*1 271 or the 14th either fendant commissioner on time, in May was delivered

15th of no other of this

under facts Co. Fernandez reached.

clusion could be 524, 82 P.2d Montoya, of a new absence

118 But 573. A.L.R. the rental

notice from defendant latest on payable at the necessarily

not hun- might day. run a

the ninetieth It opin- are days. We twenty

dred and paid before were

ion that the rentals made. of the leases was

legal cancellation re- the district in- with remanded the cause

versed and decree enter a

structions to so It is ordered. prayed for.

COMPTON, JJ., concur. P.2d 551 TRANSIT REFRIGERATOR

AMERICAN SHEPARD, Treasurer, CO. v.

March May Denied 1949. earnings gross appellant for due year

Use of its cars calendar 1945. for the required Act, As by the this amount was *2 paid appellant’s appellee, on account to Tax Commission. State Upon judgment summary motion for the genuine trial court found there was no is- determined; sue of material fact to be Catron, appellant. Fe, F. A. of Santa for cluded aas matter that of law McCulloh, Atty. Gen., Robert V. C. C. merits, go should appellee and for on the Wollard, Atty. A. H. Mc- Asst. Gen. and complaint. the dismissed Jones, Theo. E. Albu- both of Leod and querque, appellees. At for the trial of this case it below urged defense,

was as a not ruled by the judge, plaintiff trial that the had not statutory exhausted its remedies be opinion Upon for the rehearing fore the State Tax Commission before hereby appeal heretofore filed in this is equity. Very the aid seeking of one likely withdrawn and the one to follow substituted reason the trial court did not rule the therefor. of merits this defense is due to the fact that by sustaining it determined the cause Opinion defendant’s summary judgment motion for COMPTON, Justice. the theory genuine on that there was no controversy as any to material fact. In proceeding challenged the This constitu- Transport, Petroleum Ltd., Associated et 128, Chapter 1945, tionality of Laws of Shepard, al. v. P.2d restrain the transfer of funds col- seeks to opinion we based our a holding on provisions. its pursuant lected to plaintiff statutory that the must exhaust its engaged is in the of Appellant business remedies before State Tax Commission be for furnishing its cars hire to various rail filing enjoin fore suit in equity to collection carriers common over their lines road of the tax here involved. Mexico other states. throughout New opinion compensation When by case, at a our just are used fixed this Its cars Un a Per by order, Commission. withdrawn Curiam the Interstate Commerce filed, agreed upon of the Act there is with provisions the decision in der the As 31/¿% ($5,662.73) Transport, Ltd., of sociated Petroleum by carriers the et held cause, order dismissing enter an and it Shepard, supra, not been rendered. v. had proved had, decisive of If it would have plaintiff appeal in this since statutory reme-

herein not exhaust did C. J., and be- Tax Commission dies before COMPTON, McGHEE and JJ., concur. ap- which this suit out of fore filing prolong

peal only the liti- arose. It could

gation, expense parties, at added an since a retrial ultimate

to send it back ap- on

disposition favor in defendant’s peal on author- to made have would be 206 P.2d 706 ity Transport, Petroleum Associated LOMAX et al. ZARING supra. Ltd., Shepard, al. v. here, there, not exhaust its stat- did seeking the aid

utory remedies before

equity. Accordingly, judgment of the trial May 12, 1949. *3 resting court, upon another Rehearing Denied June affirmed, ground, and should be is correct it is LUJAN, SADLER, J., and C. concur. JJ., Denying Order Motion for coming on hearing

This cause appellant’s second for a re having

hearing court and the considered counsel, being motion and briefs of

said sufficiently premises,

now advised in the participating, full the judgment directions to the

is reversed with trial court

to reinstate -the docket and