Opposition Brief — Charles E. Austin, Inc. v. Kelly

FI Cr Teg

In the ‘haere

Supreme Court of the United States

October Term, 1948

No. 224

CHARLES E. AUSTIN, INC., Petitioner,

v.

HARRY F. KELLY, Secretary of State

of the State of Michigan.

On application for certiorari to the Supreme Court of the

State of Michigan.

Brief opposing Petition for Certiorari

\ Eugene F. Black

Attorney General of the State

of Michigan

\ Edmund E. Shepherd

Solicitor General of the State

of Michigan

Brief by:

Ernest O. Zirkalos

Assistant Attorney

General. Ben H. Cole

Counsel for Respondent Assistant Attorney General

Lansing, Mich.

PRANKLIN DE KLEINE COMPANY. STATE PRINTERS. LANSING. MICHIGAN

a al

INDEX

Page

I Opinion of the Court Below.... ‘ 1

II Counter-Statement on Jurisdiction ...................... 2

III Counter-Statement of Facts... 5

IV Argument . SAIS I fat lois A nO me eo 9

V_ Conclusion m . 17

Authorities Cited:

Austin v. Secretary of State, 321 Mich. 426................ 6

Carson Petroleum vieeateied v. Vial, 279 U.S. 95, 73 L.

Ed. 626 4, 9, 10, 14

Empresa Siderurgica, S. A. et al v. Merced vee

et al, 194 P (2d) 527 ..... 4

Jett Bros. Distilling Co. v. City of Carrollton, 252 U.S.

1 12

Joy Oil Co., Ltd. v. State Tax Commission, 321 Mich.

335 6

Monamotor Oil Company v. Johnson, 292 U.S. 86........ 16

Richfield Oil Corporation v. State Board of Equaliza-

tion, 329 U.S. 69, 91 L. Ed. 80 4, 14

Page

Spaulding & Bros. v. William H. Edwards, Collector of

Internal Revenue, 262 U.S. 67, 67 L. Ed. 865........ 4, 9, 14

Waters-Pierce Oil v. State of Texas, 212 U.S. 86.......... 6, 13

Wilson v. Cook, Commissioner of Revenue, 327 U.S.

Roe Ck GIR itetetittiniiccnenivamionnns ’ 12

In the

Supreme Court of the United States

October Term, 1948

No. 224

CHARLES E. AUSTIN, INC., Petitioner,

v.

HARRY F. KELLY, Secretary of State

of the State of Michigan.

On application for certiorari to the Supreme Court of the

State of Michigan.

Brief opposing Petition for Certiorari

IL

Opinion of the Court Below.

Opinion of the court below (436) is officially reported as

Chas. E. Austin, Inc. vs Harry F. Kelly, Secretary of State,

321 Mich. 426.

The companion case, involving practically the same «ques-

tions, October Term, 1948, No. 223, is reported as Joy Oil

Company v. State Tax Commission, 321 Mich. 335.

_——

sateilibias

II.

Counter-Statement on Jurisdiction

Petitioner invokes the jurisdiction of this Court under

Sec. 237 of the Judicial Code, as amended, (Title 28 U.S.

C.A. See. 344(a), 8 F.C.A., Title 28, See. 344(a)); and he

claims that the judgment appealed is a final judgment;

that its application is made within the time limit prescribed

by the rules of this court and presents a Federal question

in this case in that it assesses a tax under the gasoline tax

law of Michigan on gasoline, a commodity in foreign com-

merce, by holding that the interruption of the journey

in foreign commerce by storing of the gasoline in tanks at

Dearborn, Michigan, at the end of the rail journey pending

transshipment by boat to Canada, rendered the commodity

subject to tax under the Michigan Gasoline Tax Act, and

therefore contravenes the Constitution of the United States

and is probably not in accord with applicable decisions of

this court.

It is the position of Respondent:

(1) That the Michigan Supreme Court did not decide a

federal question of substance:

(a) When the gasoline was received in the State of

Michigan, it was received under such conditions that

the petitioner itself did not know which, or how much

of each shipment would be exported; the election to

export or retain the gasoline in Michigan being made

from four to six months after the gasoline had arrived

at Dearborn, Michigan, and petitioner had been af-

forded sufficient time to determine from its sales in

each country what part of the total shipments (cov-

ae

ered by Bills of Lading which consigned the gasoline

to Dearborn, Michigan, but which bills of lading bore

the legend ‘‘for export’’) would be needed by peti-

tioner’s Canadian bulk plant and Canadian retail sta-

tions, and what part would be needed for its Michigan

bulk plant and retail stations, which stood in the name

of Margaret P. Austin individually, all of which were

operated as a unit under identical ownership, though

bearing different corporate names.

