Opposition Brief — Olweiss v. United States

INDEX.

Supsect IxpRx.

Application of Rule 7, Paragraph 1, of the Supreme

Court of the United States

Matter involved in this appeal case

ts launched their attack on the Constitu-

tionality of the State statutes, as construed and

applied against them, in the State courts, by Bill of

Complaint, Assignment of Errors, Suggestion of Error,

Application for Certificate, filed in the State Courts,

and Assignment of Errors, filed in this Court.......

. ̃ !llll/õ§»—s ⅛ĩ⅛l reser sec

The Supreme Court of the United States has jurisdietion

of this Appeal case pursuant to Section 237 (a) of the

Judicial Code, as amended .................-----.

ey de taleeeenes

The Motion of Appellees to Dismiss or Affirm should be

overruled and Jurisdiction Noted..................

Notice of Order granting extension of time to appellants

to apply for Certiorari...........-.-..-.600feeee.

CTC TC ĩ u ˙ M

Cases CITED.

/ . VT ² ee ees

Adams, State Rev. Agent v. First Nat. Bank of Green-

wood, 60 8. (Miss.) 772... ....---ceceercceeeereees

American Fire Ins. Co. v. King Lumber, etc., Co., 250

U. S. 2, 39 Sup. Ct. 431, 63 L. Ed. 810............

American Propeller & Mfg. Co. v. United States, 300

U. S. 475, 479, 480, 57 Sup. Ct. 521, 528, 81 L. Ed.

! ͤ VV RR OREN. 87 PPS Te re

American Sugar Refining Co. v. State of Louisiana, 21

Sup. Ct. 43, 179 U. S. 89, 45 L. Ed. 102...........

Baltimore, etc. R. Co. v. Maryland, 20 Wall. 643, 22 L.

Bolivar Co. v. Coleman, et al., 15 So. (Miss.) 108, 109. .

— 8634

Page

11

16

ii INDEX

Page

Boutwell v. Board of Supervisors, 128 Miss. 337, 91, So.

kek ia ee 17

Broadwell v. Carter County, 253 U. S. 25, 40 Sup. Ct. 422,

64, L. Ed. 750 . . . . . 12

Broom v. Board of Supervisors of Jefferson Davis County,

171 Mies. 5686... 16

Canara, L. H., Furn. Co. v. Mississippi State Tax Com-

mission, 160 Miss. 18565. „„ ses 15

Carlson v. Washington, 234 U. S. 103, 106, 58 L. Ed.

1237, 1238, 34 Sup. Ct. 717. 13

Chicago Junction case, The, 904 U. ©. .. vcees 9

Clark v. Williard, 292 U. S. 112, 118, 54 Sup. Ct. 615,

617, 78 L. Ed. 11600 . . . . „„ „ „ „ „ „„„%6! 9

Craft v. DeSoto Co., 79 Miss. 546, 31 So. 204.......... 17

Cromwell v. Count of Sac., 94 U. 8. 351, ERE 10

Dahnke Walker Milling Co. v. Bondurant, 257 U. S. 282,

42 Sup. Ct. 106, 65 L. Ed. 29 +... +s. 4

Dower v. Richards, 151 U. S. 658, 667, 38 L. Ed. 305,

308, 14 Sup. Ct. 4ꝶ½m . 13

Dulion v. Folkes, 153 Miss. 9 11 16

Durousseau v. United States, 6 Cranch. 307, 3 L. Ed. 232. 10,22

First Nat. Bank of Hartford v. City of Hartford, 47 Sup.

Ct. 462, 273 U. S. 548, 71 L. Ed. 767. 14

Fiske v. State of Kansas, 47 Sup. Ct. 655, 274 U. S. 380, a

71 L. Ed. 11s. eens 14

Florida E. C. R. Co. v. United States, 234 U. 8. 1 10

Fox River Paper Co., et al., v. Railroad Commission of

Wisconsin, 47 Sup. Ct. 669, 71 L. E 12

Galpin v. Page, 85 U. S. (19 Wall.) 21 L. Ed. 959 14,19

Garner v. Webster County, 31 So. (Miss.) 211... 16

Great Lakes Dredge & Dock Co. v. Huffman, 63 Sup. Ct.

e e 9,22

Great Lakes Dredge & Dock Co. v. Huffman, 63 Sup. Ct.

11... ͤ ͤ v0 19

Green v. Creighton, 10 Sm. & M. (18 Miss.) 159, 48 Am.

Fo b „e 16

Gulf M. & O. R. Co. v. Webster County, 13 So. (2d) 644,

ECC“ ĩ˙ § o» 19

Gulf Refining Co. v. United States, 269 U. S. 125, 135,

46 Sup. Ct. 52, 53, 70 L. D 9

Page

Gully v. Jackson International Co., 165 Miss. 10. 15

Henderson Molpus Co. v. Gammill, 115 80. (Miss.) 719,

E ee 17

Henry, et al. v. Board of Supervisors of Sunflower County,

71 So. (Miss.) 742, 743. ...... 20 cece cece eee eeeens 17

Hinton v. Perry County, 79 Miss. 618. 16

Interstate Amusement Co. v. Albert, 239 U. S. 560, 36

Sup. Ct. 168, 60 L. Ed. 40 . . es 12,13

J. C. C. v. Louisville & V. R. R. Co., 227 U. S. 88..... 10

Jackson Equipment & Service Co. v. Dunlop, 172 Miss.

OOD icc cikc ma deh vent Ad co Mens bev ear eres er egeone 16

Kerr v. Stone, 10 So. (2d) 84. 21

King, et al. v. Board of Supervisors, 133 Miss. 501, 97

% ˙ ͤO»... R,. 17

Klinger v. Missouri, 13 Wall. 257, 20 L. Ed. 635. 12

Lee, et al. v. Bassett, et al., 121 So. (Miss.) 843. 17

Lehigh Valley R. Co. v. United States, 243 U. S. 412 10

Lester v. Miller, Sheriff, et al., 24 So. (Miss.) 194. 16

Mackay v. Dillon, 4 How. 431, 11 L. Ed. 1038. 13

Maguire v. Tyler, 8 Wall. 650, 19 d e 12

Matthews v. Rodgers, 284 U. S. 521, 52 Sup. Ct. 217, 76

%%% ⁰A—A meme 19,23

McKenzie v. Adams Banks Lumber Co., 157 Miss. 482. . 15

Memphis Natural Gas Co. . Beeler, 62 Sup. Ct. 859... 6

Metropolitan Water Co. v. Kaw Valley Drainage Dist.,

223 U. S. 519, 523, 32 Sup. Ct. 246, 247, 56 L. Ed. 533. 9

Miller v. Illinois Cent. R. Co., 146 Miss. 422. 15

Moore v. Tunica County, 143 Miss. 839, 108 So. 900. 19

Neilson v. Lagow, 12 How. 98, 13 L. Ed. 909......... 12

Ng Fung Ho v. White, 259 U. S. 276 19

Norfolk, etc., R. Co. v. Conley, 236 U. S. 605, 35 Sup. Ct.

