Taxation, 322 U.S. 435, 64 S.Ct. 1060, 88 L.Ed.
1373; International Harvester Co. v. Evatt, 329 U.S. 416, 420421, 67 S.Ct.
444, 446, 91 L.Ed. 390; Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 667
668, 69 S.Ct. 1264, 1266, 1267, 93 L.Ed. 1613. See Erie R. Co. v.
Pennsylvania, 21 Wall. 492, 22 L.Ed. 595; Western Union Telegraph Co. v.

Attorney General, 125 U.S. 530, 548, 8 S.Ct. 961, 963, 31 L.Ed. 790; State of
Maine v. Grand Trunk R. Co., 142 U.S. 217, 227228, 12 S.Ct. 121, 122, 35
L.Ed. 994; Central Pacific R. Co. v. California, 162 U.S. 91, 126, 16 S.Ct. 766,
779, 40 L.Ed. 903; Western Union Telegraph Co. v. Missouri ex rel. Gottlieb,
190 U.S. 412, 23 S.Ct. 730, 47 L.Ed. 1116; Western Union Telegraph Co. v.
State of Kansas ex rel. Coleman, 216 U.S. 1, 30, 38, 30 S.Ct. 190, 198, 202, 54
L.Ed. 355; Pullman Co. v. State of Kansas ex rel. Coleman, 216 U.S. 56, 61 63,
30 S.Ct. 232, 234235, 54 L.Ed. 378; Ludwig v. Western Union Telegraph
Co., 216 U.S. 146, 162163, 30 S.Ct. 280, 285, 54 L.Ed. 423; Atchison, T. &
S.F.R. Co. v. O'Connor, 223 U.S. 280, 285, 32 S.Ct. 216, 217, 56 L.Ed. 436;
Provident Savings Life Assurance Society v. Kentucky, 239 U.S. 103, 36 S.Ct.
34, 60 L.Ed. 167; Looney v. Crane Co., 245 U.S. 178, 187188, 38 S.Ct. 85,
86, 87, 62 L.Ed. 230; International Paper Co. v. Massachusetts, 246 U.S. 135,
38 S.Ct. 292, 62 L.Ed. 624; Wallace v. Hines, 253 U.S. 66, 40 S.Ct. 435, 64
L.Ed. 782; Southern R. Co. v. Watts, 260 U.S. 519, 527, 43 S.Ct. 192, 195, 67
L.Ed. 375; Baker v. Druesedow, 263 U.S. 137, 44 S.Ct. 40, 68 L.Ed. 212; AirWay Electric Appliance Corp. v. Day, 266 U.S. 71, 8182, 45 S.Ct. 12, 14, 69
L.Ed. 169; Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 217
218, 45 S.Ct. 477, 480, 481, 69 L.Ed. 916; Rhode Island Hospital Trust Co. v.
Doughton, 270 U.S. 69, 46 S.Ct. 256, 70 L.Ed. 475; Hans Ress' Sons, Inc., v.
North Carolina ex rel. Maxwell, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879;
Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 58 S.Ct. 436, 82
L.Ed. 673; Wisconsin Gas & Electric Co. v. United States, 322 U.S. 526, 530
531, 64 S.Ct. 1106, 1108, 1109, 88 L.Ed. 1434. Cf. Armour & Co. v. Com. of
Virginia, 246 U.S. 1, 38 S.Ct. 267, 62 L.Ed. 547; St. Louis & E. St. L.E.R. Co.
v. Missouri, 256 U.S. 314, 318, 41 S.Ct. 488, 489, 65 L.Ed. 946; Rowley v.
Chicago & Northwestern R. Co., 293 U.S. 102, 55 S.Ct. 55, 79 L.Ed. 222;
James v. Dravo Contracting Co., 302 U.S. 134, 138140, 58 S.Ct. 208, 211,
212, 82 L.Ed. 155; Nippert v. Richmond, 327 U.S. 416, 423424, 66 S.Ct.
586, 589, 590, 90 L.Ed. 760. The same principle applies to individuals engaged
in business within the state. Ficklen v. Taxing Dist. of Shelby County Taxing
District, 145 U.S. 1, 12 S.Ct. 810, 36 L.Ed. 601; Shaffer v. Carter, 252 U.S. 37,
40 S.Ct. 221, 64 L.Ed. 445; Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 40
S.Ct. 228, 64 L.Ed. 460. See also Haavik v. Alaska Packers Ass'n, 263 U.S.
510, 44 S.Ct. 177, 68 L.Ed. 414, where license and poll taxes were imposed on
an individual who was working in Alaska but was not a resident or domiciliary
there.
19

