Opinion
No. 35405.
June 7, 1943. Suggestion of Error Overruled July 9, 1943.
1. JUDGMENT.
A demurrer to bill for injunction did not admit allegations of bill as to irregularity of former proceeding and as to invalidity of judgment, enforcement of which was sought to be enjoined, since such allegations were mere "conclusions of law."
2. LICENSES.
Where Supreme Court had affirmed judgment sustaining an order of State Tax Commission approving additional sales tax assessment, bill for injunction against sheriff who was proceeding to enforce by execution the judgment was properly dismissed.
3. LICENSES.
Statute authorizing issuance of injunction to restrain collection of taxes levied or attempted to be collected "without authority of law" did not justify injunctive proceeding to prevent enforcement by execution of judgment sustaining order of State Tax Commission approving additional sales tax assessment, where judgment had been affirmed by Supreme Court (Code 1930, sec. 420).
APPEAL from chancery court of Harrison county, HON. D.M. RUSSELL, Chancellor.
Albert Sidney Johnston Jr., of Biloxi, for appellants.
The chancery court of Harrison County, Mississippi, erred in sustaining the demurrer of appellees to the bill of complaint filed herein. The injunction should have been granted. The orders complained of, and more particularly the final order of May 24, 1940, made against appellant Eddie J. Viator, by the commission, its chairman, and the excise commissioner of the State of Mississippi, is unconstitutional, null and void, made without jurisdiction, without evidence, without a finding of the essential facts of the matter. It is baseless, capricious, and arbitrary.
Chapter 119, Laws of 1934, Chapter 158, Laws of 1936, Chapter 113, Laws of 1938, and Chapter 150, Laws of 1938, as construed and applied against appellant, taxpayer, by the commission, its chairman, the excise commissioner of the State Tax Commission of Mississippi, the circuit court of Hinds County, and the Supreme Court of Mississippi, are unconstitutional, null and void, and violate the fourteenth amendment to the Constitution of the United States, and Section 14 of the Constitution of the State of Mississippi, and Section 159 (a) (f) of the Constitution of 1890.
J.H. Sumrall, of Jackson, for appellees.
The sole issue presented by this record is the law of the case and res judicata. The law of this case has already been definitely settled.
Viator v. State Tax Commission et al., 193 Miss. 266, 5 So.2d 487.
The only other question presented by this record which has not already been passed upon by this court in this identical case is the correctness of the decree of the chancery court of Harrison County in denying the injunction and dismissing the bill. The only authority necessary to cite to this court, if any, is its recent decision in the case of Stone, Chairman of State Tax Commission, v. Kerr, 194 Miss. 646, 10 So.2d 845, in which it upheld the validity of the provisions of Section 10 of the Sales Tax Law, which prohibits the granting of an injunction by any court or judge to restrain the collection of the tax imposed by said act.
I desire, however, to correct the erroneous statement made by counsel for the appellant in the argument set out in his brief, to the effect that "the bill charges and the demurrer admits." His contention is that, because he charged unconstitutionality, erroneous construction and improper decisions in the various paragraphs of his bill, his charges and conclusions of law are admitted in every instance.
See Griffith's Mississippi Chancery Practice, Sec. 288.
J.D. Stennis, Jr., and W.L. Guice, both of Biloxi, for Mississippi Tax Saving Association, amici curiae.
The method of assessment set out in Sections 6 and 8, Chapter 113 of the Laws of 1938, complained of is unconstitutional and violative of Sections 14 and 159 of the Constitution of 1890 and Amendment 14 to the Constitution of the United States because this method fails to give the taxpayer the benefit of his day in court and denies to him due process and the equal protection of the law.
Davis v. Davis, 194 Miss. 343, 12 So.2d 435; Yazoo M.V.R. Co. v. Adams, 73 Miss. 648, 19 So. 91; Southern R. Co. v. Commonwealth of Virginia ex rel. Shirley, 290 U.S. 190, 78 L.Ed. 260, 54 S.Ct. 148; Interstate Commerce Com. v. Louisville N.R. Co., 227 U.S. 88, 57 L.Ed. 431, 33 S.Ct. 185; Morgan v. United States, 298 U.S. 468, 80 L.Ed. 1288, 56 S.Ct. 906; Elite Dairy Products, Inc., v. Ten Ryck, 271 N.Y. 488, 3 N.E.2d 606; Panama Refining Co. v. Ryan, 292 U.S. 388, 79 L.Ed. 446, 55 S.Ct. 241; Interstate Commerce Com. v. Union Pac. Ry., 222 U.S. 541, 56 L.Ed. 508, 32 S.Ct. 108; Atchinson T. S.R. Co. v. United States, 295 U.S. 193.
The law as administered by the State Tax Commissioner renders the judgment complained of void as being contrary to the constitutional provision cited by the appellant.
McBride v. Adams, State Revenue Agent, 70 Miss. 716, 12 So. 699; Arbuckle v. State, 80 Miss. 15, 31 So. 437; Griffin v. Mixon, 38 Miss. 424; State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44; Southern R. Co. v. Commonwealth of Virginia ex rel. Shirley, supra; Interstate Commerce Commission v. Louisville N.R. Co., supra; Morgan v. United States, supra; Atchinson T. S.R. Co. v. United States, supra; 34 C.J. 770, Secs. 1184, 1186.