437, 59 L. Ed. 745 . 13

Norfolk & W. R. Co. v. West Virginia, 236 U. S. 605,

610, 59 L. Ed. 745, 35 Sup. Ct. 4377... 13

North Carolina R. Co. v. Zachary, 232 U. S. 248, 259, 58

L. Ed. 745, 35 Sup. Ct. 43777770. 13

pan American Petroleum Corp. v. Miller, 154 Miss. 565. 15

Peoria & P. U. R. Co. v. United States, 263 U. S. 528. 9

Rhodes v. New Orleans Great Northern R. Co., 91 So.

iv INDEX

Root v. McFerring, 37 Miss. 17, 17 Am. Dec, 49....... 16

Southern P. Co. v. Schuyler, 227 U. S. 601, 611, 57 L. Ed.

662, 660, 33 Sup. Ct. 27ꝶ ..... 12

Southern Pacific R. Co. v. United States, 168 U. S. 1, 48. 10

Southern R. Co. v. Clift, 260 U. 8. 316, 43 Sup. Ct. 126,

De 14

Southern Railway Co. v. Virginia, 290 U. 8. 190. 14

Stamps v. Newton, 3 How. (4 Miss.) 434 ͤ +++: 16

State v. Union Tank Car Co., 151 Miss. 797.......... 15

St. Louis, etc., R. Co. v. McWhirter, 229 U. S. 265, 33

Sup. Ct. 858, 57 L. Ed. 1179... 12

Tait v. Western Md. Railway Co., 289 U. S. 620. 22

Topper Bros. v. Buttross, 178 Miss. 6699 16

Town of Utica v. State ex rel. Rice, 166 Miss. 565 15

Truar v. Corrigan, 257 U. S. 312, 42 Sup. Ct. 124, 66

D es hae Q “A ²³·imm 13

Union Tank Line Co. v. Wright, 249 U. S. 275. 9

United States v. Moser, 266 U. S. 236, 241. 10

Viator v. State Tax Commission, et al., 193 Miss. 266,

5 So. (2d) 487, 62 Sup. Ct. 1109, 62 Sup. Ct. 1275;

316 U. S. 644, 316 U.S. 711. e 8,9,21

Wallace v. State, ex rel Tucker, 61 So. (Miss.) 163. 16

Ward v. Love County, 253 U. S. 17, 40 Sup. Ct. 419, 64

rr ² ·˙m— 2 12

Watters v. Michigan, 248 U. S. 65, 39 Sup. Ct. 29, 63 L.

„„ %%% „ „„

Appropriation Statutee s..

Chapter 78, Laws of 1038.

Chapter 81, Laws of 19 40o.

Chapter 11, Laws of 1942.

INDEX Vv

Page

Section 3276, Mississippi Code of 190. 20,24, 25

Constitution of the United States, 14th Amendment 2,3,5,12

Constitution of Mississippi, Section 14 2,3,5

Roiges Crrep.

Rules of the Supreme Court of the United States:

Rule 7, Paragraph jj Nen ee

Rule 7, Paragraph 333g ere ereees 2

Rule 12, Paragraph 3. ene 1,2,18

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1943

No. 457

EDDIE J. VIATOR, er u.,

a Appellants,

R. C. EDWINS, Suenirr, er .,

Appellees.

APPEAL FROM THE SUPREME COURT OF THE STATE OF MISSISSIPPI.

BRIEF ON BEHALF OF APPELLANTS IN OPPOSI-

TION TO MOTION TO DISMISS OR AFFIRM.

May IT PLease THE Court:

Counsel for appellees has filed a statement against the

jurisdiction of this Court and motion to dismiss or affirm,

pursuant to Rule 12, paragraph 3 of this Court, but he

has failed to comply with and conform to Rule 7, para-

graph 1 of the Revised Rules of the Supreme Court of the

United States. His motion to dismiss or affirm does not

clearly state its object and the facts on which it is based.

While Rule 12, paragraph 3 permits appellees to file a type-

lg

written statement disclosing any matter or ground making

against the jurisdiction of this court asserted by the

appellant, and include in, or file with, such opposing state-

ment, a motion to dismiss or affirm, it is respectfully sub-

mitted that Rule 7, paragraph 1 requires every motion to

the court to state clearly its object and the facts on which

it is based, and for that reason it is contended that said

motion of appellees to dismiss or affirm should be over-

ruled.

Taking advantage of the opportunity afforded by ap-

pellees to file a brief in this Court (Rule 7, paragraph 3),

counsel for appellants submits the following brief and argu-

ment on behalf of appellants sustaining the jurisdiction

of this court of this case on appeal from the Supreme Court

of Mississippi.

The counter jurisdictional statement of appellees does

not meet the requirements of Rule 12, Section 3 of the

Supreme Court of the United States. The statement of

facts made by appellants in their jurisdictional statement

is not denied. Appellees do not show they afforded tax-

payer due process of law. They do not quote any part

of the record to sustain them. They admit the jurisdic-

tional requirements contended by appellants. They do not

show such requirements of the statutes were complied with.

They cannot superimpose in this appeal case more than

the record shows. Their demurrer is their only pleading.

Said demurrer merely challenged the Bill on its face,

said there was no equity on the face of the Bill. Appellants

say they were denied due process, that the State statutes

as construed and applied against them, violate the 14th

Amendment to the Constitution of the United States, and

Section Fourteen of the Constitution of Mississippi. That,

we submit, is more than enough equity to sustain the Bill

of Complaint and require an answer. It is sufficient to

3

require this Court to take jurisdiction of this appeal case

under Sec. 237 (a), Judicial Code.

„Sec. 237(a). A final judgment or decree in any

suit in the highest court of a state in which a decision

in the suit could be had, where is drawn in question

the validity of a treaty or statute of the United States,

and the decision is against its validity; or where is

drawn in question the validity of a statute of any State,

on the ground of its being repugnant to the Constitu-

tion, treaties, or laws of the United States, and the

decision is in favor of its validity, may be reviewed by

the Supreme Court upon a writ of error. The writ shall

have the same effect as if the judgment or decree

had been rendered or passed in a court of the United

States. The Supreme Court may reverse, modify, or

affirm the judgment or decree of such State court, and

may, in its discretion, award execution or remand the

cause to the court from which it was removed by the

writ.’’

The question for decision is whether Sections 6 and 8,

Chapter 113, Laws of 1938, and Section 1, Chapter 150,

Laws of 1938, General Session Laws of Mississippi, under

the purported authority of which additional sales tax as-

sessments were made for the years 1937 and 1938 against

Eddie J. Viator, taxpayer, as construed and applied by

the State Tax Commission of Mississippi, A. H. Stone,

Chairman; J. E. Davis, Excise Commissioner, and the

Supreme Court of Mississippi, violate the 14th Amend-

ment to the Constitution of the United States and Section

Fourteen of the Constitution of Mississippi, and deny tax-

payer due process of law and the equal protection of the

law.

