Rehearing Granted and Decree Vacated Feb. 5, 1940
See 309 U.S. 692 , 60 S.Ct. 512, 84 L.Ed. --.
Opinion on the Merits March 25, 1940.
See 309 U.S. 414 , 60 S.Ct. 664, 84 L.Ed.-.
- [309 U.S. 2, 3] Messrs. William C. Chanler, Corp. Counsel, Paxton Blair, Sol Charles Levine, and Milton Sandberg, all of New York City, for petitioner.
Mr. Matthew S. Gibson, of New York City, for respondent.
The City of New York, through its Comptroller, assessed a tax against respondent with respect to sales of oil manufactured in that city in a bonded manufacturing warehouse, Class 6, established pursuant to the customs laws of the United States, the crude oil having been imported from Venezuela and the sales of the manufactured oil having been made to supply fuel to vessels engaged exclusively in foreign commerce. The Appellate Division, First Department, annulled the determination of the Comptroller considering the tax to be a burden upon foreign commerce. 256 App.Div. 207, 9 N.Y.S.2d 544. The Court of Appeals affirmed the order of the Appellate Division, without opinion. 281 N.Y. 647, 22 N.E.2d 480. Certiorari was granted, December 4, 1939, 308 U.S. 545 , 60 S.Ct. 260, 84 L.Ed. --.
In the absence of an explicit statement by the Court of Appeals that it annulled the assessment of the tax solely because of violation of the federal Constitution, we are unable to find that the decision of the highest court of the State did not rest upon an adequate non-federal ground. Jud.Code, Sec. 237(b), 28 U.S.C. 344(b), 28 U.S.C.A. 344(b); Lynch v. People of New York ex rel. Pierson, 293 U.S. 52 , 55 S.Ct. 16; Honeyman v. Hanan, 300 U.S. 14 , 57 S.Ct. 350; New York City v. Central Savings Bank, 306 U.S. 661 , 59 S.Ct. 790.
The writ of certiorari is dismissed for the want of jurisdiction.