Montgomery Ward Co. v. Roddewig , 228 Iowa 1301 ( 1940 )

Being unable to agree with the majority opinion in so far as it pertains to mail-order business, I respectfully dissent. My views are expressed in my dissenting opinion filed in the companion case, Sears Roebuck Co. v. Roddewig, 228 Iowa 1273, 292 N.W. 130.

There is, however, still another type of business carried on by appellee herein which was not involved or presented by the record in the Sears, Roebuck Company case, and which is of little consequence, yet, under the issues, requires consideration and determination, namely, business or sales made direct to Iowa customers by appellee in its stores located near, but outside, the boundaries of the state of Iowa, some of which are located at Austin, Minnesota, Maryville, Missouri, Nebraska City, Nebraska, Sioux Falls, South Dakota, and Moline, Illinois. The quantity of business transacted by appellee with Iowa customers at these various stores is not found in the record, but, of course, is inconsequential as compared with "mail-order business". Some of these sales are made direct and are over-the-counter transactions and, as to such sales, the appellee has no feasible way of knowing or ascertaining where the customer lives or where he is going to make use of the merchandise purchased. A person living in Iowa might purchase articles for use in Iowa from the stores located out of the state named above or at some of appellee's stores located in any state in the Union; the user in Iowa would, of course, be liable for the tax, but to require the appellee to know or ascertain, and segregate from its millions of customers which ones were from Iowa and require appellee to collect and remit the tax on such sales is to impose upon appellee an almost impossible task and imposes upon the seller a burden so unreasonable, arbitrary, and capricious as to invade its constitutional rights under the due process clause of the federal constitution and, therefore, requires the court to hold that, as to such sales, the regulatory requirements of the Use Tax Act, requiring the seller to collect the tax, is invalid and, hence, not enforceable against appellee, and, in this respect and as to such sales, the restraining order of the trial court should be upheld, but, in all other respects, the decree of the trial court should, we think, be reversed.

STIGER and RICHARDS, JJ., join in this dissent.