Kern-Limerick v. Scurlock

by the Supreme Court of the United States

United States Supreme Court

347 U.S. 110

Kern-Limerick, Inc. et al.  v.  Scurlock, Commissioner of Revenues for Arkansas

Appeal from the Supreme Court of Arkansas

No. 115.  Argued: January 4, 1954. --- Decided: February 8, 1954

The Arkansas Gross Receipts Tax Law of 1941, which levies on aellers an excise tax of 2% on the gross receipts from all sales in the State, held unconstitutional as applied to the transactions here involved, whereby private contractors procured in Arkansas two tractors for use in constructing a naval ammunition depot for the United States under a cost-plus-fixed-fee contract entered into with the Navy Department under §§ 2(c)(10) and 4(b) of the Armed Services Procurement Act of 1947 and providing that, in procuring articles required for accomplishment of the work, the contractor should act as purchasing agent for the Government, title to the articles purchased should pass directly from the vendor to the Government and the Government should be directly liable to the vendor for payment of the purchase price. Pp. 111–123.

(a) The Procurement Act authorized the purchase of this machinery by the Navy for the construction of an ammunition depot. P. 114.

(b) Under the Procurement Act, the Navy Department has power to negotiate contracts which provide for private purchasing agents for supplies and materials. Pp. 114–116.

(c) The restrictions in § 7 (b) on delegations of authority are not applicable to actions under § 2(c)(10). Pp. 115–116.

(d) Under the contract here involved, the United States was the real purchaser; the naming of the Government as purchaser was not merely colorable and did not leave the contractor the real purchaser. Alabama v. King & Boozer, 314 U.S. 1, distinguished. Pp. 116–122.

(e) The drafting of the contract by the Navy Department to conserve Government funds, if that was the purpose, does not change the character of the transaction. Pp. 122–123.

221 Ark. 439, 254 S.W.2d 454, reversed.

The Supreme Court of Arkansas held the Arkansas Gross Receipts Tax Law of 1941, Ark. Stat., 1947, § 84-1901 et seq., applicable to the sale of certain machinery in Arkansas for use in the construction of a naval ammunition depot for the United States. 221 Ark. 439, 254 S.W.2d 454. On appeal to this Court, reversed, p. 123.

Assistant Attorney General Holland argued the cause for appellants. On the brief were Acting Solicitor General Stern, Mr. Holland, Ellis N. Slack and Lee A. Jackson for the United States, and A. F. House and William Nash for Kern-Limerick, Inc., appellants.

O. T. Ward argued the cause and filed a brief for appellee.

Mr. Justice Reed delivered the opinion of the Court.