WISCONSIN DEPARTMENT OF REVENUE v. WILLIAM WRIGLEY, JR., CO.
No. 91-119
Supreme Court of the United States
Argued January 22, 1992—Decided June 19, 1992
505 U.S. 214
F. Thomas Creeron III, Assistant Attorney General of Wisconsin, argued the cause for petitioner. With him on the briefs was James E. Doyle, Attorney General.
E. Barrett Prettyman, Jr., argued the cause for respondent. With him on the brief were André M. Saltoun, H. Randolph Williams, Barbara J. Janaszek, and Richard J. Sankovitz.*
*Briefs of amici curiae urging reversal were filed for the State of Iowa et al. by Bonnie J. Campbell, Attorney General of Iowa, Harry M. Griger, Special Assistant Attorney General, and Marcia Mason, Assistant Attorney
Briefs of amici curiae urging affirmance were filed for the Committee on State Taxation of the Council of State Chambers of Commerce by Amy Eisenstadt and Paul H. Frankel; and for the Direct Selling Association by Mario Brossi, Joseph N. Mariano, M. Douglas Adkins, Neil J. O‘Brien, and Camille R. Comeau.
JUSTICE SCALIA delivered the opinion of the Court.
Section 101(a) of Public Law 86-272, 73 Stat. 555,
I
Respondent William Wrigley, Jr., Co., is the world‘s largest manufacturer of chewing gum. Based in Chicago, it sells gum nationwide through a marketing system that divides the country into districts, regions, and territories. During the relevant period (1973-1978), the midwestern district included а Milwaukee region, covering most of Wisconsin and
The district manager for the midwestern district had his residence and company office in Illinois, and visited Wisconsin only six to nine days each year, usually for a sales meeting or to call on a particularly important account. The regional manager of the Milwaukee region resided in Wisconsin, but Wrigley did not provide him with a company office. He had general responsibility for sales activities in the region, and would typically spend 80-to-95% of his time working with the sales representatives in the field or contacting certain “key” accounts. The remainder of his time was devoted to administrative activities, including writing and reviewing company reports, recruiting new sales representatives, making recommendations to the district manager concerning the hiring, firing, and compensation of sales representatives, and evaluating their performance. He would preside at full-day sales strategy meetings for all regional sales representatives once or twice a year. The manager from 1973 to 1976, John Kroyer, generally held thesе meetings in the “office” he maintained in the basement of his home, whereas his successor, Gary Hecht, usually held them at a hotel or motel. (Kroyer claimed income tax deductions for this office, but Wrigley did not reimburse him for it, though it provided a filing cabinet.) Mr. Kroyer also intervened two or three times a year to help arrange a solution to credit disputes between the Chicago office and important local accounts. Mr. Hecht testified that he never engaged in such activities, although Wrigley‘s formal position description for regional sales manager continued to list as one of the assigned duties “[r]epresent[ing] the company on credit problems as necessary.”
The sales or “field” representatives in the Milwaukee region, each of whom was assigned his own territory, resided in Wisconsin. They were provided with company cars, but not with offices. They were also furnished a stock of gum
On a typical day, the sales representative would load up the company car with a supply of display racks and several cases of gum, and would visit accounts within his territory. In addition to handing out promotional materials and free samples, and directly requesting orders of Wrigley products, he would engage in a number of other activities which Wrigley asserts were designed to promote sales of its products. He would, for example, provide free display racks to retailers (perhaps several on any given day), and would seek to have these new racks, as well as pre-existing ones, prominently located. The new racks were usually filled from the retailer‘s existing stock of Wrigley gum, but it would sometimes happen—perhaps once a month—that the retailer had no Wrigley products on hand and did not want to wait until they could be ordered from the wholesaler. In that event, the rack would be filled from the stock of gum in the salesman‘s car. This gum, which would have a retail value of $15 to $20, was not provided without charge. The representative would issue an “agency stock check” to the retailer, indicating the quantity supplied; he would send a copy of this to the Chicago office or to the wholesaler, and the retailer would ultimately be billed (by the wholesaler) in the proper amount.
