author: DOMENGEAUX, Judge.

text:
    VERMILION CORPORATION, Plaintiff-Appellee, v. Norman VAUGHN, Defendant-Appellant.
    No. 6258.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 7, 1980.
    Rehearing Denied Sept. 17, 1980.

      John K. Hill, Jr., Lafayette, for defendant-appellant.
    Cooper & Sonnier, Charles R. Sonnier and John E. Ortego, Abbeville, for plaintiff-ap-pellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.

       Foret, J., voted to grant a rehearing.

   DOMENGEAUX, Judge.

This matter is before us on remand from the United States Supreme Court. Originally, Vermilion Corporation, plaintiff, sought injunctions prohibiting the three defendants, Norman Vaughn, Larry J. Brous-sard, and Freddie Broussard, from trespassing onto privately owned and constructed navigable waterways. Finding no issues of material fact, the trial court, on plaintiff’s motion, granted summary judgment and permanently enjoined the defendants from trespassing onto lands or waterways leased by the plaintiff. We affirmed the trial court judgment, Vermilion Corporation v. Vaughn, 356 So.2d 551 (La.App. 3rd Cir. 1978), over defendants’ contention that plaintiff’s system of artificial waterways diverted or destroyed nearby naturally navigable waterways. Defendants argued that this was a genuine issue of material fact because, if their contention was correct:

“. . . . the court could conclude that the system of artificial waterways was substituted for the pre-existing natural system of navigable waterways. If such a conclusion were reached, the canals would not be private and could not be privately controlled under state and federal law.”

(356 So.2d at 553).

Both the trial court and this Court rejected defendants’ contention because a Louisiana Supreme Court case, Ilhenny v. Broussard, 172 La. 895, 135 So. 669 (1931), had stated that the diversion of water from a natural channel by a private man-made waterway does not give rise to a right of the public to use the man-made waterway. Hence, we held, even if defendants proved their contention, they still did not have the right, under Ilhenny, to use the private waterways.

After the Louisiana Supreme Court denied writs, 357 So.2d 558 (La.1978), the defendants applied for, and obtained a review by the United States Supreme Court (certiorari granted 440 U.S. 906, 99 S.Ct. 1211, 59 L.Ed.2d 453). Judgment was rendered by that Court on December 4, 1979. 444 U.S. 206, 100 S.Ct. 399, 62 L.Ed.2d 365 (1979).

Defendants’ petition for certiorari had set forth two questions for the Supreme Court’s review:

“. . . The first is whether if a private citizen on its privately held real property and with private funds creates a system of artificial navigable waterways in part by means of diversion or destruction of a pre-existing natural navigable waterway, does the artificially developed waterway system become part of the ‘navigable waterways of the United States’ and subject to the use of all citizens of the United States. The second is whether channels built on private property and with private funds, in such a manner that they ultimately join with other navigable waterways, are similarly open to use by all citizens of the United States.”

The Supreme Court affirmed this Court’s judgment with respect to the second question presented in the petition for certiorari. However, with respect to the first question our judgment was vacated and remanded for further proceedings not inconsistent with the Supreme Court’s opinion in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), decided the same day as the instant case.

The U. S. Supreme Court wrote:

“. . . The Court of Appeal, in the light of this decision [Ilhenny], held that a factual dispute between the litigants in this case was immaterial, and that summary judgment was proper as a matter of law. .
. [W]e do not think it can be said as a matter of law that if petitioners proved their factual allegations that proof would not constitute a defense under federal law to respondent’s prayer for injunctive relief in the trial court.”

On remand from the Supreme Court, defendants urge us to remand this case to the trial court to enable them to prove that the construction of the artificial waterways diverted, and thereby destroyed, pre-existing, natural, navigable waterways. Vermilion Corporation urges us to affirm the summary judgment, despite the Supreme Court decision since neither defendants’ answers nor their affidavit offered in opposition to the summary judgment alleged that construction of the private waterways diverted or destroyed pre-existing, natural, navigable waterways. Therefore, plaintiff concludes, defendants have not properly raised the factual question, as required by La.C. C.P. Articles 1005 and 967.

Because of our reliance on Ilhenny and Audubon Society, supra, we did not consider the procedural issues involved the first time this case was reviewed. Since the United States Supreme Court apparently disapproved of the Ilhenny rationale, we now decide whether defendants’ contention was properly raised in the pleadings or other pre-trial proceedings.

After reviewing the record, we find that plaintiff’s position has merit and should be sustained. Nowhere in their answers or affidavit do defendants plead or allege that the creation of plaintiff’s artificial canals diverted or destroyed nearby public, navigable waterways. As expressed in their answers to plaintiff’s suits seeking permanent injunctions, the defendants’ sole defense to their alleged trespasses was that the canals were “navigable waters of the United States not subject to private ownership or dominion, but instead burdened with a paramount easement of use in favor of the public.” The essence of this argument was: plaintiff’s canals are navigable and are linked to public navigable waterways, therefore plaintiff’s canals are subject to indiscriminate public use. As we noted earlier, the Supreme Court rejected this argument.

We do not think the conclusory statement above quoted from defendant’s answers was sufficient enough to include the entirely different defense of diversion or destruction of public waterways. This defense should have been affirmatively pleaded, since it constituted new matter which, if proved, might have defeated plaintiff's suits for injunctive relief. La.C.C.P. Article 1005; Webster v. Rushing, 316 So.2d 111 (La. 1975). However, the new defense was not pleaded so plaintiff was not apprised that this defense, too, would have to be refuted to win a summary judgment. Consequently, plaintiff offered no affidavits tending to rebut this unpleaded defense.

After plaintiff sufficiently supported its motion for summary judgment with affidavits and a deposition establishing the private construction, ownership, and use of the cánals and defendants’ trespasses thereon (the only factual issues then in dispute), defendants were obliged to set out in evidence or depositions specific facts showing that there was a genuine issue for trial. La.C.C.P. Article 967; Mashburn v. Collin, 355 So.2d 879 (La.1977). Yet the defendants also failed to raise the defense or issue at this point in the proceedings, as we will demonstrate.

Defendants opposed plaintiff’s well-supported motion with only this affidavit:

“As long as deponents can remember, the Humble Canal System has been used by fishermen, hunters, trappers, sportsmen, and generally anyone who wanted to use same. Broussard’s and Hazel’s Landings have been public landings and launch ramps on the Humble Canal System for years.
Prior to the development of the Humble Canal System, deponents are aware that various portions of the natural navigable waterway system in the area of Pecan Island, for example, Little Rollover Bayou and Freshwater Bayou, were actually used for purposes of transporting mail, transporting cattle, and transporting people, to and from Pecan Island on various kinds of small vessels. These natural waterways only ceased to be useable for these purposes after Humble developed its artificial waterway system.”

The first paragraph of the affidavit is not important here because it does not address the issue of navigational impairment of public waterways. Instead, it relates to the first (and only) argument raised by defendants’ answers. As the U. S. Supreme Court noted, we disposed of that argument correctly upon our first consideration of this case.

The last sentence of the second paragraph mentions that Little Rollover Bayou and Freshwater Bayou “only ceased to be useable . . . after Humble developed its artificial waterway system.” However, the affidavit never alleged nor attempted to establish a causal relationship between the construction of the artificial canal system and the demise (if true) of the commercial utility of the nearby bayous. The mere possibility that defendants could have raised the factual issue does not defeat summary judgment if, in fact, the issue was not raised. Welsh Southern Oil Co. v. Scurlock Oil Co., 201 So.2d 376 (La.App. 3rd Cir. 1967); Mexican Gulf Fisheries, Inc. v. Aetna Insurance Co., 220 So.2d 141 (La.App. 1st Cir. 1969). Here, defendants did not raise the factual issue although they had ample opportunity to do so.

None of the pleadings, affidavits, or the deposition on file apprised plaintiff that defendants’ trespasses were being defended on the grounds that the artificial canals diverted the waters of, and/or destroyed the navigability of, surrounding naturally navigable, public waterways. That defense, which was urged by the defendants at the trial level, to this Court, and to the United States Supreme Court, was never raised in the pre-trial proceedings. Instead, it was raised, for the first and only time, in argument on behalf of the defendants before the various courts reviewing this case. La. C.C.P. Art. 966 clearly states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Article 966 does not permit an issue of material fact to be raised initially by argument favoring or opposing the summary judgment. Mexican Gulf Fisheries, Inc. v. Aetna Insurance Company, supra. Finding that the documents on file in the record disclose no genuine issue of material fact, we affirm our,original judgment which approved the granting of summary judgment in plaintiff’s favor.

This disposition does not conflict with the decision rendered by the United States Supreme Court. Again, that Court’s decision apparently disapproved of our Ilhenny based conclusion that no general right of use in the public arose even if the destruction or diversion of naturally navigable waterways occurred in the process of constructing the private waterways. Our present decision disregards the Ilhenny holding, but still finds summary judgment appropriate on procedural grounds which apparently were not considered by the United States Supreme Court.

DECREE

For the above and foregoing reasons the judgment of the District Court, which permanently enjoined the defendant, Norman Vaughn, from trespassing onto lands or waterways leased by the plaintiff, Vermilion Corporation, is affirmed. All costs are to be assessed against defendant, Norman Vaughn.

AFFIRMED.

FORET, J., dissents.

      . Companion cases in which Larry J. Broussard and Freddie Broussard are made defendants follow this case. All issues are discussed only in this case.

      . The suits against Vaughn and the Broussards were consolidated for trial and on appeal. The Broussard cases appear at 356 So.2d 556 and 356 So.2d 557.

