558 FRANKFURTER, J., concurring. ritorial jurisdiction of the State of Minnesota over the land in question. The territorial jurisdiction of the state to lay the tax, said to be a novel question, was not raised in the state courts, by the petition for certiorari, or in argument or briefs in this Court. Under our decisions we are therefore not free to decide it. McGoldrick v. Compagnie Generale, 309 U. S. 430, 434-5; Wilson v. Cook, 327 U. S. 474, 483-484, and cases cited; see also Rule 38, par. 2 of the Rules of this Court; Flournoy v. Wiener, 321 U. S. 253, 259. Since the opinion of the Court expresses no disapproval of these authorities, I take it that everything said on the question of Minnesota's territorial jurisdiction to tax is dictum. Our opinion should be confined to the single question which the petitioner presents for our decision, whether the retention by the United States of the legal title to the taxed land precludes its taxation to petitioner, which, under its contract with the Government, has acquired possession and right to possession. As I have no doubt on this question, I agree the judgments should be affirmed. MR. JUSTICE FRANKFURTER, Concurring. The Government sold a piece of surplus property located in St. Paul, Minnesota. It put the vendee in possession but retained the legal title, with the right of re-entry, as security for portions of the purchase price remaining due under the contract of sale. The decisive question before us is whether the interest thus retained by the United States bars Minnesota, under a general non-discriminatory law, from taxing the vendee's interest in the property. The Constitution itself furnishes no answer in terms. But the considerations governing the appropriate adjustment between national and state powers of taxation, where the incidence of taxation may affect the property or functions of one another, do not require that entire immunity from state taxation be afforded this piece of property because FRANKFURTER, J., concurring. 327 U.S. of the interest which the United States retained to secure the unpaid purchase price. Since the Government's security is left untouched by Minnesota, what remains of the Government's relation to the property is too attenuated to withdraw it entirely from Minnesota's taxing power. The matter would hardly be open to question but for a series of cases arising under land grant legislation. As the opinion of the Court persuasively shows, these decisions rest upon considerations of policy not relevant to the immediate situation. I agree with the Chief Justice that our disposition of this case should be confined to the only question raised by the record, that of the State's power to tax, unembarrassed by any issue as to territorial jurisdiction. The Chief Justice gives conclusive ground for such abstention. Moreover, even as to property indisputably owned by the Government, there may be "uncertainty and confusion" whether jurisdiction belongs to the Federal Government or to a State. See Bowen v. Johnston, 306 U. S. 19, 27; and Pacific Coast Dairy v. Dept., 318 U. S. 285, 299. Taxability and territorial jurisdiction are not correlative. We ought not to borrow trouble. Counsel for Parties. KENNECOTT COPPER CORP. v. STATE TAX COMMISSION ET AL. NO. 424. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.* Argued January 30, 31, 1946.-Decided March 25, 1946. 1. A suit by a taxpayer against the State Tax Commission of Utah and individuals constituting the Commission to recover taxes paid under protest, the money being segregated under § 80-11-13 of the Utah Code Anno. 1943, and held for determination of the taxpayer's rights with provision for any deficiency for interest or costs to be paid by the State, is a suit against the State. P. 576. 2. Section 80-11-11, Utah Code Anno. 1943, authorizing any taxpayer who has paid taxes under protest to bring suit "in any court of competent jurisdiction" against the officer to whom the tax was paid "or against the state" to recover the tax, does not grant consent to suits against the State in the federal courts. Great Northern Ins. Co. v. Read, 322 U. S. 47; Ford Co. v. Department of Treasury, 323 U. S. 459, followed. Pp. 577-579. 150 F. 2d 905, affirmed. A nonresident taxpayer brought suit in a federal District Court against the State Tax Commission of Utah and indíviduals constituting the Commission to recover taxes paid under protest. The District Court gave judgment for the plaintiff. 60 F. Supp. 181. The Circuit Court of Appeals reversed, with directions to dismiss without prejudice, on the ground that it was a suit against the State without its consent. 