A rehearing was granted in this case solely for the purpose of correcting an error in calculation as to the amount due by defendants made in our original opinion. This fact was inadvertently overlooked at the time the case was argued on rehearing.
According to the agreed statement of facts, the 510,326 gallons of gasoline distributed *Page 827 by defendant in 1931 and 1932 were used as follows:
(A) Intrastate trips:Under sections 12 and 13 of the agreed statement of facts, a one-cent tax has been paid as follows:(1) Tri-State (1931) 24,050 (2) Caddo Co. (1931) 13,353 37,403 ------ (3) Tri-State (1932) 17,277 (4) Caddo Co. (1932) 11,021 28,298 65,701 ------ -------
(B) Interstate in Louisiana:
(5) Tri-State (1931) 65,223 (6) Caddo Co. (1931) 6,575 71,798 ------- (7) Tri-State (1932) 69,741 (8) Caddo Co. (1932) 5,021 74,762 146,560 ------- ------
(C) Interstate outside Louisiana:
(9) Tri-State (1931) 155,362 (10) Caddo Co. (1931) 19,391 174,753 ------- (11) Tri-State (1932) 107,104 (12) Caddo Co. (1932) 16,208 123,312 298,065 ------- ------- ------- Total (1931-1932) 510,326
By Tri-State, items (1) and (3), total 41,327 gallons. By Caddo Co., items (2) and (4), total 24,374 gallons. ------ Aggregating 65,701 gallons,
and leaving a balance of 444,625 gallons on which the one-cent tax still remains unpaid; being the aggregate of the eight items (5) to (12).
Under a decision rendered by the district court which was not appealed from, which decision followed the ruling in State v. Johnson, 173 La. 669, 138 So. 503, the items (9) and (10), aggregating 174,753 gallons used in the interstate trips outside of Louisiana by both companies in 1931, are foreclosed and must be excluded, leaving a balance of 355,573 gallons liable for the 4-cent tax. *Page 828
And, according to the agreed statement of facts (sections 12 and 13), the Tri-State Company has paid the 4 cents tax on items (1) and (3), aggregating 42,317 gallons (41,327) and items (5) and (7), aggregating 134,964 gallons, and the Caddo Company has paid the 4 cents tax on items (2) and (4), aggregating 24,374 gallons, and on items (6) and (8), aggregating 11,606 (11,596) gallons, thus leaving due and unpaid of the 4 cents tax only items (11) and (12), aggregating 123,312 gallons, still liable for the 4 cents tax.
So that, to sum the matter up, the 1-cent tax has been paid on items (1) to (4), aggregating 65,701 gallons, and is still due and unpaid on items (5) to (12), aggregating 444,625 gallons; and the 4-cent tax has been paid on items (1) to (8), aggregating 212,262 gallons, and is barred under the case above referred to as to items (9) and (10), aggregating 174,753 gallons, thus leaving still due and unpaid the 4-cent tax on items (11) and (12), aggregating 123,312 gallons.
Accordingly, defendant still owes $4,446.25 for the 1-cent tax on 444,625 gallons, items (5) to (12), and $4,932.48 for the 4-cent tax on 123,312 gallons, items (11) and (12).
So that there should be judgment against the defendant company for $9,378.73, together with 20 per cent. penalty thereon and 10 per cent. attorney's fees on the whole.
As the 1-cent tax alone ($4,446.25) with 20 per cent. penalty and 10 per cent. attorney's fees exceeds the amount of the bond given ($5,000), the bond company is without interest in the court's change of opinion (following the decisions of the Supreme Court of the United States) on the 4-cent tax involved in items (11) and (12). *Page 829
Our original decree is therefore corrected by fixing the balance due at $9,378.73 instead of $12,444.97, and as thus corrected it is reinstated in all parts and particulars.