Lasker Boiler and Engineering Corporation v. Hamm

• Decision Date: 05 April 1963
• Docket Number: Civ. A. No. 1906-N.
• Citation: 216 F. Supp. 74
• Parties: LASKER BOILER AND ENGINEERING CORPORATION, an Illinois Corporation, Plaintiff, v. Phillip HAMM, as Commissioner of Revenue of the State of Alabama, and his successors in said office, Defendant.
• Court: U.S. District Court — Middle District of Alabama

216 F. Supp. 74

LASKER BOILER AND ENGINEERING CORPORATION, an Illinois Corporation, Plaintiff, v. Phillip HAMM, as Commissioner of Revenue of the State of Alabama, and his successors in said office, Defendant.

Civ. A. No. 1906-N.

United States District Court M. D. Alabama, N. D.

April 5, 1963.

Forest D. Herrington, of Bell, Morring, Richardson & Cleary, Huntsville, Ala., and Joseph W. Grady, of Brooks & Grady, Chicago, Ill., for plaintiff.

Richmond M. Flowers, Atty. Gen., Willard W. Livingston, Counsel, Department of Revenue, and Asst. Atty. Gen., Charles P. Miller, Asst. Counsel, Department of Revenue, and Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for defendant.

JOHNSON, District Judge.

This cause is now submitted upon the motion of the defendant Commissioner of Revenue of the State of Alabama, filed herein on March 26, 1963, by and through the Attorney General of the State of Alabama, wherein said defendant seeks to have this Court dismiss this proceeding. The grounds which the defendant assigns in support of his motion to dismiss are, first, that this Court lacks jurisdiction; second, that the complaint fails to state a claim upon which relief can be granted; and, third, that the issues tendered by the complaint are res judicata in that the Circuit Court of Montgomery County, Alabama, on the 2nd day of January, 1963, sustained a plea in abatement as filed by this defendant to an appeal from an assessment of tax involved in this case, which appeal was, according to the order of said Circuit Court, not timely filed.

The plaintiff corporation, with its principal place of business and its home office in the State of Illinois, seeks to have this Court enjoin the Commissioner of Revenue of the State of Alabama from the enforcement by said Commissioner of a final assessment of use tax in the amount of $14,130. It appears from said complaint that the assessment of this tax is based upon a sale from this plaintiff to the United States of America. Plaintiff contends that the assessment, enforcement and collection of such a use tax violated the sovereign immunity of the United States and subjects plaintiff, as an official agency of the United States Government, to state tax action without authority therefor. Plaintiff says that such assessment, enforcement and collection of taxes is unconstitutional.

The contention on the part of the defendant that this Court lacks jurisdiction in this matter is wholly and completely without merit. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407. Likewise, the contention on the part of the defendant that the issues raised by the complaint are res judicata is wholly without merit. As to this point, it affirmatively appears that the only matter presented to the Circuit Court of Montgomery County, Alabama, was whether or not this plaintiff had timely filed its appeal as authorized and provided by the Legislature of the State of Alabama in Title 51, § 140, Code of Alabama, Recompiled 1958. The Circuit Court of Montgomery County, in the case of Lasker Boiler & Engineering Corporation, etc., v. State of Alabama, on January 2, 1963, sustained the plea in abatement by holding that said appeal on the part of Lasker Boiler & Engineering Corporation was not timely filed. There was no appeal taken by ...