When visiting a retail account, Wrigley‘s sales representative would also check the retailer‘s stock of gum for freshness, and would replace stale gum at no cost to the retailer. This was a regular part of a representative‘s duties, and at any given time up to 40% of the stock of gum in his possession would be stale gum that had been removed from retail stores. After accumulating a sufficient amount of stale product, the representative either would ship it back to
Wrigley did not own or lease real property in Wisconsin, did not operate any manufacturing, training, or warehouse facility, and did not have a telephone listing or bank account. All Wisconsin orders were sent to Chicago for acceptance, and were filled by shipment through common carrier from outside the State. Credit and collection activities were similarly handled by the Chicago office. Although Wriglеy engaged in print, radio, and television advertising in Wisconsin, the purchase and placement of that advertising was managed by an independent advertising agency located in Chicago.
Wrigley had never filed tax returns or paid taxes in Wisconsin; indeed, it was not licensed to do business in that State. In 1980, petitioner Wisconsin Department of Revenue concluded that the company‘s in-state business activities during the years 1973-1978 had been sufficient to support imposition of a franchise tax, and issued a tax assessment on a percentage of the company‘s apportionable income for those years. Wrigley objected to the assessment, maintaining that its Wisconsin activities were limited to “solicitation of orders” within the meaning of
II
In Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 454 (1959), we considered Minnesota‘s imposition of a properly apportioned tax on the net income of an Iowa cement corporation whose “activities in Minnesota consisted of a regular and systematic course of solicitation of orders for the sale of its products, each order being subject to acceptance, filling and delivery by it from its plant [in Iowa].” The company‘s salesmen, operating out of a three-room office in Minneapolis rented by their employer, solicited purchases by cement dealers and by customers of cement dealers. They also received complaints about goods that had been lost or damaged in shipment, and forwarded these back to Iowa for further instructions. Id., at 454-455. The cement company‘s contacts with Minnesota were otherwise very limited; it had no bank account, real property, or warehoused merchandise in the State. We nonetheless rejected Commerce Clause and due process challenges to the tax:
“We conclude that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same.” Id., at 452.
The opinion in Northwestern States was handed down in February 1959. Less than a week later, we granted a motion to dismiss (apparently on mootness grounds) the appeal of a Louisiana Supreme Court decision that had rejected due process and Commerce Clause challenges to the imposition of state net-income taxes based on local solicitation of orders that were sent out of state for approval and shipping. Brown-Forman Distillers Corp. v. Collector of Revenue, 234 La. 651, 101 So. 2d 70 (1958), appeal dism‘d, 359 U. S. 28 (1959). That decision was particularly significant because, unlike the Iowa cement company in Northwestern States, the Kentucky liquor company in Brown-Forman did not lease (or own) any real estate in the taxing State. Rather, its activities were limited to
“the presence of ‘missionary men’ who call upon wholesale dealers [in Louisiana] and who, on occasion, accompany the salesmen of these wholesalers to assist them in obtaining a suitable display of appellant‘s merchandise at the business establishments of said retailers . . . .” 234 La., at 653-654, 101 So. 2d, at 70.
Two months later, we denied certiorari in another Louisiana case upholding the imposition of state tax on the income of an out-of-state corporation that neither leased nor owned real property in Louisiana and whose only activities in that State “consist[ed] of the regular and systematic solicitation of orders for its product by fifteen salesmen.” International Shoe Co. v. Fontenot, 236 La. 279, 280, 107 So. 2d 640 (1958), cert. denied, 359 U. S. 984 (1959).
Although our refusals to disturb the Louisiana Supreme Court‘s decisions in Brown-Forman and International Shoe did not themselves have any legal significance, see Hopfmann v. Connolly, 471 U. S. 459, 460-461 (1985); United States v. Carver, 260 U. S. 482, 490 (1923), our actions in those cases raised concerns that the broad language of Northwestern States might ultimately be read to suggest that a company whose only contacts with a State consisted of sending “drummers” or salesmen into that State could lawfully be subjected to (properly apportioned) income taxation based on the interstate sales those representatives generated. In Heublein, Inc. v. South Carolina Tax Comm‘n, 409 U. S. 275 (1972), we reviewed the history of
“‘Persons engaged in interstate commerce are in doubt as to the amount of local activities within a Statе that will be regarded as forming a sufficient connectio[n] with the State to support the imposition of a tax on net income from interstate operations and “properly apportioned” to the State.‘” Id., at 280, n. 5 (quoting S. Rep. No. 658, 86th Cong., 1st Sess., 2-3 (1959)).1
Within months after our actions in these three cases, Congress responded to the concerns that had been expressed by enacting Public Law 86-272, which established what the relevant section heading referred to as a “minimum standard” for imposition of a state net-income tax based on solicitation of interstate sales:
“No State . . . shall have power to impose, for any taxable year . . . , a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following:
“(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside thе State; and
“(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the
benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).” 73 Stat. 555,
15 U. S. C. §381(a) .
Although we have stated that
A
Wisconsin views some courts as having adopted the position that an out-of-state company forfeits its
We think, however, that would be an unreasonable reading of the text. That the statutory phrase uses the term “solicitation” in a more general sense that includes not merely the ultimate act of inviting an order but the entire process associated with the invitation is suggested by the fact that
At the other extreme, Wrigley urges that we adopt a broad interpretation of “solicitation” which it describes as having been adopted by the Wisconsin Supreme Court based on that
In any case, we do not regard respondent‘s proposed approach to be an accurate characterization of the Wisconsin Supreme Court‘s opinion. The Wisconsin court construed “solicitation of orders” to reach only those activities that are “closely associated” with solicitation, industry practice being only one factor to be considered in judging the “close[ness]” of the connection between the challenged activity and the actual requests for orders. 160 Wis. 2d, at 82, 465 N. W. 2d, at 811-812. The problem with that standard, it seems to us, is that it merely reformulates rather than answers the crucial question. “What constitutes the ‘solicitation of orders‘?” becomes “What is ‘closely related’ to a solicitation request?” This fails to provide the “[c]larity that would remove uncertainty” which we identified as the primary goal of
We proceed, therefore, to describe what we think the proper standard to be. Once it is acknowledged, as we have concluded it must be, that “solicitation of orders” covers more than what is strictly essential to making requests for purchases, the next (and perhaps the only other) clear line is the one between those activities that are entirely ancillary to requests for purchases—those that serve no independent
As we have discussed earlier, the text of the statute (the “office” exception in subsection (c)) requires one exception to this principle: Even if engaged in exclusively to facilitate requests for purchases, the maintenance of an office within the State, by the company or on its behalf, would go beyond the “solicitation of orders.” We would not make any more generalized exception to our immunity standard on the basis of the “office” provision. It seemingly represents a judgment that a company office within a State is such a significant manifestation of company “presence” that, absent a specific exemption, income taxation should always be allowed. Jantzen, Inc. v. District of Columbia, 395 A. 2d 29, 32 (D. C. 1978); see generally Hellerstein, State Taxation ¶ 6.4.
Wisconsin urges us to hold that no postsale activities can be included within the scope of covered “solicitation.” We decline to do so. Activities that take place after a sale will ordinarily not be entirely ancillary in the sense we have described, see, e. g., Miles Laboratories v. Department of Revenue, 274 Ore. 395, 400, 546 P. 2d 1081, 1083 (1976) (replacing damaged goods), but we are not prеpared to say that will invariably be true. Moreover, the presale/postsale distinction is hopelessly unworkable. Even if one disregards the confusion that may exist concerning when a sale takes place, cf. Uniform Commercial Code § 2-401, 1A U. L. A. 675 (1989), manufacturers and distributors ordinarily have ongoing relationships that involve continuous sales, making it often im-
B
The Wisconsin Supreme Court also held that a company does not necessarily forfeit its tax immunity under
Whether a particular activity is a de minimis deviation from a prescribed standard must, of course, be determined with reference to the purpose of the standard.
III
Wisconsin asserts that at least six activities performed by Wrigley within its borders went beyond the “solicitation of orders“: the replacement of stale gum by sales representatives; the supplying of gum through “agency stock checks“; the storage of gum, racks, and promotional materials; the rental of space for storage; the regional managers’ recruitment, training, and evaluation of employees; and the regional managers’ intervention in credit disputes.7 Since none of
these activities can reasonably be viewed as requests for orders covered by
We conclude that the replacement of stale gum, the supplying of gum through “agency stock checks,” and the storage of gum were not ancillary. As to the first: Wrigley would wish to attend to the replacement of spoiled product whether or not it employed a sales force. Because that activity serves an independent business function quite separate from requesting orders, it does not qualify for
The provision of gum through “agency stock checks” presents a somewhat more complicated question. It appears from the record that this activity occurred only in connection with the furnishing of display racks to retailers, so that it was arguably ancillary to a form of consumer solicitation.
