author: Poché, J. Fenner, J.

text:
    No. 8222.
    James Surget vs. P. W. Chase, Tax Collector.
    The special tax of twenty mills (in excess of the ten mills constitutional limit) levied on the - 25th of September, 1880, by the Police Jury of the Parish of Concordia, for the purpose of building a levee on Lake Concordia, is unconstitutional and illegal.
    The proviso of Act bTo- 96 of 1877, prescribing that “ on the written application of a majority in value of the tax payers of a Parish, the police jury shall be authorized to levy additional taxes, not in excess of five mills,” is manifestly inconsistent with Article 209 of the Constitution and, therefore, repealed.
    Itis clearly the intention of the Constitution, that the proviso of Article 209, by which municipal taxes for works of public improvements, etc., may be levied beyond the ten mills limitation, should not be self-operative, and that the municipal authorities should not have the power to impose such additional and indefinite taxes, without legislative warrant.
    APPEAL from the Ninth Judicial District Court, parish of Concordia. Hough, J.

      Spencer & White for Plaintiff and Appellant:
    First — It might be forcibly argued that under the Constitution of 1879 no taxes for the con struotion of the public levees could be imposed, except one mill ior the State and five mills ior the districts.
    Article 213 requires the State to maintain ‘‘alevee system,” and to that end authorizes a general tax of one mill on the State at large, and five mills on the alluvial portions of the levee districts. Article 214 — Even these recognitions of the power to tax for the public levees, are hedged in by the restrictions and limitations: First — That the taxing power for levees, granted in articles 213 and 214, shall cease whenever the Central Government shall assume permanent control and provide for the maintenance of the levees. Second— That the district leveo tax shall he limited to theportions of the district subject to overflow. The struggles in the Convention over even these limited concessions is historicand the particularity with which the subject of “levees” is mentioned and guarded, makes the omission of that word ominous in articles 209 and 242 when providing the purposes for which special taxes may be imposed in the parishes.
    The argument is that the Convention, which so meagerly doled out power to the State and the districts on this subject — a body which refused the power to tax in the districts anything but lands subject to overflow, gave the parishes power to impose levee taxes, ad libitum, upon lowlands and highlands alike; so that in parishes where the majority resided in the swamps, these alluvial residents had a carte blanche to tax their upland neighbors for the sole benefit of themselves.
    The animus of the Convention on this subject is unmistakable, and we venture the assertion that it never contemplated “levees” when it used the .words “public improvements.” A proposition to confer unlimited power on the parishes to tax the uplands for levee purposes, would never have been entertained if put eo nomine.

    It is a proper case to apply the rule, expressio unius est exclusio alterius.

    Second — The Constitution of 1879 vests the taxing power primarily in the General Assembly, and by the express terms of article 2U2 can only be exercised by parishes and municipal corporations “under authority granted tj them by the General Assembly.” This article is a mere consecration of the general rule of all American governments, as announced by all the láw writers. See Cooley on Taxation, pp. 48, 49 and 51; see Burroughs on Taxation, section 128.
    Third — Articles 202 and 209 of the Constitution are upon the same subject-matter, and must be construed together. So construing them, article 209 is a limitation on the General Assembly; first, as to State taxes; and second, as to its “ grants ” of the taxing power to parishes and municipal corporations. There is nothing in the language of article 209 which in anywise excepts it from the rule of article 202.
    Fourth — Hence, -whenever and wherever the legality of a parish tax is drawn in question, the parish authorities must be able to show, not only that the Constitution would allow it, but also that the General Assembly has granted and delegated to the parish authority to levy it. At present the authority of the parish to levy taxes “to defray their general expense’s” is found in the eighth paragraph of section 2743 of the Revised Statutes, limited by article 209 of the Constitution and Act 78 of 1880.
    The only'“ grant ” of power to levy the special taxes authorized by articles 209 and 242 of the Constitution, is found in Act 84 of 1880. If not granted in that act, it has never been granted, and the parishes are without power to levy them.
    The “grant” cannot he deduced from Act 78 of 1880, which is merely prohibitory. That act does not say the parishes can exercise the taxing powers granted by articles 209, 214 and 242. It would be absurd if ifc did, for the tax contemplated by article 242 can only he levied by the General Assembly itself. Besides, to deduce it from that act would violate elementary principles of interpreting such statutes. See Cooley, Taxation, p. 209; Bur* ’ roughs, Taxation, section 128.
    Article 209 is not self-acting. Laws for its execution must he enacted by the General Assembly. It refers to the “ election laws ” only for the purpose of fixing of the qualification of voters, and provides no machinery for holding such elections.
    Mfth — But even if the article 209 did directly confer on the parishes power to levy those special taxes, it is manifest that the General Assembly has power to further regulate the exercise thereof. This flows from the sovereignty of the State and the paramount authority of the General Assembly over the parishes. Cooley on Taxotion, p. 51.
    Sixth — Act 84 of 1880, by its first section, provides the machinery of all elections to impose special taxes, whether under article 209 or 242 of the Constitution.
    The second section declares what majority shall be necessary to impose them when the improvements are purely parish and local.
    The third section declares what majority is necessary where the work is more public in its nature and extends beyond the parish.
    If the first section does not govern the mode of election under article 209 and under the second section, then it does not govern it under article 242 and the third section.
    Seventh — The public State levee is not a local or parish work. Ifc extends throughout the State. The Constitution, article 213, directs the State to maintain it as “a system,” and article 214 puts the construction, repair and maintenance thereof under commis - sioneis.
    The parishes have no control over the public levee. It is a great State work, extending through bub beyond the limits of Concordia.
    It is admitted that the Lake Concordia levee is but a link in this great chain, and its building was quite as important to adjoining parishes as to Concordia. Concordia could only vote to aid it under third section of Act 84, and under article 242.
    Eighth — But even if the work fell under article 209 and under the second section of Act 84 of 1880, the tax is void for non-compliance with that act in the election.
    It is admitted that no petition signed by one-third of the taxpayers of the parish was presented, or evermade or signed, or published as part of the notice of election.
    This petition must be signed by one-third of the property taxpayers, not one-third of the property taxpayers entitled to vote under the election laws, hut one-third of all tho property taxpayers, whether voters or not.
    Ubr is it shown that one-third of the property taxpayers voted fo£ said tax, or indeed voted at all. It is only shown that 634 voted for and 174 against it. By what authority can it be said these were one-third ot the property taxpayers in Concordia.
    Hine-tenths of the taxable property in Concordia is owned by non-residents, minora and married women; and it was doubtless to -give protection and voice to these taxpayers having no vote, that the law required as a condition to levying the tax, that it must be petitioned for bv one-third of the taxpayers.
    These provisions of the Statute are mandatory. Cooley (p. 254) says: “ "When taxes have been authorized to be levied only after they have been petitioned for by a certain number of taxpayers, tbis is a condition precedent to any tax.” See same, pp. 245, 246; Burroughs, section 128; Campbell County vs. Taylor, 8 Bush, Ky. 206.