      .We also relied upon National Audubon Society v. White, 302 So.2d 660 (La.App. 3rd Cir. 1974), writ denied 305 So.2d 542 (La.1975). But that case did not consider the problem of diversion of water from a natural channel by a private waterway.

      .Kaiser spent millions of dollars developing a shallow, largely land-locked lagoon into a private commercial marina. The United States argued that when Kaiser connected its marina to a bay, it became navigable water of the United States to which the public acquired a right of use. The Supreme Court rejected this argument, and held, instead, that Kaiser enjoyed the right to exclude the public from its private marina. The Court concluded that if the United States wished to convert the private marina into a public aquatic park, it must invoke its eminent domain power and pay Kaiser just compensation for the taking.

      . The three defendants all signed the same affidavit.

      . The Supreme Court recognized that the arguments were completely distinguishable. The Court indicated that one was not a defense to trespass (that defense advanced in the answers) whereas the other (diversion and/or destruction of public waterways) might be.

      . Plaintiffs affidavits need not have negated the possibility of navigational impairment of public waterways. The law does not impose upon the plaintiff the burden of refuting possible defenses or issues before they are pleaded or are otherwise raised by the defendants.

      . La.C.C.P. Article 967 reads, in part, as follows:
      “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. .
      When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. (Emphasis added)

      .Although we discuss defendants’ failure to raise the defense in its affidavit, we do not decide whether defendants could have properly raised the issue at this point in the proceedings since the defense had not been properly pleaded.

      . Even if we could conclude that the last sentence of paragraph two raised the defense, albeit inferentially, of destruction or diversion, we would not be inclined to reverse the summary judgment because defendants’ affidavit was not made on personal knowledge, did not show affirmatively that defendants were competent to testify to the matters stated therein, and merely stated conclusions rather than specific facts showing that there was a genuine issue for trial. La.C.C.P. Articles 966 and 967; Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978); Atkinson v. Allstate Insurance Company, 361 So.2d 32 (La.App. 3rd Cir. 1978); Hidalgo v. General Fire & Casualty Company, 254 So.2d 493 (La.App. 3rd Cir. 1971).


source: Caselaw Access Project

license: Public Domain

text:
    VERMILION CORPORATION, Plaintiff-Appellee, v. Larry J. BROUSSARD, Defendant-Appellant.
    No. 6260.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 7, 1980.
    Rehearing Denied Sept. 19, 1980.

      John K. Hill, Jr., Lafayette, for defendant-appellant.
    Cooper & Sonnier, Charles R. Sonnier and John E. Ortego, Abbeville, for plaintiff-ap-pellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.

       Foret, J., voted to grant a rehearing.

   DOMENGEAUX, Judge.

This is a companion case to Vermilion Corporation v. Norman Vaughn, No. 6258 on the docket of this Court, 387 So.2d 698.

For the reasons assigned therein the judgment of the District Court, which permanently enjoined the defendant, Larry J. Broussard, from trespassing onto lands or waterways leased by the plaintiff, Vermilion Corporation, is affirmed at defendant’s cost.

AFFIRMED.

FORET, J., dissents.


text:
    VERMILION CORPORATION, Plaintiff-Appellee, v. Freddie BROUSSARD, Defendant-Appellant.
    No. 6259.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 7, 1980.
    Rehearing Denied Sept. 19, 1980.

    John K. Hill, Jr., Lafayette, for defendant-appellant.
    Cooper & Sonnier, Charles R. Sonnier and John E. Ortego, Abbeville, for plaintiff-ap-pellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.

       Foret, J., voted to grant a rehearing.

   DOMENGEAUX, Judge.

This is a companion case to Vermilion Corporation v. Norman Vaughn, No. 6258 on the docket of this Court, 387 So.2d 698.

For the reasons assigned therein the judgment of the District Court, which permanently enjoined the defendant, Freddie Broussard, from trespassing onto lands or waterways leased by the plaintiff, Vermilion Corporation, is affirmed at defendant’s costs.

AFFIRMED.

FORET, J., dissents.


author: STOKER, Judge.

text:
    Agnes Burker LETULLE, Plaintiff-Appellee, v. S & E OIL COMPANY, INC., Defendant-Appellant.
    No. 7332.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 11, 1980.

      Showers & Guidry, Randall L. Guidry, Lafayette, for defendant-appellant.
    Cline, Miller, Richard & Miller, James M. Miller, Jr., Rayne, for plaintiff-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This suit involves a claim by an employee against her employer for wages owed to her that have not been paid.

On May 2, 1979, the trial court granted a default judgment in favor of plaintiff, Agnes Burcker Letulle, and against defendant, S & E Oil Company, Inc. The trial court awarded plaintiff the sum of $1,176.93 in past due wages, together with legal interest from the date of judicial demand, plus penalties in the amount of $2,521.80, and attorney fees in the amount of $500.00 with legal interest from date of judicial demand. The judgment cast defendant for all costs of court. The defendant-employer appealed.

Agnes B. Letulle became an employee of S & E Oil Company in Lafayette, Louisiana, in February of 1978 as manager of a restaurant and kitchen at Skelly’s Truck Stop, earning $392.31 every two weeks. She terminated her employment on November 28, 1978, because of a dispute with her boss, Emery Guidry, owner of S & E Oil Company, concerning certain of her paychecks. The evidence established that Agnes B. Le-tulle borrowed $1,600.00 from First National Bank of Lafayette and Emery Guidry, as an individual, co-signed the note for her. The loan was an unsecured loan for $1,600.00, made payable on demand. In due course the note was paid off completely by Agnes B. Letulle. Emery Guidry was not called on to pay any part of the note.

Agnes Letulle showed that the first problem she encountered was when she received two paychecks from S & E Oil Company, each in the amount of $325.36, with one being dated November 3,1978, and the other being dated November 17, 1978. After taking the checks to the bank for deposit, Agnes B. Letulle noticed that they had not been signed by Mr. Guidry. When confronted with the unsigned checks, Guidry informed plaintiff he would not sign them unless she paid them to the bank. In addition to these two checks defendant did not pay plaintiff for her last week of work.

Defendant-appellant refused to unconditionally pay Agnes Letulle her three paychecks because Agnes Letulle refused to use the proceeds from the three paychecks to pay the note at First National Bank that had been co-signed by Emery Guidry individually.

Guidry later mailed three checks to the bank representing the amount owed to plaintiff, but they were made payable to plaintiff and the bank. Guidry gave instructions to plaintiff to go to the bank and endorse them and allow them to be applied to the loan. He gave similar instructions to the bank. Plaintiff refused to do this.

The only issue before the court is whether plaintiff-appellee should be awarded penalties and attorney fees against defendant-appellant.

The dispute between Agnes Letulle and S & E Oil Company, Inc., over payment of the last three paychecks due her occurred during the month of November, 1978. The note at First National Bank of Lafayette, although payable on demand, was not due until February of 1979 according to plaintiff. She did pay the note in its entirety in February. Although Emery Guidry owns S & E Oil Company, and he had co-signed the note, S & E Oil Company, Inc., which was not a co-signer on the note, cannot use the non-payment of this note as an excuse for not paying Agnes Letulle what she was owed.

In order for a defendant-employer to be liable for penalty wages, the employer must have been motivated by bad faith or must be found to have acted in an arbitrary or unreasonable manner. It is only a “good-faith non-arbitrary defense to liability for unpaid wages, i. e., a reasonable basis for resisting liability” which will permit the courts to excuse the employer from the imposition of penalty wages. Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La.1978); Soday v. Mall Snacks, Inc., 374 So.2d 138 (La.App. 1st Cir., 1979) and Berteau v. Wiener Corporation, 362 So.2d 806 (La.App. 4th Cir., 1978), writ refused 365 So.2d 242 (La.1978). The court feels that in this case defendant’s actions were both arbitrary and capricious. Although our jurisprudence is clear that an employer may present equitable defenses to the imposition of statutory penalties under LSA-R.S. 23:631 and 632, we agree with the trial judge that in this case there are no such defenses which would justify denial of attorney fees. An employer is not justified in attaching conditions to payment of wages admittedly due. See Duhon v. Prof. Erny’s Music Company, Inc., 328 So.2d 788 (La.App. 3rd Cir., 1976).

In regard to the question of whether attorney fees should be awarded to plaintiff, we look to LSA-R.S. 23:632 and find that they should be awarded in “a well-founded suit for any unpaid wages whatsoever”. The courts have held that a “well-founded suit” is one in which back wages are awarded. Carriere v. Pee Wee’s Equipment Company, supra; Soday v. Mall Snacks, Inc., supra; Berteau v. Wiener Corporation, supra and Hendrix v. Delta Air Lines, Inc., 234 So.2d 93 (La.App. 4th Cir., 1970), writ refused 256 La. 364, 236 So.2d 498 (1970). Accordingly, plaintiff-appellee argues that it is settled in this case that the past due wages were owed to Agnes Letulle. The wages have never been paid. Attorney fees as set by the trial court are appropriate.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Plaintiffs action was brought under the provisions of LSA-R.S. 23:631 and 632 which provide as follows:
      631. Discharge or resignation of employees; payment within three days after termination of employment
      “A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.”
      * * * * * *
      632. Liability of employer for failure to pay; attorneys’ fees
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

      . The petition in this case was never answered and judgment was taken by default. Plaintiff testified at the confirmation of the default that it was her impression that Emery Guidry was the sole owner of the defendant employer. In the brief filed on behalf of the defendant corporation it is admitted that during the time of plaintiffs employment Emery Guidry was the sole owner, president and manager of the defendant corporation.