The case comes here by appeal from a decree of the Su-

preme Court of Mississippi, which sustained the tax and

affirmed decree of the Chancery Court of Harrison County,

Mississippi, sustaining demurrer to Bill of Complaint filed

29

4

to enjoin the execution of judgment of the Circuit Court of

Hinds County, Mississippi, affirming said assessments.

Appellants contend that the case is properly an appeal,

under Section 237(a) of the Judicial Code as amended,

28 U. S. C., Section 344(a), 28 U. S. C. A., Section 344(a),

because the validity of the Mississippi statutes as applied

to the facts of this case, has been drawn in question.

Dahnke Walker Milling Co. v. Bondurant, 257 U. 8.

282, 42 S. Ct. 106, 66 L. Ed. 239.

The following quoted allegations from appellant’s Bill

of Complaint, filed in the Chancery Court, show that

appellants launched their attack upon the validity of the

statutes themselves, as construed and applied, viz:

(a) „2. That the Sales Tax Statutes of Mississippi,

as construed and applied. against Complainant by the

State Tax Commission of Mississippi, and A. H. Stone,

Chairman thereof, and attempted to be enforced against

Complainant, and as construed and applied against

Complainant by the Circuit Court of Hinds County,

and the Supreme Court of Mississippi, as hereinafter

more fully shown, are unconstitutional, null and void,

and violate the Fourteenth Amendment to the Constitu-

tion of the United States, and Section Fourteen of the

Constitution of Mississippi, and deprive Complainant

of, and deny to him, the equal protection of the law and

due process of law’’ (R. 5).

(b) 4. This is a controversy arising over the con-

stitution and laws of the United States, in that Com-

plainant asserts, alleges and claims that said House

Bills Nos. 70, 559, and 668, passed by the legislature

of the State of Mississippi, and approved February

28th, 1934, March 26th, 1936, and April 4, 1938, respee-

tively, in the various particulars hereinafter more par-

ticularly set out, as construed and applied by A. H.

Stone, Chairman of the State Tax Commission of Mis-

sissippi, the State Tax Commission of Mississippi,

5

against nt, and as construed and applied by

the Circuit Court of Hinds County, Mississippi, and

the Supreme Court of the State of Mississippi, against

Complainant, violate Section Foarteen of the Constitu-

tion of Mississippi and the Fourteenth Amendment

to the Constitution of the United States, in that said

statutes, as construed and applied, and attempted to be

enforced against Complainant, deprive him of his prop-

erty without due process of law, are an arbitrary

exercise of power, and deny to Complainant the equal

protection of the law’’ (R. 6-7).

(e) „24 (13) That Chapter 113, Laws of 1938, and

Chapter 150, Laws of 1938, as construed and inter-

preted by respondents, and attempted to be enforced

by them against Petitioner, deny to Petitioner the

equal protection of the law, guaranteed by the 14th

Amendment to the Constitution of the United States,

and deny to petitioner due process of law guaranteed

by said 14th Amendment to the Constitution of the

United States, and caid laws, Chapter 113, and Chapter

150, öf the Laws of 1938, are unconstitutional, null and

void, and violate the 14th Amendment to the Constitu-

tion of the United States’’ (R. 52-53).

(d) ‘*26. * * * Complainant shows the Court

that the statutes of the State of Mississippi, copied in

extenso herein, as construed and applied against Com-

plainant, deprive him of due process of law and the

equal protection of the law, and they are unconstitu-

tional, 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. (R. 57-58).

Appellants show this Court that they attacked the statutes

of the State, as construed and applied against them, as vio-

lative of the Fourteenth Amendment to the Constitution of

the United States and Sec. 14 of the Constitution of Mis-

sissippi, in Paragraphs 27, ard 31, of their Bill of Com-

plaint filed in the State court (R. 61-62 and R. 63, 64, 65).

The conditions prescribed by the Judicial Code, for an

appeal from a State court decision to the Supreme Court of

the United States were, and are, rigorously fulfilled. The

objection raised in Memphis Natural Gas Co. v. Beeler, 62

S. Ct. 859, are thus met and overcome.

The validity of the State statutes, i. e., Sections 6 and 8,

Chapter 113, Laws of 1938, and Section 1, Chapter 150, Laws

of 1938, were challenged by appellants’ Bill of Complaint,

R. 4-69, Assignment of Errors, R. 117, 119, 123, 5, 6,

Suggestion of Error, omitted from certified transcript,

and application for Certificate, omitted from certified

transcript, all filed in the State courts, and is further

challenged by the Assignment of Error filed in this Court

(R. 131, 2, 3, 4, 5, 6, 7, 8, 9, 140, 141).

Appellants met the burden imposed on them to show

affirmatively that this Court has jurisdiction under Section

237(a) of the Judicial Code, as amended.

The obligatory appellate jurisdiction of this Court is

invoked, under Judicial Code, Section 237(a), as amended.

The facts of this case are admitted by demurrer (R. 100-

102), they show that appellees, Commission, its Chairman,

and the Excise Commissioner, acted without jurisdiction

(R. 40, 42, 3, 4, 5, 6). No hearing sufficient to meet the

demands of due process was granted. Appellees proceeded

without evidence (R. 42, 3,4). They refused to investigate

the matter fully, as required by Section 6, Chapter 113, Laws

of 1938; said they would not investigate it fully, or at

all. No report in writing was made, setting forth a review

of the cause and the essential facts of the matter. Appellees

failed and refused to confront taxpayer with witnesses

against him; they gave him no opportunity to knew the

state of case against him and to cross-examine witnesses.

They refused him subpoenas for witnesses in his behalf.

They failed to show taxpayer was delinquent in maintaining

adequate records and preserving invoices for a period of two

7

years (R. 42, 3, 4, 5, 6). Without such showing, the

Commissioner mentioned in Section 6, Chapter 113, Laws

of 1938, had no jurisdiction to make additional sales tax

assessments against appellant. Appellees failed and re-

fused to give taxpayer notice of the additional returns and

assessments by registered mai! as required by said Section

(6). They merely wrote him a letter and said he owed

additional sales tax (R. 79). Copies of the returns and as-

sessments were not attached and enclosed. No assessments

were ever introduced in evidence. They are not in the rec-

ord. Appellees did not make out a prima facie case. After

the refusal of the Excise Commissioner to make a report in

writing, setting forth a review of the cause and the essential

facts of the matter, the appeal to the entire Commission,

pursuant to Section 1, Chapter 150, Laws of 1938, was a

mere formality. Not having heard the matter and without

any evidence in the record, and with no report in writing

by the Excise Commissioner, required by said Section (1),

the appeal to the entire Commission was a farce. The

Commission only had a letter from the Excise Commissioner

concluding that said assessments should remain as origi-

nally assessed (R. 44-45). Objections made by taxpayer

to the Excise Commissioner and the Commission were ig-

nored and went for naught.

