Stone v. Dunn Bros., Inc., 39731
| Decision Date | 15 July 1955 |
| Docket Number | No. 39731,39731 |
| Citation | 224 Miss. 762,81 So.2d 712 |
| Parties | A. H. STONE, Chairman, State Tax Commission, Revived as Alex McKeigney, Chairman of State Tax Commission, v. DUNN BROTHERS, Inc. |
| Court | Mississippi Supreme Court |
John E. Stone, Jackson, for appellant.
Butler, Snow, O'Mara, Stevens & Cannada, Jackson, for appellee.
The original opinion in this case, 80 So.2d 802, held, first, that the service by Dunn Brothers, in carrying the pipe from the depot or railhead in Mississippi to the right of way, also in Mississippi, was intrastate, and that the gross income therefrom was subject to the tax of 2%; and, secondly, that, even if such service was in fact not intrastate, nevertheless Dunn Brothers was liable for the tax as a recompense for the benefit and protection which the State afforded to the taxpayer while it was engaged in this activity.
The appellee has filed a vigorous suggestion of error. Due consideration has been given to it; and the Court deems it necessary to respond only to some of the reasons which are urged in connection with the second ground of the opinion.
It is contended that the Court erred in assuming that the taxpayer had in fact paid no taxes to the State, when the stipulation was silent about this matter. The original declaration charged that the plaintiff had 'promptly paid any and all lawful taxes levied by the State of Mississippi against its property * * *'. The Tax Commission answered that it 'does not know what taxes, if any, plaintiff has paid to the State of Mississippi, but specifically denies that plaintiff has promptly paid any and all lawful taxes levied by the State Tax Commission against its property * * *'. In the stipulation, which contained the agreed statement of facts, there was no reference whatever to tax payments.
Since the suit by Dunn Brothers was for the purpose of recovering taxes which it had paid under protest, it of course had the burden of showing that it was entitled to a recovery. In Coleman v. Trunkline Gas Co., 218 Miss. 285, 63 So.2d 73, the gas company proved that it had paid a franchise tax, an income tax, and an ad valorem tax. The Court, in that case, held that the company, by reason of the payment of these taxes, was already entitled to the State's protection, and that the privilege tax there involved could not be imposed for such purpose. Thus evidence of payment of other taxes was relevant on the question as to whether or not Dunn Brothers was entitled to recover the taxes which it had previously paid under protest. But, as stated, it offered no proof as to payment of other taxes. So even if the appellee had in fact paid other taxes, still in the absence of proof thereon, it was not a violent inference that the appellee had paid no taxes. Cases must be reviewed on the record before the appellant court.
As stated in the original opinion, the tax was collected under Sections 10105 and 10109, Code of 1942 annotated. The latter section is comprised of nine paragraphs, the last of which contains a provision for certain exceptions or limitations. None of the paragraphs are numbered. It is...
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...1131 (1922). (b) Business of transporting freight --Convoy Co. v. Taylor, 53 Wash.2d 439, 334 P.2d 772 (1959); McKeigney v. Dunn Bros., Inc., 224 Miss. 762, 80 So.2d 802, 81 So.2d 712 (1955), appeal dismissed, 350 U.S. 878, 76 S.Ct. 139, 100 L.Ed. 775 (1955); State of Maine v. Grand Trunk R......
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...at 668, 69 S.Ct. at 1266, 93 L.Ed. at 1620-21. A case involving the final leg of an interstate shipment is McKeigney v. Dunn Brothers, Inc., 224 Miss. 762, 80 So.2d 802 (1955), suggestion of error overruled, 81 So.2d 712 (1955), appeal dismissed sub nom. Dunn Brothers, Inc. v. Stone, 350 U.......