      H. R. Steele, District Attorney, and Kennard, Howe & Prentiss for Defendant and Appellee:
    Pirst — The questions in this cause concern (a) the power of the parochial government to protect its own property, and the property, lives and civilization of its citizens from destruction by overflow; and (b) the method by which, in a case of emergency, that power may be exercised in such a way as to compel the contribution demanded irom the plaintiff.
    Second — The statement of facts in the transcript makes a case of power in the parish of Concordia to do the work in question in any reasonable view of the levee laws from the earliest history of the State to the present time, and under the Constitution of 1879, now in force; and to levy the tax which is disputed by plaintiff. 13 La. 211, Acts of 1829, p. 102; 5 An. 403; 14 An. 70, Rev. Stat. 1856, p. 410, § 19; p. 501, § 118; R. S. 2743, par. 2; Act No. 33 of 1879, §§ 2, 3 and 10; Act 88 of 1880, §> i ; R. S. 2743, par. 8; Cooley on Taxation, pp. 51, 475.
    'Third — The parish of Concordia having for many years been charged with the duty and endowed with the right to protect itself by levees and to lay taxes for this purpose, we next enquire as to the effect on these powers of the Constitution of 3879. An analysis will show:

      •{a.) That the parishes as they have existed for many years are recognized as local governments, with powers, and duties which have been for many years prescribed by law. Articles 240 to 252.
    •{b.) That there is not a word in the instrument which undertakes to deprive the alluvial parishes of the power to protect themselves irom inundation and to lay taxes for that purpose.

      >(c.) That the article 202 contemplates the exercise of the taxing power for any public purpose by the parishes under such existing laws as were adopted prior to January 1, 1880, or such as may have been adopted since; and a fortiori for such purposes and in such a way as article 209 of equal- dignity and more special recital recognizes.

      id.) That article 204, if it limit any power of taxation, limits the power of the State as to levee taxes, referring probably to articles 213, 214 and 215, but does not limit tbe power of the parishes at all, and certainly does not nullify the recognitive proviso of article 209.
    'The rule expressio unius exclusio alter ms, as invoked by plaintiff with reference to this article and article 213 does not apply. Parishes are not mentioned in either article. There being no expressio with regard to parishes there can be no exclusio as to them.

      .\e.) That article 209 is a limitation upon the existing power of the parishes to protect themselves from inundation; and like all limitations is necessarily self-actiDg or self-executing. State vs. Graham, 23 An. 402, 4Q7. As to the special topic of public improvements it recognizes the power in parishes to protect their people and teiritory by making such as may he needful in the parish and by the parish. Pull details are given. The moment they are complied with the check is removed and the power operates. There is no Deed for the General Assembly to intervene. Nor could the General Assembly impose a further condition or limitation when the people by organic law have established such as they deem sufficient. Cooley on Limitations, 63, 64.

      if.) That article 242 is not intended to nullify or in anywise to limit article 209, but is intended for another purpose, namely, to permit the General Assembly to authorize parishes to aid in the construction by some other person, natural or juridical, of works of improvement, such as canals, turn-pikes, railways and the like. It is uader a different rubric and refers to another matter. State vs. Uicholls, 30 An. 980,987; Jones on Railway Securities, 99, 159, 229.

      (g.) That articles 213, 214 and 215 establish a system of levee building by the State, either ■ by a general tax of one mill, or district tax of five mills; which is limited in amount; which is, by article 2Í5, temporary and provisional in its character, and which is admitted by the statement of facts in the instant case to have been inadequate in the emergency. Fourth — An analysis oí Act 84 of 1880 will show that it has really no effect to limit the power or nullify the action of the parish m the premises.
    (a.) Its title refers to article 242 and not to 209. It refers to aiding other persons to construct works, etc., and not to work done by the parish itself; and the first, second and third sections use the same phraseology..

