Washburn Crosby Co. v. Nee, 2730.

• Decision Date: 31 July 1935
• Docket Number: No. 2730.,2730.
• Citation: 11 F. Supp. 822
• Parties: WASHBURN CROSBY CO. v. NEE.
• Court: U.S. District Court — Western District of Missouri

11 F. Supp. 822

WASHBURN CROSBY CO. v. NEE.

No. 2730.

District Court, W. D. Missouri, W. D.

July 31, 1935.

A. Z. Patterson and D. C. Chastain, both of Kansas City, Mo., for plaintiff.

Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., for defendant.

OTIS, District Judge.

The plaintiff seeks a temporary injunction restraining, until final hearing, the collection from it of the so-called processing tax. Whether a temporary injunction shall issue is the subject of this opinion.

There are three principles so well established by the decisions of the courts and so strongly supported by sound reasoning that no longer are they subjects of debate. The first is this: Every statute enacted by the Congress and approved by the President is presumed to be constitutional. The second is this: The courts will not declare a statute unconstitutional unless its invalidity under the Constitution is established beyond reasonable doubt. The third is this: Generally speaking, the courts will not enjoin the collection of any tax provided for by statute, although the statute is unconstitutional, if the taxpayer, having paid the tax, has the right to sue in a court of law to recover it from the government.

The chief reason for the presumption that a statute regularly enacted and approved is constitutional is the assumption that members of Congress, before they voted for it, and the chief executive, before he gave it his approval, carefully considered whether it was within the powers conferred on Congress by the Constitution. Members of Congress solemnly have sworn that they will support the Constitution, and the President solemnly has sworn that he will preserve, protect, and defend the Constitution. The courts have rejected as unthinkable the suggestion sometimes made that the President and Congressmen might disregard their oaths, that they might seek to shift from their shoulders to the shoulders of the judges the responsibility imposed thereby. Any such course not only is unthinkable; it would be quite as indefensible as that of a witness, sworn to tell the truth, who should commit perjury on the theory that the jury would perceive it and disregard it.

The chief reason for the second of the principles here stated, that the unconstitutionality of a statute must be established beyond reasonable doubt, lies in the respect which the judicial branch of government entertains and ought to entertain for the co-ordinate branches. It is not fitting that an act of the executive or national legislature should be invalidated save in a most clear case of usurpation of authority.

The chief reason for the third principle arises from the fact that no government can exist unless it can raise revenue for its maintenance and the performance of its proper functions. It is preferable to require the citizen to pay even an illegal tax, leaving him to the remedy of suing to recover what has been exacted, than to handicap the government in so vital a matter as the raising of necessary revenue by permitting citizens to prevent by injunction tax collections. This principle not only is expressed in the decisions, but is embodied in a statute which provides that "No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." 26 U. S. C. § 154 (26 USCA § 154).

Having in mind these three elementary principles, I consider whether the temporary injunction prayed by the complainant against the enforcement of the so-called processing tax should be granted.

Two questions are presented: First, is the statute providing for this tax constitutional? Second, if it is unconstitutional, is this one of those most unusual cases in which a court of equity will interfere with the collection of a tax?

1. Several of the District Courts of the United States recently have ruled that the statute (Agricultural Adjustment Act, as amended, 7 USCA § 601 et seq.) providing for the processing tax does violate the Constitution. The Circuit Court of Appeals for the First Circuit reached the same conclusion in Butler et al. v. United States, 78 F.(2d) 1, decided July 13, 1935. I am not prepared to say that I agree with the conclusions reached by these...