Opposition Brief — F. H. Vahlsing, Inc. v. Maine

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953

No. 391

F. H. VAHLSING, INC.

Us.

STATE OF MAINE,

Appellee

APPEAL FROM THE SUPREME JUDICIAL COURT OF THE STATE OF

MAINE

STATEMENT IN OPPOSITION TO APPELLANT'S

STATEMENT OF JURISDICTION AND MOTION TO

DISMISS OR AFFIRM

* ALExANDER A. LaF evr,

Attorney-General

of the State of Maine,

Counsel for Appellee.

Boyp L. Batuey,

Rocer A. Putnam,

Assistant Attorneys-General,

Of Counsel.

= ARON OE Se A FA CEI NE EC ANON OEP 1

INDEX

Suspsect Lnpex

Page

Statement opposing jurisdiction 1

The Issues : . 1

The Potato Tax Law 3

Appellant’s Contention That the ‘Potato Tax”’

Burdens Interstate Commerce Presents No

Substantial Federal Question 4

Appellant’s Contention That the ‘* Potato Tax”’

Is Offensive to the Provisions of the Four-

teenth Amendment Presents No Substantial

Federal Question s

The Tax is Not Discriminatory or Class Leg-

islation s

The Tax is for a Public Purpose i)

Appellant is not Deprived of Property with-

out Due Process of Law 13

Appellant Cannot Claim Constitutional Im-

munity from Double Taxation 13

Appellant's Citation of Cases 14

Conclusion and Motion to Dismiss or Affirm 15

Appendix **A’’—Laws of Maine Imposing a Tax on

Potatoes 17

TasLe or Cases Crrep

American Manufacturing Co. vy. St. Louis, 250 US.

549, 63 L. Ed. 1084, 39 8S. Ct. 522 7

Armour Packing Co. v. Lacy, 200 U.S. 226, 234, 50 L.

Ed. 451, 26 S. Ct. 232 0,9

Baker v. Druesedow, 263 U.S. 137, 140, 68 L. Ed. 212,

448. Ct. 40 14

Bowman v. Continental OC ompany, 256 U.S. 642, 65

L. Ed. 1139, 41 S. Ct. 606 Y

C, us Floyd Fruit Co. v. Florida Citrus C ommission,

128 Fla. 565, 175 So. 248, 112 A.L.R. 562 5

Carmichael vy. Southern Coal Company, 301 U.S. 495,

514, 81 L. Ed. 1245, 57 S. Ct. 868 13

Chassaniol v. City of Greenwood, 291 U. S. 584, 78 L.

Ed. 1004, 54S. Ct. 541 “} ; 6

—1286

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ii INDEX

Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 562,

46 L. Ed. 679, 22S, Ct. 431 8

Davidson v. New Orleans, 96 U.S. 97, 104, 105, 106, 24

L. Ed. 616 13, 14

Equitable Life Assurance Soc. vy. Brown, 187 U.S, 308,

311, 47 L. Ed. 190, 23.8. Ct, 128 15

Jones v. City of Portland, 245 U.S, 217, 221, 62 L. ; >

252, 388. Ct. 112 12

Kehrer v. Stewart, 197 U.S. 60, 69-70, 49 L. Ed. 663,

25 S. Ct. 403 ? a , 5

Loan Asso. v. Topeka, 20 Wall. 655, 664, 22 L. Ed.

455 2

Milheim vy. Moffat Tunnel District, 262 U.S. 710, 717,

67 L. Ed. 1194, 48 8S. Ct. 694 1]

Miller vy. Michigan State Apple Commission, 296

Mich. 248, 296 N. W. 245 6

Patton v. Brady, Executrix, 184 U.S. 608, 46 L. Ed.

713, 22'S. Ct. 493 4

Sligh v. Kirkwood, 237 U.S. 52, 61, 59 L. Ed. 835, 35

S. Ct. 501 11

State v. Enking, 59 Idaho 321, 82 P. (2d) 649 Wein 6

State v. F. H. Vakilsing, Inc., 149 Me. 38, 98 Atl. (2d)

559 9

State v. F. WH. Vahlsing, Inc., 147 Me. 417, 88 Atl. (2d)

144 3

Swiss Oil C orporation v. Shanks, 273 U.S, 407, 413,

71 L. Ed, 709, 47'S. Ct. 898 14

Utah Power and Light Co. v. Pfost, 286 U.S. 165, 76

L. Ed. 1038, 52S. Ct. 548 6

Western Live Stock v. Bureau of Revenue, 303 U.S.