      . Defendant-appellant concedes in its brief that the plaintiff is entitled to her salary. The brief contains the following statement.
      “The defendant admits that now that the note to First National Bank has been paid it owes the plaintiff for her salary. Defendant also contends, however, that the evidence the trial court (sic) did not support a finding of bad faith on its part; therefore, it should not be liable for penalties and attorneys fees.”


text:
    Bobby LEWIS et ux., Plaintiffs-Appellants, v. Leslie Michael TILL et al., Defendants-Appellees.
    No. 7630.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 11, 1980.
    Trimble, Randow, Smith & Wilson, Alonzo P. Wilson, Alexandria, for plaintiffs-appellants.
    Bolen & Erwin, James A. Bolen, Jr., Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, Thomas & Duna-hoe, G. F. Thomas, Jr., Natchitoches, Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, W. T. Armitage, Jr., Alexandria, for defendants-appellees.
    Before FORET, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

The plaintiffs brought this suit to recover damages for the death of their minor son. The child died from injuries received as the result of being backed over by a vehicle driven by the defendant, Leslie Michael Till, a minor at the time. Among the defendants in the lawsuit are Leslie Michael Till, his parents, Barney N. Eubanks and Barbara Jean Eubanks, Insured Lloyds (the alleged liability insurer of Leslie Michael Till), Ohio Casualty Insurance Company and State Farm Mutual Automobile Insurance Company (the alleged uninsured and unde-rinsured motorist carriers). Also made a defendant in the lawsuit is Fireman’s Fund Insurance Company, the homeowner’s insurer of the plaintiffs, Bobby and Jennifer Lewis.

The plaintiffs’ claim against their homeowner’s insurance carrier is based on their alternative allegation that in the event plaintiff, Jennifer Bertram Lewis, is found to be negligent or contributorily negligent, then plaintiff, Bobby Lewis, is entitled to recover his damages from Fireman’s Fund as the homeowner’s insurer of Jennifer Bertram Lewis. In asserting this claim Mr. Lewis invokes the personal liability coverage allegedly afforded to Mrs. Lewis under their homeowner’s policy.

Fireman’s Fund Insurance Company filed a Motion for Summary Judgment contending that if Jennifer Bertram Lewis was negligent then recovery by Bobby Lewis would be barred.

HUSBAND’S CLAIM FOR GENERAL DAMAGES

On the Motion for Summary Judgment, the trial court held that Mr. Lewis’ claim for general damages would be barred if his wife was negligent or contributorily negligent. The court reasoned that Mrs. Lewis’ negligence, which precludes her from recovering for the wrongful death of her son or for his pain and suffering, is imputed to her husband so as to bar his recovery also.

The trial court’s decision was based on a recent decision of this court in Carter v. Salter, 351 So.2d 312 (La.App. 3rd Cir., 1977). That case involved a very similar factual situation to the one before us. In Carter, the plaintiffs brought suit against their neighbors and their neighbors' homeowner’s insurer to recover damages resulting from their neighbors’ motorcycle falling and crushing their two-year old son. The child and his mother had been visiting their neighbors when the accident occurred. Apparently the motorcycle was not in a steady position, being held in place by the side kickstand rather than a center stand which raised the back wheel.

The homeowner and the child’s mother were found to be negligent in failing to take precautions against the accident because the motorcycle had fallen between ten and thirty minutes before the fatal accident occurred, a fact of which the mother, Mrs. Carter, was aware. We held that the mother’s negligence precluded her from recovering for the wrongful death of her son or for his pain and suffering. The mother’s negligence was imputed to her husband which barred his recovery for the wrongful death of their son or for the survival action.

The principle underlying the Carter decision, that the negligence of the wife is imputed to the husband, has been well established in the jurisprudence of this state. The courts have relied on the fact that the damages recoverable by the husband in Louisiana are community property as a theoretical basis for imputing the negligence of the wife to the husband and thus preventing the wife from indirectly profiting by the enrichment of the community. Carter v. Salter, supra.

The negligence of the husband traditionally has not been imputed to the wife because the damages she recovers have been her separate property. Vitale v. Checker, 166 La. 527, 117 So. 579 (La.1928).

We recognized the problem of imputed negligence in the Carter case when we said, speaking through then Judge Watson:

“The distinction drawn in Vitale, supra, between imputing the husband’s negligence to the wife and the wife’s to the husband, although tenuous and without practical justification, has remained the law in Louisiana.”

EFFECT OF CIVIL CODE ARTICLE 2344 AS AMENDED

Appellant points out that Article 2344 of the Louisiana Civil Code (as amended by Act 709 of 1979) now provides that damages resulting from personal injury of both the husband and the wife are their separate property. Although this amendment did not go into effect until after the accident which led to this litigation, appellant argues persuasively that, because of the amendment, the theoretical basis for Carter is no longer valid. Unfortunately for plaintiff-appellant we are not in a position to consider in this case the validity of his argument. The Louisiana Legislature amended LSA-C.C. art. 2344 effective January 1, 1980, by means of Act 709 of 1979, to place men in the same position as women with respect to recovery of damages for personal injuries. This amendment made a substantive change in the law on this subject. Since the amendment dealt with a change in substantive law, it cannot be given retroactive effect. A substantive law is presumed to be prospective in effect, and it should not be applied retroactively unless the language used by the Legislature shows a clear intent that it should be given a retroactive effect. O’Banion v. Allstate Insurance Company, 347 So.2d 878 (La.App. 3rd Cir., 1977); Wilkinson v. Viccinelli, 359 So.2d 634 (La.App. 1st Cir., 1978), writ denied 360 So.2d 198 (La.1978) and Green v. Liberty Mutual Insurance Company, 352 So.2d 366 (La.App. 4th Cir., 1977), writ denied 354 So.2d 210 (La.1978).

As we have found no provision in the amending statute indicating it was intended by the Legislature to be given retroactive effect, we must apply the law governing before the amendment. Inasmuch as Carter v. Salter, supra, represents the proper interpretation of the prior law, we apply it to the facts of this case. Accordingly, the negligence of Mrs. Lewis is imputed to Mr. Lewis, as the plaintiff here, resulting in a bar to recovery by him.

SURVIVAL ACTIONS

The law as to the survival actions asserted in this case is the same as that applied to Mr. Lewis’ claim for general damages. In Carter v. Salter, supra, we stated:

“Likewise, under the jurisprudence of this circuit, both Mrs. Carter and Mr. Carter are barred from recovering in their survival actions for Brent’s pain and suffering by Mrs. Carter’s negligence and its imputation to her husband. Moore v. Kinney, 315 So.2d 340 (La.App. 3 Cir. 1975).”

Therefore, Fireman’s Fund Insurance Company, would not be liable in the survival actions based on any pain and suffering the Lewis’ son experienced before he expired. The granting of the Motion for Summary Judgment as to such damages was also proper.

CONSTITUTIONAL QUESTIONS

The appellant, in his brief to this court, argues that the rule of law which imputes the wife’s negligence to the husband and bars his recovery but does not impute the husband’s negligence to the wife to bar her recovery is an unconstitutional discrimination based on sex. We do not consider the merits of this issue for the reason that the issue of constitutionality was not pleaded or raised in the trial court. As stated by the Louisiana Supreme Court in Johnson v. Welsh, 334 So.2d 395 (La.1976):

“It is well settled that all laws are presumed to be constitutional until the contrary is made to appear, and that as a general rule a litigant cannot raise the unconstitutionality of a statute unless its unconstitutionality is specially pleaded and the grounds particularized. Summe- rell v. Phillips, 258 La. 587, 247 So.2d 542 (1971) and cases cited therein; City of Shreveport v. Pedro, 170 La. 351, 127 So. 865 (1930). As a corollary of this rule, a litigant who fails to plead the unconstitutionality of a statute in the trial court cannot raise the constitutional issue in the appellate court. E. g., Summerell v. Phillips, supra; Maher v. City of New Orleans, 256 La. 131, 235 So.2d 402 (1970); State ex rel. McAvoy v. Louisiana State Board of Medical Examiners, 238 La. 502, 115 So.2d 833 (1959); Southern Enterprises v. Foster, 203 La. 133, 13 So.2d 491 (1943).”

FUNERAL EXPENSES

The appellee has answered this appeal and urges a reversal of the trial court’s judgment insofar as it denied their Motion for Summary Judgment relative to funeral expenses. The trial court held that funeral expenses were not excluded by the terms of the policy or by our holding in Carter v. Salter, supra. In Carter v. Salter, supra, we held that medical and funeral expenses were not an enrichment of the community but a re-imbursement of a monetary loss. We cited McHenry v. American Employers’ Insurance Company, 206 La. 70, 18 So.2d 656 (1944) for the proposition that a wife’s negligence is not imputed to the husband to preclude recovery of damages for his personal injuries which would re-imburse rather than enrich the community.

The particular provisions of the homeowner’s policy upon which the mover relies are found in Section II of the policy under “COVERAGE F-MEDICAL PAYMENTS TO OTHERS.” We set forth here the pertinent provisions upon which the mover apparently relies.

Section II of the policy states:

“COVERAGE F-MEDICAL PAYMENTS TO OTHERS
This Company agrees to pay all reasonable medical expenses, incurred within one year from the date of the accident, to or for each person who sustains bodily injury to which this insurance applies caused by an accident, while such person is:
1. on an insured premises with the permission of any Insured; or
2. elsewhere, if such bodily injury
a. arises out of a condition in the insured premises or the ways immediately adjoining,
b. is caused by the activities of any Insured, or by a residence employee in the course of his employment by any Insured,
c. is caused by an animal owned by or in the care of any Insured, or
d. is sustained by any residence employee and arises out of and in the course of his employment by any Insured.” (Emphasis added)

The exclusion clause applicable to Coverage F states in pertinent part:

“This policy does not apply:
******
3. Under Coverage F — Medical Payments to others
******
b. to bodily injury to :
(1) any Insured under Parts (1) and (2) of the definition of ‘Insured’,
(2) any person, other than a residence employee, regularly residing on any part of the insured premises, or
(3) any person while on the insured premises because a business is conducted or professional services are rendered thereon.”