      (b.) The first section contains a provision not required by either article 242 or 209; and which, if it have any validity in the premises, can only be meant as a means by which one-third of the taxpayers may stir up and compel an indifferent or recalcitrant police jury to act. If the jury be willing to act this special provision need not be used. And in any view containing no negative words, denouncing no nullitv and granting no power which would not otherwise exist, it is directory merely. 9 An. 593; Cooley on Con. Lim. § 74 et seq.
    (c.) The second section refers to aid merely, and does not comply with either article 242 or 209. It requires a majority vote of all taxpayers; whereas article 209 requires only a majority of those who have a right to vote at a political election and who actually do vote; and article 242 requires a majority vote of all the taxpayers without regard to age, sex, residence or the like, and a majority in numbers and in value.
    (d.) The third section seems to comply with article 242, hut has no reference to 209 or to the ease at bar.

      (e.) If the Act 84 have any relation to the case at bar, it must he construed in such a way as to make it constitutional and rational; and to do this it must he held that the requirement as to one-third of taxpayers in the first section is directory, and can at the most serve only to stir up and set in motion an inert or obstinate jury; that the work contemplated in the second section means such work as that in question here, and that the term “ majority ” in the same section means a majority of those who may vote. The Legislature cannot add to or take away from the conditions provided by the Constitution in article 209 in such a way as to paralyze or defeat the rights there recognized. Cooley, § 64.'
    Fifth — The plaintiff must make out a case by a preponderance of authority. In case of any doubt the action of the police jury will be held valid. Cooley on Limitation, § 69.

      Geo. S. Sawyer on the same side.

      F. H. Farrar, amicus curice, in behalf o£ the parish of Tensas, on the same side.
   The opinion of the Court was delivered by

Poché, J.

This case involves the constitutionality and legality of a special tax of twenty mills, levied by the Police Jury of Concordia, on the 25th of September, 1880, for the purpose of building a levee on the west and south sides of Lake Concordia in that parish.

■ Plaintiff complains that the levy of this tax violates the Constitution, limiting the power of municipal taxation for all purposes to ten mills on the dollar; that the Police Jury is inhibited by the Constitution from levying a special tax for the purpose of building, repairing or maintaining public levees, and that the action of the Police Jury, in submitting the project of levying a tax for .said purpose, was not warranted by any law authorizing such an election or providing the manner of conducting the same, in cases where such special taxes are authorized by the Constitution, and he proceeded by injunction to restrain the enforcement of this special tax on taxable property which he owns in the parish of Concordia.

For answer, defendant urges the necessity of the work for which the tax was levied, the inability of the State for want of funds to build the required levee, and alleges that the election, and all other proceedings in the levy of the tax, were carried on in strict conformity with the Constitution and laws of the State.

Plaintiff has taken th e present appeal from the j udgment of the lower court, dissolving his injunction with damages, and recognizing the constitutionality and legality of the special tax.

From a statement, agreed upon by the parties, we gather the following salient facts, which bear upon the issues presented by the pleadings:

First — That in addition to the tax in controversy, the following taxes have been collected in the parish of Concordia for the year 1880, and paid by plaintiff:

1st. The general State tax of ten mills.

2d. The district levee tax of five mills.

3d. The general parish tax of ten mills.

4th. A special parish judgment tax of ten mills.

Second — That the construction of the “ Lake Concordia Levee ” had become necessary to protect the parish from overflow by reason of the caving in of the old levee; and that the building of the work and the levy of a twenty mill special tax had been recommended to the Police Jury by a mass meeting held on the 16th of August, J880, and numerously attended by taxpaying citizens of the parish, and that an election held for the purpose of authorizing the levy of such special tax had resulted in 634 votes for, and 174 votes against the ordinance; that said election was not predicated on a petition signed by one-third of the taxpayers of the parish, and that no such petition was published with the ordinance imposing such tax; and that the result of said election was promulgated by means of a subsequent ordinance of the Police Jury, who had not in the first ordinance provided for the means of returning of such election, or of showing that the ordinance had been carried by a majority in value as well as in number of taxpayers. It was finally admitted that the projected levee had been located by the State Engineers, constitutes a part of the public levee system, but that the State authorities declared ■that they were without funds to build such levee.

Defendant relies as authority in justification of the course of the Police Jury in this case, on the various acts of the Legislature, dated as far back as 1829, conferring to police juries full power, management and control in the making and repairing of public levees. And he urges that the exercise of this power, in manner and form as was done in this case, is fully sanctioned by Art. 209 of our Constitution, which reads as follows:

Art. 209 — “ The State tax on property for all purposes whatever, including expenses of government, schools, levees and interest, shall not exceed in any one year six mills on the dollar of assessed valuation; * * * and no parish or municipal tax for all purposes whatsoever, shall exceed ten mills on the dollar of valuation ; provided, that for the-purpose of erecting and constructing public buildings, bridges and works-of public improvement in parishes and municipalities, the rate of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the property taxpayers of such parish or municipality entitled to vote under the election laws of the State, and a majority of same voting at such election shall have voted therefor.”

And he contends that this article being self-operative, no legislation was needed to put it in operation.

