State By Grosjean v. Standard Petroleum Products Co., Inc

• Decision Date: 30 January 1933
• Docket Number: 32152
• Citation: 176 La. 647,146 So. 321
• Court: Louisiana Supreme Court
• Parties: STATE by GROSJEAN, Supervisor of Public Accounts, v. STANDARD PETROLEUM PRODUCTS CO., Inc

146 So. 321

176 La. 647

STATE by GROSJEAN, Supervisor of Public Accounts, v. STANDARD PETROLEUM PRODUCTS CO., Inc

No. 32152

Supreme Court of Louisiana

January 30, 1933

Judgment set aside, exception of no cause or right of action overruled, and case remanded for further proceedings.

Gaston L. Porterie, Atty. Gen., and Peyton R. Sandoz and Justin C Daspit, Sp. Asst. Attys. Gen. (Carroll Buck, of Amite, of counsel), for applicant.

S. S Reid, of Amite, for respondent.

OPINION

OVERTON, J.

The state, through the supervisor of public accounts, brought suit to enjoin defendant from continuing in the business of buying, selling, or distributing gasoline, kerosene, or other motor fuel at the place of business of defendant, located in the town of Amite, for not less than one week and not more than six months, pursuant to the provisions of Act No. 14 of 1932.

The injunction is asked for on the ground that defendant, a dealer in, and distributor of, motor fuel has placed in a tank, inferentially for sale and distribution, gasoline, not measuring up to the standard required by section 6 (should be section 8) of Act No. 14 of 1932, and that another tank, represented to contain kerosene, did not meet the requirements of section 6 (should be section 8) of Act No. 14 of 1932, but ought to be classified and taxed as gasoline. The petition recites that notice to withdraw both the gasoline and kerosene from sale and distribution was served on defendant in accordance with section 14 of the act of 1932, and that tests were made of both, which showed the results above set forth.

An exception of no cause or right of action was filed by defendant. This exception was sustained, which caused the present application for writs to be filed. The exception was sustained on the ground that the petition does not charge that defendant violated the act willfully and knowingly. Whether or not this allegation is necessary is the sole question presented for solution.

The important part of the statutory law bearing upon the question is to be found in section 18 of the act of 1932, the pertinent part of which reads as follows:

"Any person violating the terms and provisions of this Act, by putting or placing in any tanks, pumps, or other containers, any gasoline, kerosene or other motor fuel contrary to the provisions of this Act, or who shall wilfully use any pump or measuring device which is mechanically inaccurate shall, for the first offense, forfeit the right, for not less than one week nor more than six months, to continue or to engage in the business of buying, selling or distributing gasoline, kerosene or other motor fuel, at the place of business involved. For the second, or subsequent offense, said person shall forfeit the right to engage in said business for not less than three months nor more than twelve months. Said forfeiture, however, shall extend only to the individual guilty of said offense, unless the said individual, be acting as an agent for a principal who knew of and participated in, or knowing of said violation, acquiesced therein. * * *"

It will be observed from the foregoing quotation that it is necessary to allege that the act was willfully done, where it consists of the use of any pump or measuring device which is mechanically inaccurate, which is not this case, and that where the purpose of the pleader is to extend the forfeiture, which is also not this case, to one who did not actually do the act, such as to a principal for the act of his agent, knowledge and participation, or knowledge and acquiescence...