# Brief for the Respondents in Opposition — Continental Oil Co. v. Minnesota

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondents in Opposition
- **Published:** January 1, 1945
- **Citation:** 323 U.S. 803

## Text

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IN THE ston jae

Supreme Court ot the Melted SPIE
NO. 767

CONTINENTAL OIL COMPANY, a Corporation,
Petitioner,

vs.
STATE OF MINNESOTA,
MID-CONTINENT PETROLEUM CORPORATION, a Corpo-
ration,
Petitioner,
vs.
STATE OF MINNESOTA,

SINCLAIR REFINING COMPANY, a Corporation,
Petitioner,

vs.
STATE OF MINNESOTA,

PHILLIPS PETROLEUM COMPANY, a Corporation,
Petitioner,

vs.
STATE OF MINNESOTA,

SKELLY OIL COMPANY, a Corporation,
Petitioner,

vB.
STATE OF MINNESOTA,

THE TEXAS COMPANY, a Corporation,
Petitioner,

vs.
STATE OF MINNESOTA,

CITIES SERVICE OIL COMPANY, a Corporation,
Petitioner,

vs.
STATE OF MINNESOTA,

BARECO OIL COMPANY, a Corporation,
Petitioner,

vs.
STATE OF MINNESOTA,

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME
COURT OF THE STATE OF MINNESOTA.

BRIEF IN OPPOSITION.

GEO. B. SJOSELIUS,
Deputy Attorney General of the
State of Minnesota

JAMES F,. LYNCH, County Attorney
Kamsey County, Minnesota

Of Counsel: ANDREW R. BRATTER,
J. A. A. BURNQUIST Assistant County Attorney
Attorney General Ramsey County, Minnesota.

Dated January, 1945. Attorneys for the Respondent.

INDEX
: Page
ee rere eT ee Te Pree Thee 2
Pe DUNNE winder ciaccsundeensevautheeswers a 3
DS aoe oie ds «aches Revakee Caw enkeeuataes 3
DOIN sr oak bene ace esses ee sake be aeae een es bce 6
L PORMOIOD © seinccescevccuesivesneaseeene 6

If. The blending and storage of gasoline at pipe-
line tank farm served the business purposes

OF GO - PORTIIINONG sn ha vcnccccdebeches stuWa 7
Ill. The decision is in accord with the holdings
OE Sle Sa ove ee ceeds van xtsawyheuens 10
TV. Tew GUeieeee Me OOM ois dan dks caVeicuessa 12
A. Failure to know ultimate destination is
not basis for decision below........... 13
B. Trial Court’s finding is not conclusive
upon the State Supreme Court ........ "14
ORCUNO os cada ck heb aaceisi brie sen nedneeseeers 16
AUTHORITIES CITED
Page
American Mfg. Co. v. St. Louis, 250 U. 8. 459........ 9
American Railway Exp. Co. v. Kentucky, 273 U. 8. 269,
BS. cveusae tKv REC oN eee th CREE UE GREE « os kaeeeaee 15

Atlantic Coast Line R. Co. v. Standard Oil Co. 275
U.S. 257, 269, 48 8. Ct. 107, 110, 72 L. Ed. 270, 275.11, 14
Bacon vy. Illinois, 227 U. 8. 504, 33 8. Ct. 299, 67 L. Ed.

_ SPSS PEt ee Nee ho Me Pe nae CAT AE 12
Baumgartner y. U. 8., 322 U. 8. 665 ..............00. 15
Bell Teleph. Co. v. Pennsylvania, 309 U. 8. 30, 32 .... 15
Carson Petroleum Co. v. Vial, 279 U. 8. 95 2.2.2.2... 13, 14
Central U. Teleph. v. Edwardsville, 269 U. S. 190, 194,

WE vba <MaSen es Cebu kh ede a PE eh oe rhea 15

Chicago, Milwaukee & St. Paul Ry. Co. v. Iowa, 233
ey Sy ey Se Ps DO ci o's de as cone eacasbanunet 6

Chicago, M. & 8S. T. Ry. Co. v. Lowa, 233 U.S. 334, 34
SB. Ct. 592, 58 L. Ed. O88. ..... 0 eee ce wee ccecceces 12

Eastern Ohio Gas Co. v. Tax Commission, 283 U. 8.

ee Ti Bi Pee, AONE ol os sak wA dee cdo OREM eee sae
Ethyl Gasoline Corp. v. U.S. 309, UL S. 486.......... 10
General Oil v. Crain, 209 U.S. 11, S. Ct. 475, 52 L.

