Am. Mills Co v. Doyal

• Decision Date: 16 March 1932
• Docket Number: No. 8854.,8854.
• Citation: 174 Ga. 631,163 S.E. 603
• Parties: AMERICAN MILLS CO. v. DOYAL, State Tax Com'r.
• Court: Georgia Supreme Court

174 Ga. 631

163 S.E. 603

AMERICAN MILLS CO.

v.DOYAL, State Tax Com'r.

No. 8854.

Supreme Court of Georgia.

March 16, 1932.

Syllabus by Editorial Staff.

RUSSELL, C. J., dissenting.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by the American Mills Company against P. II. Doyal, State Tax Commissioner. Judgment for defendant, and plaintiff brings error;

Transferred to the Court of Appeals.

The American Mills Company, a Georgia corporation engaged in business as wholesalers, jobbers, and brokers of twine, paper bags, wrapping paper, and sundry other articles instituted an action against the state tax commissioner for a refund of taxes collected under Ga. Laws 1929, p. 103. The petition as amended alleged that petitioner transacts both intrastate and interstate business; that a tax was paid on the business transacted within the state, and no claim for refund with respect to this tax has been filed; that the business transacted outside the state from October, 1929, to June, 1930, amounted to $379,760, for the period from July, 1930, to September, 1930, to $83,100, and for the period from October, 1930, to December, 19'30, to $100,190; that petitioner paid to the tax commissioner on gross receipts derived from said business transacted outside the state the sum of $379.76 for the period from October, 1929, to June, 1930, $83.10 for the period from July, 1930, to September, 1930, and $100.19 for the period from October, 1930, to December, 1930; that business transacted outside the state constitutes business done in interstate commerce, and said taxes were paid on gross receipts derived from business done outside the state; that all taxes levied on gross receipts derived from business transacted outside the state of Georgia are a burden on interstate commerce, in that they tax the privilege of doing interstate business, and therefore are in violation of article 1, section 8, clause 3 of the Constitution of the United States and are void; and that an appeal to the state tax board was denied. The defendant filed a demurrer on general and special grounds. The judge sustained the demurrer, and the plaintiff excepted.

Herbert J. Haas and Bertram S. Boley, both of Atlanta, for plaintiff in error.

John A. Smith, of Talbotton. George M. Napier, Atty. Gen., and W. K. Meadow, Asst. Atty. Gen., for defendant in error.

ATKINSON, J.

1. The exception is to a Judgment dismissing the action on general demurrer to the petition. The allegation in the petition that the taxes in question and for which a refund is sought "are a burden on interstate commerce, " and therefore are in violation of article 1, section 8, paragraph 3, of the Constitution of the United States and are void, is not an attack upon the constitutionality of the statute under which the tax was collected.

2. It is declared in section 17 of the act of ...