Gully v. Memphis Natural Gas Co.

Decision Date14 February 1936
Docket NumberNo. 7869.,7869.
PartiesGULLY, Tax Collector, et al. v. MEMPHIS NATURAL GAS CO.
CourtU.S. Court of Appeals — Fifth Circuit

J. A. Lauderdale, of Jackson, Miss., Walter Sillers, of Rosedale, Miss., and Edward W. Smith, of Clarksdale, Miss., for appellants.

Garner W. Green, Marcellus Green, and Forrest B. Jackson, all of Jackson, Miss., and Walter P. Armstrong and T. A. McEachern, Jr., both of Memphis, Tenn., for appellee.

Before SIBLEY, HUTCHESON and WALKER, Circuit Judges.

HUTCHESON, Circuit Judge.

This appeal presents substantially the same general question of exemption from state and county taxation raised and this day decided in Gully's appeal, Gully v. Interstate Natural Gas Co. (C.C.A.) 82 F.(2d) 145. The question was presented below and comes up here in substantially the same way. There are some differences in the facts of the two cases, none of them substantial. In that case, the exemption period had expired; in this one, three years of it had run. In that case the taxes claimed were $156,000; in this one, $350,000. By the pipe lines involved in this case more Mississippi communities are served than by the pipe lines in that case. In that case there was no contention that the exemption claim had not been made in due form and time. In this one it is insisted that, made in the middle of the first exemption year, it came too late for that year.

We think we may dismiss this contention without discussion, as plainly without merit, and that as relates to the question of state and county tax exemption, the facts of the two cases are the same. For the reasons given in the Interstate Natural Gas Co. Case, the decree is therefore, as to the state and county exemption, affirmed.

The pipe line of appellee in this case runs through two levee districts. In the assessment and collection program of the appellants, levee district taxes were included with those of state and county. As a second and subordinate point, this appeal therefore raises the question whether the exemption the statute confers is limited to state and county taxes, or extends too, to levee district taxes.

On September 17, 1934 the District Judge, in an opinion on the motion to dismiss, reserved his views on this point until the final decision of the cause.1 Then, without discussion of the point, or reference to it in either his findings of fact or conclusions of law, he on May 15, 1935, entered a decree that, "Plaintiff holds and has a valid exemption from state, county, and levee taxes."

In November, 1934, while the case was pending in the federal court, the Supreme Court of Mississippi in Hollandale Ice Co. v. Board of Supervisors of Washington County, 171 Miss. 515, 157 So. 689, held that the grant of exemption from state and county taxes the statutes provide does not extend to levee taxes, but is limited to those of state and county. Appellants insist that we are bound by, or at least ought to follow, that decision. Edward Hines Yellow Pine Trustees v. Martin, 268 U.S. 458, 45 S.Ct. 543, 69 L.Ed. 1050; Chicago, M., St. P. & P. R. Co. v. Risty, 276 U.S. 567, 48 S.Ct. 396, 72 L.Ed. 703; Sioux County v. National Surety Co., 276 U.S. 238, 48 S.Ct. 239, 72 L.Ed. 547; Hawks v. Hamill, 288 U.S. 52, 57, 53 S.Ct. 240, 77 L.Ed. 610.

Appellee insists that the Hollandale Case was not correctly decided, and since decided after its exemption had been granted, we are not bound, we ought not, to follow it. It argues that the Levee Board under the statutes of Mississippi is a municipal corporation, having no inherent power to tax, but only that the statute confers. It calls attention to the provision of the statute under which it is proposed to levy, and assess the taxes, chapter 154, General Laws of Mississippi 1932. It insists that this statute, authorizing it to levy taxes expressly limits the levying to property subject to state and county taxes, and excludes from the levying all exempt property.2

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