Oe TEE. nk ccakdnwderteae a bedvnwk SOeeaae ee chee een 12
John V. Paullin, 231 U.S. 588, 585..... een ekaeenwews 15
Lee v. Central Georgia R. Co., 252 U.S. 109, 119...... 15
Murphy v. Arnson, 96 U. B. 131] .......cccecceeoeres 9
Oliver Mining Co. v. Lord, 262 U. S. 172............: 9
Phillips Pipeline Co. v. State, 302 U. S. 642, 82 L. Ed.

$99, aflirming 339 Mo. 459, 97 S. W. 2nd 109....... 6, 10
So. Pac. Co. v. Gallagher, 306 U. S. 167, 99 S. Ct. 399,

2S a Bh EGA Pere te re ere rT ee oer is 5 12
Susquehanna v. South Amboy, 228 U. 8. 665, 57 L. Ed.

ES or a bn ks hx Ka OREN OORT IR OSes BESTT 6,11, 13
State ex rel Burr v. Seaboard, ALR Code, 92 Fla. 61,

| |) ne eer r Pee ree eee pee 12
State of Minnesota v. Blasius, 290 U.S. 1, 54 8. Ct. 34,

CO Oe BEE oe ccc dsmtees tnewe.css tart aeeteenes 12
Texas & N. O. R. Co. v. Sabine Tram Co., 227 U. 8. 111) 1B
U. & v. Erie R. Co., 280 U. 8. 94... 2s sscccsccenerss 13
Utah Power & Light Co. v. Pfost, 286 U. S. 165, 76 L.

OD IGE ceccdchevuen ov subsedseevecasheesexss 12
Minnesota Statutes 1941, See. 272.01. .......02-00 ee 2
Mason's Minnesota Statutes 1927, Sec. I9T4 .......--- 4
Minnesota Statuies 1941, Sec. 273.01 ........6-665 2
Mason's Minnesota Statutes 1927, Section 1984 ....-. 2
Minnesota Statutes 1941, See. 278.02 .......0-.2 ee ee 2
Mason’s Minnesota Statutes 1927, See. 1985........-- 2

98 U. 8. C. A., Section 344 2.2... ccc cccccccccerccsens 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1944
NO. 767

CONTINENTAL OIL COMPANY, a Corporation,

Petitioner,
vs.
STATE OF MINNESOTA,

MID-CONTINENT PETROLEUM CORPORATION, a Corpo
ration,
Petitioner,
vs.
STATE OF MINNESOTA,
SINCLAIR REFINING COMPANY, a Corporation,

Petitioner,
vB.
STATE OF MINNESOTA,

PHILLIPS PETROLEUM COMPANY, a Corporation,

Petitioner,
vs.
STATE OF MINNESOTA,

SKELLY OIL COMPANY, a Corporation

Petitioner,
vB.
STATE OF MINNESOTA,

THE TEXAS COMPANY, a Corporation,

Petitioner,
vs.
STATE OF MINNESOTA,

CITIES SERVICE OIL COMPANY, a Corporation,

Petitioner,
vs.
STATE OF MINNESOTA,

BARECO OIL COMPANY, a Corporation,

Petitioner,

vs.
STATE OF MINNESOTA,

ON PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF THE STATE OF MINNESOTA,

SUPREME

BRIEF IN OPPOSITION.

QUESTION PRESENTED.

Whether gasoline shipped from Oklahoma, Kansas and
Missouri to the terminus of the Great Lakes Pipe Line
Company in Ramsey County, there to be processed and
manufactured into a marketable product—then to be
stored indefinitely to await the receipt of orders from the
petitioners’ bulk stations or contract customers, 75% of
which come from Minnesota—-has come to rest so as to

have a situs for taxation.
STATUTES INVOLVED.

