Lead Opinion
delivered the opinion of the Court.
This is a companion case to McGoldrick v. Berwind-White Coal Mining Co., ante, p. 33, brought here to review a judgment of the New York State Supreme Court that the, New York City tax laid upon sales of goods for consumption, is an unconstitutional burden on interstate commerce.
Upon certiorari to review a determination by the Comptroller of the City of New York that respondent was subject to a New York City tax upon salеs to it of fuel oil in 1934 and 1935, the Appellate Division of the New York Supreme Court held that the taxing statute as applied did so infringe.
The relevant provisions of the taxing act are set out in’our opinion in the Berwind-White Coal Mining Company case, and need not be repеated here. The Appellate Division found facts not challenged here as follows: Appellant, a corporation of the Republic of France, owns' vеssels and operates them in the transportation of pas
The oil thus transported and delivered to respondent was of two types. One, “bonded fuel oil,” is refined oil imported by the Standard Oil Company from foreign countries and stored in bond in New Jersey without payment of import duties, pursuant to the revenue laws of the-United States which authorize release from the bond upon delivery of the oil to a forеign steamship for export or use as fuel by the vessel. The other type, known as “drawback oil,” is the product of crude oil imported from foreign countries by the Standard Oil Cоmpany and refined at its New Jersey plant. An import duty is paid upon the oil, but upon delivery of the refined oil to a foreign steamship for export, or for use as fuel on thе vessel, the importer is entitled under the revenue laws to a refund or drawback on the duty paid. 19 U. S. C. §§ 1309, 1313, 46 Stat. 690. 693.
So far as- the validity of the tax with respect to the interstate commerce is concerned, our decision sustaining it in the Berwind-White Coal Mining Company case is controlling, and the judgment must be reversed, unless
Respondent’s petition to the New York Supreme Court to review the determination of thе Comptroller set out that the tax “was assessed upon the purchase price paid on transactions in interstate and foreign commerce” and that the City was “without power to impose said tax on said transactions by virtue of the provisions of the Constitution and the laws of the United States,” specifying the commerce clause аnd Article I, § 10, Clause 2, prohibiting “imposts or duties on imports or exports.” No mention was made of any applicable statute of the United States.
Respondent’s brief and argumеnt here advance as reasons in support of the judgment of the state court in its favor that the bonded oil and drawback oil, at the time of delivery to respondent, retained their character as imports, and that they were then in process of being exported, so that the tax imposed upon the delivery to the purchaser is а prohibited impost or duty on imports and exports.
Respondent concedes by its brief that the contentions it now makes were not argued in the New York Court of Appeals, and does not deny petitioner’s assertion here that respondent stated in its brief in the Appellate Division, “The court need give no attention to them,” and that by its brief in the Cоurt of Appeals respondent explicitly limited its presentation of the case to the interstate commerce point. Whether, under the practice of thе Court of Appeals, respondent was in the circumstances free to ask decision of these questions there, we are not advised. But in any event the record does not disclose that they were presented to the Court’of Appeals, the highest court of the state in which decision could have been had whose decision we rеview, and it shows
By virtue of the petition for certiorari addressed to the constitutional question which the state court decided, this Court has jurisdiction of the cause. And respondent, in urging decision here of the constitutional questions not pressed in the stаte court, relies on the familiar rule of appellate court procedure in federal courts that, without a cross-petition or appeal, a resрondent or appellee may support the judgment in his favor upon grounds, different from those upon which the court below rested its decision. United States v. American Railway Express Co.,
But it is also the settled practice of this Court, in the exercise of its appellate jurisdiction, that it is only in exceptional cases, and theti only in cases coming 'from the federal courts, that it сonsiders questionsmrged by a petitioner or appellant not pressed or passed upon in the courts below. Blair v. Oesterlein Co.,
Like сonsiderations, we think, require us -to refuse to entertain such new grounds of attack as a support for a state judgment of invalidity based on an erroneous construction of the Constitution. In the exercise of our appellate jurisdiction to review the action of state courts we should hold ourselves free to set aside or revise their determinations only so far as they are erroneous and error is not to be predicated upon their failure to decide questions not presented. Similarly their errоneous judgments of unconstitutionality should not be affirmed here on constitutional grounds which suitors have failed tc urge before them, or which, in the course of proceedings thеre, have been abandoned.
Upon the remand of this cause for further proceedings not inconsistent with this opinion, the sthte courts will be free to decide any federal question remaining undecided here which, in conformity with their own procedure, may be raised for decision there, and the remand will be without prejudice to the further prеsentation of any such question to this Court.
Reversed.
Concurrence Opinion
concur in the view that the questions relating to foreign commerce are not properly before us in this case, but think that the judgment of the state court, holding that the tax as here laid places an unconstitutional burden upon interstate commerce, should be affirmed upon the grounds stated in the dissenting opinion in McGoldrick v. Berwind-White Coal Mining Co., ante, p. 59.