Nippert v. City of Richmond/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice MURPHY concurs, dissenting.

The Court has not shared the doubts which some of us have had concerning the propriety of the judiciary acting to nullify state legislation on the ground that it burdens interstate commerce. See Southern Pacific Co. v. Arizona, 325 U.S. 761, 784, 795, 65 S.Ct. 1515, 1527, 1532, dissenting opinions. But the policy of the Court is firmly established to the contrary.

Even in that view, however, this judgment should not be reversed. The Court has held drummer taxes unconstitutional where they were discriminatory on their face or where it appeared that necessarily or in practical operation they worked to the disadvantage of interstate commerce. See McGoldrick v. Berwind-White Co., 309 U.S. 33, 45, 46, note 2, 60 S.Ct. 388, 391, 392, 84 L.Ed. 565, 128 A.L.R. 876. But the present ordinance on its face seems to reflect no more than a bona fide effort to make interstate commerce pay its way. Western Live Stock Co. v. Bureau of Revenue, 303 U.S. 250, 254, 58 S.Ct. 546, 548, 82 L.Ed. 823, 115 A.L.R. 944. It treats a solicitor for a Virginia manufacturer exactly the same as it treats solicitors for manufacturers located in other States. Under this type of tax, the solicitor for a Virginia manufacturer pays as much as Nippert, whether he confines himself to one locality or works his way through the State.

In that view a grant of immunity to Nippert is the grant of a preference to interstate commerce.

The problem, however, does not end there. Best & Co. v. Maxwell, 311 U.S. 454, 61 S.Ct. 334, 85 L.Ed. 275. In that case, a North Carolina tax on those who displayed goods in any hotel room or temporary office in order to obtain retail orders was applicable to solicitors representing local as well as out-of-state distributors. We held that that parity of treatment did not save the tax. We said that the tax must be compared with the tax on the local retail merchants-the 'real competitors' of the out-of-state solicitor. Finding that the tax on the local retail merchants was lighter, we held that that tax discriminated against the out-of-state solicitor and was therefore invalid.

In the present case the tax on Nippert may or may not, in practical operation, work to the disadvantage of this interstate business. It would be one thing if Nippert's business took her from town to town throughout the State. But so far as we know, Nippert may be a resident of Richmond working exclusively there, full or part time. In that event, we could not determine the issue of discrimination without knowing what taxes the retail merchants in Richmond must pay. If the facts were known, it might appear that the tax, now struck down, in fact resulted in parity of treatment between Nippert and her local competitors. The record does not enlighten us on any these matters.

I think that one who complains that a state tax, though not discriminatory on its face, discriminates against interstate commerce in its actual operation should be required to come forward with proof to sustain the charge. See Southern Railway Co. v. King, 217 U.S. 524, 534-537, 30 S.Ct. 594, 596, 597, 54 L.Ed. 868. This does not, of course, require proof of the obvious. But as Mr. Justice Brandeis pointed out, cases of this type should not be decided on the basis of speculation; the special facts and circumstances will often be decisive. City of Hammond v. Schappi Bus Line, 275 U.S. 164, 170-172, 48 S.Ct. 66, 68, 69, 72 L.Ed. 218. Without evidence and findings we frequently can have no 'sure basis' for the informed judgment that is necessary for decision. Terminal Railroad Assoc. v. Brotherhood, 318 U.S. 1, 8, 63 S.Ct. 420, 424, 87 L.Ed. 571. That seems to me to be the case here. Proof should be required to overcome the presumptive validity of this local legislation as applied to Nippert.