THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

Cite as Wainit v. Truk (II), 2 FSM Intrm. 86 (Truk 1985)

[2 FSM Intrm. 86]

TADASHI WAINIT et al.,

Plaintiffs,

vs.

TRUK STATE GOVERNMENT,

Defendant,

and

SIMEON INNOCENTI, as Speaker

of the Truk State Legislature

Intervening Defendant.

CIVIL 1985-1006

DECISION

Before Richard H. Benson

Associate Justice

August 16, 1985

APPEARANCES:

     For the Plaintiffs:          R. Barrie Michelsen

                                            Attorney-at-Law

                                            Stovall, Spradlin, Ramp, Armstrong & Israel

                                            P.O. Box 1480

                                            Kolonia, Pohnpei 96941

[2 FSM Intrm. 87]

     For the Intervenor:              Tim G. Bruce

     (Simeon Innocenti              Attorney-at-Law

     as Speaker, Truk State      P.O. Box 27

     Legislature)                         Moen, Truk 96942

*        *       *        *

HEADNOTES

Civil Procedure

     Where there is no genuine issue of any material fact and the plaintiffs are entitled to judgment as a matter of law, summary judgment may be granted.  Wainit v. Truk (II), 2 FSM Intrm. 86, 87 (Truk 1985).

Taxation

     State excise tax which levies tax at the port of entry on items imported into a state and which must be paid prior to release of those items from the port of entry, is an import tax within the meaning of FSM Const. art. IX, § 2(d).  Wainit v. Truk (II), 2 FSM Intrm. 86, 87 (Truk 1985).

Constitutional Law - legislative power;

     The power to impose taxes, duties, and tariffs based on imports is a national, not a state, power and where Congress has exercised the power and shares the revenues with the states, a state may not also impose an additional import tax.  Wainit v. Truk (II), 2 FSM Intrm. 86, 88 (Truk 1985).

*      *       *      *

RICHARD H. BENSON, Associate Justice:

     This matter came before the court on the Motion of the plaintiffs for summary judgment.  Oral argument was presented on August 13, 1985.  The plaintiffs and the intervening defendant appeared by counsel.  The Attorney General of the Federated States of Micronesia had earlier submitted a brief as amicus curiae. The defendant Truk State Government did not appear.

     I find that there is no genuine issue as to any material fact, and that the plaintiffs are entitled to judgment as a matter of law insofar as they claim that Section 4 of Truk State Law No. 5-103 imposes an import tax in violation of the Constitution of the Federated States of Micronesia.

     Section 4 of Truk State Law No. 5-103 "levie[s] an excise tax at the port of entry on items imported into the State of Truk." § 4(1).  This tax "shall be paid to the Division of Revenue prior to the release of the items from the port of entry..." § 8.

     I conclude the excise tax is an import tax.

     The Constitution of the Federated States of Micronesia provides that a power expressly delegated to the national government is a national power.  FSM

[2 FSM Intrm. 88]

Const. art. VIII, § 1.  The power to impose taxes, duties, and tariffs based on imports is expressly delegated to Congress.  FSM Const. art. IX, § 2(d).

     The power to tax imports has been exercised by Congress (54 F.S.M.C. §§ 201-03) and the revenue is shared with the state where collected.  FSM Const. art. IX, § 5; 54 F.S.M.C. 805.

     I conclude the Truk State Law violates the Constitution of the Federated States of Micronesia.

     Section 4 of the Truk State Law No. 5-103 imposes the excise tax on items coming into Truk State from other states of the Federated States of Micronesia. Such items constitute a minuscule part of all items coming into the State of Truk. The plaintiffs allege that the tax restricts interstate commerce in violation of Article VIII, Section 3, and infringes on the power  of the national government to regulate interstate commerce in violation of Article IX, Section 2(g).  As to these claims the motion for summary judgment is denied, as is the claim that the excise tax law violates the equal protection clause of the Constitution.

*     *       *       *