# Opposition Brief — F. H. Vahlsing, Inc. v. Maine > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0636%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1953 - **Citation:** 346 U.S. 890 ## Text ere Os tax the to led the @X- rt ere lf, ler the the ley a Rd nabs: OCT [HAROLD 8. Witt 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 PF RET RIMES SPY BEIM LP SERRE TT PGR Nae e - ~ . on i— ee mes =- | 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 BLEED THROUGH POOR COPY 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- GLEN O LY EP POONER REN ENTREE ETE CE ERIM +) I See FO TC) OY 8 net ew ee PE ee ee ee —— 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- BLEED THROUGH POOR COPY ” — 3 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 4 424.) (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; —— VOrH s vaegy Ca Piece a le coer i ie a i — Ty 6 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 — 7 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 | 8 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, BLEED THROUGH POOR COPY —--- 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, 1 Ae ie 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- ; —_—_— ws oi _| — 10 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 ee TNA AT ARDENT I 7 RI a 12 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.”’ — 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. SE OY FY ORS IE EAP D, PEGE SOL © et aD > oer ce , ¢ 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 | | | —_ ect a WA a 14 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0636%3A2. Public record. Not legal advice.