See also Williams v. Cammack, 27 Miss. 209; Blanchard's Adm'r v. Buckholt's Adm'r, Walk. (1 Miss.) 64; Linn v. Kyle, Walk. (1 Miss.) 315; Warren County v. Mississippi River Ferry Co., 170 Miss. 183, 154 So. 349; State ex rel. Barron v. Cole, 81 Miss. 174, 32 So. 314; Colbert v. State, 86 Miss. 769, 39 So. 65; Miller v. Illinois Cent. R. Co., 146 Miss. 422, 111 So. 558; State ex rel. Knox v. Union Tank Car Co., 151 Miss. 797, 119 So. 310; Pan-American Petroleum Corporation v. Miller, 154 Miss. 565, 122 So. 393; McKenzie v. Adams-Banks Lumber Co., 157 Miss. 482, 128 So. 334; L.H. Conard Furniture Co. v. Mississippi State Tax Commission, 160 Miss. 185, 133 So. 652; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Town of Utica v. State ex rel. Rice, 166 Miss. 565, 148 So. 635; Town of Clarksdale v. Yazoo M.V.R. Co. (Miss.), 29 So. 93; Noble v. Union River Logging Co., 147 U.S. 165; Little v. Barrome, 2 Cranch (U.S.) 170; Francis v. Francis, 208 U.S. 233; Dynes v. Hoover, 20 How. (U.S.) 65; Am. Magnetic School of Healing v. McAnnulty, 187 U.S. 94; Gegiow v. Uhl, 239 U.S. 3; Thatcher v. Powell, 6 Wheat. 119, 5 L.Ed. 221; Grignon v. Aster, 2 How. 319, 11 L.Ed. 283; Voorhead v. Jackson, 10 Pet. 449, 9 L.Ed. 490; Ng Fung Ho v. White, 259 U.S. 275; Crowell v. Benson, 285 U.S. 22; In re Grimley, 137 U.S. 157; In re Morrisey, 137 U.S. 157; Gibens v. Zerbat, 255 U.S. 11; Nelson v. Leland, 22 How. 48, 16 L.Ed. 269; Mahlor v. Evy, 44 S.Ct. 288; 15 C.J. 842, 843, Sec. 162.
If the judgment was void the court of equity has a right to enjoin its operation, there being no other full, adequate and complete remedy at law.
State ex rel. Rice v. Stewart, supra; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Irwin v. Lewis, 50 Miss. 363; Richardson v. Brooks, 52 Miss. 118; State, to Use of Coahoma County, v. Brown, 58 Miss. 835; Scruggs v. Blair, 44 Miss. 406; Pitts v. Carothers, 152 Miss. 694, 120 So. 830; Stone, Chairman of State Tax Commission, v. Kerr, 194 Miss. 646, 10 So.2d 845; City of Meridian v. George, 67 Miss. 86, 6 So. 619; Ball v. City of Meridian, 67 Miss. 91, 6 So. 645; Browning v. Matthews, 73 Miss. 343, 18 So. 658; Yazoo M.V.R. Co. v. Adams, 73 Miss. 648, 19 So. 91; Holmes v. Donald, 84 F.2d 188; Interstate Natural Gas Co. v. Gully, 8 F. Supp. 174; Matthews v. Rodgers, 52 S.Ct. 220; Nutt v. Ellerbe, 56 F.2d 1058; Code of 1930, Sec. 420; Griffith's Mississippi Chancery Practice: Sec. 24; Sec. 289, pp. 288, 289; Sec. 291, pp. 290, 291.
Argued orally by Albert Sidney Johnston, Jr., for appellants, by J.H. Sumrall, for appellees, and by J.D. Stennis, Jr., amici curiae.
Appellant filed his bill for injunction against appellee, who, as sheriff, was proceeding to enforce by execution the judgment affirmed by this court in Viator v. State Tax Commission, 193 Miss. 266, 5 So.2d 487, 489. The chancellor set a day for a hearing upon application for temporary injunction. The appellee, however, attacked the bill by demurrer which set up that the bill itself which in meticulous detail disclosed all the steps and proceedings precedent to the final judgment in the above case, and further interposed the defense that such case conclusively settled the law of the present proceeding. The chancellor sustained the demurrer and dismissed the bill. It is hardly necessary to add that the demurrer did not admit the allegations of the bill as to the irregularity of the former proceedings and as to the invalidity of the judgment, which are mere conclusions of law.
Appellant's contentions are pressed with painstaking industry and earnestness, and we have examined the entire record carefully. It would not be helpful to rehearse the history of this litigation. Appellant discloses in his bill that he has availed of and exhausted every administrative and legal remedy, and we find it necessary only to quote from the opinion in the former case, which, after discussing the powers of the Chairman of the State Tax Commission and the requirements which must be met to make such powers effective, stated: "The assessment here made by the Chairman of the State Tax Commission sufficiently complies with these requirements, it became thereby prima facie correct, and the taxpayer was given an opportunity both by the Chairman of the Commission and by the Tax Commission itself to negative by evidence the facts on which the assessment was based."
The instant proceeding therefore constitutes an attempt to show what might have been shown in the former cause. The contentions here made are identical and represent a continued attack upon the authority of the State Tax Commission and the validity of the former judgment.
Nor does Code 1930, Section 420, justify this injunctive proceeding. Regardless of conditions precedent to the exercise of this right under this section (as to which see Stone v. Kerr, 194 Miss. 646, 10 So.2d 845), the taxes against the collection of which the injunction was sought are, in view of our former decision, not "attempted to be collected without authority of law."
Affirmed.