The Bill of Complaint alleges and the demurrer admits,

that appellees, Commission, its Chairman and the Excise

Commissioner, acted arbitrarily, capriciously, and without

foundation in fact, there was no evidence to sustain the

additional assessments (R. 42, 3, 4); they were not made

from the best information available, after showing jurisdic-

tional facts, i. e., that taxpayer failed to maintain adequate

records and preserve invoices for a period of two years

(R. 42). The Bill of Complaint alleges and the demurrer

admits that appellees, Commission, its Chairman and the

Excise Commissioner, failed to do their statutory duty,

39

—

8

they acted ultra vires, they failed and refused to investi-

gate the matter fully before proceeding further under

Section 6, Chapter 113, Laws of 1938, when taxpayer peti-

tioned the Commissioner in writing, stating that said assess-

ments were incorrect ; that he did not owe said taxes, or any

taxes to the State of Mississippi, and denied jurisdiction to

make said additional assessments (R. 42). Appellees failed

and refused to comply with the proviso contained in See-

tion 6, Chapter 113, Laws of 1938, which is in the following

language:

„Provided, however, in the event such taxpayer,

within ten days from the date of such notice, shall by

petition in writing state that said return is incorrect,

the Commissioner shall grant a hearing on such peti-

tion, and investigate that question fully before pro-

ceeding further under this section.’’

When appellant, taxpayer, filed his petition in writing,

pursuant to said Section (6) and the proviso quoted, he met

the prima facie case against him. It became the bounden

duty of the Commissioner to investigate the matter fully be-

fore proceeding further.

The decision in the former appeal case, Viator v. State

Tax Commission, 193 Miss. 266, 5 So. (2d) 487, 62 S. Ct.

1109, 62 S. Ct. 1275, is not the law of this case on this appeal,

as contended by appellees in their separate statement mak-

ing against the jurisdiction of this Court, for the reasons

that the merits of the case were not passed on. The State

court in effect held that taxpayer resorted to an improper

remedy; that whether there was evidence before the State

Tax Commission on which to base the assessments was not

before the Cireuit Court of Hinds County and not before

the Supreme Court of Mississippi, because on certiorari,

the court could consider only errors of law arising or ap-

pearing on the face of the record.

9

The formal judgment entered in the first appeal case

(Viator v. State Tax Commission, et al., 193 Miss. 266, 5

So. (2d) 487, 316 U. S. 644, 62 S. Ct. 1109, 86 L. Ed. 1728,

316 U. S. 711, 62 8. Ct. 1275) decreed that the appellees

have and recover of appellant, taxpayer, the amount of

the two additional sales tax assessments, but it is to be

interpreted in the light af the court’s opinion, findings and

conclusions of law. So interpreted it rests wholly on the

court’s declaration that appellant, taxpayer, misconceived

his remedy; that certiorari was an improper remedy, and

the court would only consider questions of errors of law

arising or appearing on the face of the record. Metropoli-

tan Water Co. v. Kaw Valley Drainage Dist., 223 U. S. 519,

523, 32 8. Ct. 246, 247, 3 L. Ed. 533; Gulf Refining Co. v.

United States, 269 U. S. 125, 135, 46 8. Ct. 52, 53, 70 L. Ed.

195; Clark v. Williard, 292 U. S. 112, 118, 54 S. Ct. 615, 617,

78 L. Ed. 1160; American Propeller & Mfg. Co. v. United

States, 300 U. S. 475, 479, 480, 57 S. Ct. 521, 528, 81 L. Ed.

751.

The formal decree entered by the State court in the pres-

ent appeal case, affirms the decree of the Chancery Court,

sustaining demurrer and dismissing the Bill of Complaint,

but in the light of the court’s opinion, findings and conclu-

sions of law, it rests wholly on the court’s declaration that

the statutes of the State are correctly construed and ap-

plied, and are thus constitutional, and do not deprive tax-

payer of due process of law. Great Lakes Dredge d Dovk

Co. v. Huffman, 63 S. Ct. 1071, No. 15.

Appellants took the position, then and they take it now,

that the complaint of lack of evidence to sustain an adminis-

trative order is a question of law.

Union Tank Line Co. v. Wright, 249 U. S. 275 (holding

that taxes must follow realities, not mere deductions from

inadequate or irrelevant data) ; The Chicago Junction case,

264 U. S. 258; Peoria d P. U. R. Co. v. United States, 263

10

U. S. 528; J. C. C. v. Louisville & N. R. R. Co., 227 U. 8.

88, and Lehigh Valley R. Company v. United States, 243

U. S. 412 (holding that orders of administrative tribunals,

quasi-legislative and quasi-judicial, must be supported by

evidence). In Florida E. C. R. Co. v. United States, 234

U. S. 167, and I. C. C. v. Louisville & N. R. Co., 227 U. 8.

88, this Court held that refusal to consider the evidence

which was introduced or properly offered for introduction,

or to make a material finding without evidence is arbitrary

action and an order so made must be reviewed by the courts.

. Appellants say that the decision of the State Court in the

first case was erroneous, as was pointed out in Suggestion

of Error filed in the Supreme Court of Mississippi, and

contend now that the decision in this appeal case by the

State court is erroneous and that the decision of the first

case is not the law of this case and res judicata.

In Durousseau v. U. S., 6 Cranch 307, 3 L. Ed. 232, the

court held that a decision is not an authority upon a question

not considered by the court, although involved in a case

decided.

Cromwell v. Count of Sac., 94 U. S. 351, 352, 353;

Southern Pacific R. Co. v. United States, 168 U. S. 1, 48;

United States v. Moser, 266 U. S. 236, 241.

Here in this present appeal case, the facts are before the

court by Bill of Complaint for injunction. The Bill of

Complaint alleges and the demurrer admits that appellant

taxpayer was proceeded against without evidence, without

opportunity to know the state of case against him, without

witnesses in his behalf, without being confronted with the

witnesses against him and given an opportunity to cross-

examine said witnesses, without jurisdiction, without com-

pliance with the statutes, and without a report in writing

setting forth a review of the cause and the essential facts

ll

of the matter; that the appellees, Commission, its Chair-

man and the Excise Commissioner, proceeded against ap-

pellant taxpayer contrary to the accepted course of judicial

proceeding wd taxpayer has never had his day in court,

and that no court in the State of Mississippi may judicially

determine taxpayer’s liability for additional sales tax. The

decision of the State court in the first appeal case is errone-

ous because the assessments were not based on evidence, and

the court erroneously held that taxpayer was given an op-

portunity to overcome by evidence the facts on which the

assessments were based. The decision is therefore put

upon a basis of fact shown to be without support in the

record.

This court is free to investigate all of the facts of this

case, and will examine them independently of the State court

decision.

American F. Ins. Co. v. King Lumber, etc., Co., 250 U. S.

2, 39 S. Ct. 431, 63 L. Ed. 810, affirming on other

grounds 77 So. 168, 74 Fla. 130.

In Adams v. Russell, 229 U. S. 353, 33 S. Ct. 846, 57 L. Ed.

