There is no doubt that the supervisor of public accounts has the right to obtain a writ of attachment to enforce the payment of the gasoline tax, under section 4 of Act No. 6 of 1928, as amended by section 4 of Act No. 1 of the Extra Session of 1930. Ordinarily it is the duty of the district judge to issue the writ of attachment upon a prima facie showing by the supervisor of public accounts that a delinquent taxpayer is attempting to avoid the payment of the tax. But, under the facts and circumstances of this case, the judge, in my humble opinion, was justified in exercising his own judgment and using some discretion in the matter. The facts which I refer to are shown by the return made by the district judge, and by that of the defendant, Violet Oil Company, in response to the rule to show cause, issued by this court. The *Page 661 facts are shown mainly by an official document, or letter, sent by the so-called "Office Attorney" for the supervisor of public accounts, to the Violet Oil Company, on the 6th of January, 1933; the day on which this court issued the rule to show cause. The tank car of gasoline, containing 8,122 gallons, and subject to a tax of $393.92, was received by the defendant on the 2d of January, 1933. On the next day, and before running the gasoline into the company's storage tank, the company offered to pay the $393.92 at the New Orleans office of the supervisor of public accounts, and was there directed to make the remittance to the Baton Rouge office. The check for $393.92, which is admitted to be the correct amount of the tax, was deposited in the mail, in a registered letter, at Arabie Post Office, near the Violet Oil Company's establishment, and near New Orleans. The registered letter was addressed, of course, to the supervisor of public accounts, at Baton Rouge. The letter and check were mailed on the morning of the 4th of January. It was on that afternoon that the attorneys for the supervisor of public accounts presented to the district judge their petition for a writ of attachment to collect $500, plus 20 per cent. penalty and 10 per cent. attorneys' fees, on the allegation, which it is conceded was an error, that the tank car contained 10,000 gallons of gasoline. The judge declined to sign the ex parte order for an attachment, which the attorneys for the plaintiff had prepared for his signature; but he offered to issue a rule on the Violet Oil Company to show cause *Page 662 why a writ of attachment should not be issued. That method of procedure would have brought out the fact that the amount of the tax due was only $393.92, and not $500, plus 20 per cent. penalty and 10 per cent. attorneys' fees, as claimed in the petition; and the state would have been protected, because the check for the full amount of the tax was already on its way, by registered mail, to the supervisor of public accounts. The check arrived in the office of the supervisor of public accounts, in Baton Rouge, on the 5th of January; the day on which the petition for a writ of mandamus was filed in the Supreme Court. The office attorney for the supervisor of public accounts returned the check for $393.92 to the Violet Oil Company, in a letter dated the 6th of January, in which the attorney demanded, in addition to the tax of $393.92, a penalty of $78.78, an attorney's fee of $47.27, and an inspection fee of $2.53, making the total demand $522.50, plus the costs of court. Even that amount is not as large as the sum for which the district judge is being mandamused now to issue a writ of attachment.
It does not seem to me to be just that the defendant should be condemned to pay heavy penalties for failing to comply with an excessive and unjust demand, when defendant was willing to pay promptly, and was in fact paying promptly, the full amount of the tax that was due.
For these reasons I respectfully decline to subscribe to the prevailing opinion or decree in this case. *Page 663