328 F2d 429 Lasker Boiler and Engineering Corporation v. Hamm

328 F.2d 429

LASKER BOILER AND ENGINEERING CORPORATION, Appellant,
v.
Phillip HAMM, as Commissioner of Revenue of the State of Alabama, and his successors in said office, Appellee.

No. 20600.

United States Court of Appeals Fifth Circuit.

February 17, 1964.

James O. Brooks, Joseph W. Grady, Chicago, Ill., Carl A. Morring, Jr., Forest D. Herrington, Huntsville, Ala., for appellant; Brooks & Grady, Chicago, Ill., Bell, Morring, Richardson & Cleary, Huntsville, Ala., of counsel.

Richmond M. Flowers, Atty. Gen., of Alabama, Willard W. Livingston, Counsel, Dept. of Revenue, Charles P. Miller, Asst. Counsel, Dept. of Revenue, Montgomery, Ala., for appellee.

Before CAMERON, WISDOM, and GEWIN, Circuit Judges.

PER CURIAM.

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1

The plaintiff corporation seeks to enjoin the Alabama Commissioner of Revenue from collecting the assessment of a certain State use tax. Alabama gives a taxpayer the right to appeal an assessment to the Circuit Court of Montgomery County within thirty days of the assessment. Section 140, Title 51, Code of Alabama (1958). The taxpayer appealed on the thirty-first day. The Circuit Court held that the appeal was not timely filed, sustained the State's plea of abatement, and dismissed the taxpayer's appeal. See Dowda v. State, 1962, 274 Ala. 124, 145 So.2d 830. The taxpayer has not appealed from that judgment. Instead, the taxpayer filed a de novo proceeding in the district court attacking the validity of the assessment.

2

We agree with the judgment of the district court, 216 F.Supp. 74. The State of Alabama provided "a plain, speedy, and efficient remedy" within the meaning of 28 U.S.C.A. § 1341. The district court very properly refused to issue an injunction against the State Commissioner of Revenue. Great Lakes Dredge and Dock Co. v. Huffman, 1943, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407.

3

The judgment is affirmed.