Medical expenses in Coverage F are defined as:

. expenses for necessary medical, surgical, x-ray, dental services, including prosthetic devices, ambulance, hospital, professional nursing and funeral services.” (Emphasis added)

In ruling on the Motion for Summary Judgment the trial court did not elucidate the reasons for holding that medical payments to Mr. Lewis were excluded but that the funeral expenses were not. We preter-mit a consideration of this question because of our analysis set forth below.

Presumably the court focused on Coverage F only. We note the possibility that coverage might exist under COVERAGE E — PERSONAL LIABILITY. Paragraph two of the petition alleges that the accident occurred “in the driveway of 2228 Madeline Street, Alexandria, Rapides Parish, Louisiana.” We are not told to whom the premises belonged. Therefore, the premises were not necessarily those of Mr. and Mrs. Bobby Lewis under this allegation. The petition alleges that the vehicle in question was a 1973 GMC pickup .truck which was being backed up at the time by Leslie Michael Till. Barbara Jean Eubanks is alleged to have been the legal custodian of Leslie Michael Till. No allegations, affidavits or depositions disclose who purported to be the owner of the 1973 GMC pickup truck.

In the case before us the claim of plaintiff-appellant Bobby Lewis against the homeowner’s insurer for damages is against his own insurer as a provider of personal liability coverage to his wife as an insured under the policy. See paragraph twenty-one, added to plaintiffs’ petition through the first supplemental and amending petition. In Carter v. Salter, supra, on the other hand, the insurer sued was the homeowner’s insurer of the Salters on whose premises the accident occurred.

Under Coverage E of the policy it is stated:

“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.”

Under exclusions it is provided that the policy does not apply under Coverage E for personal liability “to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of: . . . (2) any motor vehicle owned or operated by, or rented or loaned to any Insured; but this subdivision (2) does not apply to bodily injury or property damage occurring on the residence premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the residence premises or kept in dead storage on the residence premises; or (3) any recreational motor vehicle owned by any Insured, if the bodily injury or property damage occurs away from the residence premises; but this subdivision (3) does not apply to golf carts while used for golfing purposes.”

A reading of the above exclusions would indicate that they would have no application unless the 1973 GMC pickup truck belonged to the Lewis’, or rather was “owned or operated by, or rented or loaned to any Insured” under the Lewis policy.

Under our analysis there very well may be coverage for medical expenses and funeral expenses under Coverage E for personal liability. Thus, a material issue of fact exists. Under the circumstances the trial court erred in ruling on the question of medical payments and funeral expenses on a Motion for Summary Judgment. We do not reach the question of the correctness of the trial court’s construction of Coverage F with reference to medical and funeral expenses. Therefore, we reverse as to that portion of the trial court’s judgment granting the Motion for Summary Judgment relating to coverages under Coverage F.

For the foregoing reasons we affirm so much of the trial court’s judgment as dismissed plaintiff Bobby Lewis’ claim against Fireman’s Fund Insurance Company for general damages, and we reverse so much of the trial court’s judgment as denied Mr. Lewis’ claim for medical payments and held that funeral expenses were not excluded by the terms of the policy. This case is remanded to the trial court for further proceedings consistent with our holding herein. The cost of this appeal shall be borne equally by plaintiff-appellant, Bobby Lewis and defendant-appellant, Fireman’s Fund Insurance Company.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . The ruling of the trial court is set forth in full as follows:

        “Ruling on Motion for Summary Judgment

      Fireman’s Fund Insurance Company filed a motion for summary judgment, citing Carter v. Salter, La.App., 351 So.2d 312. I find that Mr. Lewis’ claim for general damages against Fireman’s Fund Insurance Company is barred by the holding in the Carter case. Also, the exclusion of medical payment coverage under the policy, page 4, number 3b(l), excludes medical payments to Mr. Lewis. I do not find that the funeral expenses are excluded by the terms of the policy or the holding of the Carter case.
      The motion for summary judgment is granted with respect to all claims except the funeral expenses.”


text:
    Clayton COOPER, a/k/a “Five-O” v. STATE of Mississippi.
    No. 51886.
    Supreme Court of Mississippi.
    July 23, 1980.
    Rehearing Denied Sept. 24, 1980.
    Deramus, Lewis & Tucker, Charles L. Lewis, Jr., Louisville, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.


text:
    M. P. I. INDUSTRIES, INC. and Allstate Insurance Company v. Mrs. Minnie Mae BRADFIELD.
    No. 51987.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Rehearing Denied Sept. 24, 1980.
    Steen, Reynolds, Dalehite & Currie, William M. Dalehite, Jr., Jackson, for appellant.
    Pyles & Tucker, Betty B. Tucker, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before PATTERSON, C. J., and BROOM and LEE, JJ.

Reversed and Order of Workmen’s Compensation Commission Re-Instated.

SMITH and ROBERTSON, P. JJ., SUGG, WALKER, BOWLING and COFER, JJ. concur.


author: SUGG, Justice, for the Court: SMITH, Presiding Justice,

text:
    The STATE TAX COMMISSION of the State of Mississippi et al. v. Louis FONDREN et al. and J. C. Redd et al.
    No. 52018.
    Supreme Court of Mississippi.
    Aug. 20, 1980.
    Rehearing Denied Sept. 24, 1980.

      Bill Allain, Atty. Gen. by Stephen J. Kir-chmayr, Sp. Asst. Atty. Gen., P. L. Douglas, Asst. Atty. Gen., and R. Lloyd Arnold, Sp. Asst. Atty. Gen., James H. Haddock, Jackson, for appellants.
    Cupit & Maxey, John L. Maxey, II, Jackson, Freeland & Gafford, James L. Robertson, Oxford, for appellees.

      . Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. Property shall be assessed for taxes under general laws, and by uniform rules, and in proportion to its value. But the legislature may provide for a special mode of valuation and assessment for railroads, and railroad and other corporate property, or for particular species of property belonging to persons, corporations, or associations not situated wholly in one county. But all such property shall be assessed in proportion to its value, and no county, or other taxing authority, shall be denied the right to levy county and special taxes upon such assessment as in other cases of property situated and assessed in the county. But the legislature may provide a special mode of assessment, fixing the taxable year, date of the tax lien, and method and date of assessing and collecting taxes on all motor vehicles.

   SUGG, Justice, for the Court:

This appeal involves two cases consolidated for trial in the Chancery Court of the First Judicial District of Hinds County.

Louis Fondren and others filed a bill of complaint to enjoin the State Tax Commission of the State of Mississippi from approving each county’s recapitulation of its assessment rolls until such time as the Tax Commission complied with its duty to equalize assessments among the counties as provided in sections 27-35-113, 27-35-115 and 27-35-117 Mississippi Code Annotated (1972). In this suit, complainants sought to require the Tax Commission to follow the mandate of Section 112 of the Mississippi Constitution of 1890 which requires taxation to be uniform and equal throughout the state and requires property to be assessed for taxes under general laws, by uniform rules, and in proportion to its value. The Tax Commission demurred to the bill of complaint, the demurrer was sustained, and Fondren appealed.

In Fondren v. State Tax Commission, 350 So.2d 1329 (Miss.1977), we reversed and remanded for a trial on the merits holding Fondren had standing as an ad valorem taxpayer to maintain his suit, and the appeal statutes did not afford Fondren an adequate remedy at law. Further reference to Fondren will be made at appropriate places in this opinion.

After our decision in Fondren, supra, J. C. Redd and others, who are owners of taxable property in twelve (12) counties in Mississippi, filed a bill of complaint against the Tax Commission, its Chairman and Commissioners, the Chief of the Ad Valo-rem Division and the Chief of the Equalization Division to enjoin the Tax Commission from approving the assessment rolls of any county until the Tax Commission equalized the assessment rolls between the counties. In this case, complainants also sought recovery of all costs and expenses incurred in the lawsuit including attorneys’ fees.

Following a hearing, the chancery court ordered that, beginning with the 1983 tax rolls and continuing with respect to the tax rolls for each successive year thereafter, the Tax Commission, its Commissioners, Officers and Agents, including their successors in office, were enjoined from accepting or approving the tax rolls of any county, or the recapitulation reports drawn therefrom, unless all real and personal property subject to ad valorem taxation within the county was valued and assessed as nearly as possible at its true value. True value was defined in the decree as full or one hundred percent value unless the legislature by 1983 enacted laws specifying a lesser percentage of true value for the determination of assessed value. The decree also required the Tax Commission to file progress reports with the court. The decree awarded complainants $58,000 attorneys’ fees, payable out of any funds available to the Tax Commission, and retained jurisdiction of each of the consolidated cases for entry of such further orders or decrees necessary to effectuate the provisions of the final decree to the end that the defendants would be required to perform their duties to equalize assessments as required by statute in accord with the uniform and equal concept contained in Section 112 of the Constitution.

DOES THE STATE TAX COMMISSION HAVE AUTHORITY TO EQUALIZE ASSESSMENTS BETWEEN THE COUNTIES OF THE STATE?

On appeal, the Tax Commission contends, among other things, that the court did not have the authority to require it to equalize the assessment rolls between the different counties. This is the first question involved in this appeal.

