State Tax Comm'n v. Interstate Nat. Gas Co., 284 U.S. 41 (1931)
Case details
Citation
284 U.S. 41
Full caption
STATE TAX COMMISSION OF MISSISSIPPI et al . v. INTERSTATE NATURAL GAS CO., INC.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Nov. 23, 1931
STATE TAX COMMISSION OF MISSISSIPPI et al .
v. INTERSTATE NATURAL GAS CO., INC.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.
No. 40. Argued October 26, 1931.—Decided November 23, 1931.
The selling of gas wholesale to local, independent distributors from a supply passing into and through the State in interstate commerce, does not become a local affair and subject to a local privilege tax merely because the vendor, to deliver the quantities sold, uses a thermometer and a meter and reduces the pressure. Affirmed.
Appeal from a decree enjoining the Commission from enforcing a privilege tax.
Mr. Edward R. Holmes, Jr., argued the cause for appellants, appearing pro hoc vice by leave of Court; and Messrs. George T. Mitchell, Attorney General of Mississippi, and J. A. Lauderdale, Assistant Attorney General, were on the brief.
The New York contracts are simply executory contracts of sale. The appellee cannot tell what gas it will sell to the distributor at Woodville, or what gas it will carry on through Mississippi into Louisiana. None of the gas is actually sold before it leaves the gas fields in Louisiana. It is true that the appellee is transporting gas with a view to selling it, but, before it relinquishes the title and control of any of it by delivery to the distributor, p. 42it must, under the very terms of its executory contract, prepare and treat it for sale and delivery. Appellee alone controls and operates its taps, regulators, thermometers and meters.
The sale is actually consummated at a time when the commodity is in Mississippi. This is not a case of delivery of an interstate shipment sent in response to an order. It is a case where the original package, being transported in interstate commerce, is broken, and the commodity prepared for sale and actually sold and delivered in Mississippi.
The method of measuring the tax by the number of miles of pipe line is reasonable. The tax can be validly imposed, even though it incidentally and indirectly affect and burden interstate business. St. Louis R. Co. v. Arkansas, 235 U. S. 350; New York v. Sohmer, 235 U. S. . 549; Cheney Bros. v. Massachusetts, 246 U. S. 147; Pullman Car Co. v. Adams, 189 U. S. 420; Hump Hair Pin Mjg. Co. v. Emmerson, 258 U. S. 290; U. S. Express Co. v. Minnesota, 223 U. S. 335; Maine n . Grand Trunk Ry. Co., 142 U. S. 217; Sprout v. South Bend, 271 U. S. 163.
It was not within the power of the parties by the form of their contract to convert a local business into an interstate business protected by the commerce clause, when the contract achieved nothing else. Superior Oil Co. v.
. Mississippi ex rel. Knox, 280 U. S. 390; General Oil Co. v. Crane, 209 U. S. 211; Sonnebom Bros. v. Keeling, 266 U. S. 505; Atlantic Coast Line R. Co .n . Standard Oil Co., 275 U. S. 254; Carson Petroleum Co. v. Vial, 279 U. S. 95; East Ohio Gas Co. v. Tax Commission, 283 U. S. 465.
Distinguishing Ozark Pipe Line Co. v. Monier, 266
U. S. 555; Missouri n . Kansas Gas Co., 265 U. S. 298; Peoples Gas Co. v. Pennsylvania, 270 U. S. 550; Pennsylvania Gas Co. v. Public Service Comm., 252 U. S. 23; Pennsylvania v. West Virginia, 262 U. S. 533; Public Utilities Comm. v. Landon, 245 U. S. 236; Eureka Gas p. 43Co. v. Hallahan, 257 U. S. 265; United Fuel Gas Co. v. Hallahan, 257 U. S. 277.
Mr. David Clay Bramlette for appellee.
Mr . Just ice Holmes delivered the opinion of the Court.
This is an appeal from a decree of three Judges sitting according to statute in the District Court, by which the Tax Commission of the State of Mississippi is permanently enjoined from enforcing a Privilege Tax Law of that State, being c. 88 of the laws of 1930, against the Interstate Natural Gas Company, the plaintiff in this suit.
