Barber Asphalt Paving Co. v. City of New Orleans

• Decision Date: 01 December 1889
• Docket Number: 10,388
• Citation: 6 So. 794,41 La.Ann. 1015
• Court: Louisiana Supreme Court
• Parties: THE BARBER ASPHALT PAVING COMPANY v. THE CITY OF NEW ORLEANS ET ALS

6 So. 794

41 La.Ann. 1015

THE BARBER ASPHALT PAVING COMPANY v. THE CITY OF NEW ORLEANS ET ALS

No. 10,388

Supreme Court of Louisiana

December 1, 1889

APPEAL from the Civil District Court for the Parish of Orleans Voorhies, J.

Leovy and Blair, for Plaintiff and Appellee.

T. McC.Hyman, Assistant City Attorney, for Defendant and Appellant.

OPINION

POCHE, J.

Plaintiff, in this suit, contests the right of the State and city to levy and enforce a tax on "money loaned on interest, credits and bills receivable for money loaned or advanced," owned by the plaintiff corporation in the city of New Orleans. Its ground of resistance is that as a foreign corporation it is not liable to taxation in this State for that kind of property or rights, which can be assessed only at the domicil of the owner.

This appeal is from a judgment in favor of plaintiff.

The suggestion of appellee's counsel that the matter in dispute is less than the lower limit of our jurisdiction, is not well founded.

The contention involves the legality of the tax assessed against plaintiff's property, and not the correctness or legality of the assessment.If under the law, plaintiff's property as hereinabove described is not liable to taxation in Louisiana, the tax sought to be enforced would undoubtedly be illegal, and it follows that the legality of the tax being involved, the amount thereof is not the proper test of jurisdiction on appeal.Constitution Art. 81, Meyer et al vs. Pleasant, 41 Ann.Southern Reporter, Vol. 6, No. 10, p 258.

On the merits, we think that the case is with plaintiff, and that the conclusions of the District Judge are correct.

The record shows that plaintiff is a foreign corporation, domiciled in the State of West Virginia, and that the property sought to be taxed consists exclusively of debts due the corporation by citizens of this State for paving work previously done.

In the case of Meyer vs. Pleasant, hereinabove referred to, it was held, in harmony with settled jurisprudence, that the situs of a debt as property is at the domicil of the creditor, and it was decided that a judgment rendered in the Parish of Union in favor of, and owned at the time by, the Meyers, was not liable to taxation in that parish, for the reason that the owners of the judgment were residents of the City of New Orleans, and not of the Parish of Union.

If the rule applies to residents of different parishes, a fortiori will it protect citizens or residents of other States.

The principle seems to be conceded by the city attorney in so far as natural persons are concerned, but he denies its application in the case of corporations.

His contention is predicated mainly on the revenue act of 1888, which levies an annual tax on all property situated within the State, including rights and credits similar to the effects assessed to plaintiff, and on the provisions of article 236 of the State Constitution which provides that, "no foreign corporation shall do any business in this State without having one or more known places of business, and an authorized agent or agents in the State upon whom process may be served."

The record shows that plaintiff has complied with that constitutional requirement, and hence it is argued for the city, that as an effect of the articlethe plaintiff has assumed "the duties and obligations of a citizen of the State, a natural person."

Under well settled jurisprudence and with the sanction of the Supreme Court...