The statute under which the tax in question was levied
is Minnesota Statutes 1941, Section 272.01 (Mason’s Min-
nesota Statutes 1927, Section 1974 and reads as follows:

“All real and personal property in this state, and all
personal property of persons residing therein, includ-
ing the property of corporations * * *, is taxable, ex-
cept such as is by law exempt from taxation ;”

Also Minnesota Statutes 1941, Section 273.01 (Mason's
Minnesota Statutes 1927, Section 1984), which reads as
follows:
“ * * * personal property shall be listed and assessed
annually in reference to its value on May 1 * * *”.

Also Minnesota Statutes 1941, Section 273.02 (Mason's
Minnesota Statutes 1927, Section 1985), which reads as
follows:

“Tf any * * * personal property be omitted in the as-
sessment of any year or years, and the property there-
by escapes taxation, when such omission is discovered

the county auditor shall enter such property on the
assessment and tax books for the year or years omit-
ted; and shall assess the property, and extend against
the same on the tax list for the current year all ar-
rearages of taxes, properly accruing against it * * *”.

STATEMENT.

Petitioners, in order to provide a large stock of gasoline
from which to supply bulk stations in the Northern area,
made shipments of a minimum of 50,000 barrels each (2,-
100,000 gallons) via the Great Lakes pipeline to its tank
farm at the terminal in Ramsey County consigned to them-
selves as consignees. (Finding No. 4, R. 887, f. 2661; finding
No. 14, R. 989, f. 2693; R. 300 and 301, f. 900-902; R. 414, f.
1240, 1241; R. 994, f. 995). As the gasoline reached the
terminal it was allocated to the several shippers by the
Great Lakes. (Finding No. 12, R. 894, f. 2682; finding No.
15, R. 989, f. 2694). .

Further movement of the gasoline by rail could not be
undertaken, not because tank cars were unavailable (R.
1002, f. 1005), but because (1) the gasoline was not then
a marketable product—and Great Lakes was required to
blend the gasoline with various products including tetra
ethyl lead (Finding No. 8, R. 891, f. 2672-2673) resulting
in production of 26 different kinds of gasoline, the latter
operation requiring originally 16 to 24 hours, but in later
years, six hours (R. 897, f. 2689, Finding No. 12d) and (2)
to retain the gasoline in storage until petitioners gave ship-
ping instructions. (Finding No. 12, R. 894, f. 2682).
Reshipment was not made until petitioners received orders
from their own or customers’ bulk stations or for “spot”

sales. 75% was shipped to points in Minnesota (R. 992-
993, f. 993, Finding No. 17, R. 900, f. 2699-2700).

When the gasoline was delivered to Great Lakes, neither
the shipper or carrier knew to whom any pari thereof was
destined. The only destination known or ascertainable was
the pipeline terminal. Ultimate destination was unknown
until after orders were received (Finding No. 14, R. 898,
f. 2693; R. 300-301, f. 900-902; R. 414, f. 1240, 1241; R.
994, f. 995).

The taxes in question were non-discriminatory. (R.
994, f. 996).

Other undisputed material facts, not mentioned in the
trial court’s findings, but which must be considered in de-
termining the purpose of the interruption are:

Indefinite storage was contemplated. The tariffs permit-
ted 90 days free storage at the terminal. (R. 874, f. 2622).
The tank farm at the terminal had a capacity of 621,000
barrels (abour 26,000,000 gallons) (R. 535, f. 1604, R. 991,
f. 992). The average storage of shipments was 35 days
(R. 307-308, f. 921, 922; R. 992-9938, f. 993-994).

The gasoline in stock at the terminal was not committed
to the first orders to be received. The traffic department
of each petitioner reserved the right to determine as it
received orders, whether they should be filled from the ter-
minal stock or from the stock at one of its refineries. (R.
272-273, f. 816-818; R. 633, f. 897-898; R. 638-639, f. 1914-
1916; R. 687, f. 2060; R. 688, f. 2062; R. 695, f. 2084; R.
761, f. 2283; R. 788, f. 2362; R. 806, f. 2416; R. 824,
f. 2470).