The facts are agreed. The plaintiff has a trunk line of pipe extending from gas fields in Louisiana through Mississippi and back to Louisiana; 72.42 miles having a diameter of 22 inches, 8.11 miles having a diameter of 12 inches and 4.99 miles a diameter of 10 inches. It sells daily to distributors in Louisiana about 70,000,000 cubic feet of natural gas in summer and about 75,000,000 feet in winter. In Mississippi it sells as will be explained from 204,000 to 520,000 feet according to the season. The gas flows continuously from the gas fields in Louisiana and obviously, for much the greater part at least, in interstate commerce. But the appellants rely upon business done under two similar contracts made in New York to show that there was intrastate commerce in Mississippi that may be taxed without burdening the main activity that the State cannot touch. Ozark Pipe Line Corp. v. Monier, 266 U. S. 555, 563. East Ohio Gas Co. v. Tax Commission, 283 U. S. 465, 470. Distributing companies tap the plaintiff’s pipes near Natchez and the town of Woodville. The gas withdrawn by the distributors is measured by a thermometer and a meter furnished by the plaintiff which is the only way in which it can be measured. The pressure of the gas is reduced by the plaintiff
Syllabus. 284 U.S.
before it passes into the purchaser’s hands. The work done by the plaintiff is done upon the flowing gas to help the delivery and seems to us plainly to be incident to the interstate commerce between Louisiana and Mississippi. The plaintiff simply transports the gas and delivers it wholesale not otherwise worked over than to make it ready for delivery to the independent parties that dispose of it by retail. Missouri v. Kansas Gas Co., 265 U. S. 298. Public Utilities Comm. v. Landon, 249 U. S. 236, 245. Ozark Pipe Line Corp. v. Monier, 266 U. S. 555.
Decree affirmed.
CHESAPEAKE & OHIO RAILWAY CO. v. KUHN.
CERTIORARI TO THE SUPREME COURT OF OHIO, AND TO THE COURT OF APPEALS OF PIKE COUNTY, OHIO.
Nos. 34 and 35. Argued October 23, 1931.—Decided November
23,1931.
1. The writ of certiorari properly goes to an intermediate appellate court where the supreme court of the State has declined to review its decision. P. 45.
2. In actions under the Federal Employers’ Liability Act, where the undisputed evidence sustains the defense of assumption of risk, the trial judge should direct a verdict for the defendant. P. 46.
The evidence clearly showed that an injury to plaintiff’s eye (caused by a steel chip which flew into it when a rail was being cut by sledge-hammer and cold chisel) resulted from ordinary hazards of his employment, which he fully understood and voluntarily assumed; that there was no complaint against his exposure to the obvious danger unprotected by goggles, nor any promise by his superior to mitigate it.
3
In such actions, wherever brought, the rights and obligations of the parties depend upon the federal Act and applicable principles of the common law as interpreted and applied in the federal courts; a subordinate state tribunal should follow in such cases the views of this Court, though they conflict with those of the supreme court of the State. P. 46. Reversed.
Certior ari , 283 U. S. 815, to review a judgment sustaining a recovery under the Federal Employers’ Liability Act of damages for personal injuries. The Ohio Supreme Court refused to review the judgment. The opinion of the Court of Appeals is reported in 9 Oh. L. Abstract 378.
Mr. Henry Bannon, with whom Mr. David H. Leake was on the brief, for petitioner.
Mr. Homer H. Marshman, with whom Messrs. David F. Anderson and George D. Nye were on the brief, for respondent.
Mr . Just ice Mc Reynolds delivered the opinion of the Court.
While employed in interstate commerce as a section hand by petitioner, an interstate carrier, (Acts April 22, 1908, 35 Stat. 65; April 5, 1910, c. 143, 36 Stat. 291; U. S. Code, Title 45, c. 2,) William Kuhn suffers serious injury. Thereafter he sued the Company for damages in the Court of Common Pleas, Pike County, Ohio. He alleged that the accident resulted from its negligence in the following matters—Ordering him to use a defective sledge hammer and chisel; failing to promulgate and enforce proper rules concerning the upkeep of tools ordinarily used, to furnish guards or goggles for workmen’s eyes, to provide a reasonably safe place for him to work.
The Company denied negligence. It also set up in defense that the plaintiff voluntarily assumed the risk incident to his employment. At the trial it duly, but unsuccessfully, requested a directed verdict because of such assumption.