Previous to the legislation contained in Act No. 20 of 1866, and Act No. 115 of 1867, the police juries in this State were vested with all powers touching public levees. But from that time to the date of the adoption of the Constitution of 1879, this power was absolutely withdrawn from them, and was never restored to them, with the exception of the power to repair and protect completed levees. No greater powers on the subject are conferred by Act 88 of 1880, which contains the last legislation on public levees. The object of this act, as expressed in its title, and shown in its text, was to invest the police juries of the several parishes with the-management and control of all completed public levees in this State, and' to regulate the manner in which the same may be cut for rice flumes or other purposes.

The great changes which were wrought on the condition of the country by the civil war, imperiously required the repeal of the legislation, under which the control of public levees had been lodged in the police juries, and the burden of building and maintaining the same had been imposed on the riparian owners on the Mississippi River, and other streams subject to overflows.

The legislation creating the Louisiana Levee Company and the various Boards of State Engineers, to whom were successively confided the control and management of these important public works, and by whom immense'amounts of the State revenues were lavishly spent in the construction of levees, is a salient feature in the recent history of this State, and leaves no room to doubt the legislative intention on this subject.

Act No. 33 of 1879, which regulated the system at the time of the adoption of the Constitution, placed the control of levees in the hands of a Board oí Engineers, wb o had the power to locate and survey the works; of district commissioners, who levied the tax; and of the Governor, who had the power to let out the work. Under that law, police juries had no power to build levees, but were entrusted with the care and preservation of completed levees.

Eor the same reasons that policy was adopted by the framers of the. Constitution, who are known, as a matter of history, to have handled this subject with great caution and with great misgivings, in view of the extravagance which had previously characterized the administration of the system, and of the conflicting interests growing out of the differences between the highland and the alluvial portions of the State.

By Art. 213 they required the establishment of a levee system in the State, and authorized a levy of an annual tax of one mill on all taxable property, to be applied exclusively to the maintenance and repairs of levees.

Art. 214 provides for the division of the State into levee districts, and for the appointment or election of levee commissioners in each district, who shall have supervision of the erection and repairs and maintenance of the levees'in said districts, with authority to levy a tax not to exceed five mills on the taxable property situated within the alluvial portions of said district subject to overflow.

It requires no reasoning or authority to satisfy the legal mind that any legislation which would have attempted to confer to police juries the power to build public levees, and to levy special taxes for the costs of building levees, would be glaringly unconstitutional, and.could not be enforced by the courts, unless the authority be found in Art. 209 or Art. 242, on which point we express no opinion now.

Construing these two articles in connection with article 215, limiting the duration of this system to the time when the Federal government would, as was then expected, assume permanent control of the levees in this State, plaintiff’s counsel argue that no other taxes, but those provided • in these two articles, could be imposed by the State or by the parishes for levee purposes. But the view which we take of this case does not require solution of this important question.

It is admitted by the defendant, both in the pleadings and in the statement of facts, that the “ Lake Concordia Levee ” form part of the public levee system created under the power granted to the General Assembly by the Constitution, and that the levee was located by the State Engineers. It cannot, therefore, be denied that the duty and power of building the levee were vested exclusively in the State authorities, who are shown, however, to have had no funds for the purpose. Hence, the Police Jury, in view of the imminent danger, and in order to avert a great public calamity, resolved to assume the duty of building the required levee, and to provide by levying this tax, for the means necessary thereto. In other words, the Police Jury levied this special tax in aid of a public improvement, originating with the State authorities, ordered and located by the State authorities, and required under the Constitution and the laws thereunder to be erected and maintained by the State authorities.

It, therefore, follows, as urged by plaintiff, that the only possible authority which can be invoked in support of the Police Jury’s course in the premises must flow from the provisions of Art. 242 of the Constitution, which reads as follows:

Art. 242 — “ The General Assembly shall have power to enact general laws authorizing the parochial or municipal authorities of the State, under certain circumstances, by a vote of the majority of the property taxpayers in number and value, to levy special taxes in aid of public improvements or railway enterprises, provided that such tax shall not exceed tfie rate of five mills per annum, nor extend for a longer period than ten years.”

Now, as the project of levying this special tax is shown to have been submitted to the vote of the majority of the taxpaying electors of the parish, and not to the majority of taxpayers in number and value, as imperatively required by that article, and as the election ordered for this purpose was not held in pursuance of Act No. 84 of 1880, which is conceded to be the enabling act of said article of the Constitution, defendant cannot invoke the authority of that article, and in fact repudiates any sanction from that source.

Hence, he relies exclusively on the powers derived from article 209, quoted in the first part of this opinion, and contends that it is self-acting.

It is not only admitted, but argued by defendant that, as yet, no legislation has been enacted which can be construed as an enabling act to Art. 209. Although in some of its provisions Act 84 of 1880 apparently refers to that article, its title indicates no such object, but in plain language, it refers exclusively to Art. 242. If the act intended to refer to' Art. 209, it does not comply with the constitutional requisite, regulating the expression of the object of every act in its title, and such reference mpst in consequence be considered as unwritten. We, therefore, conclude that Art. 209, in so far as its proviso is concerned, has yet received no legislative interpretation, and stands without an enabling act.

In order to understand the intention of the Convention in framing this article, it must be construed in connection with Art. 202, which is the declaration of the fundamental policy of the whole instrument on the subject of taxation, and which is in the following words:

“ The taxing power may be exercised by the General Assembly for State purposes, and by the parishes and municipal corporations, under authority granted to them by the General Assembly, for parish and municipal purposes.”