250, 82 L. Ed. 823, 58 S. Ct. 546, 115 A.L.R. 944 7

Wick v. Chelane Elec. Co., 280 U.S. 108, 74 L. Ed. 212,

50S. Ct. 41 Me 15

Sratrutes aNp Orner AutTHorities Crrep

Chapter 14, Revised Statutes of Maine, Sees. -” 217,

er Ne ast ee we Mie: 2

Hartman, State Taxation of Interstate Commerce 2

Revised Rules of the Supreme Court of the United

States, Rule 12, par. 1 Rehan ten doe eee 15

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953

No. 391

F. H. VAHLSING, INC.

vs.

STATE OF MAINE,

Appellee

APPEAL FROM THE SUPREME JUDICIAL COURT OF THE STATE OF

MAINE

STATEMENT IN OPPOSITION TO APPELLANT'S

STATEMENT OF JURISDICTION AND MOTION TO

DISMISS OR AFFIRM

The State of Maine, appellee in the above-entitled cause,

for its statement in opposition to appellant’s Statement as

to Jurisdiction, and in support of appellee’s motion to dis-

iiss or affirm, respectfully shows:

The Issues

Appellant, defendant and judgment-debtor below in an

action brought by the State of Maine for the collection of

its so-called potato tax, here attempts to challenge the con-

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stitutionality of the taxing statute under the Interstate

Commerce Clause and the Fourteenth Amendment. The

State, appellee, represents that the issues raised are insub-

stantial. They have already been heard twice by the Su-

preme Judicial Court of Maine and determined each time

adversely to appellant; they concern a tax disputed by no

other taxpayer during the 16 years the statute has been

part of the revenue structure of the State; the statute is

substantially identical with revenue legislation of long

standing in other states; its constitutional merits have been

approved in many opinions of the Supreme Court of the

United States concerning analogous enactments.

Appellant was and continues to be a grower and shipper

of potatoes on an extensive scale in Aroostook County,

Maine. Between July 1, 1950, and January 1, 1953, it

shipped 699,348 barrels of potatoes, all Maine-raised. As

required by the statute here in question (Sections 206-217,

incl., Chapter 14, Revised Statutes of Maine, a copy of which

is hereto annexed for convenience), the State Tax Assessor

assessed a tax against appellant ‘‘at the rate of 1¢ per bar-

rel on all potatoes raised in this state.’’ (See. 208, id.) The

amount of the assessment was, of course, $6,993.48.

The assessment being unpaid, the State brought an action

for collection in the state Superior Court. Appellant de-

fended upon the sole ground that the taxing statute vio-

lated its constitutional rights. The Superior Court gave

judgment for the State. Exceptions were taken to and over-

ruled by the Supreme Judicial Court, Maine’s court of last

resort, in an opinion reported as State v. F. I. Vahlsing,

Tne., 1953 149 Me, 38, 98 Atl. (2d) 559. (Appellant’s State-

ment, Appendix ‘*B’’.) The opinion is short. Counsel for

the taxpayer had filed no brief. The opinion therefore relies

heavily upon the previous opinion of the same court involv-

ing the same parties and legal issues (but different pota-

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toes), reported as State v. F. H. Vahlsing, Inc., 1952, 147

Me. 417, 88 Atl. (2d) 144. (Appellant’s Statement, Appen-

dix ‘‘A’’.)

While the 1953 judgment is the one appealed from, the

1952 opinion is of immediate and chief interest since it

contains a full discussion.

Appellant assigns as error, and appellee accepts these

issues as duly raised, that the potato tax offends:

The Interstate Commerce Clause; and

The Fourteenth Amendment in that it (a) deprives

appellant of its property without due process, (b) de-

prives appellant of equal protection of the laws, (ce)

constitutes class legislation, (d) amounts to double

taxation and (e) is for a private rather than a public

purpose,

The Potato Tax Law

We disagree with appellant’s statement of what is taxed:

‘*The Maine Revised Statutes 1944, Chapter 14, See-

tions 206 to 217 and Acts Amendatory thereof, provide

for a tax on potatoes grown, sold and shipped in Maine

.”’ (Appellant’s Statement, p. 1.)

What is taxed, in our opinion, is ‘‘ potatoes raised in this

state.’’ (See, 208.) The due date and ascertainment of tax

are postponed until the shipper, as distinguished from the

grower, has ‘received, sold or shipped.’’ (See. 212.) While

appellant’s statement is fair, being made in argument, and

while the distinction is fine, the refinement has a bearing

on our contention that the incidence of tax is clearly prior

and unrelated to interstate commerce.