The jury returned a verdict for the respondent. Judgment upon this was affirmed by the Court of Appeals; the Supreme Court denied a review. This Court allowed writs of certiorari both to the Supreme Court (No. 34), p. 46and the Court of Appeals (No. 35) . The cause is properly here on the latter writ. Number 34 will be dismissed.
On the day of the accident, February 9, 1926, William Kuhn, an experienced section hand 54 years old, was engaged with others in repairing a side track leading from petitioner’s main line to a steam shovel. It became necessary to remove two steel rails and shorten them some six or eight inches. They were first laid on the ground and then cut with a cold chisel. One man held the chisel while respondent and two others, acting in turn, struck it with a heavy hammer. None of them wore goggles; none asked for goggles or objected to the method of operation. The first rail had been severed; work had begun on the second. While respondent was standing by, awaiting his turn to strike, a steel chip from the chisel or rail struck and destroyed his eye. On other occasions he had assisted in cutting steel rails when goggles were used, and he knew chips would fly during such an operation. “ That was the value of goggles,” he testified. He understood the dangers incident to the undertaking. The job was a hurry-up one. The assistant foreman in charge had told the men “ to gang up and go in a hurry, that he wanted to get through there.” “ Don’t be afraid.”
We think the evidence clearly discloses that Kuhn’s injury resulted from the ordinary hazards of his employment, which he fully understood, and voluntarily assumed. There was no complaint, no promise by his superior to mitigate the obvious dangers. The trial judge should have directed a verdict for the Railway Company.
In cases like this, where damages are claimed under the Federal Employers’ Liability Act, defense of the assumption of the risk is permissible, and where the undisputed evidence clearly shows such assumption, the trial judge should direct a verdict for the defendant. Moreover, in proceedings under that Act, wherever brought, the rights and obligations of the parties depend upon it p. 4744 Syllabus.
and applicable principles of common law as interpreted and applied in the federal courts. Seaboard Air Line v. Horton, 233 U. S. 492, 508; Chesapeake & Ohio Ry. Co. v. De Atley, 241 U. S. 310; Boldt v. Pennsylvania R. Co., 245 U. S. 441, 445; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 371; Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U. S. 472, 474.
The Court of Appeals acted upon the erroneous theory that it should follow the views of the Supreme Court of the State rather than those of this Court in respect of questions arising under the Liability Act. That statute, as interpreted by this Court, is the supreme law to be applied by all courts, federal and state. Second Employers’ Liability Cases, 223 U. S. 1, 57, 58. Where this view is not accepted, as in the present cause, it is within the power of this Court to determine and apply the proper remedy.
The judgment below is reversed. The cause will be remanded for further proceedings not inconsistent with this opinion.
Reversed.
1
In order to constitute a railroad company a “ party in interest ” within the meaning of § 402, par. 18, of the Transportation Act, 1920, and thereby entitle it to .maintain a suit to enjoin another railroad company from extending its line without having first obtained a certificate of public convenience and necessity from the Interstate Commerce Commission, it is not essential that the company suing have a legal right for which it might ask protection under the ordinary rules of equity ; but it will suffice if the bill disclose either that some definite legal right of the plaintiff is seri-1 Transportation Act 1920, § 402—Paragraph “(18) . . . no carrier by railroad subject to this Act shall undertake the extension of its line of railroad . . . unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the construction ... of such . . . extended line . . .” Paragraph “(19) The application for and issuance of any such certificate sha.11 be under such rules and regulations as to hearings and other matters as the Commission may from time to time prescribe, . . ” Paragraph “(20) . . . Any construction . . . contrary to the provisions ... of paragraph (18) . . . may be enjoined by any court of competent jurisdiction at the suit of . . . any party in interest. . . .” Paragraph “(21) The Commission may, after hearing, in a proceeding upon complaint or upon its own initiative without complaint, authorize or require by order any carrier by railroad subject to this Act, party to such proceeding, to provide itself with safe and adequate facilities . . ., and to extend its line or lines . . . Paragraph “(22) The.authority of the Commission conferred by paragraphs (18) to (21), both inclusive, shall not extend to the construction ... of spur, industrial, team, switching or side tracks, ... to be located wholly within one State, . . 85912°—32----- 4