Under this article, we conclude that the Constitution vests the taxing power primarily and directly in the General Assembly, and that the taxing power, one of the highest attributes of sovereignty, can only reach the subordinate agents of the State, such as parishes and municipal corporations, through the channel and under the regulations of the Legislative department.

No words or language used in Art. 209 justifies the slightest suspicion that the Convention intended to depart from the sound general principle incorporated in Art. 202.

The article does not purport to be a grant of taxing power to either the State or municipal authorities, which grant is to be found in article 202, but it is, what it purports to be, a restriction of the taxing power in the General Assembly and in its grant of the taxing power to parishes and municipal corporations. And the exceptions contained in the proviso under which the limit of parish and municipal taxation can be increased in certain specified cases, must remain dormant and ineffective until rectified by legislative breath.

The conclusion that, if the powers therein conferred can be invoked as authority for the levy by the parish authorities of a special tax for the construction or building of a levee, as in the present instance, the power must be sanctioned by legislative action only, cannot be controverted.

It, therefore, follows that article 209 is not self-acting, and that the powers contemplated in its proviso having yet received no legislative sanction, cannot be exercised by the parish authorities, to whom they were not directly or primarily conferred.

We, therefore, conclude that the Police Jury, one of the subordinate agents of the State, had no legal mandate to proceed in the premises, and that its action and all the proceedings in its attempt to levy this tax, were without legal authority, clearly unconstitutional and, therefore, null and void.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the ordinance of the Police Jury of Concordia parish, levying a special tax of twenty mills for the construction of the Lake Concordia Levee, be declared unconstitutional, illegal, null and void, and that the defendant, as tax collector, be perpetually enjoined from collecting said tax, and that he be condemned to pay the costs of both courts.

On Application por Rehearing.

Fenner, J.

Giving all possible weight to the ingenious argument, of defendant’s counsel, so far as it sustains the proposition that, under the legislation in force at the date of the adoption of the Constitution! of 1879, the police juries of the parishes were vested with powers for the “ repair, preservation and protection of levees,” and that the work involved in this case fell within the proper scope of such powers, and-on these points we announce that we will not hold ourselves concluded by any dicta in the original opinion, really or apparently contrary thereto, — the argument, nevertheless, entirely fails to show that, at that date, the police juries possessed any legislative authority to levy indefinite-special taxes, in excess of ten mills for the execution of such powers.

On the contrary, by the terms of Act 96 of 1877, then in force, the-parochial power of taxation, “ for all purposes or under any pretext,” was limited to ten mills on the dollar. The proviso to that act, reciting “ that on the written application of a majority in value of the taxpayers of a parish, the police jury shall be authorized to levy additional taxes-not in excess of five mills,” is manifestly inconsistent with Art. 209, and therefore repealed.

Unless article 202 of the Constitution is to be practically nullified, the “taxing power’’can only be exercised by parishes and municipal-corporations, “ under authority granted to them by the General Assembly.” It is not necessary, under this article, that new legislative authority should be obtained in all cases. Antecedent legislative grants, not inconsistent with the Constitution, were continued in force by Art. 258; and hence police juries may continue to levy a ten mills tax without new legislative authority.

But it is imperatively necessary, that police juries, exercising the taxing power, should point to some valid “ authority granted to them, by the General Assembly,” antecedent or subsequent to the Constitution.

No such authority exists for the levy of the special tax herein contested, with or without an election.

The proposition that Art. 209 is self-operating and confers directly upon the parishes the absolute power to levy unlimited taxes for the purposes therein specified, upon the vote of a mere numerical majority of the taxpayers, without reference to the value of the property represented, is certainly startling. If that were true, the power would not only dispense with legislative authority, but would be beyond legislative control, because the Legislature could not limit, or take away, power directly and expressly conferred by the Constitution.

The deplorable abuses, which might result, will readily suggest themselves, and would not escape the anticipations of those who are-now dissatisfied with our decree, if they were not blinded by the heat of the immediate controversy.

If the theory contended for were correct, it would follow that the police juries of all the parishes are vested with irrevocable power to levy limitless taxes, not merely for levees, but for “ public buildiDgsr bridges ” or any other purpose falling within the broad term “ works of public improvement,” upon the vote of a mere numerical majority of infinitisimally small property taxpayers. Thinking men will not readily concede that such could be a proper construction of the Constitution.

We have not the slightest doubt that it was the intention of the framers of the Constitution that the extraordinary powers óf special taxation permitted by article 209, like all other parochial powers, should, be subjected to the direction, regulation and control of the General Assembly, which must provide the authority, mode and limit of their exercise, before they can be exerted by the parochial authorities.

We do not express or intimate any opinion hostile to the claim that the work done by the police jury in the present case, isa “work of public improvement ” within the meaning of Art. 209, and that legislation in enforcement of that article might embrace such work. On these points, we reserve our opinion, until they shall arise in a proper case.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8244.
    Samuel S. Brown et al. vs. James D. Houston, State Tax Collector.
    Coal brought from Pennsylvania to New Orleans for sale, can legally be taxed by the State of Louisiana, and the tax thus levied upon it is not obnoxious to any of the three constitutional principles invoked in this case, viz: 1st. that the citizens of each State shall be entitled to all the immunities and privileges of citizens of the several States; 2d, that Congress shall have power to regulate commerce, with foreign powers and among the several States; 3d, and that no State shall levy any imposts or duties on imports or exports.
    APPEAR from the Civil District Court for the parish of Orleans^ Lazarus, J.