By contrast, Wrigley‘s in-state recruitment, training, and evaluation of sales representatives and its use of hotels and homes for sales-related meetings served no purpose apart from their role in facilitating solicitation. The same must be said of the instances in which Wrigley‘s regional sales manager contacted the Chicago office about “rather nasty” credit disputes involving important accounts in order to “get the account and [Wrigley‘s] credit department communicat
Finally, Wrigley argues that thе various nonimmune activities, considered singly or together, are de minimis. In particular, Wrigley emphasizes that the gum sales through “agency stock checks” accounted for only 0.00007% of Wrigley‘s annual Wisconsin sales, and in absolute terms amounted to only several hundred dollars a year. We need not decide whether any of the nonimmune activities was de minimis in isolation; taken together, they clearly are not. Wrigley‘s sales representatives exchanged stale gum, as a matter of regular company policy, on a continuing basis, and Wrigley maintained a stock of gum worth several thousand dollars in the State for this purpose, as well as for the less frequently pursued (but equally unprotected) purpose of selling gum through “agency stock checks.” Although the relative magnitude of these activities was not large compared to Wrigley‘s other operations in Wisconsin, we have little difficulty concluding that they constituted a nontrivial additional connection with the State. Because Wrigley‘s business activities within Wisconsin were not limited to those specified in
*
*
*
Accordingly, the judgment of thе Supreme Court of Wisconsin is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
I join Parts I and II of the Court‘s opinion. I do not agree, however, that the replacement of stale gum served an independent business function. The replacement of stale gum by the sales representatives was part of ensuring the product was available to the public in a form that may be purchased. Making sure that one‘s product is available and properly displayed serves no independent business function apart from requesting purchases; one cannot offer a product for sale if it is not available. I agree, however, that the storage of gum in the State and the use of agency stock checks were not ancillary to solicitation and were not de minimis. On that basis, I would hold that Wrigley‘s income is subject to taxation by Wisconsin.
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE BLACKMUN join, dissenting.
Congress prohibits the States from imposing taxes on income derived from “business activities” in interstate commerce and limited to the “solicitation of orders” under certain conditions.
The Court is correct, in my view, to reject the two polar arguments urged upon us: one, that ordinary and necessary business activities surrounding the solicitation of orders are
I begin with the statute.
“No State, or political subdivision thereof, shall have power to impose, for any taxable year ending after September 14, 1959, a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following:
“(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and
“(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customеr to fill orders resulting from such solicitation are orders described in paragraph (1).”
15 U.S. C. § 381(a) .
The textual implication I find draws support from legal and historical context. Even those who approach legislative history with much trepidation must acknowledge that the statute was a response to three specific court decisions: Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450 (1959), International Shoe Co. v. Fontenot, 236 La. 279, 107 So. 2d 640 (1958), cert. denied, 359 U. S. 984 (1959), and Brown-Forman Distillers Corp. v. Collector of Revenue, 234 La. 651, 101 So. 2d 70 (1958), appeal dism‘d, 359 U. S. 28 (1959). S. Rep. No. 658, 86th Cong., 1st Sess., 2-3 (1959) (hereinafter S. Rep.); H. R. Rep. No. 936, 86th Cong., 1st Sess., 1-2 (1959) (hereinafter H. R. Rep.). See ante, at 220-223, and n. 1. These decisions departed from what had been perceived as a well-settled rule, stated in Norton Co. v. Department of Revenue of Ill., 340 U. S. 534 (1951), that solicitation in interstate commerce was protected from taxation in the State where the solicitation took place.
“Where a corporation chooses to stay at home in all respects except to send abroad advertising or drummers to solicit orders which are sent directly to the home office for acceptance, filling, and delivery back to the buyer, it is obvious that the State of the buyer has no local grip on the seller. Unless some local incident oc
curs sufficient to bring the transaction within its taxing power, the vendor is not taxable.” Id., at 537.