1224, the court said:

The rule is a salutary one in view of the different

jurisdictions of the state courts and of this court. It

leaves in both the full plentitude of their powers. It

permits no evasion of the state court of the responsi-

bility of determining the federal question if necessary

tobedetermined; * The sufficiency of the local

question to sustain the judgment rendered, and the

necessity for the determination of the federal question

necessarily we have to consider.“

In American Sugar Refining Co. v. State of Louisiana,

2158. Ct. 43, 179 U. S. 89, 45 L. Ed. 102, the court held that a

motion to dismiss a writ of error on the ground that no

Federal question is involved must be denied where the pro-

12

tection of the Fourteenth Amendment is invoked in the

answer, and the defense is at least plausible on its face.

Neilson v. Lagow, 12 How. 98, 13 L. Ed. 909;

Maguire v. Tyler, 8 Wall. 650, 19 L. Ed. 320;

Klinger v. Missouri, 13 Wall. 257, 20 L. Ed. 635;

St. Louis, etc., R. Co. v. McWhirter, 229 U. S. 265, 33

S. Ct. 858, 57 L. Ed. 1179;

Baltimore, etc., R. Co. v. Maryland, 20 Wall. 643, 22

L. Ed. 446;

Ward v. Love County, 253 U. S. 17, 40 S. Ct. 419, 64

L. Ed. 751, reversing 68 Okl. 287, 173 Pac. 1050,

followed in Broadwell v. Carter County, 253 U. 8.

25, 40 8. Ct. 422, 64 L. Ed. 759, reversing 71 Okl. 162,

175 P. 828.

In Fox River Paper Co., et al. v. Railroad Commission of

Wisconsin, 47 S. Ct. 669, 71 L. Ed., —, this Court held

whether State court, in basing decision on non-Federal

grounds, has thereby sought to evade constitutional issue,

is a question on which litigant is entitled to invoke the

judgment of the Supreme Court of the United States, though

existence of the right for which constitutional protection is

claimed depends on State law.

Interstate Amusement Co. v. Albert, 239, U. S. 560,

36 S. Ct. 168, 60 L. Ed. 439;

Watters v. Michigan, 248 U. 8. 65, 39 S. Ct. 29, 63 L. Ed.

129, affirming on other grounds 192 Mich. 462, 158

N. W. 865

In Southern P. Co. v. Schuyler, 227 U. S. 601, 611, 57

L. Ed. 662, 669, 33 S. Ct. 277, this Court said:

The question arises, whether the basis of fact upon

which the state court rested its decision denying the

asserted federal rights has any support in the record;

for if not, it is our duty to review and correct the

error.“

13

To the same effect as Southern P. Co. v. Schwyler, swpra,

are North Carolina R..Co. v. Zachary, 232 U. 8. 248, 259, 58

L. Ed. 591, 595, 34 S. Ct. 305; Carlson v. Washington, 234

U. S. 103, 106, 58 L. Ed. 1237, 1228, 34 S. Ct. 717; Norfolk

4 W. R. Co. v. West Virginia, 236 U. S. 605, 610, 59 L. Ed.

745, 35 S. Ct. 437; Interstate Amusement Co. v. Albert, 239

U. S. 560, 567, 60 L. Ed. 439, 443, 36 S. Ct. 108.

See also Norfolk, etc., R. Co. v. Conley, 236 U. 8. 605, 35

8. Ct. 437, 59 L. Ed. 745, and Carlson v. Washington, 234

U. S. 103, 34 8. Ct. 717, 58 L. Ed. 1237.

In Truaa v. Corrigan, 257 U. S. 312, 42 S. Ct. 124, 66 L. Ed.

254, the court said:

„The facts alleged are admitted by the demurrer,

and, in determining their legal effect as a deprivation

of plaintiffs’ legal rights under the 14th Amendment,

we are at full liberty to consider them as was the state

Supreme Court. Mackay v. Dillon, 4 How. 431, 11

L. Ed. 1038; Dower v. Richards, 151 U. S. 658, 667,

38 L. Ed. 305, 308,148. Ct. 45249.

The court said:

If the rule were otherwise, it almost always would

be within the power of a state court practically to

prevent a review here.“

Continuing in Truaæ v. Corrigan, supra, the court said:

In view of these decisions, and the grounds upon

which they proceed, it is clear that in a case like the

present, where the issue is whether a state statute, in

its application to facts which are set out in detail in the

pleadings and are admitted by demurrer, violates the

Federal Constitution, this court must analyze the

facts as averred and draw its own inferences as to their

ultimate effect, and is not bound by the conclusion of the

state Supreme Court in this regard. A law

which operates to make lawful such a wrong as is de-

scribed in plaintiffs’ complaint deprives the owner

14

of the business and the premises of his property with -

out due process, and cannot be held valid under the

14th Amendment.“

See also Fiske v. State of Kansas, 47 S. Ct. 655, 274 U. 8.

380, 71 L. Ed. 1108, and First Nat. Bank of Hartford v. City

of Hartford, 47 S. Ct. 462, 273 U. S. 548, 71 L. Ed. 767,

reversing 203 N. W. 721, 187 Wis. 290.

Southern Railway Co. v. Virginia, 290 U. S. 190.

The decision in the present appeal case cannot rest on the

independent ground of res judicata.

Southern R. Co. v. Clift, 260 U. S. 316, 43 S. Ct. 126,

67 L. Ed. 283, where the court held that a decision of a State

court disposing of a Federal question by following its deci-

sion on a former appeal as the law of the case cannot be

regarded as resting on the independent non-Federal ground

of res judicata.

This Court has held that courts of inferior, limited, juris-

diction, must be confined to their statutory duty and au-

thority, and jurisdictional facts must appear of record.

That is the law in Mississippi, by a long line of decided cases

which have never been deviated from, except in the present

appeal case, and appellant, taxpayer, is thus denied the

equal protection of the law.

Galpin v. Page, 85 U. S. (19 Wall.) 21 L. Ed. 959, where

the court said:

„The facts essential to the exercise of a special juris-

diction must appear in such cases upon the record.“

The sales tax statute of Mississippi, Sec. 8, Chapter 119,

Laws of 1934, as amended by Section 6, Chapter 113, Laws

of 1938, confers the only jurisdiction on appellees, Commis-

sion, its Chairman, and the Excise Commissioner, to make

additional sales tax assessments from ‘‘the best information

15

available’’ and limits such jur_adiction to cases where it af-

firmatively appears (a) no returns are made by taxpayers,

and (b) where adequate records are not maintained and in-

voices preserved for a period of two years. Appellant, tax-

payer, insisted and claimed he kept adequate records and

preserved his invoices for a period of two years. He thus

denied jurisdiction of the Commissioner to make additional

assessments from the ‘‘best information available’’, or any

information. In an unbroken line of decisions, without ex-

ception to the decision in the first Viator case, the State

court held the taxing power was strictly construed, and

there was no implied power. In the first Viator case the

court held the Commissioner had such power as was given

him by statute and by necessary implication. The decision

is erroneous; it denied appellant, taxpayer, the equal pro-

tection of the law.

See Truaz v. Corrigan, supra.