A full copy of the tax statute, which is short, is hereto

annexed, An authoritative summary is stated in the 1952

opinion of the Supreme Judicial Court. (147 Me. at pp. 421-

POPS oR Ra aoe Ta? 0 eee ner

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424.) (Appellant’s Statement, Appendix ‘‘A’’, pp. 11-13.)

Hlere we wish to emphasize only:

Sec. 208: A tax is levied of one cent a barrel ‘on all

potatoes raised in this state,’’ excepting potatoes re.

tained by the grower for his own use.

See, 211: The shipper, upon buying potatoes, is re.

quired to collect the tax from the grower.

Sec, 212: The shipper is required to remit the tax to

the state.

Sec. 215: The tax revenues are required to be spent

for specifie purposes, as later set forth herein under

“The Tax is for a Public Purpose.”

Appellant’s Contention That the “Potato Tax” Burdens

Interstate Commerce Presents No Substantial Federal

Question

The potato tax is an excise.

‘‘The potato tax is not a tax assessed on an ad

valorem basis on the value of potatoes owned, but like

the gasoline tax, the use fuel tax, the cigarette tax, and

the oleomargarine tax, on the amount of business done

in the particular commodity within the state. It is an

excise tax and not a property tax and is clearly imposed

as an excise tax.’’ (1952 Opinion, 147 Me. at 420, Ap-

pellant’s Statement, Appendix ‘‘A’’, p. 10.)

Patton v. Brady, Executrir, 1901, 184 U.S. 608, 46 L. Ed.

715, 22S. Ct. 493. The Court held the following to be an

excise: **That there shall . . . be levied and collected a

tax of 12¢ per pound upon all tobacco and snuff, however

prepared, manufactured and sold, for consumption or sale.”

This, of course, is very similar to the potato tax. The Court

discussed the nature of excises at length and quoted the

following definition with apparent approval:

**Cooley in his work on Taxation, page 3, defines it

as ‘an inland impost levied upon articles of manufae-

5

ture or sale, and also upon licenses to pursue certain

trades, or to deal in certain commodities’.’’ (184 U.S.

at 617.)

The incidence of the tax is thus stated:

‘*Sec, 208 imposes the tax at the rate of 1¢ a barrel

on all potatoes raised in the state, except such as are

retained by the grower to be used for home consump-

tion and for seed purposes.’’ (1952 Opinion, 147 Me.

at 421.) (Appellant’s Statement, Exhibit **A’’, p. 11.)

Thus, what is taxed is potatoes raised in Maine, a purely

intra-state matter,

‘*The determination of the incidence and scope of the

exaction—-what is taxed—is a function for the state

court, and that question will not be reviewed by the

Supreme Court of the United States.’’ (Hartman,

State Taxation of Interstate Commerce, 1953, p. 119.)

Armour Packing Co. v. Lacy, 1906, 200 U.S. 226, 234,

50 L. Ed, 451, 26 8. Ct. 232;

Kehrer v. Stewart, 1905, 197 U.S. 60, 69-70, 49 L. Ed.

665, 25 S. Ct. 4038.

The amount of the tax is determined and the tax becomes

due when the potatoes—not all potatoes, but only those

raised in Maine—are ‘‘received, sold or shipped’’ (See.

212). Thus the tax does not in fact create a burden on inter-

state commerce, for the obvious reason that the tax is levied

not on the potatoes sold but on the *‘ potatoes raised’? within

the State of Maine. Statutes of similar import, as construed

by the courts of final jurisdiction in the respective States,

have unanimously been held not to burden interstate com-

meree, for the reason that the products taxed have not as

yet entered the stream of commerce.

(.V. Floyd Fruit Co. v. Florida Citrus Commission,

19.37, 128 Fla. 565; 175 So. 248; 112 A. L. R. 562;

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Miller v. Michigan State Apple Commission, 1941, 296

Mich, 248; 296 N. W. 245;

State v. Enking, 1938, 59 Idaho 321; 82 P. 2d. 649.

C. V. Floyd Fruit Co. v. Florida Citrus Commission,

supra, involved ‘‘an excise tax of one cent on each standard.

packed box of oranges grown in the State of Florida.’’ The

tax ‘‘shall be due and payable and shall be paid when the

oranges covered by this law are first handled in the primary

channel of trade.”’ (128 Fla. at 570.) The Michigan tax was

on apples ‘‘grown and produced in Michigan’? and was

payable ‘‘when shipped.’’ (296 Mich. at 251.) The Idaho

case involved a tax on ‘‘apples, prunes, potatoes, and onions

shipped from or within the State of Idaho.’’ (59 Id. at 330.)