Firm expectations within the business community were built upon the rule as restated in Norton. Companies engaging in interstate commerce conformed their activities to the limits our cases seemed to have endorsed. To be sure, the decision to stay at home might have derived in some respects from independent business concerns. The expense and commitment of an in-state sales office, for example, might have informed a decision to send salesmen into a State without further staff support. Some interstate operations, though, carried the unmistakable mark of a legal, rather than business, justification. The technical requirement that orders be approved at the home office, unless approval required judgment or expertise (for example, if the order depended on an ancillary decision to give credit or to name an official retailer), was no doubt the product of the legal rule.
These settled expectations were upset in 1959, their continuing vitality put in doubt by Northwestern States, International Shoe, and Brown-Forman. In Northwestern States, the Court upheld state income taxation against two companies whose in-state operations included a sales staff and sales office. 358 U. S., at 454-455. Our disposition was consistent with prior law, since both companies maintained offices within the taxing State. Ibid. But the Court‘s opinion was broader than the holding itself and marked a departure from prior law.
“We conclude that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same.” Id., at 452.
In the absence of case law giving meaning to “sufficient nexus,” the Court‘s use of this indeterminate phrase cre
As first drafted by the Senate Finance Committee,
International Shoe manufactured shoes in St. Louis, Missouri. Its only activity within the State of Louisiana consisted of regular and systematic solicitation by 15 salespeople. No office or warehouse was maintained inside Louisiana, and orders were accepted and shipped from outside the State. The salespeople carried product samples, drove in company-owned automobiles, and rented hotel rooms or rooms of public buildings in order to make displays. International Shoe, 236 La., at 280, 107 So. 2d, at 640; Hartman, “Solicitation” and “Delivery” Under Public Law 86-272: An Uncharted Course, 29 Vand. L. Rev. 353, 358 (1976).
Brown-Forman distilled and packaged whiskey in Louisville, Kentucky, for sale in Louisiana and elsewhere. It solicited orders in Louisiana with thе assistance of an in-state sales staff. All orders were approved and shipped from outside the State. There was no in-state office of any kind. Brown-Forman salespeople performed two functions: they solicited orders from wholesalers, who were direct customers of Brown-Forman; and they accompanied the wholesalers’ own sales force on visits to retailers, who were solicited by the wholesalers. The Brown-Forman salespeople did not solicit orders at all when visiting retailers, nor could they sell direct to them. They did assist in arranging suitable displays of the distiller‘s merchandise in the retail establishments. Brown-Forman, 234 La., at 653-654, 101 So. 2d, at 70.
The activities in International Shoe and Brown-Forman extended beyond specific acts of entreaty; they included merchandising and display, as well as other simple acts of courtesy from buyer to seller, such as arranging product displays and calling on the customer of a customer. The activities considered in International Shoe and Brown-Forman are by no means exceptional. Checking inventories, displaying products, replacing stale product, and verifying credit are all
The business activities of Wrigley within Wisconsin have substantial parallels to those considered in International Shoe and Brown-Forman. Wrigley has no manufacturing facility in the State. It maintains no offices or warehouses there. The only product it owns in the State is the small amount necessary for its salespeople to call upon their accounts. All orders solicited by its salespeople are approved or rejected outside of the State. All orders are shipped from outside of the State. Other activities, such as intervening in credit disputes, hiring salespeople, or holding sales meetings in hotel rooms, do not exceed the scope of
The Department of Revenue, in an apparent concession of the point, does not contend that the business activities of Wrigley exceed the normal scope of solicitation; instead the Department relies on a distinction between business activitiеs undertaken before and after the sale. Brief for Petitioner 18, 21. Under the Department‘s submission, acts leading to the sale are within the statutory safe harbor, while any act following the sale is beyond it. Ibid. I agree with the Court, as well as with the Supreme Court of Wisconsin, that this distinction is unworkable in the context of a continuing business relation with many repeat sales. Ante, at 230-231; App. to Pet. for Cert. A-41.
