Despite the interstate character of a great many purchases and sales of stock made through the out-of-State brokers on the New York stock exchanges, the imposition of New York's stock transfer tax has survived attack under the Commerce Clause.

"The guiding principle which limits the power of the States to tax is that the several States of the Union may not discriminate against interstate commerce in favor of intrastate commerce

Nor is it necessary for us to consider the power of California, the state of the seller, to tax interstate commerce.

Thirty-three years later, the New York Court of Appeals held, in a 4-3 decision, that the transfer tax did not violate the Commerce Clause.

Held (three justices dissenting), the sales tax did not burden interstate commerce within the meaning of the commerce clause of the Federal Constitution.

We think it unnecessary to explain at greater length the reasons for our opinion that the petitioner has suffered no unconstitutional wrong. Order affirmed. 2 2

—the tax was imposed on the sellers by the state in which they did business, but the sales were negotiated and consummated by communications and transmission of stock certificates between that state and another state and the District of Columbia, where the respective buyers were domiciled and did business; in at least some of, and possibly in all, the transactions …

The New York statute imposed a tax upon any seller with respect to "all sales, or agreements to sell, or memoranda of sales and all deliveries or transfers of shares."

This does not exclude the case in which the challenge is only to the constitutionality of a statute as applied

Ill L Rev 36: 727-46 Mr'42 State taxation, stock transfer tax levied by seller's state on agreement looking to interstate sale held constitutional