The three cases are on all fours with the one at bar.

That these state cases, cited because they involve taxes

almost identical with the Maine potato tax, are well based,

hardly needs citation of federal authority. However, it can

be pointed out that the Supreme Court of the United States

has sustained privilege taxes whose incidence precedes

movement in interstate commerce in the following cases

among others:

Chassaniol v. City of Greenwood, 1934, 291 U.S. 584,

78 L. Ed. 1004, 54 S. Ct. 541. (Occupation tax on

buying and selling cotton locally produced, processed

and warehoused. )

Utah Power and Light Co. v. Pfost, 1932, 286 U.S. 165;

76 L. Ed. 10388, 52 8S. Ct. 548. (License tax on pro-

duction of electricity.)

The method of collection of the tax, Section 211, Chapter

14, Revised Statutes of Maine, 1944, does not create a bur-

den on interstate commerce. Though the tax is levied on

‘*potatoes raised’’, the payment and measure of the tax are

deferred until the first sale. The purpose of deferring the

payment is administratively sound: (1) the specific exemp-

-—se me were Au i od l—lala “nt alei“~s'As

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tions become self-operating, (2) the potatoes have been

graded and sized into the unit volume, i.e., barrels, and (3)

they have been transferred to a few dealers, allowing for

more economical policing and collection. To postpone the

ascertainment and payment of a proper state tax until the

goods or services are brought into the market does not make

the tax a burden on interstate commerce.

American Manufacturing Co. vy, St. Louis, 1919, 250

U.S. 459; 63 L. Ed. 1084; 39S, Ct. 522. (License tax

in nature of gross receipts tax on goods manufactured

within the taxing city; tax was measured by actual

sales, )

Western Live Stock v Bureau of Revenue, 1938, 303

U.S, 250; 82 L. Ed. 823; 58 S. Ct. 546; 115 A. L. R.

944. (Privilege tax on sale of advertising space in

periodicals circulated interstate.)

In the Western Live Stock ease, the Court said (303 U.S.

at 257):

‘‘In the present case the tax is, in form and sub-

stance, an excise conditioned on the carrying on of a

local business, that of providing and selling advertising

space in a published journal, which is sold to and paid

for by subseribers, some of whom receive it in inter-

state commerce, The price at which the advertising is

sold is made the measure of the tax. This Court has

sustained a similar tax said to be on the privilege of

manufacturing, measured by the gross receipts from

sales of the manufactured goods both interstate and

intrastate. American Manufacturing Co, v. St. Louis,

supra, 462. The actual sales prices which measured the

tax were taken to be no more than the measure of the

value of the goods manufactured, and so an appropriate

measure of the value of the privilege, the taxation of

which was deferred until the goods were sold.”’

=e > oe

The potato tax statute fits so closely into the taxing pat-

tern above deseribed, being ‘‘an excise conditioned on the

EE SMR SEES N ERATE SRE |

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carrying on of a local business’’ the product of which ‘‘is

‘ald to and paid for by’’ shippers ‘‘some of whom receive

it in interstate commerce’’ that it inexorably follows that

since the adjudicated tax was held not to burden interstate

commerce, the same result ought to obtain respecting the

potato tax.

The Maine ‘‘ Potato Tax’’ imposes no burden on inter-

state commerce.

Appellant’s Contention That the “Potato Tax” Is Offensive

To the Provisions of the Fourteenth Amendment Pre.

sents No Substantial Federal Question

In its Statement as to Jurisdiction, appellant claims vio-

lation of the Fifth Amendment. To that we submit it is

unnecessary to reply, since that Amendment was not in-

tended to limit the power of states.

The Tax Is Not Discriminatory or Class Legislation

Appellant states that the tax ‘‘is discriminatory since it

applies only to the potato industry.’’ (Statement as to «

Jurisdiction, p. 6.)

We take it that appellant contests the State’s right to tax

**notatoes raised’? while not also taxing ‘* beans raised’’ and

other products.

So sweeping an objection cannot be sustained. Notori-

ously, in the states, there are specialized sales taxes on

cigarettes, gasoline, ete. Not all sales need be taxed. The

Federal Government has a similarly selective excise tax

pattern,

‘*It would be an intolerable burden if a State could

not tax any property or calling unless, at the same

time, it taxed all property or all callings.’’ Connolly

v. Union Sewer Pipe Co., 1902, 184 U.S. 540, 562, 16

L. Ed. 679, 22 S. Ct. 431,

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—--- A A tet ee MEN ie i AREAL AGE ET LP OLE IO CLR BAA NEN SEEM DOLL POL TTR AOE AE

In Bowman v. Continental Oil Company, 1920, 256 U.S.