150 F. 2d 905. This Court granted certiorari. 326 U. S. 711. Affirmed, p. 580. C. C. Parsons and Charles A. Horsky argued the cause for petitioners. With Mr. Parsons on the brief was H. Thomas Austern. *Together with No. 425, Silver King Coalition Mines Co. v. State Tax Commission et al., on certiorari to the same court, argued and decided on the same dates. Opinion of the Court. 327 U.S. Arthur H. Nielsen and Zar E. Hayes, Assistant Attorneys General of Utah, argued the cause for respondents. With them on the brief were Grover A. Giles, Attorney General, and Wayne Christoffersen. MR. JUSTICE REED delivered the opinion of the Court. Whether Utah has submitted itself to suit in the United States District Court for the District of Utah for the recovery of taxes alleged to be wrongfully exacted by that State is the ultimate issue brought here by these writs of certiorari. Preliminarily, we must decide if the present proceeding is a suit against Utah. Petitioners, eorporations and citizens of New York and Nevada respectively, carry on mining businesses in Utah. That State imposes on those there engaged in the mining business an occupation tax equal to one per cent of the gross amount received for or the gross value of metalliferous ore sold during the preceding calendar year. The State Tax Commission administers the Act. Utah Code Annotated (1943) §§ 80-5-65 to 80-5-82, inclusive. For the purposes of this opinion, it need only be said as to the facts which give rise to this litigation, that petitioners seek recovery of that portion of their occupation taxes for 1944 which was calculated by the Tax Commission by including in the gross amount received by petitioners for their ore certain subsidies for war production paid to petitioners by the United States pursuant to an order of the Office of Price Administration, dated February 9, 1942, No. P. M. 2458. Petitioners assert that this subsidy should not be included in their occupational tax base. As the Tax Commission did include the subsidies in the base after administrative rulings which denied petitioners' claims, petitioners each paid the total tax levied, protested that portion thereof which was based upon the subsidy and brought suit in the United States District Court for the District of Utah against the State Tax Commission, and 573 Opinion of the Court. the individuals "constituting" it as "members," for the recovery of the protested amount under sections of the Utah Code (1943), set out below, which petitioners claim authorize these proceedings.1 The causes present identical questions. They were consolidated for trial in the District Court and separate judgments were entered for plaintiffs against the "State Tax Commission, et al." for the amounts claimed. ́60 F. Supp. 181. Separate appeals were perfected to the Circuit Court of Appeals. The cases were there briefed, argued and decided together but with separate judgments reversing the District Court with directions to dismiss without prejudice since it was a suit against the State without its consent. State Tax Commission v. Kennecott Copper Corp., 150 F. 2d 905. On account of the importance of the issues, we granted certiorari to determine whether the basis of the decisions in Great Northern Ins. Co. v. Read, 322 U. S. 47, and Ford Co. v. Department of 1 Utah Code Anno. 1943, 80–5-76: "No court of this state except the supreme court shall have jurisdiction to review, alter, or annul any decision of the tax commission or to suspend or delay the operation or execution thereof; provided, any taxpayer may pay his occupation tax under protest and thereafter bring an action in any court of competent jurisdiction for the return thereof as provided by section 80-11-11, Revised Statutes of Utah, 1933." Id., 80-11-11 (this is identical with Revised Statutes of Utah, 1933): "In all cases of levy of taxes, licenses, or other demands for public revenue which is deemed unlawful by the party whose property is thus taxed, or from whom such tax or license is demanded or enforced, such party may pay under protest such tax or license, or any part thereof deemed unlawful, to the officers designated and authorized by law to collect the same; and thereupon the party so paying or his legal representative may bring an action in any court of competent jurisdiction against the officer to whom said tax or license was paid, or against the state, county, municipality or other taxing unit on whose behalf the same was collected, to recover said tax or license or any portion thereof paid under protest." |