State v. Tennessee Gas Transmission Co., 10393

• Decision Date: 04 April 1956
• Docket Number: No. 10393,10393
• Citation: 289 S.W.2d 309
• Parties: The STATE of Texas, Appellant, v. TENNESSEE GAS TRANSMISSION CO., Appellee.
• Court: Texas Court of Appeals

Page 309

289 S.W.2d 309

The STATE of Texas, Appellant, v. TENNESSEE GAS TRANSMISSION CO., Appellee.

No. 10393.

Court of Civil Appeals of Texas, Austin.

April 4, 1956.

Rehearing Denied April 18, 1956.

John Ben Shepperd, Atty. Gen., W. V. Geppert, L. P. Lollar, Asst. Attys. Gen., for appellant.

Stone Wells, Houston, Robert Donahue, Charles E. Crenshaw, Austin, for appellee.

GRAY, Justice.

Pursuant to a concurrent resolution of the Legislature granting appellee permission to sue the State it brought this suit to recover taxes paid without protest under the provisions of Art. 7057b, Vernon's Ann.Civ.St. Appellee also sued to recover interest on the amount of taxes paid at the rate of six per cent per annum from the date of payment.

The taxes were paid under the provisions or Art. 7057f, Vernon's Ann.Civ.St., commonly referred to as the Gas Gathering Tax Statute, Acts 1951, 52 Legislature, p. 695, Ch. 402 § 23. This statute was declared unconstitutional. Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583.

Appellee based its suit for recovery on the grounds that the taxes were not voluntarily paid but that the same were paid under duress or business compulsion.

At a nonjury trial judgment was rendered for appellee for $1,140,906, the amount of taxes paid, the sum of $249,516.74 interest thereon and interest on said sums of money from date of judgment at the rate of six per cent per annum.

Findings of fact and conclusions of law were not requested and none were filed.

It is not disputed that appellee came within the meaning of the terms of Art. 7057f supra and that the taxes in controversy were paid under the provisions of that statute. It provided a penalty for delay in paying the tax, subjected the taxpayer to injunction upon becoming delinquent and further provided that the State shall have a prior lien on all of the taxpayer's property for delinquent taxes, penalties and interest, provided a penalty for any violation of the provisions of the Act and as an additional penalty made the taxpayer liable for the reasonable value of the expenses incurred by the Comptroller in making an investigation and audit to determine the correct amount of taxes, penalties and interest due from the taxpayer failing to remit the proper amount. The statute also made provision for the filing of a suit for the amounts delinquent, foreclosure of the State's lien and for the enforcement of the provisions of the statute.

Appellee's right to recover the amount of taxes paid by it under Art. 7057f supra is governed and decided by the decision of the Supreme Court in State v. Akin Products Co., Tex., 286 S.W.2d 110, 112. There the State was sued for a recovery of taxes alleged to have been paid under the duress or an unconstitutional law. The Act imposing the tax had been declared unconstitutional and the suit was for recovery of taxes paid thereunder without protest. The Court said:

'The controlling fact in this case is that these taxes have been paid under the duress of an unconstitutional Act. They should therefore be refunded regardless of what industry may have been benefited by them.'

A discussion and decision of the questions of law here presented as to appellee's right to recover the taxes in question may be found in that opinion and we deem it sufficient to refer to the same rather than to quote further. However the decision does not decide the question of appellee's right to recover interest on the amount of taxes paid from the date of payment to the date of judgment.

In Walker v. State, Tex.Civ.App., 103 S.W.2d 404, 407, no writ history, appellant with the consent of the Legislature sued the State to recover money paid to discharge judgments forfeiting bail bonds with interest thereon from the date of payment. The Court said:

'It is a very well-established rule that a State is not liable for interest in the absence of a statute or express contract providing for the payment therof. 59...