State cases holding the taxing power must be strictly

construed are the following:

Miller v. Illinnis Cent. R. Co., 146 Miss. 422;

State v. Union Tank Car Co., 151 Miss. 797;

Pan American Petroleum Corp. v. Miller, 154 Miss. 565;

McKenzie v. Adams—Banks Lumber Co., 157 Miss. 482;

L. H. Canara Furn. Co. v. Miss. State Tax Commission,

160 Miss. 185;

Gully v. Jackson International Co., 165 Miss. 103;

Town of Utica v. State ex rel. Rice, 166 Miss. 565.

State cases holding ‘‘The affirmative description of the

eases in which the jurisdiction may be exercised implies a

negative on the exercise of such power in other cases; and

„The judgments of courts of limited and special jurisdic-

tion, exercisable in a particular manner, are not in and of

themselves, evidence of jurisdiction, and its lawful exercise,

—

16

In cases of this character the jurisdictional facts must be

shown on the face of the record; are the following:

Topper Bros. v. Buttross, 178 Miss. 659;

Whall v. Saenger Theatres Corporation, 200 So. (Miss.)

442;

Root v. McFerring, 37 Miss. 17, 17 Am. Dec. 49;

Broom v. Board of Supervisors of Jefferson Davis

County, 171 Miss. 586;

Stamps v. Newton, 3 How. (4 Miss.) 34;

Green v. Creighton, 10 Sm. & M. (18 Miss.) 159, 48 Am.

Dec. 742;

Dulion v. Folkes, 153 Miss. 91;

Jackson Equipment d Service Co. v. Dunlop, 172 Miss.

742;

Welch v. Bryant, 157 Miss. 559;

Rhodes v. New Orleans Great Northern R. Co., 91 So.

(Miss.) 282;

Bolivar County v. Coleman, et al., 15 So. (Miss.) 108,

109;

Lester v. Miller, Sheriff, et al., 24 So. (Miss.) 194;

Garner v. Webster County, 31 So. (Miss.) 211;

Adams, State Revenue Agent, v. First Nat. Bank of

Greenwood, 60 So. (Miss.) 772.

In Garner v. Webster County, supra, Justice Terral said

the order of the board was ‘‘stillborn, and had no life from

the beginning.“

Justice Reed, in Adams, State Revenue Agent, v. First

Nat. Bank of Greenwood, supra, said: a a judg-

ment, void for want of jurisdiction over the subject-matter,

may be enjoined in equity.“

Wallace v. State ex rel. Tucker, 61 So. (Miss.) 163;

Hinton v. Perry County, 79 Miss. 618;

17

Henry et al. v. Board of Supervisors of Sunflower

County, 71 So. (Miss.) 742, 743;

Craft v. DeSoto County, 79 Miss. 546, 31 So. 204.

In Henderson Molpus Co. v. Gammill, 115 So., at pages

719, 720, the court, through Justice Cook, said:

It is established by a long line of decisions of this

court, that, where a court exercises a special, limited,

statutory jurisdiction, nothing is presumed in aid of

its jurisdiction, but the record of the proceedings must

affirmatively show the existence of every jurisdictional

fact necessary to authorize it to act; otherwise its pro-

ceedings and judgments are void. Board of Super-

visors v. Ottley, 146 Miss. 696, 107 So. 753; Smythe v.

Whitehead, 133 Miss. 184, 97 So. 529; Monroe County

v. Minga, 127 Miss. 702, 90 So. 443; Robertson v. Bank,

115 Miss. 840, 76 So. 689; Henry v. Board of Super-

visors, 111 Miss. 434, 71 So. 742; Robb v. Telegraph

Co., 104 Miss. 165, 61 So. 170, 977; Adams v. Bank, 103

Miss. 744, 60 So. 770; Hinton v. Perry County, 84

Miss. 536, 36 So. 565; Bolivar County v. Coleman, 71

Miss. 836, 15 So. 107; Marks v. McElroy, 67 Miss. 545, 7

7 So. 408.“ ;

Lee et al. v. Bassett, et al., 121 So. (Miss.) 843;

Bout well v. Board of Supervisors, 128 Miss. 337,

91 So. 12; ;

King et al., v. Board of Supervisors, 133 Miss. 501,

97 So. 811.

The Bill of Complaint filed in this appeal case denies the

jurisdiction of appellees, Commission, its Chairman, and

the Excise Commissioner. The demurrer admits the fact.

Without jurisdiction appellant, taxpayer, was denied Due

Process of Law.

Appellant, taxpayer, was denied the equal protection of

the law. The case against him is the first time in the history

of the State that the court decided contrary to the cases

18

cited above, and many others ‘oo numerous to mention

here.

The decision of this Court in the former appeal case, 62

S. Ct. 1109, and 62 S. Ct. 1275, has no effect on this appeal.

The former appeal case was an appeal from an adverse de-

cision in certiorari proceeding. The State court held the

facts were not before the court, and the merits of the case

were not decided and adjudicated. The decision in the first

appeal case reported in 193 Miss. 266, 5 So. (2d) 487, held

one thing and only one thing, as shown by the opinion of the

court, copy of which is attached to appellant’s jurisdictional

statement filed herein. The decision of the state court in

the present appeal case is erroneously based on the doctrine

of the Law of the case and res judicata. Copy of the

opinion of the State court in this present appeal case is also

attached to appellant’s jurisdictional statement.

The counter jurisdictional statement of appellees, filed

herein, fails to conform to and comply with Rule 12, Para-

graph 3 of the Court. The motion to dismiss or affirm does

not state clearly its object and the facts on which it is

based. The counter jurisdictional statement shows that the

position of appellants is correct. Appellees admit that addi-

tional sales tax assessments can only be made where ade-

quate records are not kept and invoices preserved for a

period of two years, citing Section 8, Chapter 119, Laws of

1934, as amended by Section 6, Chapter 113, Laws of 1938.

Appellees do not quote evidence from the record, or refer

to the record, showing such failure of taxpayer. Copies

of the order of appellees, Exhibited with the Bill of Com-

plaint are silent as to jurisdictional facts. The Bill of

Complaint charges and the demurrer admits that taxpayer

kept adequate records and preserved invoices for two years.

Jurisdiction of appellees is thus questioned and put in issue.

Without jurisdiction all proceedings against taxpayer are

void, and deny him due process of law.

19

Appellants having attacked the jurisdiction of appellees,

Commission, its Chairman and the Excise Commissioner,

and denied failure of taxpayer to maintain adequate records

and preserve invoices, appellees, were, and are, duty bound

to affirmatively prove jurisdiction.

Ng Fung Ho v. White, 259 U. S. 276;

Galpin v. Page, 85 U. S. (19 Wall.) 21 L. Ed. 959;

Appellant, taxpayer, alleges, and the demurrer admits,

that he cannot pay the tax assessed against him; he does not

have the money.

Matthews v. Rodgers, 284 U. S. 521, 52 8. Ct. 217, 76

L. Ed. 447;

Great Lakes Dredge d Dock Co. v. Huffman, 63 S. Ct.