(b) That the petitioner did not ship the gasoline

with the good faith intention of exporting it, but at-

tempted to use the protection of the commerce clause

of the United States Constitution to cloak its scheme

of state tax evasion;

(c) That the gasoline did not become a commodity

in foreign commerce until it was taken from petitioner’s

bulk plant at the place of consignment, (Dearborn,

Michigan), where it was stored in a common storage,

from which were supplied both Canadian bulk plant

and retail stations, and Michigan retai! stations; and

that immediately upon removal from the Dearborn

bulk plant and placement into a boat or vehicle bound

for a foreign port or location, the petitioner received

a refund or a credit for the full amount of the tax col-

lected from or debited against the petitioner;

(d) That the question set forth in the application

of the petitioner, (it having admitted that it has been

repaid or credited with the full amount of tax per gal-

lon levied by the Michigan Gasoline Tax Act, [3c], for

each and every gallon of gasoline which it could show

it had actually loaded into a boat or vehicle bound

for a foreign port or location from a common storage

Sain

tank) is a question only of whether or not it has ac-

counted to the State for all of the gasoline received

into storage facilities at its Dearborn plant, as is

required by Sec. 8 of Act No. 150 of the Public Acts

of 1937, as amended. This being a question of fact,

the decision is exclusively within the province of the

Michigan Supreme Court.

(2) That if a Federal question could be said to have

been involved, such question was decided fully in accord

with, among other applicable U.S. Supreme Court cases,

Carson Petroleum Company vs. Vial, 279 U. S. 95, 73

L. Ed. 626;

Richfield Oil Corporation vs. State Board of Equaliza-

tion, 329 U.S. 69, 91 L. Ed. 80;

A. G. Spaulding & Bros. vs. Wiliam H. Edwards, Col-

lector of Internal Revenue, 262 U. S. 67, 67 L. Ed.

865,

in that the facts in the last cited, as well as other like cases,

all show that there was no probability that any of the goods

stored would be diverted to domestic trade channels, and

that the storage at the point of transshipment was not for

the convenience and benefit of the shippers, and that the

point of transshipment and equipment at that point were

solely for the speedy and continuous export of the products

abroad, and for no other purpose.

And in the recent case of Empresa Siderurgica, S. A. et

al., v. Merced County et al., (June 15, 1948) 194 P. (2d)

527, the Supreme Court of California expertly distinguishes

the decisions of this Court dealing with the export clause

of the Federal Constitution. Syllabus 3 of the decision in

a nutshell states the rule. It is there said:

po

‘‘The determining factor as to whether goods have

ceased to be a part of the general mass of property in

a state subject as such to its jurisdiction and to tax-

ation in the usual way is not the owner’s intention to

export, but whether or not exportation has com-

menced.’’

In the instant case the facts clearly show that petitioner’s

entire arrangement was one of commingling an amount of

gasoline previously purchased in quantity estimated to

be in excess of export requirements, and designated, on

transit documents, as ‘‘for export’’ with a quantity of gas-'

oline admittedly purchased for domestic trade, and later,

when the exact export requirements were determinable,

filling these export requirements from the commingling stock

and selling the balance to the domestic trade, and mean-

while using the claimed export stock as a ‘‘pool’’ from which

the petitioner could recover his actual evaporation and

handling losses in the admittedly tax paid domestic stock,

thereby evading a portion of the State Gasoline Tax. In

short, using one composite stock in trade at Dearborn,

Michigan, for the supply of the retail trade of the Joy Oil

Company, Ltd., in Toronto and Windsor, Canada, areas—

Chas. E. Austin, Inc., in the Detroit area—retail stations

of Margaret P. Austin in the Detroit area—at such times

and in such amounts as the various retail trade areas would

absorb it.

Il.