      Joseph P. Hornor and Francis W. Baker for Plaintiffs and Appellants:
    Congress shall have power to regulate commerce with foreign nations and among the several States. tT. S. Constitution, Art. I, sec. 8, par. 3.
    Ho State can impose a tax upon freight transported from State to State, or upon the transporter because of such transportation. 15 Wallace, 281.

      Wliitdlcer & Adams for Defendant and Appellee:
    Pirst — The tax complained of is levied under the provisions of the Act Ho. 77 of 1880.
    Second — The constitutional guarantee that the “ citizens of each State shall he entitled to all the privileges and immunities of the citizens of the several States,” simply prohibits any attempt to discriminate injuriously against the products of other States or the rights of their citizens. 8 Wall 140; ib. 152.
    The tax law imposes a uniform tax upon all property within the State, whether owned hy a citizen of it or a citizen of some other State, and whether the property is the product of Louisiana or of its sister States.

      Third — A tax on property that may be the subject of commerce, under congressional regulations, is not a tax on commerce. Neither is a tax on property which has been the subject of such commerce, where it is taxed only as property, and in common with all other property within the State. Cooley on Taxation, 62; 12 Wheat. 419, 437; 8 Wall- 110 ; 5 id. 475, 479. Thus, as property, locomotives may be taxed, but not their use as vehicles of commerce between States. Cooley on Taxation, 63; 2 Abb. TJ. S. 323; S. C. 18 Wall. 206, 232.
    The present tax is not’upon transportation, nor does the tax law attempt in any manner to 'regulate commerce, whether purely internal or inter-State; it simply levies a tax upon the coal of appellants as property in common with all other property within the State,
    Fourth — Imports from foreign countries while still in the original packages and in the possession of the importer, are shielded from any State tax. 12 Wheat. 443; 24 How. 173; 8 Wall. 122; %b. 128. But even foreign imports alter the importer has disposed of them or when otherwise mixed with the general property ot the State, are taxable as other property. 5 Wall. 479 ; 8 Wall. 122.
    The prohibition of the Federal Constitution that ” no State shall levy any imposts or duties on imports or exports,” does not, however, apply to articles imported from one State into another. Hence, a uniform tax imposed hy a State on all sales made in it, whether they he made by a citizen of it or a citizen of some other State, and whether the goods sold are the produce of that State enacting the law of some other State, is valid. 8 Wall. 123.
    The coal made the subject of the present tax was imported from Pennsylvania. The tax is a uniform tax of six mills on the assessed value of all property within the State, whether owned by Louisianians, citizens of other States, or aliens, and whether such property be the produce of this State, of sister States, or of a foreign country.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs are appellants from a judgment of the Civil District Court of the parish of Orleans dissolving their injunction, taken out to restrain the tax collector from selling a lot of coal for taxes.

The coal was mined in Pennsylvania, was brought into this State for sale, and was duly assessed as the property of the plaintiff within the territorial limits of the district where the defendant was tax collector, and where the coal was kept for sale.

The tax is resisted upon the ground that it was imposed in violation of the provisions of the Constitution of the United States, which declares :

1. The citizens of each State shall be entitled to all the immunities and privileges of citizens of the several States.

2. Congress shall have power to regulate commerce with foreign powers and among the several States.

3. No State shall levy any imposts or duties on imports or exports.

First. Act 77 of 1880, under which the tax complained of was levied, provides that “ annual taxes, amounting in the aggregate to six mills on the dollar of assessed valuation, hereafter to be made, of all property situated within the State of Louisiana, except such as is expressly exempted from taxation by the Constitution, shall be collected,” etc.

This act does not, in its terms, discriminate against the products of other States, or the property of the citizens of other States, but subjects all property liable to taxation found within the State, whether of its own citizens or citizens of other States, whether imported from other States or produced here, to the same rate of taxation.

If the law exempted property of the citizens of other States, brought into the State for sale, from taxation, and at the same time levied a tax on the products of the State, it would in fact show a discrimination against the citizens of the State and the products of the State.

We discover no force whatever in this ground of opposition.

Second. The coal in question was taxed in common with all other property'found within the State. We held in the case of the City of New Orleans vs. Eclipse Tow-Boat Company, recently decided by us, but not yet reported, that the clause in the Federal Constitution giving to Congress the power to regulate commerce with foreign nations and among the States, had no immediate relation to, or necessary connection with the taxing power of a State. Every tax upon property, it is true, may affect more or less the operations of commerce, by diminishing the profits to be derived from the subjects of commerce; but it does-not for that reason amount to a regulation of commerce within the meaning of the Federal Constitution; and such is the doctrine laid down by the Supreme Court of the United States. 15 Wall. 293.

So it has been held that “ a tax on property that may be the subject of commerce under congressional regulations is not a tax on commerce. Neither is a tax on property which has been the subject of such commerce, where it is taxed only as property and in common with all other property within the State.” Cooley on Taxation, 62, 63; 12 Wheat. 419, 437; 8 Wall. 110; 5 Ib. 475, 479.

The power of taxation exercised by the State with respect to the property in question, does not in the remotest degree, directly or indirectly, infringe upon this constitutional provision relating to the'regulation of commerce.

Third. This tax cannot be regarded as a duty or impost levied by the State on imports. To give such construction to it and to recognize the alleged prohibition contended for, would create an exemption for all goods and merchandize, and property of every kind and description, brought into the State for sale or use; and by such construction destroy a main source of revenue to the State.

