Stinnett v Weno Municipality [1994] FMSC 36; 6 FSM Intrm. 312 (Chk. 1994) (14 January 1994)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Stinnett v. Weno, [1994] FMSC 36; 6 FSM Intrm. 312 (Chuuk 1994)

[1994] FMSC 36; [6 FSM Intrm. 312]

CHRISTINA STINNETT d/b/a TRUK STOP
and TRUK TRAVEL UNLIMITED,
RAYMOND SETIK d/b/a CHRISTOPHER INN,
KATCHUTOSY PAULUS, and
TRUK CONTINENTAL HOTEL, INC., a corporation,
Plaintiffs,

vs.

WENO MUNICIPALITY,
Defendant.

CIVIL ACTION NO. 1992-1036

OPINION

Richard H. Benson
Associate Justice

Hearing: December 2, 1993
Decided: January 14, 1994

APPEARANCES:

For the Plaintiff:
R. Barrie Michelsen, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant:
Maketo Robert, Esq.
P.O. Box 211
Weno, Chuuk FM 96942

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HEADNOTES

Federalism National/State Power; Taxation - Constitutionality
The Constitution prohibits state and local governments from imposing taxes which restrict interstate commerce. Stinnett v. Weno, [1994] FMSC 36; 6 FSM Intrm. 312, 313 (Chk. 1994).

Evidence - Judicial Notice
When requested to by a party, and once it has been supplied with all the necessary information, a court must take judicial notice of an adjudicative fact, only if it is either generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Counsel's

[6 FSM Intrm. 313]

oral argument to that effect is not enough. Stinnett v. Weno, [1994] FMSC 36; 6 FSM Intrm. 312, 313 (Chk. 1994).

Taxation - Constitutionality
Since, given the social and geographic configuration of the State of Chuuk and the structure of the transportation services available, a travel agency would necessarily be essentially interstate commerce, a tax aimed solely at a travel agency restricts or is restrictive of interstate commerce and therefore may not be levied by a state or local government. Stinnett v. Weno, [1994] FMSC 36; 6 FSM Intrm. 312, 313-14 (Chk. 1994).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This came before me pursuant to notice on the plaintiffs' motion for summary judgment on December 2, 1993 at 1:00 o'clock p.m. Plaintiffs appeared by counsel. The defendant did not appear.

Plaintiffs contend that the license fees or taxes assessed by the municipality are prohibited by the Constitution. The Constitution prohibits state and local governments from imposing taxes which restrict interstate commerce. FSM Const. art. VIII, § 3. Plaintiffs' basic contention is that the nature of their businesses is so interstate in character that a tax upon them is necessarily a tax that restricts interstate commerce.

Discovery by the parties was unable to determine the exact percentage of out of state guests that stayed at the hotels over the past few years. Plaintiffs' counsel urges the court to take judicial notice that such a percentage is "substantial."

Judicial notice of adjudicative facts "may be taken at any stage of the proceedings." FSM Evid. R. 201(f). When requested to by a party a court must take judicial notice once it has been supplied with all the necessary information. Senda v. Mid-Pac Constr. Co., [1991] FMSC 26; 5 FSM Intrm. 277, 280 (App. 1992); FSM Evid. R. 201(d). However, I may take judicial notice of only two kinds of facts, neither of which can be subject of reasonable dispute. A judicially noticed fact must either be "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FSM Evid. R. 201(b).

No sources whose accuracy cannot reasonably be questioned have been brought to my attention. Thus I presume that the plaintiffs ask that I take judicial notice that a substantial percentage of the room guests at all of the four plaintiff hotels are engaged in interstate travel (either have come to or are about to leave Chuuk State) is a fact generally known within the State of Chuuk. This is a step I am reluctant to take at this stage of the proceedings without more than plaintiffs' counsel's oral argument to that effect. Therefore I must deny the plaintiffs' motion for summary judgment as to the four hotels.

The plaintiff travel agency essentially makes the same request - that it is generally known within the State of Chuuk that Truk Travel Unlimited's business is essentially interstate in nature and that I take judicial notice of that fact. I find little difficulty in doing so. Given the social and geographic configuration of the State of Chuuk and the structure of the transportation services

[1994] FMSC 49; [6 FSM Intrm. 314]

available here, virtually any services purchased from plaintiff Truk Travel Unlimited would necessarily involve either someone already here traveling to an interstate or foreign destination, or would involve a traveler who has arrived here from such a destination traveling locally.

I find persuasive the plaintiff's argument that a tax aimed solely at an entity whose business is essentially interstate commerce restricts or is restrictive of interstate commerce. Therefore, if levied by a state or local government it is prohibited by the national constitution. FSM Const. art. VIII, § 3. The national constitution is the supreme law of the land. FSM Const. art. II, § 1. Therefore the tax levied by Weno Municipality on travel agents by section 3gg of Weno Municipal Ordinance 01-01-93 is unlawful. The motion of the plaintiff, Truk Travel Unlimited, is accordingly granted. The plaintiff is requested to submit a proposed judgment.

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