Montgomery Ward & Co., Inc. v. Roddewig

• Decision Date: 14 May 1940
• Docket Number: 44963.
• Citation: 292 N.W. 142,228 Iowa 1301
• Parties: MONTGOMERY WARD & CO., Inc., v. RODDEWIG et al., State Board of Assessment and Review.
• Court: Iowa Supreme Court

292 N.W. 142

228 Iowa 1301

MONTGOMERY WARD & CO., Inc., v. RODDEWIG et al., State Board of Assessment and Review.

No. 44963.

Supreme Court of Iowa.

May 14, 1940

HAMILTON, C. J., and MITCHELL, RICHARDS, and STIGER, JJ dissenting.

Appeal from District Court, Polk County; John J. Halloran, Judge.

Suit in equity to enjoin defendants, as members of the State Board of Assessment and Review, from undertaking to cancel plaintiff's permit to do business in Iowa for failure to pay a use tax on mail order sales and retail sales made by plaintiff outside of Iowa. The court granted the injunction. Defendants appeal.

Affirmed.

Fred D. Everett, Atty. Gen., and John E. Mulroney, Asst. Atty Gen., for appellants.

Stuart Ball, of Chicago, Ill., H. W. Bancroft, of New York City, and Parrish, Guthrie, Colflesh & O'Brien, J. L. Parrish, Jr. and Maxwell A. O'Brien, all of Des Moines, for appellee.

MILLER, Justice.

Some of the questions presented in this case are identical with those presented for our determination in the case of Sears, Roebuck & Co. v. Roddewig, et al., Iowa, 292 N.W. 130, decided at this term. The decree appealed from ordered the same type of an injunction as was involved in that case. For the reasons there stated, the decree must be affirmed in all particulars where the two cases are identical.

One question is presented by the record herein which was not presented in the Sears, Roebuck & Co. case. That question is whether the plaintiff can be required to collect the use tax on sales made in retail 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, where the purchaser is a resident of Iowa and purchases the property for use in this state. The court enjoined the defendants from undertaking to require plaintiff to collect a use tax on such sales. The position there taken by us in the Sears, Roebuck & Co. case demonstrates that the action of the court was right.

Accordingly, the decree appealed from, in all of its particulars, must be and it is affirmed.

SAGER, HALE, BLISS, and OLIVER, JJ., concur.

HAMILTON C. J., and MITCHELL, RICHARDS, and STIGER, JJ., dissent.

HAMILTON, Chief Justice (dissenting).

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 & Company v. Louis E. Roddewig et al., opinion in which case was handed down at this period of our court, 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...