Lougee v. N.M. Bureau of Revenue Comm'r
Decision Date | 14 September 1937 |
Docket Number | No. 4261.,4261. |
Citation | 42 N.M. 115,76 P.2d 6 |
Parties | LOUGEEv.NEW MEXICO BUREAU OF REVENUE COMMISSIONER et al. |
Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Bernalillo County; Fred E. Wilson, Judge.
Injunction proceeding by George Lougee against the New Mexico Bureau of Revenue Commissioner and another. Judgment for defendants, and plaintiff appeals.
Affirmed.
A litigant should not be required, even in tax cases, to file a dozen or more suits to protect a single right, as respects the right to equitable relief.
Eugene D. Lujan, of Los Lunas, and M. J. McGuinness and George Lougee, both of Albuquerque, for appellant.
Frank H. Patton, Atty. Gen., and J. R. Modrall, Richard E. Manson, and Fred J. Federici, Asst. Attys. Gen., for appellees.
The Legislature of the state of New Mexico for the year of 1934 enacted chapter 7, Sp.Sess., entitled: “An Act to Provide for the Raising of Revenue for Emergency School Purposes by Imposing an Excise Tax Upon the Engaging or Continuing in Business, Professions, Trades and Callings For Profit in This State; Providing For the Levy, Assessment, and Collection of Said Tax; Providing For the Distribution of the Taxes So Collected and Making an Appropriation of the Same; Making Appropriations For the Administration of This Act, and For Refunds of Taxes Unlawfully Collected; Providing Penalties For the Violation of the Provisions of This Act: Repealing Chapter 72, and 115 of the New Mexico Session Laws of 1933, and Declaring an Emergency.”
By chapter 73 of the New Mexico Laws of 1935 the Legislature enacted a new revenue law with substantially the same title and, in so far as this case is concerned, to the same effect. The portions of the 1935 law material to this case (and those of 1934 are exactly the same) are as follows:
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The appellant is an attorney at law practicing his profession in the city of Albuquerque, Bernalillo county, N. M. He refused to make any return of the moneys received by him on account of his practice of law for the period from December 1, 1934, to July 31, 1935, and failed to pay any tax imposed by chapter 7, Laws 1934 (Sp.Sess.), and chapter 73, Laws 1935, for said period of time. The Bureau of Revenue of the state of New Mexico made an estimate, based upon certain information in its possession, of the amount of the gross receipts of appellant during said time and fixed the total of the estimated tax, penalty, and interest for such time at $75, and gave appellant notice thereof, but that he took no action with reference thereto. Thereafter, on December 20, 1935, the Bureau of Revenue issued a warrant under its official seal, directed to the sheriff of Bernalillo county, commanding him to levy upon and sell the real and personal property of the appellant for the amount of the tax. Thereupon appellant instituted this action in the district court of Bernalillo county and secured a temporary restraining order restraining the appellees from taking any steps to collect the tax, upon the alleged ground that the tax was void upon constitutional grounds.
Upon hearing appellant's petition for an injunction to restrain the collection of the tax was dismissed and judgment rendered in favor of the appellees, from which this appeal is prosecuted.
It is specifically provided by section 313 of the act of 1935, and section 314 of the act of 1934, that this character of action shall not be brought. A remedy is provided by section 313 of the Laws of 1935, and section 314 of the Laws of 1934, to determine the legality or constitutionality of the law, or the levy of the tax by an action for that purpose, after the payment of the tax under protest. That such a law is constitutional has been determined in a number of cases.
In Snyder v. Marks, 109 U.S. 189, 3 S.Ct. 157, 160, 27 L.Ed. 901, the court said with reference to the collection of a tax assessed by the Commissioner of Internal Revenue against a manufacturer of tobacco, under a statute which provided no suit for the purpose of restraining the assessment or collection of such tax shall be maintained in any court: ...
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