New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-11-22
Taxes on Gross Sales.

Taxes on Gross Sales
n the Eighth District Court on the nine
nth instant. Judge Dibble rendered a,
borate opinion. which we now reproduce
the case Of the State ex rel. Allan ct al
James Graham:
nave held this case under advisemen
eeveral months, in the hope that Nigh
&c the guidance of decision of the Su
sme Court in the kindred case of State e.
BLakemore, Woodbridge g. Co vs. Ora
0n. Auditor, the Supreme Court havin,
journed without deciding the case.
1ceivG have no right, in a summary pro
sding like the present. 10 interpose fur
- delay.
Selators herein proceed under an act o
Legislature, approved April 10, 1871
sch is as follows: IAN act to reimburse
Gain taxes illegally imposed and collected
hey act No. IS. approved April 4, 1865"
SEC. 4. BE it enacted, etc, That all taxes
Ich were collected by the State under
third section OF an act entitled AN act,
o. approved April 1, 1856" shall be and
hereby refunded TO the parties who paid
. same, or TO their proper representa-
o. and the Auditor OF Public Accounts
ana he is hereby authorized and re-
6CA4 LV aSSllC AZ SClAk Ilui JlEB VI IuGlI pTO-
representatives certificates for the
ouns paid by them. which shall be re-
vable by all State tax collectors in pay
Mt of She general fund tax.
he various REALTORS aver that they made
dry payments 20 the State under the
I'd section OF the act of 1885, that they
re applied TO the Auditor to issue to them
titicates for the amounts so paid in CON
nifty with the provisions of act No. 80 of
1; that the Auditor refused to do so; and
y pray for q writ of mandamus, to com
him 30 issue said certificates The Au-
)r responds and urges numerous reasons
z the mandamus should be refused The
tie, through the Attorney General. files
Intervention, and makes itself party to
proceeding
d the trial of the case it was agreed be-
en- all parties in open court that the
ldamus prayed for in this case shall not
Dive She questions Of facts as to the
punts due to REALTORS, if any; but shall
)nly to the determination Of the cues
s Of law. And in order to present these
5tiOns Of law fairly, the following ad-
5lOns were made and filed, viz:
That part of the taxes, reimbursement
yhich IS claimed by REALTORS, was paid
the gross sales of commodities belong
TO citizens of other States, prepared by
a for market beyond the limits of the
e, and consigned by them to REALTORS
sale in this market. in their original
Sages on commission for account Of said
eTs.
Tha9 part of said taxes was paid on
e receipts of citizens of this State, and
iross sales Of property, the products of
State or belonging to citizens Of this
e.
That part OF said taxes was paid on
gross sales Of goods and merchandise,
rh were imported by REALTORS from for |
countries TO be disposed of at whole |
. and on which REALTORS had paid the |
Drt duties required under the laws of |
United States.
he intervention and answer Of the State
by the Attorney General substantially
!esses Judgment as to that portion of
claims OF REALTORS which come within
arst and third categOries of the above
lsslons, admitting that to this extent
Claims OF che REALTORS should be allowed:
q" ground that under the decision Of
supreme Court in the case of State VS..
o. Kennedy Il Co., the third section OF
Sct OF 1869 was unconstitutional so far
FaXed sales OF property of citizens of
{ States and imported goods. coming
lin the description contained in said
@and third admissions. But the State
IN tho Auditors opposition to the re-
lrsement Of She other taxes collected
sr that lawo
e Auditor flies numerous grounds of
,sition to the demand of REALTORS. Tue
Z important Of these are embodied sub
flaily IN the following propositions, to
THAT the third section of the.act Of
WAS constitutional -, !
q hereunder were not illegally I'M,
and collected.
That, II legally collected, or even if
ply collected, yet paid voluntarily and
out protest, the State was not bound
imbuTse them.
THAT the feimbursing act, No. 81 of s
IS, therefore. not the recognition, but d
creation of debt, and, therefore. in ;
itlOn OF fhe third amendment to the !
ltuton, prohibiting the increase of the {
, OF the State beyond $25. 100000 u
have examined these questions with Z
care and attention, and have arrived c
g following conclusion:
'st-So far as all questions touching the !
and operation Of the third section of a
tct Of 1865 are concerned, am COM .
U to regard the decision Of the Supreme '
IN the Kennedy case as conclusive, at ,
as 10 ali Inc points covered by that de- | y
!. am aware, that some two wears
that decision was rendered, the SD | a
g Court Of the United States decided q
from Alabama, overruhng the princi. r
of the Kennedy case; and, no doubt, ~
y future case, our Supreme Court p
adopt and follow the princi- A
enunciated by the United States m
me Courto But the Kennedy case III
roperly made test case; the decision al
n was rendered by the highest Judi le
lthOrity in fhe State it was not ap- pl
ole by the State: it was and remained
IthOritatiye and conclusive cOnstruc- ~
the third section of the act of 1860 =
to and long after the repeal of the act N
according to which the rights OF all
; ~hielJ had hot passed beyond Judi.
guizance were settled, and | can not 80
ize Che justice or propriety Of invoke "''
lew Tnle sor the settlemen: of the gu
OF parties which have remained IN
ice thus long, only because the State
It liable 30 judicial pursuit. ga
eretoreo conclude shat the Attorney in
j is GorSes5 in the position assumed Jill