2, 65 L. Ed. 1139, 41 8S. Ct. 606, the constitutionality of a

gasoline tax of 2¢ a gallon was questioned, particularly

under the Fourteenth Amendment. At 256 U.S. 649, the

Court said:

—_— ss 'P

lh al

“The tax imposed by the act under consideration

upon the ‘sale or use of all gasoline sold or used in this

State’ is not property taxation, but in effect, as in

name, an exeise tax. We see no reason to doubt the

power of the State to select this commodity, as dis-

tinguished from others, in order to impose an excise

tax upon its sale and use... .

“There is no substance in the objection that the

excise tax, as applied to domestic sales and domestic

use of gasoline, infringes plaintiff’s rights under the

due process and equal protection clauses of the Four-

teenth Amendment.’? Armour Packing Co. v. Lacy,

1905, 200 U.S, 226, 235, 50 L. Ed. 451, 26 S. C+. 232. b

Fey ee,

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That potato raisers were not selected by any arbitrary or

diseriminatory process is evident from the declarations of

the legislature and the Supreme Judicial Court, next dis-

cussed. The choice of ‘‘ potatoes raised’’ as an incidence of

tax was amply within legislative power.

The Tax is for a Public Purpose

The tax revenues are allocated by See. 215 for enforce-

ment of the tax law, for determining better methods of

production and merchandising of potatoes and potato by-

products and for merehandising and advertising Maine

potatoes. Expenditures are controlled by agencies of State

Government, Maine Agricultural Experiment Station and

Maine Development Commission.

Both the legislature and the Supreme Judicial Court

have declared the tax to be for a publie purpose.

“The production of potatoes is one of the most im-

portant agricultural industries of this state and Sec-

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tions 206 to 217, inclusive, were enacted into law to

conserve and promote the prosperity and welfare of

this state and of the potato industry of this state for

fostering and promoting better methods of production,

merchandising, and advertising the said potato indus.

try of this state.’’ (See, 206, Potato Tax Law)

In its 1952 Opinion, the Supreme Judicial Court of Maine

said:

‘*In other words, these funds are to be used for

agricultural research and education in the State of

Maine, and for advertising Maine potatoes, a distine.

tive and substantial Maine product. True the subject

matter of this research is specialized and confined to

a single crop. That crop, however, is of such magni-

tude that there cannot be any doubt that it affords a

proper field for specialized research and education,

The allocation of a portion of the funds raised by the

tax to advertising the product is but a method of as-

suring to those taking advantage of the research a

market for the product.”’ (147 Me, at p. 423; Appel-

lant’s Statement, Appendix ‘*A*’, p. 13)

Our Court also said:

**In other words, so far as used for advertising,

these funds are to be used for advertising the State of

Maine by advertising the Maine potato, a typical and

distinetive product of this State, the raising of which

constitutes one of our basic industries.’’ (147 Me. at p.

424; Appellant's Statement, Appendix ‘*A’’, p, 14)

The Court also said:

‘This potato tax was imposed for a publie purpose,

and because in the opinion of the legislature the public

exigencies required it; at least we must so hold where

the industry for the benefit of which the tax is levied

is as important and as basic as is the potato industry

to the State of Maine which imposes the tax.’ (147

Me, at p. 429; Appellant's Statement, Appendix ‘‘A”,

p. 18)

11

Further, we request the Supreme Court of the United

States to take judicial notice that potato raising is a basic

Maine industry. Sligh v. Kirkwood, 1915, 237 U. 8. 52,

61, 50 L. Kd. 835, 35 S. Ct. 501. To assist the Court we

call attention to the following figures (not in evidence) sup-

plied by U. S. Bureau of Agricultural Economies.

Maine cash farm income from potatoes was

$110,256,000 in 1948; total farm income being $216,874,000

71,365,000 in 1949; total farm income being 172,820,000

53,969,000 in 1950; total farm income being 160,911,000

49,077,000 in 1951; total farm income being 180,079,000

80,468,000 in 1952; total farm income being 217,400,000

The declarations of the Supreme Judicial Court and the

legislature, while not controlling, are strongly persuasive—

‘The nature of a use, whether public or private, is

ultimately a judicial question. However, the deter-

mination of this question is influenced by local condi-

tions; and this Court, while enforcing the Fourteenth

Amendment, should keep in view the diversity of such

conditions and regard with great respect the judgments

of state courts upon what should be deemed public

uses in any State... . And like respect should be ae-

corded to the declaration of the legislative body of the

State.’ Milheim vy. Moffat Tunnel District, 1922, 262

U.S. 710, 717, 67 L. Ed. 1194, 43S. Ct. 694.

