Appellee brought this suit against appellants, officers of the state of Alabama, to restrain the collection under statutes of that state of taxes in respect of gasoline and other liquid motor fuels-which for brevity we shall call 'gasoline'-sold to the United States and used by it in performing governmental functions. P aintiff applied to the court of three judges for a temporary and a permanent injunction. After hearing on an agreed statement of facts, the court held that the Alabama statutes assailed are not distinguishable from the Mississippi exaction condemned as unconstitutional in Panhandle Oil Co. v. Knox, 277 U.S. 218, 48 S.Ct. 451, 72 L.Ed. 857, 56 A.L.R. 583, and granted a permanent injunction. Texas Co. v. Carmichael (D.C.) 13 F.Supp. 242. The Governor and the other state officers appealed. 28 U.S.C. § 345 (28 U.S.C.A. § 345). The United States, by brief filed here as amicus curiae, presented its argument asking affirmance on the ground that the taxes impose a burden on sales to it.
In substance the Alabama statutes provide: The Act of February 10, 1923 (not here involved) required every distributor and retail dealer to pay an excise tax of two cents per gallon 'upon the sale' of gasoline. A distributor is one who sells gasoline at wholesale. A retail dealer is a distributor who also sells gasoline in broken quantities. The Act of January 25, 1927 (Gen.Acts Ala.1927, p. 16), required every distributor, retail dealer 'or storer' to pay 2 cents per gallon 'upon the selling, distributing or withdrawing from storage for any use' (§ 2). A storer is one 'who ships gasoline into this State * * * and stores the same and withdraws or uses the same for any purpose' (§ 1). The Act of August 27, 1927 (Gen.Acts Ala.1927, p. 326), amending that of 1923, employed the same from of words to define the exaction and made a total tax of 4 cents upon selling, distributing, or withdrawing for any use. The Act of July 27, 1931 (Gen.Acts Ala.1931, p. 859), added a cent and that of November 5, 1932 (Gen.Acts Ala.1932, Ex.Sess. p. 314), added another. The Act of January 31, 1935, repealed the 1931 and 1932 statutes, and, in lieu of the excises laid by them, imposed one of 2 cents. The Act of July 10, 1935 (Gen.Acts Ala.1935, p. 509, § 348, Schedule 156.1), repealed all the acts then in force and in their place enacted that 'Every distributor, refiner, retail dealer or storer of gasoline * * * shall pay an excise tax of six cents ($0.06) per gallon upon the selling, distributing, storing or withdrawing from storage in this State for any use, gasoline.'
All the acts here involved declare that the excise shall not be laid upon sales in interstate commerce and that the specified tax shall be paid but once. They make the excise apply whether 'withdrawals be for sale or other use,' declare that sellers may pay on the basis of their sales and required that others upon whom the excise is laid shall compute and pay the tax on the basis of their withdrawals. All must make monthly return of 'sales and withdrawals' (Schedule 156.3) and preserve records of 'sales, distributions or withdrawals' (Schedule 156.5). Any one who shall violate any provision may be restrained 'from distributing, refining, selling or withdrawing from storage any gasoline, the sale or withdrawal of which is taxable.' (Schedule 156.18.) Appellee is a Delaware corporation, authorized to do business in Alabama. It sells gasoline in the 67 counties of that state. Gasoline refined at Port Arthur, Tex., is transported by barges to the company's terminals at Mobile, Ala., and Pensacola and Millville, Fla. Gasoline sold in Alabama is delivered from the Mobile terminal or the company's bulk plants in that State to which gasoline is shipped from the terminals and at which it is held in tanks until withdrawn for delivery at the plants to customers or for transportation to service stations where it is sold at retail to the public.
Practically all the gasoline received by the United States from the company in Alabama is sold and delivered pursuant to written contracts. Some provide for deliveries at the Mobile terminal, some at bulk plants and some at service stations. The deliveries from the Mobile terminal are made in railroad tank cars on tracks adjacent to the terminal. Gasoline delivered from bulk plants is that shipped from the terminals and stored in tanks at the plants until withdrawn. That delivered from service stations is shipped from the terminals to bulk plants and thence conveyed to the stations.