As the Court indicates, the case really turns upon our assessment of two practices: replacing stale product and providing gum in display racks. Ante, at 233. If the retailers relied on the Wrigley sales force to replace all stale product
Acceptance of the stale gum replacement does not allow industry practices to replace objective statutory inquiry. The existence of a contract to perform this service, or an indication in the record that this service provided an independent component of significant value, would alter the case‘s disposition, regardless of the seller‘s intentions. The test I propose does not depend on the sellers’ intentions or motives whatsoever; rather it requires an objective assessment from the vantage point of a reasonable buyer. If a reasonable buyer would consider the replacement of stale gum to provide significant independent value, then this service would subject Wrigley to taxation. The majority appears to concede the point in part when it observes Wrigley replaced stale gum free of charge, ante, at 234, n. 9, which provides a strong indication that the replacement of stale gum is valuable to Wrigley, not its customers, as an assurance of quality given in the course of an ongoing solicitation.
I agree with the Court‘s approach, which is to provide guidance by some general rule that is faithful to the precise language of the statute. But it ought to do so without recognition of some of the most essential aspects of solicitation techniques. No responsible company would expect its sales force to decline giving minimal assistance to a retailer in replacing damaged or stale product. In enacting
Even accepting the majority‘s test on its own terms, the business activities which the Court finds to be within the safe harbor of the federal statute are less ancillary to a real sales solicitation than are the activities it condemns. The credit adjustment techniques and the training sessions the Court approves are not related to a partiсular sales call or to a particular sales solicitation, but the condemned display and replacement practices are. I do not understand why the Court thinks that a credit dispute over an old transaction, handled by telephone weeks or months later is exempt because it “ingratiate[s] the salesman with the customer, thereby facilitating requests for purchases,” ante, at 235, but that this same process of ingratiation does not occur when a salesperson who is on the spot to solicit an order refuses to harm the company by leaving the customer with bad product on the shelf. If there were any distinction between the two, I should think we would approve the replacement and condemn the credit adjustment. The majority fails to address this anomaly under its test, responding instead that my observation of it suggests ambiguity in my own. Ante, at 229, n. 5. In my view, both the gum replacement and credit adjustment are within the scope of solicitation.
I would agree with the Court that the furnishing of racks with gum that is sold to the customer presents a problem of a different order, ante, at 233, but here too I think it adds no independent value apart from the solicitation itself. To begin with, I think it rather well acceрted that the setting up of display racks and the giving of advice on sales presentation is central to the salesperson‘s role in cultivating customers. There are dangers for the manufacturer, however,
“Q Well, I take it that if you put in the stand and it was a new stand, you took the gum out of your vehicle and transferred it to him there; is that correct?
“A No, I would not say that‘s correct.
“Q Well, did you ever stock new stands from your vehicle?
“A I would say possibly on some—on a few occasions.
“Q And how many few occasions were there during your tenure as a field representative in 1978?
“A Boy. I would just be guessing. Maybe a dozen times.
“Q And just what would—what all happened in that circumstance that you wound up putting in a new stand and taking the gum out of your vehicle and transferring it to the retailer?
“A Well, like I said, primarily I wanted to get a stand in and then he wanted to get that order through his wholesaler; but if he couldn‘t wait, if he said my wholesaler was just in yesterday or something or he was not going to be in for a week, he didn‘t want a stand
sitting around, so we would then fill it and then bill the wholesaler....” App. 37-38.
Under the circumstances described here, I fail to see why the stocking of a gum display does not “ingratiate the salesman with the customer, thereby facilitating requests for purchases,” ante, at 235, as is required under the rule formulated by the Court. The small amount of gum involved in stocking a display rack, no more than $15-$20 worth, belies any speculation, ante, at 234, n. 9, that Wrigley was driven by a profit motive in charging customers for this gum. App. 38.
The Court pursues a laudable effort to state a workable rule, but in the attempt condemns business activities that are bound to solicitation and do not possess independent value to the customer apart from what often accompanies a successful solicitation. The business activities of Wrigley in Wisconsin, just as those considered in International Shoe and Brown-Forman, are the solicitation of orders. The swapping of stale gum and the infrequent stocking of fresh gum into new displays are not services that Wrigley was under contract to perform; they are not activities that can be said to have provided their own component of significant value; rather they are activities conducted in the course of solicitation and whose legal effect should be the same. My examination of the language of the statute, considered in the context of its enactment, demonstrates that the concerns to which
I would affirm the judgment of the Wisconsin Supreme Court.