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ROCHESTER GAS & ELECTRIC CORPORATION v. McGOWAN

Nos. 80, 43, 78, 79.

115 F.2d 953 (1940)

ROCHESTER GAS & ELECTRIC CORPORATION v. McGOWAN, and three other cases.

Circuit Court of Appeals, Second Circuit.

December 2, 1940.

Attorney(s) appearing for the Case

W. H. Annat, of Cleveland, Ohio, for Hornell Ice & Cold Storage Co.

Scott Stewart, Jr., of Rochester, N. Y., for Stromberg-Carlson Telephone Mfg. Co. et al.

Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch and Paul S. McMahon, Sp. Assts. to Atty. Gen. (George L. Grobe, U. S. Atty., and Joseph J. Doran, Asst. U. S. Atty., both of Buffalo, N. Y., of counsel), for appellees.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

These actions were brought to recover "capital stock taxes" paid by the plaintiffs under §§ 215 and 216 of the National Industrial Recovery Act, 48 Stat. 207, 208, and under §§ 701 and 702 of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, pages 787, 789. The appeals are from judgments dismissing for insufficiency complaints which alleged that the statutes were unconstitutional because they violated the Fifth Amendment...

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