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

• Decision Date: 03 November 1931
• Docket Number: 31278
• Citation: 138 So. 507,173 La. 682
• Court: Louisiana Supreme Court
• Parties: STATE v. TRI-STATE TRANSIT CO. OF LOUISIANA, Inc

138 So. 507

173 La. 682

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

No. 31278

Supreme Court of Louisiana

November 3, 1931

Rehearing Denied November 30, 1931

Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge.

Action by the State of Louisiana against the Tri-State Transit Company of Louisiana. From a judgment for defendant plaintiff appeals.

Reversed and remanded.

Peyton R. Sandoz, of New Orleans (Robert J. O'Neal, of Shreveport, of counsel), for the State and E. A. Conway, Supervisor of Public Accounts.

Dickson & Denny, of Shreveport, for Tri-State Transit Co., of Louisiana, Inc.

OPINION

ODOM, J.

The state of Louisiana brought this action against the defendant to recover $ 399.93, with interest and penalties alleged to be due as tax on $ 8,246 gallons of gasoline levied by Act 6 of the Extra Session of 1928, as amended by Act 8 of 1930.

Coupled with the suit is a prayer that the car of gasoline be attached, the defendant not having paid the tax and not having furnished bond in favor of the state authorizing it to defer payment thereof as provided in section 4 of said act, as amended by the Act of 1930. The writ of attachment issued as prayed for and the gasoline was seized, but subsequently released on bond.

The case was submitted on an agreed statement of facts, which shows that the tank of gasoline on which the state now seeks to collect the tax and which was attached, was purchased in the state of Arkansas by defendant and shipped to Shreveport in this state, and that defendant promptly notified the plaintiff of the shipment; and: "It is further admitted that the Tri-State Transit Co., of La., Inc., is engaged in the business of transporting passengers by motor buses in both interstate and intrastate traffic traveling over the state highways in Louisiana and other states."

Paragraph 5 reads as follows:

"Plaintiff objects to the admissibility of the following statement as being irrelevant and immaterial to the issue involved in this case and subject to said objection, admits that defendant would testify that all of said gasoline attached herein was purchased to be used in propelling its motor buses in carrying passengers only in interstate trips."

In defendant's answer, it set out that said gasoline was brought into this state "to be used solely for the purpose of interstate commerce in the operation of its aforesaid buses" and "defendant further shows that the State of Louisiana is without right or authority to levy or collect a tax on gasoline to be used in interstate commerce and that it (meaning the Act levying the tax) is unconstitutional, null and void, and in conflict with the Constitution of the United States."

The judgment of the district court reads as follows:

"It appearing that the gasoline herein attachment (attached) having been purchased to be used in the operation of motor buses engaged in carrying passengers on interstate trips, and it being considered that Act 6 of 1928, Special Session, as amended by Act 8 of 1930, is unconstitutional insofar as it levies a tax on gasoline used as aforesaid and by reason thereof it is ordered, adjudged and decreed that there be judgment in favor of the Tri-State Transit Co., of La., Inc., and against the State of Louisiana rejecting the demands of the plaintiff."

The state appealed.

The issues here involved are precisely the same as those raised in the case of State v. W. H. Johnson, 173 La. 669, 138 So. 503, ^[1] this day decided, in which we held that the state of Louisiana may validly levy a tax on gasoline used within the state as fuel in the operation of motor buses and trucks carrying interstate passengers and freight. For the reasons therein stated, which are adopted and applied to this case, we here hold that the act of the Legislature referring to levying the tax on all gasoline "sold, used or consumed in the State of Louisiana" is valid legislation.

It therefore follows that the judgment in this case holding that said act is unconstitutional must be reversed.

Section 4 of the act, as amended, provides that any dealer bringing gasoline into this state "for sale, use or consumption therein," shall pay the tax levied, "which is hereby made due and payable immediately upon same coming within the boundaries of this State." (Italics ours.)

When this suit was brought and the attachment levied, the defendant was due the amount of the tax on part, at least, of the gasoline, that which was destined for use within the state. It refused to pay the tax, not upon the ground that the portion of gasoline which might be used within the state could not be determined at the time, but upon the ground that the...