State v. Tri-State Transit Co. of Louisiana, Inc.

• Decision Date: 02 January 1934
• Docket Number: 32377
• Citation: 155 So. 233,179 La. 811
• Court: Louisiana Supreme Court
• Parties: STATE v. TRI-STATE TRANSIT CO. OF LOUISIANA, Inc., et al

155 So. 233

179 La. 811

STATE v. TRI-STATE TRANSIT CO. OF LOUISIANA, Inc., et al

No. 32377

Supreme Court of Louisiana

January 2, 1934

On Rehearing, May 21, 1934

Appeal from First Judicial District Court, Parish of Caddo; J. H Stephens, Judge.

Action by the State against Tri-State Transit Company of Louisiana Inc., and others. From an adverse judgment, the State appeals.

Reversed and rendered.

Gaston L. Porterie, Atty. Gen., and Peyton R. Sandoz and Justin C Daspit, Sp. Asst. Attys. Gen. (White, Holloman & White, of Alexandria, Burke & Smith, of New Iberia, Robert J. O'Neal, of Shreveport, and E. R. Kaufman, of Lake Charles, of counsel), for the State.

Dickson & Denny and Foster, Hall, Barret & Smith, all of Shreveport, for appellee Tri-State Transit Co. of Louisiana.

Pugh, Grimmet & Boatner and J. N. Marcantel, all of Shreveport, for appellee United States Fidelity & Guaranty Co.

Harold A. Moise, of New Orleans (Edward M. Heath, of New Orleans, of counsel), for Board of Commissions of Port of New Orleans, amicus curiae.

Julian B. Humphrey, of New Orleans, amicus curiae.

OPINION

BRUNOT, Justice.

This is a suit against the Tri-State Transit Company of Louisiana, Inc., and its bondsman, the United States Fidelity & Guaranty Company, of Maryland, for the recovery of taxes alleged to be due the state by the Tri-State Transit Company. The sum sued for, including penalties and attorney's fees, is $ 30,312.50, subject to a credit of $ 10,344.86. We quote from the prayer of the petition the following:

"Wherefore, petitioner prays for * * * judgment against the Tri-State Transit Company of Louisiana, Inc., in the full sum of Twenty Thousand One Hundred Forty-Seven and 80/100 ($ 20,147.80) Dollars, representing the tax of 4 cent per gallon on gasoline or motor fuel imported into the State ofLouisiana, by defendant Corporation, as dealer, and levied under the provisions of Act 6 of the Extra Session of the Legislature of Louisiana of the year 1928, as amended by Act 8 of 1930, and Act 16 of 1932; and in the further sum of Five Thousand Thirty-Six and 95/100 ($ 5,036.95) Dollars, representing the tax of 1 cent per gallon on gasoline or motor fuel imported into the State of Louisiana, by defendant Corporation, as dealer, and levied under the provisions of Act 1 of the Extra Session of the Legislature of Louisiana of 1930, the same being a constitutional amendment submitted to the people and adopted by the qualified electors of the State of Louisiana at an election held November 4, 1930, and in the further sum of Three Thousand Two Hundred Sixty-Two and 34/100 ($ 3,262.34) Dollars, representing a penalty of 20% on the amount due by defendant Corporation for the taxes aforesaid, as a delinquent, and in the further sum of One Thousand Eight Hundred Sixty-Five and 41/100 ($ 1,865.41) Dollars as attorney's fees, the whole being subject to a credit of Ten Thousand Three Hundred Forty-Four and 86/100 ($ 10,344.86) Dollars, leaving a net balance due by defendant Corporation for taxes, penalties and attorney's fees of Nineteen Thousand Nine Hundred Sixty-Seven and 64/100 ($ 19,967.64) Dollars, as hereinabove set forth, and judgment for which is accordingly prayed for, together with legal interest thereon from judicial demand."

Petitioner further prays for a judgment against both defendants, in solido, for $ 5,000 the amount of the surety's liability on the bond. This judgment, however, is to be included as part of the total sum of such judgment as may be rendered against the Tri-State Transit Company.

Petitioner also prays for an injunction restraining the Tri-State Transit Company from the further pursuit of its business until it has paid the taxes, penalties, and attorney's fees sued for.

Both defendants excepted to the petition as not disclosing a right or cause of action. These exceptions were heard and overruled.

The Tri-State Transit Company then filed a motion to strike out the word "distribution" wherever that word appears in the plaintiff's petition. Thereafter the Tri-State Transit Company pleaded the unconstitutionality of Act No. 6 of the Extra Session of 1928, as amended by Act No. 8 of 1930 and Act No. 16 of 1932, alleging in its plea that the title of the act is defective, that the body of the act is broader than its title, and that the provisions of the act contravene the commerce clause of the Federal Constitution.

