BRICE
Justice.
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:
"Section
201. There is hereby levied, and shall be collected by the
Tax Commission, privilege taxes, measured by the amount or
volume of business done, against the persons, on account of
their business activities, engaging or continuing, within
the State of New Mexico, in any business as herein defined,
and in the amounts determined by the application of rates
against gross receipts, as follows: ***
"H.
At an amount equal to two per cent of the gross receipts of
any person engaging or continuing in the practice of any
profession, or of any business in which the service
rendered is of a professional, technical or scientific
nature and is paid for on a fee basis, or by a
consideration in the nature of a retainer."
"Section
304. All taxes levied hereunder shall be due and payable in
monthly installments on or before the 15th day of the month
next succeeding the month in which the taxes accrue. The
taxpayer, on or before the 15th day of the month next
succeeding the month in which the tax accrues, shall make
out and file with the Tax Commission a return for the
preceding month in such form as may be prescribed by the
Tax Commission, showing the nature of the business engaged
in by the taxpayer, the gross receipts of the taxpayer for
the period covered by the return, and amount of the tax for
such period, and such additional information as the Tax
Commission may deem necessary for the proper administration
of this act. The taxpayer shall accompany the return with a
remittance of the amount of the tax due. ***
"Section
309. If any taxpayer neglects or refuses to make a return
as required by this act, the Tax Commission shall make an
estimate based upon an examination of the taxpayer's
books and records, or upon any information in its
possession, or that may come into its possession, of the
amount of the gross receipts of the delinquent taxpayer for
the period in respect to which he has failed to make
return, and upon the basis of said estimated amount shall
compute and assess the tax payable by the delinquent
taxpayer, adding to the sum thus arrived at a penalty equal
to 50% thereof, together with interest at the rate of 1%
per month on the tax and penalty from the date the tax was
due. Promptly thereafter the Tax Commission shall give the
delinquent taxpayer written notice of such estimated tax,
penalty and interest, which notice shall be served
personally or by mail. ***
"Section
313. No injunction or writ of mandamus, or other legal or
equitable process, shall issue in any suit, action or
proceeding in any court of this state, or against any
officer thereof, to prevent or enjoin the collection of any
tax, penalty or interest under this act; but after payment
of any such tax, penalty or interest under protest, which
protest shall be duly
verified by oath and shall set forth the grounds of
objection to the legality of the tax, the taxpayer may
bring action against the Tax Commission in the District
Court of Santa Fe County for the recovery of any tax,
interest or penalty so paid under protest. No such action
shall be instituted more than sixty days after such payment
under protest is made, and failure to bring such suit
within said sixty days shall constitute a waiver of said
protest and of all claims against the State on account of
any illegality in the tax so paid. No grounds of illegality
of the tax shall be considered by the court other than
those set forth in the protest filed at the time payment is
made. Appeals from the final judgment of the District Court
may be taken to the Supreme Court by either party in the
same manner as appeals in civil cases are taken. ***
"Section
316. If any tax, or any portion thereof, or any interest or
penalty, imposed by this act be not paid within thirty days
after the same becomes due, the Tax Commission shall issue
a warrant under its official seal, directed to the sheriff
of any county of the state commanding him to levy upon and
sell the real and personal property of the person owing the
same, found within his county, for the payment of the
amount due, and an added amount of ten per centum of the
tax in addition to any other penalties imposed, and
interest, and cost of executing the warrant, and to return
such warrant to the Tax Commission and pay to it the money
collected by virtue thereof, by the time to be therein
specified, not more than thirty days from the date of
warrant.
"The
sheriff to whom such warrant is directed shall, within five
days after the receipt of the same, file with the county
clerk of his county a copy thereof (for which said clerk
shall make no charge), and thereupon the county clerk shall
record the same on his records and the day when such copy
is filed. Thereupon the amount of the warrant so filed and
entered shall become a lien upon all property, real and
personal, of the person against whom it is issued,
including choses in action, except negotiable instruments
not past due. The sheriff thereupon shall levy upon any
property of the taxpayer, including negotiable instruments,
and said property so levied on shall be sold in all
respects, with like effect, and in the same manner as is
prescribed by law in respect to executions against property
upon judgments of a court of record, and the remedies of
garnishment shall apply. The officer shall be entitled to
the same fees for his services in executing the warrant as
now allowed by law for like services, to be collected in
the same manner as now provided by law for like
services."
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: "The inhibition of section 3224 [26 U.S.C.A.
§ 1543] applies to all assessments of taxes, made under color
of their offices, by internal revenue officers charged with
general jurisdiction of the subject of assessing taxes
against tobacco manufacturers. The remedy of a suit to
recover...
