Said the Court: "The
contracts were executory and related to unascertained goods. * * * It
does not appear that when they were made appellant had any fuels of the
kinds covered, or that those to be delivered were then in existence.
There was no selection of goods by purchasers. Appellant was not
required by the contracts to obtain the fuels at Wilmington but was free
to effect performance by shipping from, any place within or without
Pennsylvania."[596]

THE ROBBINS CASE TODAY

In the cases reviewed in the preceding paragraph protestants against
local taxation appealed, but unavailingly, to the Robbins case. So it
would seem that the generative powers of that prolific precedent had
begun to wane somewhat even before the Depression, an event which
rendered judicial reaction against it still more pronounced. Indeed, by
the Court's decision in McGoldrick _v._ Berwind-White Co.,[597] in 1940,
the authority of the entire line of cases descending from Robbins _v._
Shelby County Taxing District was seriously impaired, for the time
being, while a second holding the same year seemed to reduce the
significance of the Robbins case itself to that of a reassertion of the
elementary rule against discrimination. "The commerce clause," Justice
Reed remarked sententiously, "forbids discrimination, whether forthright
or ingenious."[598]

DEPRESSION CASES: USE TAXES

With a majority of the States on the verge of bankruptcy, extensive
recourse was had to sales taxes and, as an offset to these in favor of
the local economy, "use" taxes on competing products coming from sister
States. The basic decision sustaining the use tax, in this novel
employment of it, was Henneford _v._ Silas Mason Co.,[599] in which was
involved a State of Washington two per cent tax on the privilege of
using products coming from sister States. Excepted from the tax, on the
other hand, was any property the sole use of which had already been
subjected to an equal or greater tax, whether under the laws of
Washington or any other State. Stressing this provision in its opinion,
the Court said: "Equality is the theme that runs through all the
sections of the statute. * * * When the account is made up, the stranger
from afar is subject to no greater burdens as a consequence of ownership
than the dweller within the gates."[600] There being no actual
discrimination in favor of Washington products, the tax was valid.

DEPRESSION CASES: SALES TAXES

A companion p