United States v. Gosho Co.

• Decision Date: 24 January 1928
• Docket Number: 5202.,No. 5201,5201
• Citation: 23 F.2d 675
• Parties: UNITED STATES v. GOSHO CO., Inc. (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

23 F.2d 675 (1928)

UNITED STATES v. GOSHO CO., Inc. (two cases).

Nos. 5201, 5202.

Circuit Court of Appeals, Fifth Circuit.

January 24, 1928.

Norman A. Dodge, U. S. Atty., of Fort Worth, Tex., T. H. Lewis, Jr., Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (C. M. Charest, General Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for the United States.

Leroy A. Smith, of Fort Worth, Tex., for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Defendant in error, plaintiff below, paid under protest transportation taxes aggregating $13,595.98, imposed by the Revenue Act of 1918 (Comp. St. § 6336 1/8A et seq.), on various shipments of cotton from interior Texas points to Galveston. After vainly trying to obtain a refund, these two suits were brought in the District Court, and judgment was rendered in its favor. The cases are identical, except that they involve different shipments, and may be considered together.

It is not disputed that, if the shipment of the cotton was part of an export movement, as contended, they would not be subject to the transportation tax, as its imposition would be a direct burden on articles exported from a state, in violation of article 1, § 9, of the Federal Constitution. Spalding & Bros. v. Edwards, 262 U. S. 66, 43 S. Ct. 485, 67 L. Ed. 865; United States v. Hvoslef, 237 U. S. 1, 35 S. Ct. 459, 59 L. Ed. 813, Ann. Cas. 1916A, 286; Thames & Mersey Marine Ins. Co. v. U. S., 237 U. S. 19, 35 S. Ct. 496, 59 L. Ed. 821, Ann. Cas. 1915D, 1087.

The material facts found by the District Court, which are not disputed, are these: The Gosho Company is engaged exclusively in exporting cotton from Galveston, Tex., to foreign countries. Contracts for the sale of cotton by grades are made, and after that the cotton is purchased to fill the orders. In purchasing cotton at interior points, it is necessary to buy the entire lot offered. The number of bales in each lot purchased varies, and several different grades may be found in the lot. The company sends classers into the interior to class the cotton before purchasing and paying for it, and in order to determine its fitness to fill the orders on hand. After shipment to Galveston, the cotton is regraded, assembled in lots according to grades, and appropriated to the sales already made. It is also given high density compression, which is necessary to secure ocean carriage. After being sorted and compressed,...