During the winter months, petitioners, encouraged by

Great Lakes, made shipments beyond their requirements

in order to keep the pipeline employed and to build up
stocks at the terminal for busier seasons. (R. 315, f. 943).

The Interstate Commerce Commission in evaluating
Great Lakes properties for rate making purposes deter-
mined ;

“This extra handling. of gasoline is a manufacturing
or trade service rather than a transportation service.
Accordingly, all property owned by the carriers and
used in blending gasoline has been classified in this
report as owned but used for purposes other than
those of a common carrier.” (R. 850, f. 2548; R. 992,
f. 993).

The tank cars were furnished by petitioners. Railroads
do not provide them (R. 604, f. 1810-1811). The shipment
by rail is made as a separate shipment under a regular
bill of lading. (R. 993, f. 994.)

The railroads were not parties to the arrangements
whereby Great Lakes made rebates to petitioners to equal-
ize its rates with the all-rail rate. (R. 611, f. 1833).

Shipments for Phillips, Texas and Sinclair were shipped
and stored separately and were not commingled (R. 500,
f. 1500; R. 517-518, f. 1551-1552).

The State Supreme Court concluded that the gasoline
came to rest at the tank farm and rejected trial court’s
finding No. 18 (R. 900-901, f. 2700-2701) that the inter-
ruption at the terminal and the blending operations were

not intended to serve the business purposes of petitioners
but were designed and intended to facilitate operation of
the pipeline because such findings are “opposed to the
undisputed facts and are but inferences in the nature of
conclusions made by the trial court by applying to them
what it conceived to be applicable rules of law. Such find-
ings are not entitled to any more weight than a conclu-

sion of law made by the trial court.” (R. 1003-1004,
f. 1006-1007).

ARGUMENT.

JURISDICTION.

Jurisdiction of this court is invoked under Section 237
(b) of the Judicial Code (28 USCA, Section 344) because
it is claimed that the tax sustained by the decision of the
Minnesota Supreme Court (Rec. 990) violates the com-
merce clause of the United States Constitution. It is not
shown that the question has not heretofore been determined
nor is it claimed that the decision is in conflict with the
holdings of this court. They merely express a doubt. But
cite no decision upon which they rely. On the other hand
respondent cites in this brief ample authority to prove a
complete accord with such decision.

That the gasoline was in storage with the pipeline for
processing and to await receipt of orders at the time the
tax was levied does not present a new question. <A state
tax was sustained under the same circumstances in Phillips
Pipeline Co. v. State, 302 U. 8. 642, 82 L. Ed. 499, affirm-
ing 339 Mo. 459, 97 S. W. 2nd 109; and Susquehanna v.
South Amboy, 228 U. S. 665, 57 L. Ed. 1015. Cf Chicago,
Milwaukee & St. Paul Ry. Co. v. Towa, 233 U. S. 334, 58
L. Ed. 988, where the coal was still in the railroad car.

State taxation of property moved by pipeline is not new
to this court. Phillips Pipeline Co. v. State, Supra; Fast-
ern Ohio Gas Co. v. Tax Commission, 283 U. 8. 468, 75 L.

Sp aan PPS leg

Ed. 1171. The test as to when interstate commerce ends
and intrastate commerce begins is the same regardless of
the means of transportation.

Whether the findings of fact which are mixed findings
of fact and conclusions of law or purely conclusions of law

are binding upon the State Supreme Court is a state ques-

tion. The State Supreme Court determined that it is not
binding. (R. 1003-1004, f. 1606-1007.) This court is con-
cerned only with findings and conclusions sustained by
the State Court and whether such findings or conclusions
have support in the record. That the decision of the court
is so supported is conceded in the dissent:

“Careful examination of the voluminous testimony in-
dicates that the trial court might have found that
such delays and interruptions were for the benefit of
the shipper rather than the carrier and hence the oil
stocks were subject to local taxation.” (R. 1009,
f. 1012)

II.

The blending and storage of yasoline at pipeline tank
farm served the business purposes of the petitioners.