Counter-Statement of Facts

Since the function of this court ‘‘is not that of a general

reviewing court in error, but is limited to the specific in-

stances of denials of Federal rights,’’ * * * ‘‘nor does this

eae Se

court sit to review the findings of facts made in the state

court, but accepts the findings of the court of the state wpon

matters of fact as conclusive, and is confined to a review

of questions of Federal law within the jurisdiction con-

ferred upon this court,’’ (Waters-Pierce Oil Co. vs. State

of Texas, 212 U. S. 86, at page 97), we cannot accept the

‘‘Brief Statement of Facts’’ as set forth in Plaintiff’s Pe-

tition for Writ of Certiorari. Respondent, therefore, sets

forth the following statement of the case, based upon find-

ings of fact of the Michigan Supreme Court, in C. E. Austin

Inc., vs. Secretary of State, 321 Mich. 426, and ‘‘further

detailed facts’’ set forth in Joy Oil Co., Litd., vs. State Tax

Comm., 321 Mich. 335, and incorporated in Austin vs. Sec-

retary of State (supra) by reference, (see page 431 Austum

vs. Secretary of State, (supra).)

The facts, so far as material to the issues before this

Court, and as found by the Court below:

The petitioner, Chas E. Austin, Inc., conducted the busi-

ness of a licensed wholesale distributor of gasoline at Dear-

born, Michigan. (437)

The Joy Oil Company, Ltd., is a corporation organized

under Canadian law; has a bulk plant and retail stations in

Canada (302) and is not authorized to do business in Mich-

igan. (438)

Margaret P. Austin individually owns a number of retail

gasoline filling stations in Detroit, which obtain their gaso-

line supplies from Chas. E. Austin, Ine. (442)

Margaret P. Austin, the wife of Chas. E. Austin, so far as

the record shows owns all of the foregoing properties. (437)

(438) (442)

A

This combine maintains involved interlocking corporate

and individual and intercorporate leasing arrangements and

channels of supply conceived and carried on for the purpose

of evading payment of taxes. (442) Gasoline was purchased

in the name of the Joy Oil Company, Ltd., in Michigan and

outside of Michigan (438) and consigned to Joy Oil Com-

pany, Detroit, Michigan, c/o Chas. E. Austin, Ine. (58)

(441). On arrival at Dearborn, Michigan, the gasoline sup-

posedly destined for Canada was not only commingled with

gasoline to be sold to the retail trade in Michigan, but a

large amount of the exportable gasoline was itself diverted

to the retail use in Michigan. (441) The gasoline received

at the tanks in the Chas. E. Austin plant was commingled

as suited the convenience of Margaret P. Austin, the Joy

Oil Company, Ltd., and Chas. E. Austin, Ine. (439) (440)

Except that it was for the convenience and benefit of the

petitioner to commingle the gasoline for transshipment with

tax-liable gasoline, the tax-exempt gasoline would doubt.

less have been stored separately, and thus have aveided tie

confusion brought about by the manner in whieh the gas

line storage was handled. (440) All of the gasoline wheeh

was withdrawn from the commingled stocks of gasoline and

transshipped to Canada was considered tax exempt by the

Defendant, Secretary of State, and so far as was Teasomahd y

possible, refunds of the tax previously paid were made.

(440)

The Respondent, Secretary of State, made an sadit of

petitioner’s records for the period of September 1, 1999 to

October 31, 1940 (437) and deeming the gasoline purperted-

ly destined for Canada not to have been in interstate or

foreign commerce under the conditions previously set out,

assessed the tax provided by the Gasoline Tax Act as of the

date of receipt, and credited the petitioner with the tax on

anand

the date of shipment, when petitioner disclosed by his re-

port that he had shipped the gasoline to Canada. (440)

Petitioner filed reports and paid the tax shown to be due

by its reports. (437) The tax in issue here is the difference

in taxable gallons between the report of the petitioner and

the determination of the State Auditor. (Ex. 37A) (385)

Exhibit 37A, shown on page 385 of the record, shows a

difference in taxable gallons of 197,815, but does not segre-

gate the incidents of difference into differences involved in

pétitioner’s petition to this court and those not so involved.

The auditor’s testimony (222 to 240) details these differ-

ences,

Two undisputed facts stand out in this case: FIRST, that

each gallon of gasoline here in question was taxed in the

amount prescribed by the statute upon its receipt into pe-

titioner’s storage tanks, from which it also supplied Detroit

retail filling stations. (222 to 240) (442) SECOND, as set

out in the opinion of the lower court (440) the tax on every

gallon actually transshipped to Canada was refunded so

far as ‘‘reasonably possible’’. (440)

The amount here in question is of course that part of the

total number of gallons of gasoline received as purported

property of the Joy Oil Company, Ltd., which was not ac-

counted for by showing it to have been exported or still in

the possession of the petitioner. (295)

—IJ—.