1073;

Section 8, Chapter 113, Laws of 1938 of the General Laws

of Mississippi, does not allow recovery of interest on any

taxes paid under protest or otherwise. No rate is fixed by

the statute. The Mississippi Supreme Court holds that no

interest can be recovered.

In Gulf M. & O. R. Co. v. Webster County, 13 So. (2d)

644-5, the Court, through Chief Justice Smith, said:

No interest on the taxes paid by the appellant can

be allowed as we have no statute so providing. Moore

v. Tunica County, 143 Miss. 839, 108 So. 900, City of

Indianola v. Gates, 181 Miss. 145, 179, So. 284.“

In Moore v. Tunica County, 143 Miss. 839, 108 So. 900,

the Court, through Chief Justice Smith, said:

„The judgment entered by the clerk of this court

does not include any interest on the amount recovered,

and the appellant has filed a motion to correct that

judgment by adding thereto interest on the amount

recovered from the date of the refusal of the board of

supervisors of the county to pay it. be ques-

tion for decision is: Whether a county, in the absence

of a lawful contract therefor, is liable for interest on

claims against it. The appellant has not

pointed out the statute under which he claims to be

entitled to interest against the county, but we presume

it is the general statute, section 2678, Code of 1906

(Hemingway’s Code, Sec. 2075), which provides that:

‘The legal rate of interest on all notes, accounts and

contracts shall be six per cent. per annum.’ As neither

the state nor its political subdivisions are specifically

mentioned in this statute, it does not apply to them

under the decisions herein last referred to, and which

were followed in the cases of Pearl River County v.

Blodgett, 102 So. 5, and Yazoo City v. Taylor, 104 So.

111, recently decided in this court, but in which no

written opinions were delivered. The motion will be

overruled.’’

The legislature of Mississippi has never appropriated

money to pay interest on taxes erroneously paid or illegally

collected. The Mississippi Code of 1930, Section 3276, pro-

vides that no such payments can be made without an

appropriation. The appropriations statutes (copied in Bill

of Complaint, R. 35, 6, 7, 8, 9, 40.) require compliance

with Section 3276, Code of 1930.

Section 6, Chapter 113, Laws of 1938, and Section 8,

Chapter 113, Laws of 1938, afford taxpayer an election of

remedies. They may contest their liability for additional

sales tax assessments made against them by the commis-

sioner, incur the risk of damages and penalties, or pay the

tax and sue for its recovery. Taxpayer here elected to con-

test. If he had paid the tax he could not recover interest;

if the Attorney General failed or refused to give his opin-

ion, the auditor of public accounts failed or refused to audit

the claim, and the Chairman of the State Tax Commission

failed or refused to certify as to overpayment (code 1930,

Section 3276), taxpayer would be compelled to resort to

21

mandamus. He could never mandamus the Legislature of

the State to appropriate money for the payment of interest.

No interest has ever been appropriated, as shown by the

appropriations statutes.

Counsel for appellees incorrectly states the effect of the

decision of the State court in Kerr v. Stone, cited in his

counter jurisdictional statement. Said case is not authority

for what appellees contend, and we here quote from the

opinion of the court as follows:

„The record disclosed that the Commission pro-

posed the additional assessment against the taxpayer,

whereupon the latter filed his petition ‘for a hearing

and a correction * of the tax so assessed’ pur-

suant to the provisions of Section 10 of Chapter 119,

Laws of 1934. * * * The Commission was acting

with full authority in the matter. It was peculiarly

within its jurisdiction and the procedure followed was

that prescribed by the statute. No question is raised

as to the adequacy of the hearing upon the taxpayer’s

petition. It is true that if the Commission were acting

in @ matter beyond its jurisdiction (Browning v. Mat-

thews, 73 Miss. 343, 18 So. 658; Hinton v. Board of

Supervisors of Perry County, 84 Miss. 536, 36 So. 565),

or in an unauthorized manner (Morgan v. Wood, 140

Miss. 137, 106 So. 435), or if the proceedings for the

imposition and assessment of the tax were void (City of

Meridian v. Ragsdale, 67 Miss. 86, 6 So. 619; Ball v.

City of Meridian, 67 Miss. 91, 6 So. 645), it would have

acted ‘without authority of law’ * .““

Appellees rest their motion to dismiss or affirm this

appeal on two propositions. First, that the questions on

which the decision of the cause depends are so unsubstantial

as not to need further argument. Second, that the decision

of the State court in the first appeal (Viator v. Sis e Tax

Commission, 193 Miss. 266, 5 So. (2d) 487) is the law of the

ease and res judicata. As shown in Assignment of Error

Nos. 30-34 the Supreme Court has purposely sought to

avoid the jurisdiction of this court. Appellees do not deny

the allegations of the Bill of Complaint that the statutes of

the state as construed and applied are in conflict with the

constitution of the United States, and that the validity of

said statutes is J-awn in question. They do not deny the

federal question was timely raised in the lower court and in

the Suprerae Court of Mississippi, and that the decision

of the Stute court could not have been reached without

deciding it. The decision of the State court is put upon a

basis of fact shown to be without support in the record. In

the first appeal case the State court held it could not con-

sider the complaint of lack of evidence to sustain the

administrative order, and, perforce, in effect, held taxpayer

had misconceived his remedy. While the state court

affirmed the assessment in the certiorari proceeding in the

first case, its judgment must be interpreted in the light of

the court’s opinion, findings, and conclusions of law, as

was said by Mr. Chief Justice Stone, in Great Lakes Dredge

and Dock Co. v. Huffman, 63 S. Ct. 1071.

In Durosseau v. L. S., 6 Cranch 307, 3 L. Ed. 232, the court

held that a decision is not an authority upon a question not

considered by the court, though involved in a case decided.

In the recent case of Tait v. Western Md. Railway Co.,

289 U. S. 620, Mr. Justice Roberts, at page 623, said:

„The scope of the estoppel of a judgment depends

upon whether the cause arises in a subsequent action

between the same parties upon the same claim or

demand or upon a different claim or demand. In the

former case a judgment upon the merits is an absolute

bar to the subsequent action. In the later the inquiry

is whether the point or question to be determined in

later case is the same as that litigated and determined

in the original action. Cromwell v. County of Sac., 94

U. S. 351, 352, 353; Southern Pacific R. Co. v. U. 8,

168 U. S. 1, 48; United States v. Moser, 266 U. S. 236,

241.

If appellant, taxpayer, has no adequate remedy in the

state court, as he contends, the constitutional issue raised

in this appeal case must be decided by this Court. In

Matthews v. Rodgers, 284 U. S. 521, 52 8. Ct. 217, 76 L. Ed.