“The attitude of this court toward state legislation

purporting to be passed in the publie interest, and so

declared to be by the decisions of the court of last

resort in the State passing the act, has often been

declared. While the ultimate authority to determine

the validity of legislation under the Fourteenth Amend-

ment is vested in this court, local conditions are of

such varying character that what is or is not a publie

use in a particular State is manifestly a matter re-

specting which local authority, legislative and judicial,

has peculiar facilities for securing adequate informa-

tion. In that view the judgment of the highest court

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of the State upon what should be deemed a public

use in a particular State is entitled to the highest

respect.’’ Jones v. City of Portland, 1917, 245 U. §,

217, 221, 62 L. Ed. 25, 38 S. Ct. 11.

The potato tax has noi only been declared by the legisla.

ture and the Supreme Judicial Court to be for a public

purpose; it has been aceepted by the public for 16 years,

(Appellant's Statement, Appendix ‘‘A’’, p. 13) Its alloca.

tion of funds fits into a pattern accepted for 70 years,

(Id., p. 17)

While we have endeavored not to duplicate the well con-

sidered opinion of the Supreme Judicial Court of 1952 we

ean find no better closing of this branch of the argument

than the following quotation used by that Court, from Loan

Asso. v. Topeka, 1874, 20 Wall. 655, 664; 22 L. Ed. 455;

‘It is undoubtedly the duty of the legislature which

imposes or authorizes municipalities to impose a tax

to see that it is not going to be used for purposes of

private interest instead of a public use, and the courts

can only be justified in interposing when a violation

of this principle is clear and the reason for inter-

ference cogent. And in deciding whether, in the given

case, the object for which the taxes are assessed falls

upon the one side or the other of this line, they must

be governed mainly by the course and usage of the

government, the objects for which taxes have been eus-

tomarily and by long course of legislation levied, what

objects or purposes have been considered necessary

to the support or for the proper use of the government,

whether state or municipal. Whatever lawfully per-

tains to this and is sanctioned by time and the acquies-

ence of the people may well be held to belong to the

public use, and proper for the maintenance of good

government, though this may not be the only eriterion

of rightful taxation.”’

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13

Appellant is not Deprived of Property without Due

Process of Law

This point overlaps to a degree the one just previous.

‘It is not denied that since the adoption of the

Fourteenth Amendment state taxing power can be ex-

erted only to effect a public purpose and does not em-

brace the raising of revenue for private purposes.”’

Carmichael v. Southern Coal Company, 1936, 301 U. 8.

495, 514, 81 L. Ed. 1245, 57 8. Ct. 868.

S

However, we know of no exception to the general prin-

ciple :

‘‘That whenever by the laws of a State, or by State

authority, a tax, assessment, servitude, or other bur-

den is imposed upon property for the public use,

whether it be for the whole State or of some more

limited portion of the community, and these laws pro-

vide for a mode of confirming or contesting the charge

thus imposed, in the ordinary courts of justice, with

such notice to the person or such proceedings in regard

to the property as is appropriate to the nature of the

case, the judgment in such proceedings cannot be said

| to deprive the owner of his property without due proe-

ess of law, however obnoxious it may be to other ob-

jections."’ Davidson v. New Orleans, 1877, 96 U. S.

97, 104, 24 L. Ed. 616.

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We respectfully call to the Court’s attention that the :

potato tax is enforced solely by ‘‘the ordinary courts of

| justice.”’ (Potato Tax Law, See. 214)

Appellant Cannot Claim Constitutional Immunity from

Double Taxation

It is elementary that the Federal Constitution does not

prohibit double taxation.

“Tt is said that the plaintiff’s property had pre- r

viously been assessed for the same purpose, and the

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assessment paid. If this be meant to deny the right of

the State to tax or assess property twice for the same

purpose, we know of no provision in the Federal Con.

stitution which forbids this, or which forbids unequal

taxation by the States.’’ Davidson v. New Orleans,

1877, 96 U.S. 97, 106, 24 L. Ed. 616.

In a contest over an assessment of an ad valorem prop.

erty tax on a railroad, in part measured by its intangibles,

the Supreme Court held:

‘*The contention that the statute violates the Four-

teenth Amendment is wholly without merit. It has long

been settled . .. that the legal protection clause is not

violated by preseribing different rules of taxation for

railroad companies than for concerns engaged in other

lines of business; and that the Federal Constitution

does not afford protection against double taxation by —

a State.’’ Baker v. Druesedow, 1923, 263 U. S. 137,

140, 68 L. Ed. 212, 44S. Ct. 40.