As we had occasion to show in the case referred to, the word “ imports ” used in the Constitution, has been construed to apply not to property brought or imported from other States of the Union, but solely to imports from foreign countries. Woodruff vs. Parham, 8 Wall. 122; 5 Wall. 479. And, in the case of Woodruff vs. Parham, it was expressly held that a uniform tax imposed by a State on all sales made in it, whether made by a citizen of such State or another State, and whether the property sold was the product of that State or another, was valid. And, in' the opinion rendered in that case, the right of a State to tax the property itself brought to such State for sale from another, was •distinctly recognized and broadly stated.

Cooley, in his work on Taxation, states the same doctrine in these words:

“ The Federal Constitution provides that no State shall, without consent of Congress, lay any imposts or duties on imports or exports, except what may be necessary for executing its inspection laws. But -this provision has no application to articles transported merely from ■one State to another.”

We find no error in the judgment appealed from, and it is, therefore, affirmed with costs.


author: Fenner, J.

text:
    No. 7132.
    Christopher Satterley vs. Charles Morgan.
    A long lino of authorities have established a distinction between tbo technical sufficiency of a citation, as a basis for tbe maintenance of proceedings and judgment, and its sufficiency for tbe purpose ot interrupting prescription.
    •OitatioD for tbe purpose of interrupting prescription needs not bo technically perfect either in form or service.
    APPEAL from the Eifth District Court for the parish of Orleans. Sogers, J.

      W. S. Benedict and Jos. B. Rornor for Plaintiff and Appellant:
    ■j’irst — Articles 190 and 196 O. P. do not order that the name of the agent of an absent defendant should appear in the petition.
    Second — Proof on the trial, that the person served as agent was duly authorized, and his principal was absent, being the principal before tbe court, 3 An. 453; 3 An. 9; 7 An. 268; 17 La. 498; 17 La. 587, is sufficient.

      Leovy & Kruttsolmitt for Defendant and Appellee:
    3?irst — The petition must mention the name and place of residence of the defendant, or the place where he lives. C. P. Art. 172. If defendant is absent and has no attorney in fact, the name of the agent must appear in the petition. C. P. 196.
    -Second — If the defendant he absent, and has an attorney in fact, whose name appears in the petition, the sheriff shall serve the citation on the attorney in fact, in person, or at his domicil; hut if his name does not appear in the petition, such service will he bad. C. P. 196; Pilie vs. Kenner, 16 La. 570; 1st M’y vs. The Lector, etc., 3 An. 453; Perroux vs. Leblanc, 21 An. 27.
    Third — If the defendant he described in the citation as being of Lew Orleans, when in fact he is a resident of Lew York, and at the time is in Lew York, the citation is had; citation must name “ the place of his residence, or that where he happens to be.” C. P. 179. The law, as to citations must be rigidly enforced. 13 An. 405; 19 An. 360; 24 An. 625.

      Fourth — Citation addressed to a party in New Orleans must be served on the defendant, in person, or at his domicil; if served on any other party than the defendant himself, the return must state the absence of the defendant. C. P. 189; 19 La. 37; 4 An. 363; 7 An. 268; 21 An. 630,
    Fifth — Defendant cannot be brought into court by amending a defective citation. A new citation must issue. 19 An. 360; 13 An. 405; 28 An. 625. “ Nothing will cure the delect of citation or want of service, except appearing.” Hennen’s Dig. p. 245, No. 4; Louque’s Dig. p. 113, No. 4; 5 N. S. 429 ; 7 N. S. 161; 1 H. 130; 13 An. 374; 21 An. 27.
    Sixth — " Knowledge of suit on part of defendant, no matter how clearly brought home to him, will not supply want of citation.” Hennen’s Ligest, p. 245, No. 6. And a defective citation is no citation at all. 13 An. 405; 19 An. 360; 28 An. 625*
   The opinion oí the Court was delivered by

Fenner, J.

Plaintiff sues defendant for damages for an alleged quasi offense, committed on .September 26th, 1876. His petition was filed on September 25th, 1877, and it was alleged therein that defendant was a resident of New Orleans. On the same day a’citation was issued, addressed to “Charles Morgan, New Orleans,” and the return of the sheriff shows that it was served “ on Charles Morgan, through A. C. Hutchinson, his agent, in person.”

Defendant, appearing for that sole purpose, excepted to this citation, as illegal and insufficient. On trial, this exception was sustained, and it was held that the defendant had not been legally cited, but the right was reserved to plaintiff to perfect citation. Other proceedings were had, resulting in an amendment of the petition so as to allege that defendant was a resident of New York and represented in this city by an agent, A. ■C. Hutchinson, and in the issuance of a new citation addressed to “Charles Morgan, through A. C. Hutchinson, agent,” which was ultimately served ■and returned in strict accordance with law. Defendant then appeared and ■pleaded the peremptory exception of the prescription of one year, which was sustained by the court and plaintiff’s suit dismissed, from which, judgment the present appeal is taken. It was admitted on the trial that, in point of fact, Charles Morgan was “ a person absent,” and that A. C. 'Hutchinson was his agent, authorized to receive citation for him, on the 25th of September, 1877, the date of service of the original citation.

As the term of prescription expired on the following day, the sole -question presented, is 'the sufficiency of that citation and the service ■thereof, for the purpose of interrupting the prescription.