447, this court recognized and held that the Federal Courts

in the exercise of the sound discretion which has tradi-

tionally guided courts of equity in granting or withholding

the extraordinary relief which they may afford, will not

ordinarily restrain state officers from collecting state taxes

where state law affords an adequate remedy to the tax-

payer. However, in Matthews v. Rodgers, supra, the court

went on to say that in the absence of allegations in the Bill

of Complaint, which were wanting there, of inability of the

taxpayer to pay the tax, or of the tax collector to respond to

judgment, the Federal Courts would not enjoin the fiscal

operations of the State, provided the Federal right asserted

may be preserved without it. The question thea for decision

on the Motion to Dismiss or Affirm, is whether appellant,

taxpayer has an adequate remedy in the State court, as

charged by appellees. They plant themselves on that propo-

sition, aside from saying the decision in the first appeal

ease is the law of this case and res judicata, which it is not

and cannot be fer the reasons shown above. The State

court holds that no interest can be recovered in the absence

of a statute so providing. G. M. 4 O. R. Co. v. Webster

County, supra, and Moore v. Tunica County, supra. The

appropriations statutes copied in the Bill of Complaint

filed herein, at R. 35, 6, 7, 8, show that no appropriation has

been made by the Legislature of Mississippi for the pay-

ment of interest and for the payment of taxes unlawfully

collected, but only erroneously paid, and that such pay-

ments, as can be made, may only be made pursuant to the

provisions of Section 3276 of the Mississippi Code of 1930,

copied in appellant’s Bill of Complaint, and provided that

an appropriation has first been made to pay such refund

or refunds. By the express provisions of Section 3276,

Code of 1930, which is made a part of each of said ap-

propriation statute, claimant for such refund must make

application, and the auditor of public accounts must make

careful investigation of such claims and audit such claims

against each separate fund in proportion to the amount

paid over to such fund in each case, and submit such

audited claim with the voucher and evidence on which such

claim is based, to the Attorney General for his inspection

and approval, and if the Attorney General be of the opinion

that such claim should be paid he shall approve the same,

and the auditor shall thereupon file such voucher and other

papers necessary in each case in his office as a voucher and

issue his warrant on the State Treasurer, and in cases of

sales tax refunds of taxes erroneously paid, but not unlaw-

fully collected, the chairman of the state tax commission

must also certify to such over payment, before any monies

can be refunded and paid to taxpayers. Should the At-

torney General not be of the opinion that the tax should

be refunded, the auditor of public accounts not audit the

claim and the chairman of the State Tax Commission not

certify to its correctness, the taxpayer would be compelled

to resort to mandamus in each instance, and against each

of the named officers. Instead of having an adequate

remedy at law in the State Court, taxpayer would be com-

pelled to resort to a multiplicity of suits without any assur-

ance of success. Appellees do not, and cannot, point to a

single authority of the state Supreme Court sustaining their

position that taxpayer has an adequate remedy in the

courts of his state.

The Bill of Complaint in this appeal case alleges and the

demurrer admits that appellant taxpayer is unable to pay

25

the tax; he does not have the money. Until such time as he

could pay every penny of the sum demanded, he would be

without right to maintain an action to recover said tax. In

the meantime, his property would be sacrificed and sold and

he would be out of business. This is what the Bill of Com-

plaint alleges and the demurrer admits (R. 57, 140).

Opposed to the contention of appellees that Section 10 of

Chapter 119, Laws of 1934, amended by Section 8 of Chap-

ter 113, Laws of 1938, provides an adequate remedy to prin-

cipal appellant and taxpayer, is the appropriation statute

of Mississippi copied in the Bill of Complaint and Section

3276 of the Mississippi Code of 1930, as well as the cases

of G. M. & O. R. Co. v. Webster County, supra, and Moore

v. Tunica County, supra, and the fact that the Bill of Com-

plaint alleges and the demurrer admits that taxpayer is

unable to pay the tax, because, he says, he does not have the

money. Again, in opposition to the Motion to Dismiss or

Affirm, and the contention of appellees that Section 10,

Chapter 119, Laws of 1934, amended by Section 8, Chapter

113, Laws of 1938, requires the payment of the amount of

additional sales tax assessments and suit for their re-

covery in the Cireuit Court of the County of taxpayer's

residence, is Section 6, Chapter 113, Laws of 1938, which

provides that taxpayer may petition the Commissioner, for

a hearing within ten days from receipt of registered notice

and demand a hearing, which Section (6) requires the Com-

missioner to investigate the matter fully before proceeding

further. Section 10 as amended by Section 8, Chapter 113,

Laws of 1938, covers a different situation, and provides

that taxpayer may petition for a hearing before the entire

commission and show the amount by which the tax should

be reduced. It does not cover a situation where the entire

assessment is erroneous and the amount is not owed by

taxpayer. It does not attempt to embrace a case where

additional sales tax assessments are made from the best

information available by the chairman of the commission

for failure of taxpayer to maintain adequate records and

preserve invoices for two years. Section 6 deals solely with

this appeal case, and the remedy there provided must be

applied. The legislative mind having been directed to one

subject matter, and that being additional assessments from

the best information available, for failure of a taxpayer to

maintain adequate records and preserve invoices, that See-

tion must govern over others, not because one Section of a

Legislative enactment has more force than others, but be-

cause the Legislative mind having been directed to the

single subject-matter dealt with in the ore must be pre-

sumed to govern over others. The Legislature of Missis-

sippi provided an election of remedies to taxpayers against

additional sales tax assessments. They may, on the one

hand, contest their tax liability with the taxing officials,

incur the risk of penalties of twenty-five per cent for the

first offense, and fifty per cent for a second offense and in-

terest at the rate of one per cent per month from date said

tax is determined to be due and on the other hand, they

might elect to pay the tax in the first instance and sue to

recover it, incurring the risk only of being cast for costs if

unsuccessful.

Questions involved in this appeal case are substantial.

They are: Do the state statutes, cited here and juoted in

appellants’ jurisdictional statement, as construed and ap-

plied against appellants, by appellees, Commission, its

Chairman and the Excise Commissioner, violate the 14th

Amendment to the Constitution of the United States and

deny appellants due process of law and equal protection of

the law and violate Section Fourteen of the Constitution

of Mississippi. It is respectfully submitted that this Honor-

able Court has jurisdiction in this appeal case under See-

27

tion 237 (a) of the Judicial Code as amended, and the ob-

ligatory appellate jurisdiction of this court is invoked to

review the decision of the Supreme Court of the State of

Mississippi.

Appellants, therefore, respectfully submit that the motion

to dismiss or affirm should be overruled, and jurisdiction

noted in this appeal case.

Appellants respectfully call the court’s attention to the

order of Mr. Justice Hugo L. Black, dated October 6, 1943,

filed with the Clerk of this court, granting an extention of

time within which appellants may apply for Writ of Cer-

tiorari and show the court that petition for Writ of Cer-

tiorari and accompanying brief will shortly be fiied in this

court with a certified copy of the transcript of the record

as required by the Rules of this Court, in which petition

and brief appellants will cover the matter fully, as they will

do in their brief on the merits to be filed in this appeal case.

It is, therefore, respectfully submitted that the Motion

to Dismiss or Affirm should be overruled.

Respectfully submitted,

Ausert Sipney Jonxsrox, In.,

Counsel for Appellants.

(8634)