The Supreme Court has also said that ‘‘The Fourteenth

Amendment does not require uniformity of taxation, David-

son v. New Orleans, 1877, 96 U. 8S. 97, 105, 24 L. Ed. 616,

nor forbid double taxation.’’ Swiss Oil Corporation y.

Shanks, 1926, 273 U. S. 407, 413, 71 L. Ed. 709, 47 S. Ct.

393.

The State of Maine does not concede that the potato tax

involves double taxation.

Appellant’s Citation of Cases

The Statement as to Jurisdiction, p. 2, cites five cases

for the proposition that appellant is entitled to file a peti-

tion for leave to appeal. Since appellee does not dispute

this proposition, it should not, and does not, take the Court’s

time disputing whether the citations perform their intended

office.

15

Conclusion and Motion

Appellant has the burden of showing substantiality.

Wick v. Chelane Elec. Co., 1929 280 U. S. 108, 74 L.

ied. 212, 50S. Ct. 41

Equitable Life Assurance Soc. v. Brown, 1902 187 U.S.

308, 311, 47 L. Ed. 190, 23'S. Ct. 123

Revised Rules of the Supreme Ct. of the U. S., Rule 12,

par. 1

That burden it has not sustained,

We respectfully submit that the questions of constitu-

tional law here presented have long ago been adjudicated

in analogous cases, leaving no substantial question en-

titling appellant to invoke the jurisdiction of the Supreme

Court of the United States.

|

Wuererore, appellee respectfully moves that the within

appeal be dismissed or that the judgment of the Supreme

Judicial Court of Maine be affirmed.

ey

Acexanper A, LaF evr,

Attorney-General of the State of Maine, 2

Counsel for Appellee.

Boyp L. BatLey, F

Rocer A. Putnam,

Assistant Attorneys-General,

Of Counsel.

APPENDIX “A” 1 v4

Laws of Maine

Imposing a

Tax on Potatoes

BUREAU OF TAXATION

AUGUSTA, MAINE

“rw? F

18

POTATO TAX

Sections 206 to 217, inclusive, of Chapter

of the Revised Statutes 1944,

as amended by Public Laws of 1945

Sec. 206. Purpose. The production of

toes is one of the most important agri

industries of this state and sections 206 ty

inclusive, were enacted into law to conserve

promote the prosperity and welfare of

state and of the potato industry of this ¢

by fostering and promoting better method

production, merchandising, and advertising

said potato industry of this state,

Sec. 207. Terms defined. The term:

in sections 206 to 217, inclusive, shall be

strued as follows:

“Potatoes” shall mean and inchude all

toes of the grades as recommended by the

reau of agricultural economics of the U

States department of agriculture, and

other grades as may from time to time be

mulgated by the department of agriculture

the state of Maine. The records of the

ment of agriculture of the state of Main

the grades recommended by said burea

agricultural economics of the United

department of agriculture shal! be prima

evidence of such grades>

“Barrel” shall mean 165 pounds of

“Shipper” shall mean any person,

ship, associatien, firm, or corporation

in the shipping of potatoes or transporting

own potatoes, whether as owner, agent, |

otherwise,

19

‘ghipment” shall be deemed to take place

ten the potatoes are located within the state

the car, boat, truck, or other conveyance in

sich the potatoes are to be transported.

Sec. 208. Tax of le per barrel on potatoes.

tax is levied and imposed at the rate of 1c

r barrel on all potatoes raised in this state,

that no tax shall be imposed upon any

< which are retained by the grower to

used by him for seed purposes or for home

umption.

sec. 209. Time tax is due. The tax im-

«ed by section 208 shall be due upon any par-

lar lot or quantity of potatoes under the

ovisions of section 212.

Sec. 210. Shippers to file applications with

tax assessor; contents of applications;

not to ship until certificate is issued.

¢. 30,81. Every shipper of potatoes, as

in section 207, shall file an application

the -tate tax a» essor, on forms pre-

{and furnished by the state tax assessor

ich sha!’ contain the name under which such

ipper i+ transacting business within the

. the place or places of business and lo-

tion of loading and shipping places and

sof the shipper; the names and addresses

the several persons constituting a firm or

nership and, if a corporation, the corporate

an the names and addresses of its prin-

officers and agents within the state. The

tax assessor will then issue a certificate

the shipper and no shipper shall sell or ship

y potatoes, as defined in section 207, until

certificate is furnished as required by this

ion.