The court’s decision that the property came to rest at the
tank farm so as to become a part of the mass of property
within the state and subject to state taxation was founded
upon the ground that before the shipment to further desti-
nation could be made, the gasoline had to be processed and
manufactured into a marketable product and then stored
at the tank farm for an average of 35 days while awaiting
the receipt of orders. In other words, the tank farm was
made a facility of business for the benefit of the peti-

8

tioners. Among the benetits resulting to petitioners were
the following:

1. Jt resulted in a tremendous savings in capital invest-
ment because ii reduced to a very large extent the
number of tank cars required to serve its customers.

The railroads do not provide tank cars. The haul by rail
from Kansas City to St. Paul is six days. (Finding No.
14, R. 898, f. 2693) Therefore each tank car would be en-
route twelve additional days more than when the move-
ment by rail is from the terminal, which is probably
twenty-four hours from any point of delivery.

2. It provides greater flexibility in operation of refin-
eries and distribution of gasoline.

The tankage facilities of each petitioner are increased
by such facilities at the pipeline tank farm. When an
order is received, the traffic department of petitioners have
a choice in that they are free to determine whether the
order should be filled from the stocks at one of the refin-
eries or from the stocks at the terminal—and the decision
was not made until after the receipt of the order. Thus
when the refineries are stocked to capacity or near capacity,
an order could be shipped by all rail—otherwise from the
tank farm.

3. It provided a supply depot close at hand to all cus-

tomers in the northern area,

Tankage facilities of bulk stations is limited. (R. 891,
f. 2671) All custemers are within twenty-four hours
reach of the pipeline tank farm and can be readily sup-
plied in any emergency.

4. Petitioners save the labor costs by having blending

with tetra ethyl lead and other products done at the.

pipeline terminal.

ot

The tank farm provides a convenient place to make
distribution of the bulk shipments via the pipeline
into the smaller allotments to be shipped to the bulk
stations after orders have been received.

The essence of petitioners’ claim is that the blending
activities at the terminal were necessary to facilitate trans-
portation—to make it possible to transport greater volume
than if the blending were performed in advance of ship-
ment. Therefore interruption of the movement for this
purpose was incidental and excusable. Our answer is
that:

1. The gasoline could have been transported beyond
the terminal without blending—but that would not serve
the business interests of petitioners;

2. Blending of fluids constitutes manufacturing (Mur-
phy v. Arnson, 96 U. 8S. 131); and manufacturing is a
local business subject to local regulation and taxation re-
gardless of its effect upon transportation (Oliver Mining
Co. v. Lord, 262 U. 8. 172; American Mfg. Co. v. St. Louis,
250 U. S. 459).

Petitioners fail to mention trial court’s finding No. 17
(R. 900) that the gasoline was stored until orders were
received. Jt cannot be argued that indefinite storage for
this purpose facilitated transportation. There was neither
necessity nor purpose to send the gasoline through to the
bulk stations or customers by immediate continuity—but
to store it to await orders. This certainly served the busi-
hess purposes of petitioners.

10
IIl.

The decision is in accord with the Holdings of this Court.

In every instance when the movement of property in
interstate commerce was interrupted to permit processing
or manufacturing or storage to await the receipts of
orders, the state’s right to tax has been sustained by this
court.

The identical case is Slate v. Phillips Pipe Line Com-
pany, 302 U.S. 642, 58 8. Ct. 53, 82 L. Ed. 495, affirming
97 S. W. 2nd 109. There shipment was made under iden-
tical tariffs, the gasoline to be blended and processed and
stored as in the instant case except that after such blend-
ing, processing and storage, and not before, the gasoline
was transferred to a tank under the control of the shipper
and transportation to some 200 cities was thereafter con-
tinued by truck instead of by rail. In all other respects
the case was the same, It was there held that the inter-
state movement terminated upon the arrival of the gasoline
at the pipe line terminal and before the processing, manu-
facturing and storage commenced.