IV.

ARGUMENT.

Had petitioner not confused the gasoline here in question

with its domestic stocks, and had the petitioner transship-

ped it to Canada under circumstances showing that no por-

tion of it was used or consumed in the United States (Rich-

field Oil Co. vs. State Board of Equalization, 329 U.S. 69,

at page 71,) and that the facilities at the waterside were

constructed for the purpose of export operations and the

only business conducted there was the unloading of oil from

the railroad tank cars into storage tanks and loading the

oil from the storage tanks aboard the tankers for shipment

abroad, (Carson Petroleum Co. vs. Vial, 279 U.S. 95, at page

99,) or if the very act * * * that incurred the tax * * * com-

mitted the goods to the carrier that was to take them across

the sea, (A. G. Spaulding ¢ Bros. vs. Edwards, 262 U.S. 66,

at page 69,) then the petitioner could very well rely on

Carson Petroleum Co. vs. Vial, Richfield Oil Co. vs. State

Board of Equalization, A. G. Spaulding @ Bros. vs. Ed-

wards, supra), but the facts as found by the Supreme Court

of Michigan in the instant case are diametrically opposite

those of the last cited cases.

In the instant case, the act of placing the gasoline in the

hands of the carrier which was to take it abroad did not

incur the tax as in the Spaulding case (supra) but on the

contrary occasioned the refund of the tax assessed when

the goods were placed in the ordinary domestic bulk plant

of the petitioner.

Directly contrary to the facts in the Richfield case (supra),

the gasoline in the instant case was not deposited in facili-

ties built especially for export trade, and through which no

~nien

domestic operations were carried on, but was placed in

facilities constructed for ordinary domestic trade and there

commingled for the convenience and benefit of petitioner

(440) with gasoline from which petitioner serviced its Mich-

igan retail trade.and a portion of the exportable gasoline

being sold in the domestic retail trade. (440) (441)

In the instant case, the elements constituting the turning

point of the Carson Petroleum Co. vs. Vial, (supra) are

lacking—there no oil was sold at St. Rose except what was

exported. The only business conducted there was the un-

loading of the oil from tank cars into accumulating tanks

and loading the oil from those tanks to tank steamers

and the facilities were single purpose export facilities. The

court in Carson Petroleum Co. vs. Vial, 279 U.S. 95, at page

99, calls the tanks ‘‘storage tanks’’, but a review of the

facts plainly shows that the tanks were not used for storage

tanks in the true sense of the word, but were used only for

the purpose of accumulating boat shipments. In the instant

ease the gasoline was deposited in tanks commingled with

the purported export stock at the convenience of the foreign

and domestic arms of petitioner’s combine; some was sold

in the Michigan retail trade; some was withdrawn for trans-

shipment to Canada. (440; 441) In the Carson Petrolewm

Co. v. Vial case (supra) there were no complicated inter-

locking individual and corporate ownership and leasing

arrangements conceived and carried on for the purpose of

evading the payment of state taxes. (442)

Even if we accept petitioner’s statement of facts, an

ordinary reading would raise the question in the reader’s

mind: What is he asking this court to do? A close analysis,

however, reveals that what he is actually asking this court

to do is to set aside the determination of the lower court,

wherein it holds that as far as is ‘‘reasonable possible’’ the

=—

Secretary of State made refunds to the petitioner of the tax

on all gasoline actually transshipped to Canada, and rede-

termine the involved factual situation which the petitioner

alone brought about by its commingling of all of its gaso-

line, as the Michigan Supreme Court pointed out in its

opinion as follows (440) :

‘«« * * * Except that it was for the convenience and

benefit of the plaintiff, by commingling the gasoline for

transshipment with tax-liable gasoline, the tax-exempt

gasoline would doubtless have been stored separately,

and thus have avoided the confusion brought about by

the manner in which the gasoline storage was handled.’’