Defendant’s objections to the citation and return are threefold, viz:

1st. That the citation was defective' because addressed to “ Charles Morgan, New Orleans,” instead of to “Charles Morgan, New York,” the latter being both “ the place of his residénce,” and “ that where he happened to be.” C. P. Art. 179.

2d. That the citation being addressed to Charles Morgan personally, «the sheriff could, in no case, serve otherwise than personally, without stating in his return the absence of Mr. Morgan, and the return containing no such statement is fatally defective.

3rd. That' there is no authority, in any case, for citing a defendant through an attorney in fact, except when the name of the attorney in fact “ appears in the petition.”

We do not question the correctness of the action of the judge a quo in maintaining the exception to the citation and return, pleaded in limine by the defendant. But there exists a line of authorities,- which seem to have escaped the attention of counsel on both sides as well as of the judge, and which seem to us conclusive of the question now under consideration. These authorities maintain a distinction between the technical sufficiency of a citation, as a basis for the maintenance of proceedings and judgment, and its sufficiency for the purpose of interrupting prescription. Thus it was held that service of citation, though not certified by the clerk, would interrupt prescription. White vs. McQuinlan, 12 La. 530.

So, that the mere deposit of the petition in the clerk’s office before the end of the prescriptive term, will interrupt, though, owing to absence of clerk and deputy, plaintiff was not able even to obtain issuance of citation in time. Smith vs. Taylor, 10 Rob. 133.

So, that filing of a reconventional demand will interrupt, though without citation or service. Driggs vs. Morgan, 10 Rob. 119.

So, that service of petition and citation in English only, on one whose native language is French, and who was then entitled under the law to French citation and petition, would interrupt. Leon vs. Bouillet, 21 An. 651.

So, that a citation addressed to a person sued as administrator, and naming him only individually without specifying his capacity, would interrupt. Elmore vs. Ventress, 24 An. 382.

So, citation issued by a defacto clerk, not lawfully in office. Canal Bank vs. Turner, 26 An. 274.

So, citation not containing the number of days for answer. Martinez vs. Vives, 30 An. 818.

It will not be questioned that, in several of these cases, exceptions to the citations would necessarily have been maintained. This Court has always given a liberal construction to that clause of Art. 3518 Rev. C. C. which declares that “ a legal interruption takes place when the possessor has been cited to appear before a court of justice.”

Citation, eo nomine, has not been insisted on, nor citation before a court of competent jurisdiction, nor citation technically perfect in form and service. The broad doctrine was laid down by the Court in Flower vs. O’Connor, 17 La. 219, that “ in order to determine the effect and extent of a legal interruption, we must inquire more particularly into the object and cause of the action, than into the right of the plaintiff, the manner in which it is prosecuted and the competency of the court in which it is instituted, and endeavor to ascertain how far the knowledge of the titles on which the action is founded has been brought home to the defendant by the judicial demand; and we do not hesitate to conclude that, if it be established, that the defendant has been judicially notified of the titles which are the foundation of the demand, so as to acquire a sufficient knowledge of the rights which are sought to be enforced against him by a suit, there results from said suit a legal interruption in favor of those to whom such rights may belong.”

See, also, Barrow vs. Shields, 13 An. 58.

In this case, it is conclusively established by the admissions in the record, that, within the prescriptive term, a petition setting forth fully the cause of action and a citation addressed to defendant, were actually served, in his absence, upon his attorney in fact, duly authorized by him to receive service thereof and to defend the suit. This was a judicial notification of the claim, conveying to him full knowledge thereof, and, notwithstanding technical defects in the form of citation, and in the return, we are of opinion it operated a legal interruption.

Nor are we prepared to say that, if the return of the sheriff had been corrected, as it might have been, so as to conform to the facts, and if it had been proved on the trial that the defendant was actually “ a person absent,” and that the person on whom citation was served was really Ms agent for that purpose, a judgment rendered against the defendant, in absence of exception or appearance, would not have been valid. We are inclined to regard the terms of C. P. Art. 196, which says that “ if the person absent has an attorney in fact, whose name appears in the petition, the sheriff shall serve the same on that attorney in fact ” — not as a mandatory requirement that the name of the attorney must appear in the petition, in order that service may, in any case, be made on such attorney, but rather as regulating the duty of the sheriff, in connection with his responsibility, as defined in the subsequent Art. 205. If the name of the attorney does not appear in the petition and citation,-the sheriff is not thereby informed of the existence of such agent, and incurs no responsibility for failure to serve on him. But, if he be otherwise informed of such agency and of the absence of defendant, and actually serve on the agent, we see no reason why it should not be sufficient, if the necessary facts of agency and absence be proved. It required no express provision of law to establish that an absentee may, if he choose, appoint an agent to receive service of citation for him, and that, in such case, the service on the agent would be the entire equivalent of service on the principal, provided the absence and agency were duly proved. A contrary doctrine has never been expressly held in any decision. In the cases of Pilié vs. Kenner, 16 La. 570, and 3 An. 453, and 21 An. 27, it did not appear that proof was made of absence and agency. In the two last cases, and in others, language was used justifying the inference that such proof would' have sustained the citation. 3 An. 9; 7 An. 268; 17 La. 498, id. 587; 7 Rob. 451.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered that the plea of prescription of one year by defendant be overruled, and that this cause be remanded to the -lower court for further proceedings according to law, defendant to pay costs of his-exception in the lower court, and those of this appeal.