There as here, it was urged that the blending operation
facilitated operations of the pipeline; it would enable
them to expand the number of grades of gasoline to be
shipped from the terminal and meet railroad competition;
that it is dangerous to transport leaded gasoline (which
this court fonnd to be untrue in Ethyl Gasoline Corp. vr.
U.S. 209 U. 8. 436); that they “would lose custom” in
absence of blending. All these claims were considered and
rejected, The court held that the blending and _ storage

operations at the terminal, prior to delivery to the shipper

ll

constituted intra-state commerce. As a result the Pipe-
line Company was subject to the tax.

The case is parallel even if the tax was not on the ship-
per, since its validity turned upon the property coming to
rest as it arrived at the terminal.

The local activities in the Phillips case and in the case
at bar present a much stronger basis for state taxation
than Eastern Ohio Gas Co. v. Tar Commission, Supra.

It seems to us that the following are controlling cases:

Susquehanna Coal Co. v. City of South Amboy, 228
U. 8. 665, 668; 33 8. Ct. 712, 714, 57 L. Ed. 1015,
1016,
where it was said of the storage of coal in the yards of the
railroad company for the purpose of keeping a supply on
hand to fill anticipated orders that
“there was something more than the submission to
delay in transportation and the acceptance of its con-
sequences. The situation was made a facility of busi-
ness,—a business conducted (as here) through agents
and employees,”
and
Atlantic Coast Line R. Co. v. Standard OW Co., 275
U. 8. 257, 269; 48 8. Ct. 107, 110, 72 L. Ed. 270, 275,
where oil transported in ships was unloaded into tanks
for ultimate delivery to the oil company’s bulk stations
and contract customers as in the instant case, Mr, Chief
Justice Taft said:

“There is neither necessity nor purpose to send the
oil through these seaboard storage stations to interior
points by immediate continuity of transportation,
[to its 128 bulk stations] * * * Everything that is done
after the oil is deposited in the storage tanks at the
Tampa destination, or at the Jacksonville destination

- a

12

is done in the distribution of the oil to serve the pur-
poses of the plaintiff company that imported it.”
(Italics supplied. )

Other authorities supporting this proposition are; Gen-
eral Oil v. Crain, 209 U.S. 11, 28 8. Ct. 475, 52 L. Ed.
754. Chicago, M. & 8S. T. Ry. Co. v. Lowa, 233 U. 8. 334,
34.8. Ct. 592, 58 L. Ed. 988. Bacon v. Illinois, 227 U. 8.
504, 33 S. Ct. 299, 67 L. Ed. 615. So Pat. Co. v. Gal-
lagher, 306 U. S. 167, 99 S. Ct. 399, 83 L, Ed. 586.
State of Minnesota v. Blasius, 290 U. 8. 1, 54 8. Ct. 34, 78
L. Ed. 131. State ex rel Burr v. Seaboard, ALR Code, 92
Fla. 61, 109 So. 656. Utah Power & Light Co. v. Pfost,
286 U.S. 165, 76 L. Ed. 1088, and other familiar cases too
humerous to mention,

The law governing the facts in this case is so well set-
tled, no purpose would be served in issuing a writ of cer-

tiorari.
IV.
The decision is sound.

The decision did not turn upon the problem of moving
the gasoline away jrom the terminal but did turn upon the
activities at the terminal tank farm as a basis for deter-
mining that the interstate movement had ended. The
Court declared that: (1.) The terminal tank farm is the
only destination known, (2.) Interruption was not due
to lack of transportation facilities. Rail transportation
for further movement was available. (3.) The gasoline

could not be moved until processed. It was unmarketable

Finley VEEL RAE AS Or SON URE, ORE RS AS

13

as shipped. (4.) It had to be stored to await orders.
Average storage was 35 days. (5.) It agreed with the In-
terstate Commerce Commission that the blending of gaso-
line with tetra ethyl lead and other products, and the in-
definite storage thereof was a manufacturing or trade serv-
ice and not transportation. (6.) That this served the
business interests of the petitioners.

