Arthur Goldberg

“ Department of Revenue, supra, reflect an attempt to adhere to the basic purposes of the Commerce Clause. Therefore, in dealing with unapportioned taxes on interstate sales, I would adhere to the Norton rules instead of departing from them by adopting a standard of 'fairness.' I would hold that a manufacturer or wholesaler making interstate sales is not subject to a state gross receipts tax merely because those sales were solicited or processed by agents living or traveling in the taxing State. ”

“ The immunities implicit in the Commerce Clause and the potential taxing power of a State can hardly be made to depend, in the world of practical affairs, on the shifting incidence of the varying tax laws of the various States at a particular moment. Courts are not possessed of instruments of determination so delicate as to enable them to weigh the various factors in a complicated economic setting which, as to an isolated application of a State tax, might mitigate the obvious burden generally created by a direct tax on commerce.'↑ See note 1, supra.↑ Cf. ”

“ The Illinois tax was imposed upon all receipts obtained by Norton from sales to Illinois residents regardless of whether those sales were associated or connected with the local office and warehouse which was conducting intrastate business. The Court stated that when, 'as here, the corporation has gone into the State to do local business,' the firm could be exempted from taxation on sales 'only by' sustaining the burden of 'showing that the particular transactions are dissociated from the local business and interstate in nature.' Id., 340 U.S. at 537, 71 S.Ct. ”

“ In the same chapter Washington imposes a 'tax on manufacturers' which similarly provides that every person 'engaging within this state in business as a manufacturer' shall pay a tax on such business 'equal to the value of the products * * * manufactured, multiplied by the rate of one-quarter of one per cent.' Rev.Code Wash. ”

“ A State is also precluded from taking any action which may fairly be deemed to have the effect of impeding the free flow of trade between States. It is immaterial that local commerce is subjected to a similar encumbrance.' Freeman v. ”

“ The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.' See H. P. Hood & Sons, Inc., v. ”

“ Du Mond, 336 U.S. 525, 538, 69 S.Ct. 657, 93 L.Ed. 865 to create a 'federal free trade unit'-a common national market among the States; and the Constitution thereby precludes a State from defending a tax on interstate sales on the ground that the State taxes intrastate sales generally. Nondiscrimination alone is no basis for burdening the flow of interstate commerce. The Commerce Clause 'does not merely forbid a State to single out interstate commerce for hostile action. ”

“ With respect to the transactions in category (2) (General Motors Parts Division Sales) , it appears that the offices and warehouses operated by the Parts Division in Seattle, Washington, and in Portland, Oregon, create a situation strikingly similar to that in Norton where the Massachusetts firm maintained an outlet in Chicago, Illinois. ”