Trinityfarm Const. Co. v. Grosjean, 271.

• Decision Date: 12 June 1933
• Docket Number: No. 271.,271.
• Citation: 3 F. Supp. 785
• Parties: TRINITYFARM CONST. CO. v. GROSJEAN, Sup'r of Public Accounts, et al.
• Court: U.S. District Court — Eastern District of Louisiana

3 F. Supp. 785

TRINITYFARM CONST. CO. v. GROSJEAN, Sup'r of Public Accounts, et al.

No. 271.

District Court, E. D. Louisiana.

June 12, 1933.

Breazeale & Sachse, of Baton Rouge, La., and D. K. Woodward, Jr., of Austin, Tex., for plaintiff.

Gaston L. Porterie, Atty. Gen., and Peyton R. Sandoz and Justin C. Daspit, Sp. Asst. Attys. Gen., for defendants.

Before FOSTER, Circuit Judge, and BORAH and COX, District Judges.

BORAH, District Judge.

This suit was brought against defendants, state tax officials, to enjoin the collection of a state excise tax levied upon the use of gasoline by plaintiff within the state. On motion of the attorneys for the plaintiff, Trinityfarm Construction Company, a District Court of three judges was organized and convened to hear its application for an interlocutory injunction, a preliminary restraining order having been granted without notice because of the danger of irreparable injury resulting by a delay until notice could be given and a hearing had on said application for an interlocutory injunction. After a full hearing, at which evidence was introduced in the form of affidavits, and argument had by counsel, the court issued an interlocutory injunction in accordance with the prayer of the bill. The case is now before the court for final hearing on the merits.

Findings of Fact.

The verified pleadings, agreed statement of facts, and undisputed affidavits filed herein show that the plaintiff is a private corporation organized under the laws of Delaware and is presently engaged in the construction of levees within the state of Louisiana under contracts with the United States of America. For this purpose the plaintiff has imported certain gasoline in tank-car lots from other states which it places in a central storage tank from which it is distributed to storage tanks located on its rights of way in proximity to the machines in which it is used. Plaintiff also proposes to import additional gasoline to be handled in like manner. It further appears that none of said gasoline has been, is now, or will be, used on or over the public highways and bridges of the state of Louisiana, but all of it is being used exclusively on the work which plaintiff has contracted to perform under the contracts and upon rights of way furnished by the state of Louisiana or the Tensas Levee District of the United States for the construction of levees.

The statutes of Louisiana complained of (Act No. 6 of 1928 Ex. Sess. as amended by Act No. 8 of 1930 and Act No. 16 of 1932 and Act No. 1 of the Extra Session of 1930, the latter being in fact an amendment to the Constitution of Louisiana) levy a cumulative tax of 5 cents per gallon upon all gasoline or motor fuel "sold, used or consumed in the State of Louisiana for domestic consumption" and require that the aforesaid tax shall be collectable from "all persons, firms or corporations or associations of persons, engaged as dealers in the handling, sale or distribution of such products within the State of Louisiana." The term "dealer" is defined to mean "any person, firm, corporation or association of persons who produces, refines, manufactures, blends or compounds gasoline * * * for sale to the jobber or consumer, or to the persons * * * who, in turn, sell to the jobber or consumer. The term `dealer' is further defined to mean the person, firm, corporation or association of persons who imports such gasoline * * * from any other State or foreign country...