Opinion
Decided May 3, 1938.
Appeal from Franklin Circuit Court.
WOODWARD, DAWSON HOBSON for appellant.
HUBERT MEREDITH, Attorney General, and M.B. HOLIFIELD, Assistant Attorney General, for appellee.
This is the second appeal of this case. On the former appeal, the judgment of the Franklin circuit court, declaring invalid subsection (f) of section 2 of chapter 3 of the Acts of the General Assembly of Kentucky, passed at the Third Extraordinary Session begun on March 30, 1936, was reversed. The section in question imposed a tax upon cosmetics, and this court held that the tax was valid. Martin v. J. Bacon Sons, 268 Ky. 612, 105 S.W.2d 569. An appeal was taken to the Supreme Court of the United States where it was dismissed by that court, as it did not appear that there was a final judgment. J. Bacon Sons v. Martin, 58 S.Ct. 57, 82 L.Ed. . . . . Upon remand to the Franklin circuit court, an amended petition was filed, but no material change in the issues was made. The circuit court, in obedience to the mandate of this court, sustained a demurrer to the original petition and to the amendment thereto, holding that the tax in question is valid, and, J. Bacon Sons declining to plead further, its petition as amended was dismissed. The case is now before us on second appeal, and involves the identical federal question involved on the original appeal; that is, does the tax in respect to cosmetics purchased, transported, and received in interstate commerce burden interstate commerce in violation of the Commerce Clause of the Constitution of the United States, article 1, section 8, clause 3?
No new issue or additional question is presented on this appeal, and the court has not changed its view on the question raised under the Federal Constitution.
Judgment affirmed.
Whole court sitting, except Clay, J.