Compare Norton Co. v. Department of Revenue, 340 U.S. 534, 71 S.Ct. 377, 95
L.Ed. 517, with International Harvester Co. v. Department of Treasury, 322
U.S. 340, 64 S.Ct. 1030, 88 L.Ed. 1313; McGoldrick v. Berwind-White Coal
Mining Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565; and McGoldrick v. Felt &

Tarrant Mfg. Co., 309 U.S. 70, 60 S.Ct. 404, 84 L.Ed. 584.
20

Compare Southern Pacific Co. v. Gallagher, 306 U.S. 167, 180181, 59 S.Ct.
389, 395, 83 L.Ed. 586, with General Trading Co. v. State Tax Comm., 322
U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309; Nelson v. Sears, Roebuck & Co., 312
U.S. 359, 61 S.Ct. 586, 85 L.Ed. 888; Nelson v. Montgomery Ward & Co., 312
U.S. 373, 61 S.Ct. 593, 85 L.Ed. 897, and Felt & Tarrant Mfg. Co. v.
Gallagher, 306 U.S. 62, 59 S.Ct. 376, 83 L.Ed. 488.

51

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice
BLACK and Mr. Justice CLARK, concur, dissenting.

52

The States have been increasingly turning to sales and use taxes to raise the
revenues they need to educate, protect, and serve their growing number of
citizens. Unless the States can collect a sales or use tax upon goods being
purchased out-of-state, there is a fertile opportunity for the citizen who wants
state benefits without paying taxes to buy out-of-state. And there are justacross-the-state-line merchants who capitalize upon this opportunity. After
today's decision there will be more.

53

I see no constitutional difficulty in making appellant a tax collector for

Maryland under the general principles announced in General Trading Co. v.
Tax Commission, 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309. When
appellant's sales clerks make out the sales slips and arrange for the shipment of
the purchased goods, they surely will know which are destined for Maryland,
which for some other State. Hence to make appellant add the Maryland use tax
to the bill when the purchaser requests that the goods be shipped to Maryland is
only a minimal burden. Appellant will be paid for its trouble.1 If liability were
sought to be imposed under circumstances indicating that appellant had been
taken by surprise or treated unfairly, different considerations would come into
play. But appellant in this case pleads immunity, not ignorance of the Maryland
law nor harshness in its application.

54

This is not a case of a minimal contact between a vendor and the collecting
State. Appellant did not sell cash-and-carry without knowledge of the
destination of the goods; and its delivery truck was not in Maryland upon a
casual, non-recurring visit. Rather there has been a course of conduct in which
the appellant has regularly injected advertising into media reaching Maryland
consumers and regularly effected deliveries within Maryland by its own
delivery trucks and by common carriers.2

55

Jurisdiction over appellant in this suit was obtained when its motor vehicle was
attached while it was being used in Maryland. Pennoyer v. Neff, 95 U.S. 714,
24 L.Ed. 565; Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837. If
appellant chooses to keep out of Maryland entirely, then the Maryland courts
will of course have no jurisdiction over it. But as long as appellant chooses to
do some business there, I see nothing in the Due Process Clause which would
prevent Maryland from making it a collector for taxes on sales which appellant
knows are destined for Maryland homes.

All footnotes to this opinion are carried in an Appendix. [Page 347].

APPENDIX TO OPINION OF THE COURT

The statute reads: 'An excise tax is hereby levied and imposed on the use,
storage or consumption in this State of tangible personal property purchased
from a vendor within or without this State on or after the effective date of this
Act, for use, storage or consumption within this State. The tax imposed by this
section shall be paid by the purchaser and shall be computed as follows: * * *.'
Flack's Md.Ann.Code, 1951, Art. 81, 369.

'Every vendor engaging in business in this State and making sales of tangible
personal property for use, storage or consumption in this State which are
taxable under the provisions of this sub-title, at the time of making such sales,
or if the use, storage or consumption is not then taxable hereunder, at the time
when such use, storage or

The Maryland statute provides that the vendor-collector may retain 3 percent of
the gross tax as compensation for collection and remittance expenses. Flack's
Md.Ann.Code, 1951, Art. 81, 384.

The parties stipulated that appellant advertises in Maryland, both by Delaware

newspapers which circulate across the state line and by direct mail to Maryland
customers. It was also stipulated that, over a four-and-a-half year period, at
least $12,000 worth of merchandise was sold by appellant to Maryland
purchasers for Maryland use. Approximately two-thirds of this merchandise
was delivered by appellant to its Maryland customers in a motor vehicle owned
and operated by appellant.