A. Failure to know ultimate destination in not basis for
decision below.

It is one of the many circumstances cited by the Court
as evidence of the termination of the interstate movement.
The Court said that neither the petitioners nor the carrier
knew the ultimate destination of the gasoline; and that
such knowledge was not possible until after orders were:
received. In the meantime the gasoline had to be processed
and stored. In all-of_the cases cited by petitioners the
ultimate destination was known at all times. The prop-
erty was being shipped to fill orders obtained in advance—
and the interruption resulted only from change of mode of
transportation and while awaiting the arrival of the means
of further transportation. Only the failure to designate
ultimate destination in the original bill of lading was ex-
cused. But the ultimate destination was at all times
ascertainable and known. This was the fact in U. 8. v.
Erie R. Co., 280 U. 8. 94: Carson Petroleum Co. v. Vial,
279 UL S. 95 and Teras & N. O, R. Co. v. Sabine Tram Co.,

227 U. S. 111. Whereas here, the initial shipment was
made in advance of obtaining orders and had to be stored
to await the arrival of the anticipated orders as in Susque-

eng 20 ie ‘ WEA SURE SINAN, —7

14

hanna v. South Amboy, Supra and in Standard Oil Co. v.
Atlantic Coastline R. Co., Supra.

Apparently movement by pipeline to provide large stocks
at the central distribution point to care for anticipated
orders is not unlike movement over water by tanker as in
the Standard Oil case, Supra.

Another important distinction is to be found in the
statement of the Court in the Carson Petroleum case,
Supra: (p. 100, f. 101).

“The oil is shipped from the storage tanks in the same
condition in which it was received from the tank cars
without being treated in any way.”

In the case at bar the gasoline is an unmarketable product
when it arrives at the terminal tank farm. Upon orders
of the petitioners it must be processed and manufacture]
into a marketable product.

B. Trial Court’s finding is not conclusive upon the State
Supreme Court.

The Supreme Court declared that the “local activities”
at the terminal tank farm served the business purposes of
the petitioners and that

‘*The findings that the processing and storage facili-
tated interstate transportation are opposed to the un-
disputed facts and are but inferences in the nature of
conclusions made by the trial court by applying to
them what is conceived to be applicable rules of law.
Such findings are not entitled to any more weight
than a conclusion of law made by a trial court.” (R.
1003, f. 1006-1007)

——-

15

Obviously this relates to a matter of local practice which
will not be reviewed by this Court. John v. Paullin, 231
U. 8S. 583, 585; Lee v. Central Georgia R. Co., 252 U. 8.
109, 119; Central U. Teleph. v. Edwardsville, 269 U. 8. 190,
194, 195; American Railway Eap. Co. v. Kentucky, 273
U. 8. 269, 272; Bell Teleph. C. v. Pennsylvania, 309 U. 8.
30, 32. Certainly the determination of the purpose of the
interruption is the ultimate conclusion to be drawn from
the facts. If appellate courts were concluded by such a
finding by the trial court, appeals would be futile. Baum-
gartner v. U. S., 322 U.S. 665. If this court has jurisdic-
tion, it extends only to review the decision and to deter-
mine whether it has support in the record.

The decision is not in conflict with the Blasius case,
supra. There the trial court’s finding of the shipper’s in-
tent was set aside by the State Supreme Court. This was
not considered erroneous state practice or error. The con-
clusion was reversed by this court because it was not sup-
ported by the record. In the instant case, even the minor-
ity opinion concedes there is adequate support.

No criticism of the court's statement concerning blend-
ing of gasoline with tetra ethyl lead is justified since 90%
of all shipments were “regular” gasoline (R. 532, f. 1594)
which was so blended (R. 525-6, f. 1575-6; R. 528-9,
f. 1584-7). nie

16

CONCLUSION.

We respectfully submit that petitioners have failed to
justify a review on writ of certiorari. It clearly appears
that the question has heretofore been determined by this
court and that the decision is in accord with applicable
decisions of this court.

GEO. B. SJOSELIUS,
Deputy Attorney General of the
State of Minnesota
JAMES F. LYNCH, County Attorney
Ramsey County, Minnesota
ANDREW R. BRATTER,
Asistant County Attorney
Ramsey County, Minnesota.
Attorneys for the Respondent.
Of Counsel:
J. A. A. BURNQUIST
Attorney General

Dated January, 1945

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34806415_2419%3A3. Public record. Not legal advice.