20

Sec. 211. Shipper entitled to deduct ;

from selling price. Each shipper purehas

potatoes and paying, or becomin« \\able to

the tax imposed by section 205 «hall

and collect from the seller a tay at the rate

le per barrel, to be deducted fro... the purd

price of ali potatoes subject to thy 1aX, 50

chased by such shipper.

Sec. 212. Report of shipments to be

on 15th of each month for preceding

tax to be paid on or before Ist day of

succeeding filing of report, 1915, © %,§

Every shipper shal! keep as a part of his

manent records a record of all purchases, gg!

and shipments of potatoes, which said

shall be open for inspection at all times

hereinafter provided, and every shipper ¢

on or before the 15th day of each mor

render a report to the state tax assessor

ing the quantity of potatoes received, soi,

shipped by him during the preceding j

month, on forms to be furnished by said

assessor, and said report shall contain

further information pertinent thereto as

state tax assessor shall prescribe. On or}

fore the 1st day of the calendar month

ing the filing of said report, each shipper #

pay to the state tax assessor a tax at the

of le per barrel upon all potatoes so

as purchased, sold, or shipped, as

by the state tax assessor. The state tax

sessor shall pay over all receipts from such

to the treasurer of state daily.

Sec. 213. State tax assessor or his agent

have authority to inspect. 1945, ¢. 3, §

The state tax assessor or his duly

agent shall have authority to enter any p

4

_

21

jusiness of any shipper, or any ear, boat,

xk, or other conveyance in which potatoes

to be transported, and to inspect any books

cords of any shipper for the purpose of

wrmining what potatoes are taxable under

provisions of sections 206 to 217. inclusive,

for the purpose of determining the truth or

sity of any statement or return made by any

oper, and he shall have authority to deie-

» such power to the commissioner of agri-

-yre, his deputies, agents, servants, or em-

yes,

ec, 214. Penalty for false return or vio-

ion of provisions; tax may be collected by

i action; jurisdiction. Any shipper of pota-

<, as defined in section 207, who shall make

¢ false or fraudulent report or return re-

red by sectiong206 to 217, inelusive, or who

| evade or violate any of the provisions of

i sections, shall be punished by a fine of not

re than $500. Whenever any shipper shall

ito pay any tax due under the provisions of

4 sections, within the time limited herein,

, attorney-general shall enforce payment of

+h tax by civil action against such shipper

‘the amount of such tax, either in the su-

ior court or municipal court in and for the

nty in which such shipper has his residence

established place of business.

sec, 215. Appropriation of moneys received.

meys received through the provisions of sec-

ns 206 to 217, inclusive, by the treasurer of

shall be appropriated and used for the

owing purposes:

For the collection of the tax provided for

y section 208 and the enforcement of all

5

22

the provisions of sections 206 to 217

clusive.

Il. A sum which shall equal at least |

of the money collected shal! be used

applied for the purpose of investi

determining better methods of produg

shipment, and merchandising of potg

and for the manufacture and merchandj

of potate by-products by the Maine ,

cultural experiment station under the su

vision of the Maine development commis

Iti. A sum whieh shall equal at least:

of the money collected shall be used for

general purpose of merchandising and ad

tising Maine potatoes for food and for.

purposes under the direction of the ¥

development commission.

IV. The funds remaining over and q

the expenses of carrying out the provi:

of sections 206 to 217, inclusive, jnely

the expenditures authorized under the

visions of subsections II and III of this

tion, may be expended by the commissip

carry out the purposes outlined in said

sections as it may determine.

Sec. 216. Maine potato tax committee,

Maine potato tax committee, as herets

established, shal) consist of 5 members t

appointed by the commissioner of agricul

from representatives of the potato industr

this state. Four of these members shal

residents of Aroostook county and one a:

dent of central Maine, so called. Each r

ber shall be appointed for a term of 2 y:

or until his successor is duly appointed

qualified. In case of a vacancy cause

6

23

th, resignation, OF otherwise, the vacancy

) be filled by the commissioner for the un-

ired period of the term. The said commit-

shall work with the Maine development

mission in an advisory capacity to assist

commission in the carrying out of the pro-

ons of sections 206 to 217, inclusive. The

nbers of the committee shall serve without

pensation, but shall be reimbursed for ex-

ses incurred in the performance of their

ies.

ec, 217. Tax in addition to other taxes.

‘taxes imposed and collected under the pro-

ons of sections 206 to 217, inclusive, shall

in addition to any other taxes legally im-

ed or collected under any other provision

the law of the state now or hereafter in

ce.