In three cases, this Court has addressed the duty and authority of the Tax Commission to equalize assessments between counties under sections 27-35-113, et seq., Mississippi Code Annotated (1972). These statutes were first enacted in 1916 when the legislature created the State Tax Commission giving it broad powers necessary to equalize assessments between counties. The statutes were fiist considered in Foreman v. Wheatley, 113 Miss. 555, 74 So. 427 (1917). In that case the Tax Commission ordered corrections to be made in the personal assessment roll of Washington County to increase the assessed value of certain classes of personal property, and directed the Board of Supervisors of Washington County to call a meeting for the purpose of making the changes in the personal assessment roll in accordance with the order of the Tax Commission. The board of supervisors gave notice of a special meeting, and at the meeting, elected to enter a protest against the order of the Tax Commission. The protest was heard by the Tax Commission which overruled the objections of the supervisors and entered a final order directing the increase specified in the order. The board of supervisors declined to correct the assessment roll. Upon their refusal to comply with the order of the Tax Commission, the State On The Relation of J. M. Foreman, District Attorney, filed a mandamus to compel compliance with the order of the Tax Commission. The petition filed by the district attorney was met by a general demurrer which challenged the constitutionality of the statute creating the Tax Commission and its authority to compel boards of supervisors to make any changes in assessment rolls. The demurrer was sustained. On appeal, we reversed and remanded holding the statute was constitutional and that the Tax Commission was created as a department of government with the power over boards of supervisors to equalize assessments between counties. Foreman is dispositive of the first issue presented on this appeal. It clearly defines the duties of the county tax assessors, the boards of supervisors, and the Tax Commission as these duties pertain to the assessment of property for taxation. It also shows that the interest of each individual is protected against overvaluation of his property in the assessment and equalization process by adequate remedies afforded by statute. Because of the importance of this case, we quote extensively from it.

It is agreed that section 112 of our Constitution provides the general standard for the assessment of property for taxation, and for the collection of ad va-lorem taxes. It furnishes the ideal rule by which the rights of taxpayers are to be measured-the guiding star for the lawmaker and every officer charged with the duty of assessing and valuing property for taxation. But the goal towards which our state has been striving has never yet been fully attained. The key words of our Constitution are “uniform,” “equal,” “true value,” and, to accomplish results, “general laws.” While property in every county is to be assessed at true value, it is a matter of common knowledge and comment that in practice this has been accomplished in name, and not in fact. The Constitution provides for a county assessor, fixes his term of office, and contemplates that this officer shall list and value all taxable property in his county. Experience for a long time indicates that the assessor generally places upon his roll unchanged the various valuations fixed by the property owner himself. The power to equalize assessments has heretofore been conferred upon the boards of supervisors, but experience further demonstrates that there are as many different standards of values in the state as there are separate boards of supervisors. The uniform rate of state tax must be applied to the unequal and varying valuations over the many counties of our commonwealth. Valuations of the same class of property has varied in adjoining counties without any real or substantial reason for the difference. It follows that heretofore one county has been contributing to the state more revenue than many other counties with the same amount of taxable property. The burden has been unequally distributed. This is the known mischief which chapter 98, Laws 1916, has undertaken to remedy. This law was intended to be a step forward toward the ideal system contemplated by our organic law. Its purpose is to accomplish the very uniformity and equality demanded by the Constitution. . . . (113 Miss. at 587, 588, 74 So. at 429)
The act itself provides no new standard of assessments. The object of the new law is to assess all property at its true value to the end that all taxable property shall bear its just proportion of the burdens. The general constitutional scheme is binding on assessors, boards of supervisors, and the courts. It is equally binding upon the state tax commission. . (113 Miss. at 589, 74 So. at 429, 430)
The second, third, fourth, fifth, and sixth grounds of the demurrer challenge the constitutionality of the statute upon the ground that a compliance by the board of supervisors with the order of the state tax commissioners would deprive the individual taxpayer affected by the order of his property without due process of law in this, that the act under review does not provide for notice to be given the taxpayer of the proposed increase, does not afford an opportunity to be heard, and that it does not afford redress against an excessive or unconstitutional valuation. . . . (113 Miss. at 590, 74 So. at 430)
There is another construction, however, to be placed upon the language of the act, and according to this construction the rights of the individual taxpayer would be noticed and safe-guarded. Section 6 does provide that the meeting of the board of supervisors is to be held upon notice; this notice is a general notice by publication and for the benefit of the public generally. By this notice every taxpayer is advised of the meeting and has a right to attend; by the terms of this section the board of supervisors are not directed to increase every individual taxpayer and fix an arbitrary percentage, but distributes the burden of increase amongst the individual taxpayers within the class of property affected by the order. In raising this class of property they are directed by the state board to increase not the assessment of any particular individual, but the total assessed valuation of that class of property. In accomplishing this increase of total valuation, the board of supervisors are accorded the absolute right to distribute the burden of increase uniformly amongst the taxpayers of that class. The section of the act makes use of the word “uniformly; ” we regard the use of this term here in the sense in which the Constitution itself used the word “uniform.” To illustrate, then: If honest Richard Roe originally gave in his assessment at the top market price-at constitutional true value-and the state board has ordered an increase by which he is to be affected, honest Richard has a right to appear at this meeting of the board and object to the increase so far as he is concerned. In objecting, he has the right to tender evidence, if necessary, to establish his contentions. If the board should overrule his objections he then has the right, under section 81 of the Code, to appeal from the order of the board to the circuit court of his county. In the circuit court his appeal could be tried anew and a judgment according to right and justice entered. By this construction the interests of any and every individual taxpayer would be protected and an adequate remedy afforded. . As to the class of property upon which the increase is ordered there is no final adjudication until the local board has complied with the order of the state board. In complying with this order the local board is not denied the right to hear the complaints of individuals, and to refuse to increase the assessment of any particular individual whose property is already assessed at actual value. (113 Miss, at 592, 593, 74 So. at 430, 431)
The legislature in providing that the state board shall return the assessment roll to the local board for correction indicated a purpose to leave full jurisdiction with the board of supervisors to make the increase in a way not to injure any one. . . . (113 Miss. at 594, 74 So. at 431)
The statute under review in no ,wise undertakes to equalize as between individuals, but exclusively between counties. At the same time it does not either expressly or by implication supersede the jurisdiction of the local board to equalize as between individuals, and nowhere does it take away the right of the individual to an appeal. The courts are open to the individual and his appeal to the court even if successful does not and will not disturb the final approval of the roll as to any and all persons who do not appeal. . By the present statute the state board is constituted a higher tribunal with authority to speak before the several rolls are approved. As already indicated, the legislature must have thought that many counties were systematically undervaluing certain classes of property. The Constitution does of course provide for an assessor, fixes his term of office, and contemplates that he shall discharge the duty of listing and valuing the taxable property in his county. When he has done so, the board of supervisors have heretofore discharged the duty of equalizing as between all taxpayers of the county. While the members of the board of supervisors are provided for by the Constitution, the Constitution itself nowhere expressly provides that the board shall equalize assessments. The power to equalize is statutory. ... No particular section of the Constitution has been called to our attention which, in our judgment, denies to the legislature the power here asserted. The power of the legislature as the immediate representatives of the people is supreme when not in conflict with the organic law. In their wisdom the legislature has provided the law in a commendable desire more nearly to accomplish uniformity and equality. It does not interfere with the work of the assessor, but leaves this official free and untrammeled in the discharge of his duties so far as his judgment goes. The Constitution nowhere makes the judgment of the assessor a finality. To do so would render the revenue laws impotent. It is conceded that the valuations placed by the assessor have heretofore been either increased or decreased by the board of supervisors, and that under a statutory power. The present law simply goes a step further and constitutes a still higher tribunal with statutory power to review, alter, and change the valuations of boards of supervisors whenever necessary to accomplish equality and uniformity as between counties. (113 Miss. at 596, 597, 598, 74 So. at 432, 433)
The state tax commission is created as a department of government with revisory power over boards of supervisors in the work of equalizing assessments between counties. In applying the leveling process as between counties it does not disturb the jurisdiction of the county boards to level or equalize between individuals. Each board has its own peculiar functions to perform. The object of each is to accomplish uniformity and equality, and to see that all property is assessed as nearly as possible at true value. (113 Miss. at 599, 74 So. at 433)
The statute, in our judgment, authorizes the state board to increase or decrease the total valuation of any class of property in any county to the end that there may be an equalization as between counties. In doing this, the board has no authority to increase the assessment of any property above that placed by one or more of the highest assessed counties of the state. It could not arbitrarily exceed the highest valuation placed by any board upon the class of property dealt with. In all cases the act itself expressly limits the state board to true value. If they exceed true value, the individual has a right to protect himself. We cannot assume that the state board will exercise arbitrary power or undertake to confiscate property. If in equalizing as between counties it results that the total valuation of any class of property is thereby increased, a legitimate result is accomplished. The board has the same power to decrease as it has to increase, and the necessary result of the exercise of this power is not unlawful, but legitimate. Whether the board will rightfully exercise this power is a question that cannot now concern us. (113 Miss. at 601, 74 So. at 433, 434)

The authority of the Tax Commission to equalize assessments between counties was considered for the second time in Taylor v. State, 121 Miss. 771, 83 So. 810 (1920). The Tax Commission ordered the Board of Supervisors of Quitman County to increase the assessed value of the real property in Quit-man County. The board of supervisors declined to make the change and a writ of mandamus was issued commanding the board to make the change.. Instead of obeying the writ, the board passed an order refusing to comply with the writ. The board was adjudged to be in contempt for failing to obey the writ of mandamus. On appeal, the judgment finding the defendants in contempt was affirmed. This Court stated:

By this appeal we are again called upon to construe certain portions of chapter 98 of the Laws of 1916 creating a state tax commission and defining its powers and duties. There is but one real question involved in this appeal, and that is whether or not by this act the state tax commission is given the absolute authority to order the board of supervisors to raise or lower the assessments bn certain classes of property which in the judgment of the state tax commission are either over or underassessed when compared with the property of the same classes in other counties. In other words, as between the state tax commission and the board of supervisors, which one of them has the superior or final judgment to say whether or not property or classes of property in a county are properly assessed, overas-sessed, or underassessed. It is the duty of the board of state tax commissioners to equalize the taxes among the different counties of the state. The board of supervisors is the equalizer of the assessments of the individuals. The state tax commission is the equalizer of the assessments among the different counties. (121 Miss. at 796, 797, 83 So. at 813)
In other words, by chapter 98 of the Acts of 1916 the state tax board is given the final decision, as between these two boards, as to the assessable valuation of the classes of property mentioned in its order. (121 Miss. 800, 801, 83 So. at 814)

The third case involving the power of the Tax Commission to equalize assessments between counties was Fondren v. State Tax Commission, 350 So.2d 1329 (Miss.1977). We reaffirmed the duty and authority of the Tax Commission to equalize assessments between counties under section 27-35-113 Mississippi Code Annotated (1972) in the following language:

Having determined that Fondren has standing to bring this suit and that he has no adequate remedy at law, we must consider whether his allegations of fact, if proved, warrant the conclusion that the Commission’s actions result in the collection of taxes “without authority of law.” We have no hesitation in concluding that Fondren’s bill of complaint states a cause of action on which relief may be granted.
The mandate of section 112 of the Constitution is plain. The Commission’s duty to enforce the mandate of section 112 is equally plain. Miss.Code Ann. §§ 27-35-113 through -117 (1972). The portions of Fondren’s complaint quoted at the outset of this opinion clearly allege that the Commission has not performed its duty. He contends that two pieces of property, having the same market value but located in different counties, may be valued quite differently by the local assessors. Having begun with an inequality, that inequality is compounded when one county chooses to assess its property at a different percentage of its determined value than does another county. The State tax of four mills on the dollar is then collected on the basis of these disproportionate assessments. Thus, owners of parcels of land of identical value in different counties may face radically different tax liabilities. These allegations, if proved, constitute a blatant violation of section 112 of our Constitution. In essence, Fondren alleges that taxation in not uniform and equal throughout the State. He contends that property is not taxed in proportion to its value. He maintains that property is not assessed for taxes under general laws, and by uniform rules, and in proportion to its value. Proof of his allegations would establish that the Commission had failed in its statutory duty, under Mississippi Code Annotated section 27-35-118 (1972), to equalize assessments as required by section 112. If Fondren can prove the constitutional and statutory violations he alleges, he will be entitled to relief. (350 So.2d at 1334)

From the foregoing cases, there remains no doubt that the Tax Commission has the duty and the authority to equalize assessments between the various counties of the state. The trial court found that no serious objection was raised to the allegation that the assessments between the counties had not been equalized. In his opinion, the chancellor stated:

As a matter of fact, there is almost complete agreement of both the Commission witnesses and the complainants’ witnesses as to the complete lack of uniformity or equality of assessments in this state. The evidence is staggering and shocking to the senses.

The chancellor also held that, assuming the various tax assessors in the eighty-two counties of the state determined the true value of property subject to assessment for taxation, the assessed value as equalized by the boards of supervisors ranged from ten percent to thirty percent of true value in the various counties. The Commission does not take issue with this finding of the chancellor in its brief, neither does it assign as error that the chancellor was mistaken in his finding of fact.

After these cases involved in this appeal were tried, the legislature adopted Senate Bill No. 2672 at the 1980 session of the Mississippi Legislature. Section 24 of S.B. 2672 repealed the statewide four mill ad valorem tax levy effective January 1, 1982.

The Tax Commission argues that repeal of the four mill statewide ad valorem tax levy destroyed the single unified state taxing district, and the rule announced in Thompson v. Anding, 370 So.2d 1335 (Miss. 1979) and Xerox v. City of Jackson, 328 So.2d 330 (Miss.1976) should be applied. These cases held that the provisions of equal and uniform assessments as contemplated in Section 112 of the Constitution are to be applied only to one taxing district, and a comparison of assessments between two different taxing districts is not necessary in applying the uniform and equal concept set forth in Section 112.

This argument overlooks the fact that there are twenty-five multi-county taxing districts within the state. The state is divided into thirteen junior college districts and each county in the state is in a junior college district. These counties contribute to the support of the junior colleges by ad valorem taxes collected for that purpose. If there were no other multi-county districts, equalization between counties could be accomplished by equalizing the assessments in the counties comprising each junior college district.

However, there are twelve other multi-county districts in the state which support these districts by ad valorem taxes. The number of counties in the additional multi-county districts range from two to fifteen. The boundaries of these additional multi-county districts do not correspond to the boundaries of the thirteen junior college districts but overlap the junior college districts and in some districts overlap other multi-county districts.

Pearl River Basin Development District contains thirteen counties and is one of the additional multi-county districts. The proof shows that the assessed value of property in this district ranges from eight percent to twenty percent of true value. Simpson and Copiah Counties are in this district and in Simpson County property is assessed at eight percent of true value and in Copiah County, twenty percent of true value. The tax rate levied to support this district is the same in Copiah and Simpson Counties. Thus, the taxpayers in Copiah County are bearing more than their fair share of the burden of supporting the district because their property is assessed at twenty percent of true value as opposed to eight percent in Simpson County.

Equalization of assessments between the counties in this district by the Tax Commission would achieve the uniform concept of Section 112 as to this district. However, many of the counties in this district are in different junior college districts and multi-county districts, so equalization of assessments between the counties in this district would not accomplish equalization between the counties in junior college and multi-county districts which overlap the Pearl River Basin Development District.

The multi-county districts within the state overlap to the extent that it would be impossible to equalize assessments between counties on a district by district approach. The only practical solution to the problem is to equalize assessments between all of the counties in the state. When this is accomplished, it will not matter how many different multi-county districts any given county is in because equalization of assessments between counties will have been applied uniformly.

The Tax Commission argues that section 14 of S.B. 2672 is designed to eliminate the inequities that existed between counties in multi-county districts. In our opinion the Tax Commission has not correctly interpreted section 14 because it is simply a limitation on the amount of revenue that may be raised by taxation for the support of a multi-county district. It limits an increase in revenue for the district to not more than ten percent that was collected in the next preceding year. It does nothing toward equalization between the counties.

It is true that Thompson and Xerox hold equal and uniform assessments, as required by our Constitution, are to be applied only to one taxing district. However, each of the multi-county districts is a taxing district; therefore, to satisfy the uniformity requirements of our Constitution, assessments must be equalized between the counties in each district and this can be accomplished by statewide equalization as demonstrated above.

The duty to equalize assessments between counties has been delegated to the Tax Commission by the legislature. We affirm the decree requiring the Tax Commission to equalize assessments between all of the counties in the state. If the legislature had not provided for equalization of assessments between counties, we fear our entire scheme of ad valorem taxation would be in jeopardy because it would not meet the constitutional requirement of uniformity and equality. •

MUST PROPERTY BE ASSESSED FOR TAXATION AT TRUE VALUE?

The final decree provided in part as follows:

(a) That, beginning with the 1983 tax rolls, and continuing with respect to the tax rolls for each successive year thereafter, the defendants, their commissioners, officers, and agents, and specifically their successors in office, should be and they hereby are, absolutely and unequivocally enjoined and prohibited from accepting or approving the tax rolls of any county, or the recapitulation reports drawn therefrom, unless all real and personal property subject to ad valorem taxation within the county shall have been valued and assessed as nearly as possible at its true value, it being expressly provided that the term “true value” means full or 100% of true value, unless the legislature has by 1983 enacted laws specifying a lesser percentage of true value for the determination of assessed value;

Following the chancellor’s decision, the Legislature enacted Senate Bill 2672 authorizing assessment of property for taxation in proportion to its true value. In order to compare the amendments in sections 4, 7, 8 and 10 with the previous statutory law, we set forth portions of the sections before and after the amendments.

27-35-15 before amendment:

The tax assessors shall annually assess all personal property subject to taxation in their respective counties. .

1980 amendment:

The tax assessors shall annually appraise all personal property subject to taxation in their respective counties at true value and assess it in proportion thereto. .

27-35-31 before amendment:

The property of each corporation or joint stock company (whether organized under the laws of this state or any other state or country) shall be assessed and taxed as that of a person ; Its land and tangible personal property shall be assessed and taxed where situated on the first day of January of the year; .

1980 amendment:

The property of each corporation or joint stock company (whether organized under the laws of this state or any other state or country) shall be assessed and taxed as that of a person ; . . .Its land and tangible personal property shall be appraised at true value and assessed and taxed where situated on the first day of January of the year; .

27-35-49 before amendment:

It shall be the duty of the tax assessor to assess all the lands in his county and he shall require the owner, agent, or person having possession, or charge, or any lands, to render a list of all lands owned, or in charge, or in possession, of such owner, agent, or person, and land shall be assessed according to its true value, taking into consideration the improvements thereon, .

1980 amendment:

It shall be the duty of the tax assessor to assess all the lands in his county and he shall require the owner, agent, or person having possession, or charge, of any lands, to render a list of all lands owned, or in charge, or in possession, of such owner, agent, or person, and land shall be appraised according to its true value and assessed in proportion thereto, taking into consideration the improvements thereon.

27-35-63 before amendment:

Lands which have been sold to the state for taxes, shall be assessed at their proper value; .

1980 amendment:

Lands which have been sold to the state for taxes shall be assessed in proportion to their true value,

We hold that county tax assessors are required by the amendments set forth above to appraise property to be assessed by them at true value.

