Charles R. Shepherd, Inc. v. Monaghan
| Citation | 256 F.2d 882 |
| Decision Date | 04 September 1958 |
| Docket Number | No. 17186.,17186. |
| Parties | CHARLES R. SHEPHERD, Inc., Appellant, v. Noel MONAGHAN, Chairman, State Tax Commission of the State of Mississippi, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William Harold Cox, Jackson, Miss., for appellant.
John E. Stone, Jackson, Miss., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.
The suit was brought by appellant for a declaratory judgment determining in its favor the question of its non-liability to the State of Mississippi for sales and use taxes which appellant claimed had been assessed against it without statutory authority therefor and for an injunction temporary and permanent against the collection of such taxes.
The appellee interposing a motion under Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. to dismiss, the district judge, "on the ground that the court does not have jurisdiction over the subject matter thereof and that the amended complaint fails to state a cause upon which relief can be granted", sustained the motion to dismiss and entered summary judgment against the plaintiff.
Appellant is here insisting, as its point one, that the Johnson Act, 28 U.S.C.A., § 1341,1 on the basis of which the district judge sustained the motion to dismiss, is not applicable to this case for the reason that what is here claimed to be a tax is merely an arbitrary and unlawful demand which is not authorized by any statute in Mississippi and cannot in any sense be considered or characterized as a tax imposed under state law. No claim is made, however, that if the exaction is a tax, the remedy afforded by state law is not fully adequate. Cf. Stone v. Kerr, 194 Miss. 646, 10 So.2d 845, and Stevens Enterprises v. Stone, 226 Miss. 806, 85 So.2d 461.
As its point two, it undertakes to enter into a discussion of the merits of the case to show that it states a cause of action and that it was error to award appellee a summary judgment.
The appellee, on its part, pressing upon us that the case falls within the letter and spirit of the Johnson Act,2 supra, insists that the court correctly dismissed the case for want of jurisdiction. Pointing out that, read in context, it is quite clear that the district judge did not intend by the judgment to dispose of the case on its merits, appellee states specifically in its brief, ...
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...Motor Company, supra, 347 F.2d at 197-198; Helmsley v. City of Detroit, 320 F.2d 476, 480 (6th Cir. 1963); Charles R. Shepherd, Inc. v. Monaghan, 256 F.2d 882 (5th Cir. 1958); Miller v. City of Greenville, 138 F.2d 712, 719 (5th Cir. 1943); Non-Resident Tax Ass'n. v. Municipality of Philade......
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...to draw on the background of pre-1937 decisions in interpreting the purposes and policies which underlie it"); Charles R. Shepherd, Inc. v. Monaghan, 256 F.2d 882, 884 (CA5 1958) (federal court has no jurisdiction under the Tax Injunction Act if "an adequate remedy is provided for the recov......
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Bland v. McHann
...applied here, did not give adequate notice to taxpayers to allow them to protest and as a practical matter it is not available. 25 256 F.2d 882 (5th Cir.1958). 26 Id. at 884; see Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447 (1932) where the Supreme Court held the Mississipp......
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Mandel v. Hutchinson
...judgment and injunction restraining the enforcement of sales and use taxes is barred by the Johnson Act. Charles R. Shepherd, Inc. v. Monaghan, 256 F.2d 882 (5th Cir. 1958). The Johnson Act barred a suit against the State tax commission praying for a mandatory injunction to compel the commi......