# Motion to Dismiss or Affirm — Double Eagle Lubricants, Inc. v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0793%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1966 - **Citation:** 384 U.S. 434 ## Text “ from the package before the first sale by the ini- porter, and while the goods remained still subject - to Federal inspection.’’ See also Cloverleaf But- . ter Co. v. Patterson, 315 U.S. 148, 86 L.Ed. 754, — 62 S. Ct. 491 (1941). Due to the New Mexico ‘court’s s unawareness of the applicable facts, coupled with its-erroneous applica- ~ tion of prevailing principles, we submit that the case . is not authority for the propositions relied on by the -Appellant. In applying the controlling principles of the author- . ities cited above, it is clear that the Texas law is not repugnant to the Constitution or laws of the United States. Article 1106(b) clearly does not discriminate against the Appellant as it applies equally to all motor oil of this nature sold in Texas and-it does not impose any additional burden on prodzcts originating in inte1* state commerce. Conclusively, as pointed out above, the State law does not conflict with the Federal law nor. has the field been pre-empted by the Federal Govern- ment. Neither does the State law impose any unreason- able or undue burden on interstate commerce. The ” tian provisions of this statute merely require that the product be labeled’ in a reasonable manner to truth- fully advise the public of the nature and aie of its contents. Therefore, it is peapedtfully shina that due to " no evidence being introduced by.the Appellant to sup- port its contention that the State law is unconstitution- al or imposes an undue burden on commerce, and con- trary to the statement by the Appellant on page 5 of _its Jurisdictional Statement, as the record clearly re- flects, no evidence was introduced which shows ‘‘the cans must be ordered for in advance in order that they - be properly processed and lithographed, and ‘that the labels cannot be changed after the can is manufac- tured.”? Coupled: with the failure of the Appellant by pleading and proof to overcome the strong presump- tion in favor of the constitutionality of the Texas stat- - ute and the clear showing above that the State statute is a legitimate exercise of the police power of this. State and a reasonable and nonburdensome regulation _ >on conimerce, the Appellant’s allegation that the Texas statute is unconstitutional is clearly without merit and . : is too insubstantial to suppott the jurisdiction of a three-judge court or, in the alternative; warrant fur- ‘ther ar gument before this Court. % CONCLUSION’ We respectfully submit, based: on the argument and ‘authorities cited above, that this Court does ndt have: jurisdiction of the Appeliant’s direct appeal front the decision of the United States District Court and. that the Appellant’s appeal should be. dismissed for lack of jurisdiction: \In the alternative, should this Court —23— . a agi __find-that. the Three-Judge District Court did have . jurisdiction of the Appellant ’s Complaint, it is respeet- fully submitted that the Appellant presents no sub- - stantial question for decision of this Court and that. ’ the judgment and decree of the District Court should = affirmed. _- Respectfully sieaueiih \ WAGGONER CARR Attorney General of Texas | . Hawetgenme PHILLIPS First Assistant Attorney General of Texas ~ T. B. Wriext a _Executive Assistant Attorney General HowarpD M. FENDER a \ Assistant Attorney General * Lonny F. ZwIENER Assistant Attorney General -Rosert W. Norris * Assistant Attorney General Attorneys for Appellee The State of Texas Box R, Capitol Station - Austin, Texas 78741 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Motion to Dismiss and/or Affirm were served upon John B. - Ogden, Attorney for Appellant, Suite 1408-9 Liberty | a went = Oe : * ra) . 7 - Bank Building, Oklahoma City 2). Oklahoma; E. K. ' Elkins, Attorney for Federal Trade Commission, Of- fice of the General Counsel, Washington, D. C.; and Alex Bickley, Attorney for City- of Dallas, Dallas, Texas, by depositing same,in the United. States Mail, _ properly ‘addressed, postage paid, certified mail, on ‘this the 29th day of April, 1966. | ) Rosert W. Norris. | . Assistant Attorney General ac + APPENDIX A Article *1106(b), Vernon’s Penal Code:. - “(b) No person, firm, association of persons or cor- poration shall sell or offer for sale as lubricating oil, any oil that has been .rerun, refiltered, reclaimed or refined from crank case draining or any other oil that E has been theretofore used for purposes of lubrication, unless the said oil is sold as and labeled ‘Reconditioned Motor Oil.’ The words ‘Reconditioned Motor Oil’ shall _ be plainly and legibly printed on each container, which ' said lettering shall be imprinted on. two (2) places on _ the container or label 'in-a manner that said lettering | ' will appear both on the front and back surface of the container when displayed to the public i in sale displays, and which said lettering shall be in letters of not less - than three-sixteenths (3/16) of an inch in height and not less than one-sixteenth (1/16) of an inch in width of each line used to form said letters.”” _ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0793%3A3. 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