We are of the opinion that the 1980 amendments directing the assessors to “assess it in proportion thereto” permit them to assess property at some percentage of true value less than 100%. The amendments and our interpretation of them are not in conflict with Section 112 of our Constitution which was amended in 1960 to provide: “Property shall be assessed for taxes under general laws, and by uniform rules, and in proportion to its value.”

We note that section 27-35-113 was not amended by S.B. 2672. 27-35-113 provides, “that all property in general shall be assessed' as nearly as possible at its true value.” This language has remained unchanged since the enactment of the statute in 1916. We recognize that amendments by implication are not looked on with favor, but this language conflicts with the 1980 amendments of other statutes dealing with the valuation of property for assessment. Section 112 of the Constitution was amended in 1960 to permit assessment of property for taxation “in proportion to its value.” We conclude that the last enactment of the legislature should control and adhere to our former statement herein that property may be assessed at a percentage of true value less than 100%.

Although the 1980 amendments do not prescribe a fixed percentage of true value at which property is to be assessed, this omission does not prohibit tax assessors from assessing property at a percentage less than true value. Foreman v. Wheatley, 113 Miss. 555, 74 So. 427 (1917) held that the statute (now section 27-35-113) authorizes the Tax Commission to increase or decrease the valuation of any class of property in order to achieve equalization. In that case we stated:

The statute, in our judgment, authorizes the state board to increase or decrease the total valuation of any class of property in any county to the end that there may be an equalization as between counties. In doing this, the board has no authority to increase the assessment of any property above that placed by one or more of the highest assessed counties of the state. It could not arbitrarily exceed the highest valuation placed by any board upon the class of property dealt with. In all cases the act itself expressly limits the state board to true value. If they exceed true value, the individual has a right to protect himself. We cannot assume that the state board will exercise arbitrary power or undertake to confiscate property. If in equalizing as between counties it results that the total valuation of any class of property is thereby increased, a legitimate result is accomplished. The board has the same power to decrease as it has to increase, and the necessary result of the exercise of this power is not unlawful, but legitimate. Whether the board will rightfully exercise this power is a question that cannot now concern us. (113 Miss. at 601, 74 So. at 433, 434)

The former statute, now section 27-35-113, which was construed in Foreman, authorizes the Tax Commission to require a fixed percentum to be added to the valuation of any class of property in any county found too low or deducted from the assessed valuation of any class of property found too high in order that the assessment of the various classes of property in the several counties of the state will be reasonably equal and uniform throughout the state. In the exercise of this power, the Tax Commission must first determine a percentage of true value at which property will be assessed; otherwise, the uniformity and equality required by the Constitution and the statute would not be achieved. Section 112 of the Constitution authorizes assessment for taxes under general laws “and by uniform rules.” As we view it, the legislature has given the Tax Commission the power to promulgate uniform rules and if equalization of assessments between counties is to be accomplished, a uniform rule fixing the percentage of true value at which property is to be assessed will be required. This is a matter which the legislature may desire to consider and make more specific, but adequate authority exists under the Constitution and our present statutes to authorize the assessment of property at a percentage less than true value, this percentage to be fixed by the Tax Commission so as to achieve equalization of assessments between the counties.

When the chancellor rendered his opinion, S.B. 2672 had not been passed by the legislature. The chancellor was correct in requiring property to be assessed at true value under the statutes in force at that time; however, we hold that S.B. 2672 amended existing statutes so that property may be assessed for taxation at a percentage less than true value.

WERE COMPLAINANTS ENTITLED TO RECOVER ATTORNEYS’ FEES?

The Chancellor allowed complainants attorneys’ fees in the amount of $58,000, holding that the allowance of attorneys’ fees was proper because complainants brought their action, not only under Section 112 of the Constitution of Mississippi, but also under the due process clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C.A. section 1983. 42 U.S.C.A. section 1988 provides that attorneys fees may be allowed in 1983 actions at the discretion of the court....

We agree with complainants that state courts have jurisdiction of 1983 actions concurrent with federal courts, but of course, a state court entertaining a 1983 action has no more jurisdiction than a federal district court.

28 U.S.C.A. section 1341 provides:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the Courts of such State.

It is well established that generally it is not necessary to exhaust state remedies before seeking relief under section 1983. However, the exhaustion of state remedies rule is applicable in actions brought under section 1983 to enjoin, suspend or restrain the assessment, levy or collection of taxes because of 1341.

In Bland v. McHann, 463 F.2d 21 (5th Cir. 1972) cert. denied 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973) the Fifth Circuit Court of Appeals found that Mississippi law provides a plain, speedy and efficient remedy for claims that assessments for taxes in a municipality were not equal and uniform. In holding that the federal district court did not have jurisdiction to hear the case, the court held that neither judicial decisions nor section 1341 required the state remedy to be the best remedy available or even equal to or better than the remedy which might be available in federal courts. The court also held:

It is well established that § 1341 is an explicit congressional limitation on the jurisdiction of the federal courts in cases which would enjoin, suspend, or restrain state tax levy, assessment or collection. Taxpayers seek to circumvent § 1341 by arguing that relief under § 1983 is supplemental and is not limited to any requirement of exhaustion of state remedies. We do not disagree with the general rule that exhaustion is not required in § 1983 cases; however, in this case § 1983 collides full force with a specific congressional limitation on federal jurisdiction. In such circumstances we are convinced that § 1341 must prevail. (463 F.2d at 24)

Obviously this action could not have been brought in federal court under section 1983 because there is a plain, speedy and efficient remedy in Mississippi courts. Complainants, by filing their action in state court, invoked the plain, speedy and efficient remedy granted them by the chancery court and affirmed here.

We conclude the section 1983 cause of action must fail in the state court because it would have failed if it had been filed first in federal court. We therefore reverse the decree wherein it allowed complainants to recover attorneys’ fees.

DID COMPLAINANTS HAVE STANDING TO MAINTAIN THEIR SUITS, AND WAS INJUNCTIVE RELIEF PERMISSIBLE?

Two other arguments of the Tax Commission- should be noted. First, the Tax Commission attacks the standing of the complainants to maintain these suits. This question was answered contrary to the contention of the Tax Commission in Fondren v. State Tax Commission, 350 So.2d 1329 (Miss.1977) where we held that Fondren had standing to bring his suit. This holding applies, not only to Fondren and his case, but also to Redd and the other complainants in their case.

Second, the Tax Commission again argues that section 11-13-11 Mississippi Code Annotated (1972) does not authorize these suits. In Fondren we held that the taxpayer was authorized to bring a suit under section 11-13-11. We adhere to our former finding and state further that these suits could have been brought in equity absent section 11-13-11 under the maxim, “Equity will not suffer a wrong without a remedy.” Complainants, together with all other taxpayers in the state, are guaranteed equality of taxation by Section 112 of our Constitution. The uncontradicted proof is that this constitutional concept of equality has not been met for many reasons. The principal reason is that the Tax Commission has made no serious effort to equalize assessments between the counties as authorized by statute. Complainants have suffered a wrong; they are entitled to a remedy for this wrong; no adequate remedy exists at law; therefore, they properly invoked the injunctive power of equity to remedy a wrong.

CONCLUSION

The chancellor rendered an excellent opinion in these cases, and many of his conclusions as to the best course to pursue in achieving equalization of assessments between counties were adopted by the legislature and incorporated in Senate Bill 2672. For example, the chancellor held that it is impossible to equalize assessments without first determining true value. The legislature responded and provided in sections 4, 5, 7, 8 and 10 that tax assessors shall appraise property at true value. The legislature also defined true value in section 9.

The chancellor also suggested that reappraisal could be accomplished by the county tax assessors by establishing the true value of property to be assessed by utilizing the expertise of the Tax Commission in this field. Section 12 authorizes the Tax Commission to promulgate rules and regulations setting forth the minimum requirements for certification of assessors or their assistants, or both, requires each county to have at least one certified appraiser, and provides for expenses for training local tax assessors and their assistants. This will enable all tax assessors to use the same criteria in establishing true value. Section 13 recognizes that in order to accomplish statewide reappraisal of property it will be necessary to have adequate aerial photographs of the state and authorizes the Tax Commission to contract for aerial photographs and in turn sell to the counties and municipalities negatives of such aerial photographs. In sections 14 and 15 the legislature limited the amount of revenue that might be raised in each county and in multi-county districts not to exceed ten percent of the revenue for the preceding fiscal year. Section 16 provides that if revenue is collected in excess of that authorized in sections 14 and 15, any excess must be invested and calculated in the budgets of the counties for the succeeding fiscal year. This should effectively allay the fear that taxes will be increased an excessive amount. Section 17 recognizes that certain counties may desire to accomplish reappraisal by contract with appraisal firms, but requires all contracts for reappraisal to be approved and supervised by the Tax Commission.

In our opinion the legislature has taken a giant step toward equalization of the assessment of property for taxation by the enactment of S.B. 3672 and is to be commended for its forthright approach to this problem which has plagued the State of Mississippi for many years.

We are of the opinion that the injunction ordered by the chancellor is required because the Chairman of the State Tax Commission testified that he did not consider that Section 112 of the Constitution and section 27-35-113 Mississippi Code Annotated (1972) imposed a duty on the Tax Commission to equalize assessments between the counties. We are confident that the Tax Commission will now recognize its duty and responsibility to equalize assessment between counties and will proceed with the task in a speedy and efficient manner.

S.B. 2672 went into effect on May 16, 1980 and requires the county tax assessors to appraise property to be assessed by them at true value. This requirement applies to the assessments for the year 1980 indicating to us that the legislature intends for equalization of assessments to be accomplished forthwith. If the tax assessors, the boards of supervisors, and the Tax Commission will attack the problem of equalization diligently, we are of the opinion equalization of assessments between the counties can be accomplished earlier than the 1983 date fixed by the chancery court.

