Trinity Portland Cement Co. v. State
| Decision Date | 17 October 1940 |
| Docket Number | No. 3761.,3761. |
| Citation | 144 S.W.2d 329 |
| Parties | TRINITY PORTLAND CEMENT CO. v. STATE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; Roy C. Archer, Judge.
Action by the Trinity Portland Cement Company against the State of Texas and others to recover taxes paid under protest. From a judgment for defendants, plaintiff appeals.
Affirmed.
Benbow & Eddy and Sidney Benbow, all of Houston, for appellant.
Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, Billy Goldberg, Cecil C. Rotsch, and Lee Shoptaw, Asst. Attys. Gen., for appellees.
This was an action by appellant, Trinity Portland Cement Company, against the State of Texas et al., tried to the district court of Travis county without a jury, with judgment for appellees. The appeal was prosecuted to the Austin Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court.
The following extracts from appellant's petition state the nature of its cause of action:
By section III, it was alleged that on the 19th day of May, 1939, appellant paid to the State Comptroller on "Trinity Mix" taxes in the sum of $6,486.32, and on other specific dates up to January 26, 1940, additional taxes making the total sum of $9,414.45. We give section IV: "This plaintiff will further show that this suit is not only brought for the recovery of the above taxes, but in order to avoid multiplicity of suits, is also brought for the purpose of recovering all future sums which may be demanded by the Comptroller and paid by this plaintiff to the State of Texas during the pendency of this suit."
Appellant alleges "as reasons and grounds for bringing this suit": (a) The commodity taxed by the State, and upon which it had paid the taxes in issue, "is not `cement' within the contemplation of the law imposing an occupation tax upon the manufacture, sale and distribution of cement"; (b) The statute in issue contains "no express or implied grounds" subjecting appellant's product to taxation; (c) The statute under which appellant paid the tax "is unconstitutional in that it is ambiguous, uncertain, vague and indefinite, in that it does not define what product the Legislature is attempting to assess or impose a tax upon, and by reason thereof is rendered wholly incapable of enforcement"; (d) The taxing statute "is unconstitutional and violates the Fourteenth Amendment to the Constitution of the United States and Section 13 of Article I of the Constitution of the State of Texas, Vernon's Ann.St., in that the said statute is vague, indefinite, uncertain, ambiguous and does not define or lay down any `yard stick' so that the taxpayer can definitely ascertain just what the legislative intent was in imposing a tax"; (e) The taxing statute "is unconstitutional in that it does not define cement with such definiteness as the taxpayer can determine just what commodity the legislature is attempting to levy a tax upon, and carries heavy penalties for the violation thereof, and therefore the same further violates the Fourteenth Amendment to the Constitution of the United States and Section 13 of Article I of the Constitution of the State of Texas"; (f) The taxing statute "is unconstitutional because it is in violation of Article 5, Constitution of the United States in that it deprives the taxpayer of its property and is subject to criminal prosecution without due process of law."
We give section IV: "This plaintiff respectfully shows to the Court that this suit is brought against George H. Sheppard, Comptroller of Public Accounts, Charley Lockhart, State Treasurer and Gerald C. Mann, Attorney General of the State of Texas in their official capacities as authorized under and by virtue of the provisions of the Act of the 43rd Legislature, Regular Session 1933, Section 214, page 637 and that service of citation may be had by serving each and all of them."
Appellant prayed that "it have judgment for the taxes heretofore paid the State of Texas in the amount of Nine Thousand Four Hundred and fourteen Dollars and 95/100 ($9,414.95) Dollars and that it have judgment for all other and future taxes which may be paid or required to be paid to the Comptroller of Public Accounts pending the final outcome of this suit and cause of action, together with interest thereon as authorized and provided by law," and general and special relief.
Appellant instituted this suit under the provisions of Chapter 214, page 637, Acts of the 43rd Legislature, Reg.Sess.1933, codified as Article 7057b, Vernon's Ann. Civ.St. Appellees demanded the tax, and it was paid by appellant, under authority of Sec. 41, Chap. 212, Acts of the 42nd Legislature, Reg.Sess.1931, page 355, codified as Art. 7047, Sec. 41.a, as brought forward in appellant's petition supra.
The first point to be considered under appellant's brief is whether its product is "cement" within the provisions of Art. 7047, § 41.a. The facts on this proposition are as follows:
(1) Appellant manufactured and sold its product in sacks bearing the following labels:
(a) On one side of the sack
"67 lbs. net
TRINITY
MIX
MASONRY CEMENT
Trinity Portland
Cement Company"
(b) On the other side of the sack
"TRINITY MIX
--------------------------------
| Freight Shipping Bag |
| Meeting Requirements of |
| Consolidated Freight |
| Classification |
| or: Cement—Carload |
| Guaranteed by |
| Kraft Bag Corp.—Silman, Vt |
|-------------------------------|
4-160
TRINITY MIX
MASONRY CEMENT
IS A
PORTLAND
CEMENT PRODUCT
TRINITY PORTLAND
CEMENT COMPANY
DALLAS, FORT WORTH
AND HOUSTON."
(2) Appellant's product consisted of a mixture of 50 per cent Portland cement and 50 per cent ordinary limerock, an inert material, ground up and not processed.
(3) Mr. Ganser, appellant's plant superintendent, testified that the limerock used in "Trinity Mix"
(4) Mr. G. B. Boone, a chemist and chemical engineer, testified (Q. & A. reduced to narrative):
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State on Inf. Huffman v. Sho-Me Power Co-op.
... ... 447, 7 ... N.E.2d 282; Barber v. City of Danville, 149 Va. 418, ... 141 S.E. 126; Trinity Portland Cement Co. v. State, ... 144 S.W.2d 329; Huntsville Trust Co. v. Noel, 321 ... Mo ... ...
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Montgomery Ward & Co. v. State
...so as to carry out the intentions of the legislature," citing among other authorities the recent case of Trinity Portland Cement Company v. State, Tex. Civ.App., 144 S.W.2d 329, in which writ of error was refused by this The state countered with three reasons the company's contention that a......
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Bullock v. Ramada Texas, Inc.
...position of appellants, appellee was entitled to rely upon the opinion of the Attorney General. See Trinity Portland Cement Company v. State, 144 S.W.2d 329 (Tex.Civ.App.1940, writ ref'd). Indeed, the failure by the legislature to change the law with respect to the view proposed by appellan......