Following the foregoing pleas, the United States Fidelity & Guaranty Company filed a plea of res adjudicata, alleging therein that the right of the plaintiff to recover taxes, penalties, interest, and attorney's fees growing out of shipments of gasoline into this state during the year 1931, or prior to 1932, was foreclosed by the judgment of the district court of Caddo parish, rendered in the following numbered and entitled suit, to wit: "No. 58,738, State of Louisiana v. Tri-State Transit Company of Louisiana, Inc."

Both defendants answered the suit. These answers are substantially the same. Both pleaded, therein, the unconstitutionality of Act No. 6 of 1928 and also the unconstitutionality of Act No. 1 of the Extra Session of 1930, which act was a proposed amendment to the Constitution, which was formally ratified by the electorate of the state by a vote of 116,627 for to 7,085 against. On the merits, both defendants deny any indebtedness to the plaintiff, and all averments of the petition with respect to the indebtedness, etc., alleged therein, are put at issue by the answers.

By consent, the plea of res adjudicata, as to gasoline shipped into the state during the year 1931, was sustained (Tr. p. 39) and all pleas of unconstitutionality were referred to the merits.

The minutes do not show what disposition was made of the motion to strike out. The minutes merely show (Tr. p. 4) that plaintiff moved to refer the motion to the merits, the defendants objected, and the matter was continued for argument.

The case was submitted on the issues stated and the following agreed statement of facts:

"Statement of facts and admissions agreed to by counsel for plaintiff and defendants, at Shreveport, La., on this 16th day of December, A. D., 1932, the same to be used upon the trial hereof in lieu of individual proof of each admitted fact subject to all pleas, exceptions and judgments heretofore filed.

"It Is Admitted:

"1: That the gasoline imported into the State of Louisiana by the Tri-State Transit Co., from Feb. 1, 1931 to August 31, 1932, both inclusive, aggregates the sum of 519,273. gross gallons.

"2: That the aforesaid gross gallonage of gasoline is received in tank cars from other states, and unloaded from such tank cars into a storage tank of defendant company located in Shreveport.

"3: That the storage tank of defendant company referred to, will hold the contents of two railroad tank cars of an average capacity of 8000 gallons each.

"4: That defendant receives and stores in its aforesaid storage tank approximately four railroad tank cars of gasoline per month.

"5: That when the gasoline referred to has come to rest in defendant company's aforesaid storage tank, it is thereafter distributed therefrom into the motor vehicles of defendant company and the Caddo Transfer & Warehouse Co. The storage tank referred to is equipped with a regulation gasoline measuring pump, which records the number of gallons of gasoline withdrawn from said storage tank and distributed to the respective freight and motor vehicles of defendant company and to such motor vehicles of the Caddo Transfer & Warehouse Co., as are supplied with gasoline from the storage tank in question.

"6: The gasoline stored by the defendant company as above set forth comes from other states and is consigned to defendant company at Shreveport, La. The Tri-State Transit Company is a subsidiary of the Caddo Transfer & Warehouse Company, that is, the capital stock of the defendant company is owned by the Caddo Transfer & Warehouse Company although the two corporations are independently organized and chartered.

"7: That of the gross gallonage of gasoline stored by Tri-State Transit Company in its aforesaid storage tank -- aggregating 519,273 gross gallons as above stipulated -- from Feb. 1, 1931 to August 31, 1932, both inclusive, the sum of 39,319 gallons were withdrawn therefrom during the 1931 period and distributed to the Caddo Transfer & Warehouse Co., and the sum of 32,260 gallons were withdrawn therefrom during the 1932 period and distributed to the Caddo Transfer & Warehouse Co.

"8: The balance of 447,694 gallons of gasoline of said gross gallonage of 519,273 was withdrawn from the storage tank of defendant company and distributed to its own motor freight and passenger vehicles in the proportion of 244,625 gallons for the 1931 period, and 194,122 gallons for the 1932 period.

"9: The apparent discrepancy of withdrawals and distributions of 8947 gross gallons of gasoline as compared with gross gallons imported into the state is accounted for by the fact that there was on hand in defendant's aforesaid storage tank on August 31, 1932, the sum of 8947 gallons of gasoline which had not yet been withdrawn from said storage tank.

"10: The gasoline transferred from its storage tank by defendant company to motor vehicles of the Caddo Transfer & Warehouse Co., is charged to the latter company at actual cost, exclusive of tax.

"11: Such taxes as have been paid on the gasoline imported by defendant company have been paid to the Supervisor of Public Accounts by exchange bought by defendant company, but such exchange has been paid for from the funds of both defendant company and the Caddo Transfer & Warehouse Co., in proportion to the amount of gasoline allocated to each from said storage tank.

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