By way of summary, we affirm in part, reverse in part and modify. We affirm the decree enjoining the Tax Commission from accepting and approving assessment rolls from any county for the tax year 1983 unless the Tax Commission equalizes the assessment rolls between all of the counties of the state. We reverse that part of the decree ordering that property be assessed at true value and hold that assessed value may be a percentage of true value. We reverse the allowance of attorneys’ fees. The chancellor required the State Tax Commission to file a master plan to assist the counties in determining true value of taxable property no later than May 1, 1979. This date having passed, we modify the decree to require the plan to be filed no later than November 15, 1980.

AFFIRMED IN PART, MODIFIED IN PART, REVERSED IN PART, AND RENDERED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

SMITH, P. J., dissents.

SMITH, Presiding Justice,

dissenting:

Almost a century has elapsed since the Constitutional Convention of 1890 at which the Mississippi Constitution was adopted. In this year of 1980, we find ourselves mandating a course of action not hitherto attempted. It is one that contemplates radical changes in the methods of assessing property for taxation which have been followed for almost one hundred years. The principal impact, of course, will fall upon the owners of real property, and its practical consequences cannot be foreseen.

I have the utmost respect for the views of the majority. I admire the erudite and reasoned controlling opinion. My objection is pragmatic. Neither the legislature nor the courts should order or attempt to require the accomplishment of an impossibility.

The key word, of course, is “true value.” It is the foundation stone upon which the whole edifice rests. It is required that each piece of real property in Mississippi be “appraised at its true value.” The State of Mississippi embraces territory very extensive in area, consisting of numerous types and conditions of property, the value of which is affected by many factors, including location, improvements, use and others. It is known that equalizing property values in an area as small as one county by a locally elected assessor is of surpassing difficulty. The familiarity of this Court with the irreconcilable testimony of countless appraisers, especially in eminent domain suits, should have made it incontrovertibly plain that determining “true value,” which in any case can only be an opinion, on a statewide basis, is an impossibility.

If this cannot be done, that is, appraise all realty throughout the state at its “true value,” and I am unable to conceive of any method viewed realistically by which it can be, then it is idle to take the next proposed step to order it taxed “in proportion to its true value.” It is difficult to envisage the result of the attempt. Certainly, the impact on landowners and land values will not be inconsiderable. The cost cannot be viewed as negligible.

The idea is attractive but reality at times prevents the fulfillment of our most Utopian dreams. Perhaps we should recognize that although we may yearn for such a change, our ability to bring it about is dubious.

Omar Khayyam, many centuries ago, expressed the thought thus:

“Could we but grasp this sorry scheme of things entire
And shatter it to bits-
Could we not remold it nearer to the hearts desire?”

RUBAIYAT.

I adhere to the views expressed in my dissent and that of Justice Robertson, in which Justice Inzer concurred, in Fondren v. State Tax Commission, 350 So.2d 1329 (Miss.1977).

      . This assumes that the assessors and the boards of supervisors in each county of the district used the same criteria to establish true value.


author: WALKER, Justice,

text:
    Kimbrough G. MIDDLEBROOK v. MISSISSIPPI STATE TAX COMMISSION.
    No. 52042.
    Supreme Court of Mississippi.
    Aug. 27, 1980.
    Rehearing Denied Sept. 24, 1980.
    Richard L. Stradley, Walnut Grove, for appellant.
    James H. Haddock, Joe D. Gallaspy, Jackson, for appellee.

      Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court:

Kimbrough G. Middlebrook filed a petition asking the Chancery Court of Lauder-dale County to review an order of the State Tax Commission assessing him income taxes for the years 1975 and 1976 in the sum of $1,686.16. The Chancery Court affirmed the order of the Commission, but allowed the taxpayer a credit of $873.10 for taxes withheld by his employer in 1975. The taxpayer’s three contentions in this appeal are as follows:

(1) The assessment of income taxes on $6,000 of business income was a violation of due process.
(2) The assessments were invalid because they were based on Federal Reserve Notes rather than the standard unit of value set by Congress.
(3) Wages themselves do not constitute income.

There is no dispute over the facts. The taxpayer filed an essentially blank individual income tax return for the tax year 1975. He claimed an exemption of $6,500, reported his taxable income as “None,” and requested a refund of the $873.10 withheld by his employer. His return for the tax year 1976 was identical to that for 1975, except he made no claim for taxes withheld that year and requested no refund. A typewritten note attached to each return indicated that the taxpayer filed under protest and that he objected to the questions on the form, basing his objections on nine amendments to the United States Constitution and sections 23 and 26 of the Mississippi Constitution.

The Commission subsequently gave notice to the. taxpayer that his returns were not acceptable and that additional taxes were due, but the taxpayer insisted on invoking his constitutional rights. Subsequently the taxpayer received by certified mail notices that the Commission was making an assessment of taxes due for both tax years in the sum of $1,695, including penalties and accrued interest. Middlebrook appealed to the Tax Commission’s Board of Review and was given an opportunity to contest the assessment. The Board of Review affirmed the assessment and Middlebrook appealed to the Full Commission. The Commission affirmed the assessment by its order dated June 28, 1978. Middlebrook then appealed to the Chancery Court, pursuant to Mississippi Code Annotated section 27-7-73 (1972). That court rejected all the arguments propounded by the taxpayer, and affirmed the Commission’s order. However, on a petition for rehearing, the court allowed the taxpayer a credit for taxes withheld by his employer in 1975. The Commission has not filed a cross-appeal and concedes that the credit should be allowed.

I.

The taxpayer’s first argument concerns the appropriateness of the Commissioner’s assessment of taxes. He contends that it was arbitrary.

Mr. W. A. Barnes, Director of the Revenue Department of the Mississippi State Tax Commission, explained how the Commission arrived at its assessment. The amount of the taxpayer’s salary was secured directly from his employer. That item is not disputed. The Commission also estimated that Middlebrook earned business profit of $6,000 each year. Sales tax returns filed by the taxpayer on his health food business were used to determine the gross sales. From that figure the Commission, considering that type of business to have a generally high profit margin, estimated the net profit to be $6,000. The Commission contacted the Internal Revenue Service in hopes of finding a Federal Schedule E, which would have given them a net profit figure. However, the Internal Revenue Service was unable to provide them with a Schedule E. Mr. Barnes testified that the $6,000 net profit was the best estimate he could make based on the available information.

Mississippi Code Annotated section 27-7-53(2) mandates that the Commissioner determine the taxpayer’s liability from the best information available if no return is made by a taxpayer. Middlebrook argues that this section is not applicable because he filed a return. However, a “blank” return of the nature he filed cannot be considered a return within the purview of Mississippi Code Annotated section 27-7-31 (1972). The Alabama Supreme Court rejected a similar contention in Radue v. Bradshaw, 268 So.2d 760 (Ala.1972).

The taxpayer also argues that the Commission did not act on the best information available, because it did not attempt to subpoena the taxpayer’s business records. We disagree. Section 27-7-53(2) reads, in part, as follows:

If no return is made by a taxpayer required by this article to make a return, the commissioner shall give written notice by regular mail to the taxpayer to make said return and pay any tax due. If the taxpayer shall fail to file the return and make payment of the tax due within fifteen days from the date such notice is mailed to the taxpayer, the commissioner shall determine the taxpayer’s liability from the best information available, which determination shall be prima facie correct for the purpose of this article, and the commissioner shall forthwith make an assessment of the tax so determined to be due by certified mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment.

This statute requires the Commissioner to act on the best information available, not the best information obtainable. The Commissioner is not required to use the courts to obtain the information which the taxpayer is under a statutory duty to supply. We hold that the Commissioner substantially complied with the statute, that his assessment was not arbitrary, and there was no violation of due process.

II.

The next contention is that the assessments are invalid because they are based on Federal Reserve Notes, not “dollars.” He contends a “dollar” is defined by Congress as 0.02368421 troy ounces of .9 fine gold or 412.5 grains troy of .9 fine silver. He then argues the exemption allowed by statute at that time was $6,500 “dollars,” or approximately 138y2 ounces of pure gold. Therefore, using an arbitrary figure of $500 per ounce of gold, the exemption he claimed is approximately 69,250 Federal Reserve Notes.

Congress has made the Federal Reserve Note the measure of value in our monetary system, 12 U.S.C. section 412 (1968), and has defined Federal Reserve Notes as “legal tender for all debts, public and private, public charges, taxes, duties, and dues.” (31 U.S.C. section 392 (1965)).

The taxpayer’s argument is without merit. See, e. g., United States v. Benson, 592 F.2d 257 (5th Cir. 1979); Mathes v. Commissioner of Internal Revenue, 576 F.2d 70 (5th Cir. 1978); United States v. Wangrud, 533 F.2d 495 (9th Cir. 1976), cert. denied, 429 U.S. 818, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976); Leitch v. Department of Revenue, 16 Or. App. 627, 519 P.2d 1045 (1974).

III.

The last argument is that wages per se do not constitute income. The taxpayer contends that only gains derived from wages constitute income; that wages constitute only an exchange of money for an equal value of services or labor; and that one may be taxed only on the amount of wages which is in excess of the value of the services he has rendered his employer. He bases this contention on his interpretation of Mississippi Code Annotated section 27-7-15 (1972), which defines gross income.

This argument is frivolous. The clear intent of the statute is that wages are a component of income — and that income is not limited to gains derived from wages, salaries, etc. as argued by appellant.

The decree of the Chancery Court of Lauderdale County should be affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.