From the last paragraph on page 7 of plaintiff’s petition

and his reference to the record on page 262, we find that

petitioner expects this court to order the respondent arbi-

trarily to assume that there had been an evaporation loss

of three percent (3%) of the total number of gallons during

the time between original receipt of the ,asoline and trans-

shipment to Canada, and to give the petitioner credit for

the actual number of gallons transshipped to Canada, plus

three percent (3%) of that number. No doubt some evapo-

ration occurred, but the exact amount of such evaporation

could not be determined unless the gasoline to be exported

were kept separate until the time of its transshipment to

Canada. Certainly it could not have been determined while

lying commingled with domestic stocks of gasoline (441)

and while withdrawals from the commingled mass were

being made from time tc time to fill orders from the Mich-

igan retail trade. (440)

Wherein was a Federal question of substance decided?

Even if we should take the ridiculous position that the facts

in the petitioner’s case are parallel to the facts in the three

afin

cases he relies upon, the opinion of the lower court specifi-

cally recognizes and follows the Export-Import Clauses of

the United States Constitution. (440) The Michigan Gaso-

line Tax Act likewise recognizes these clauses. (Sec. 20 of

Act No. 150, P. A. 1927, as amended, reads as follows:

**Neither this act, nor any of its provisions, shall apply to

foreign or interstate commerce’’.) The proper adminis-

trative officer of the state recognized it when refunds of

tax were made. (440) The fact that this court might have

made a different decision, as to the amount of gasoline un-

accounted for than did the lower court, is immaterial. In

Jett Bros. Distilling Co. vs. City of Carrollton, 252 U. S. 1,

the court holds at page 6:

‘In order to give this court jurisdiction by writ of

error under amended Sec. 237, Judicial Code, it is the

validity of the statute or authority which must be

drawn in question. The mere objection to an exercise

of authority under a statute, whose validity is not at-

tacked, cannot be made the basis of a writ of error from

this court. There must be a substantia! ‘challenge of

the validity of the statute or authority upon a claim

that it is repugnant to the Federal Constitution, trea-

ties, or laws so as to require the state court to decide

the question of validity in disposing of the contention.

@®ee# >)

This holding was specifically followed in Warren W. Wil-

son vs. Otho A. Cook, Comm. of Rev., 327 U.S. 474, at

page 482:

‘« # © © ‘the mere objection to an exercise of authority

under a statute, whose validity is not attacked, cannot

be made the basis’ of an appeal. Jett Bros. Distilling

Co. v. Carrollton, 252 US 1, 6, 64 L ed 421, 423, 40 S Ct

a

255. It is for this reason that we have held that an

appeal will not be sustained where there has been only

an attack upon a tax assessment, Jett Bros. Distilling

Co. v. Carrollton, 252 US1,***

In Waters-Pierce Oil Co. vs. Texas, 212 U.S. 86, at page

97 the court says:

“The case was submitted upon oral arguments and

elaborate briefs and a voluminous record. It was ar-

gued, in many aspects, as though this were a proceed-

ing in error to review the weight of the evidence ad-

duced in the state courts, to reexamine the rulings of

the court upon the admissibility of testimony, and to

determine the effect of the statute of limitations in the

State.

“The jurisdiction of this court to review the proceed-

ings of the state courts, as we have had frequent ocea-

sion to declare, is not that of a general reviewing court

in error, but is limited to the specific instances of

denials of Federal rights, whether those pertaining to

the constitutionality of Federal or state statutes, or to

certain rights, immunities and privileges of Federal

origin, specially set up in the state court and denied

by the rulings and judgment of that court. Sec. 709,

Rev. Stat. U.S. Nor does this court sit to review the

findings of facts made in the state court, but accepts

the findings of the court of the State upon matters of

fact as conclusive, and is confined to a review of ques-

tions of Federal law within the jurisdiction conferred

upon this court. Quimby v. Boyd, 128 U.S. 488; Egan

v. Hart, 165 U.S. 188; Dower v. Richards, 151 U.S. 658;

Thayer v. Spratt, 189 U.S. 346. We shall not, there-

fore, undertake to follow counsel in the consideration

of all the questions argued, but shall limit our review

a

to questions of a Federal nature which we deem to be

properly made in this record and essential to ‘‘the

decision of the case.’’

In two of the cases relied upon by the petitioner, to-wit:

Richfield Oil Corporation vs. State Board of Equalization,

329 U.S. 69, 91 L. Ed. 80; A. G. Spaulding & Bros. vs. Wil-

liam H. Edwards, Collector of Internal Revenue, 262 U.S.

67, 67 L. Ed. 865, the taxing statute itself was attached as

being repugnant to the Export-Import Clauses of the Fed-

eral Constitution, and the question of the amount of tax

under an admittedly constitutional statute, which is the real

question in the case at bar, was not in issue.

