Corsicana Cotton Mills, Inc. v. Sheppard

Texas Supreme Court

Corsicana Cotton Mills, Inc. v. Sheppard

71 S.W.2d 247, 123 Tex. 352, 1934 Tex. LEXIS 210

CourtTexas Supreme Court

DecidedMay 2, 1934

DocketNo. 6670.

StatusPublished

Cited by46 cases

This text of 71 S.W.2d 247 (Corsicana Cotton Mills, Inc. v. Sheppard) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Corsicana Cotton Mills, Inc. v. Sheppard, 71 S.W.2d 247, 123 Tex. 352, 1934 Tex. LEXIS 210 (Tex. 1934).

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Opinion

Mr. Judge CRITZ

delivered the opinion of the Commission of Appeals, Section A.

This is an original mandamus proceeding instituted in the Supreme Court by Corsicana Cotton Mills, Inc., a Texas corporation, against George H. Sheppard, State Comptroller, and Charley Lockhart, State Treasurer, to compel the issuance and payment of a state warrant for $3,385.00.

As shown by the record relator is a corporation, duly incorporated under the laws of this State, and has been such during, and since the times here involved.

It further appears from the record that relator erroneously-paid franchise taxes to the State of Texas for the years 1920 to 1927, both inclusive, in the total sum of $3,384.50, as follows;

1920 $235.50 '

1921 365.00

1922 452.50

1923 465.75

1924 462.75

1925 475.75

1926 433.50

1927 493.75

Total__________ __________$3384.50

*354 Relator presented a claim to the Claim Committee of the 43rd Legislature for the above sum of $3,384.50. The Committee seems to have approved the claim for $3,385.00, and included same for that amount in H. B. 919, ch. 237, p. 830, Acts Reg. Ses. 43rd Leg. 1933, known as the Miscellaneous Claims Bill. This bill duly passed both houses of the Legislature, and is now in effect so far as it is valid.

It is alleged by relator, and taken as true, that after the above act became effective it made demand on the Comptroller for the issuance of a warrant for the sum of $3,385.00, which demand was refused. This proceeding followed.

At this point we wish to say that the respondent, Lockhart, has never been called on to perform, or refuse to perform, any official act. There is therefore no legal reason for making him a party to this proceeding.

It appears from the undisputed record that relator, acting through its duly authorized officers and agents, through ■ an erroneous construction of law, paid franchise taxes to the Secretary of State which were duly placed in the State Treasury to the credit of the General Revenue Fund, upon that portion of its capital set-up employed without the State as well as within the State for the years 1920 to 1927, inclusive. In this connection it appears that the total taxes paid on the capital set-up employed without the State for such years was $3,384.50. This amount the relator was not required to pay under the provisions of Article 7084, R. C. S., because the law as it then existed specifically provided that a domestic corporation was not required to pay franchise taxes upon that portion of its capital set-up employed without this State. In this connection we here quote the following from Article 7048, as it existed at the time these taxes were paid:

“ * * * Where a domestic corporation does business outside the State the franchise tax of such corporation shall be computed upon that proportion of the authorized capital stock plus the surplus and undivided profits, if any, of such corporation, as the total gross receipts of such corporation, from its business done in Texas bears to the total gross receipts of the corporation from all sources.”

As we understatnd this record the Secretary of State never at any time made any demand on relator to pay franchise taxes for the years involved in this claim on its capital set-up employed outside this State. Furthermore, in our opinion this record contains no evidence that can reasonably be interpreted as showing,or tending to show, that the Secretary of State, the *355 Attorney General, or any other State authority, ever made any ruling or demand that would have justified relator in paying the taxes here involved on its capital set-up employed outside the State. In this connection the record shows that none of the reports filed by the relator with the Secretary of State made any affirmative showing that any of relator’s capital set-up was employed without the State. In other words the reports filed by the relator with the Secretary of State gave him no information by which he could have known that any over-payment of franchise taxes was being made. It is not contended that at the time this appropriation was made there existed any statutory law authorizing the refund of these taxes.

Under the above record the Attorney General,on behalf of respondents, contends that this appropriation is unconstitutional and void because in violation of Section 44 of Article 3 of our State Constitution. We sustain this contention.

In Cause No. 6607, Austin National Bank v. George H. Sheppard, Comptroller, and Charley Lockhart, State Treasurer, (ante, p.. 272) we have fully discussed, interpreted and construed the above constitutional provision. In that opinion we hold “a person who voluntarily pays an illegal tax has no claim for its repayment.” (See authorities cited in No. 6607, supra). Under the facts detailed above this corporation was a volunteer in paying the taxes here involved. It therefore had no legal claim against the State for their repayment at the time this appropriation was made. Since the appropriation, at the time it was made, was not supported by legal claim it was and is unconstitutional and void. At this point we again refer to our opinion in Cause No. 6607, supra, which is delivered with this opinion.

Relator contends that these taxes were not voluntarily paid because the blanks furnished by the Secretary of State on which the reports for the years involved were made contained certain notations.

The blank on which the 1920 report was made contains the following:

“Sec. 2. Except as herein provided, all corporations that are now required by law to pay an annual franchise tax, shall between the first day of January and the fifteenth day of March of each year and every year, be required to make a report to the Secretary of State, on blanks furnished by him, showing the condition of such corporation on the 31st day of December preceding; which report shall give the authorized capital stock of the corporation, the capital stock actually paid in, the surplus and undivided profits of the corporation, if any, the name and addresses of all *356

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