In Carson Petroleum Co. vs. Vial, 279 U.S. 95, 73 L. Ed.

626, the question arose under a rather unique statute, (Act

No. 170 of the Louisiana Public Acts of 1898), which as-

sumed to tax all property of any nature, not previously

exempted by law, on an ad valorem basis. The tax on the

property involved was laid on an estimated average value

for the taxable year. The difficulty of ascertaining the exact

nature of the tax was avoided by reason of the fact that

the parties had apparently agreed that the only question

in the case was whether or not any tax at all could be col-

lected, and that result would depend on whether or not the

levy of the tax was an interference with interstate and

foreign commerce.

Petitioner, on page 16 of its brief, argues for the applica-

tion of the maxim ‘‘de minimis non curat lex’’ in the ques-

tion of its commingling operations setting forth that the.

total gallonage involved is 1,975,402 and the tax complained

of was laid upon a gallonage of only 60,000. It must be

borne in mind that the 60,000 gallons do not represent the

total amount of gallons commingled, but do represent mere-

er, Wak

ly the number of gallons which the petitioner could not

account for when the state auditors were endeavoring to

reconcile the confusion caused by petitioner’s commingling

operations. If the maximum ‘‘de minimis non curate lex’’

should control the decision of this court in this case, then

the petitioner has ‘‘argued itself right out of court’’. There

can be no question that if the maxim should be applied to a

question which is controlling in the entire controversy,

there are more, or at least, equally, compelling reasons for

its application to the controversy as a whole. This being

true, the respondent’s purpose here has been accomplished,

since that officer endeavors to show that this court is not

concerned with the controversy in this cause and that the

decision of the Michigan Supreme Court should be regarded

as final.

Respondent is of the belief that it would be of no material

assistance to this court to show in detail the manner in

which the purported export shipments of gasoline were used

to evade payment of the Michigan Gasoline Tax, and that

it is sufficient to point out that the theory employed is the

same as that set forth in the opinion of the lower court

(443), from which it readily appears that the pivot point

of the evasion scheme is to have on hand at all times a

quantity of tax-exempt gasoline, out of which evaporation

and handling losses in tax-paid gasoline may be recovered,

and though it would be impossible to determine the exact

point at which the unaccounted for gasoline was lost, it is

safe assumption that most of the loss was occasioned by the

replenishment of the depleted tax-paid domestic portion of

the commingled stock from the purported tax-exempt for-

eign commerce shipments.

Petitioner does not clearly disclose in his brief exactly

how he believes the respondent should have treated ship-

—16—

ments of gasoline consigned to Detroit under bills of lading

bearing the legend ‘‘for export’’ but his real contention

can be found between the lines; that contention being that

so long as he sets up certain artificialities which would give

the transaction the complexion of an export operation, it

must be regarded as a sort of ‘‘sacred cow”’ and the state

authorities must follow a strictly ‘‘hands off’’ policy with

respect to it and, therefore, no showing of what became of

the amount of gasoline actually received at petitioner’s do-

mestic plant could be required of it and petitioner could go

merrily on replacing losses in his tax-paid domestic

stocks from the tax-exempt export stocks without fear

of detection. This was the real contention in many

cases prior to Monamotor Oi Company v. Johnson,

292 U.S. 86, as well as in that case. There the prin-

cipal question was whether or not an interstate com-

merce transaction was being taxed by the levy of a tax

upon receipt of the goods and refund of the tax upon ex-

portation of the same goods, and the court held that the

commerce was not burdened and certainly the holding ap-

plies with equal force whether the commerce is interstate

or foreign. So far as the questions involved in the instant

case are concerned, the Iowa statute in the Monamotor case

and the Michigan statute are nearly identical.

Vv

CONCLUSION

From the above we believe it clearly appears that a Fed-

eral question of substance is not involved here, but that in

the event this court might hold that the facts do present such

question, it was decided by the lower court completely in

harmony with the decisions of this court, and the Petition

for Certiorari should be denied.

Respectfully submitted,

Eugene F. Black

Attorney General of Michigan

Edmund E. Shepherd

Solicitor General of Michigan

Ben H. Cole

Assistant Attorney General

By

Ernest O. Zirkalos

Assistant Attorney General

Business Address:

1900 Cadillac Square Bldg.

Detroit 26, Michigan

Woodward 2-5083

DATED:

Sept. 7, 1948.