Board of Com'rs of Atchafalaya Basin Levee Dist. v. C. Lagarde Co.

• Decision Date: 13 February 1928
• Docket Number: 28632
• Parties: BOARD OF COM'RS OF ATCHAFALAYA BASIN LEVEE DIST. v. C. LAGARDE CO., Limited, et al
• Court: Louisiana Supreme Court

120 So. 25

167 La. 612

BOARD OF COM'RS OF ATCHAFALAYA BASIN LEVEE DIST. v. C. LAGARDE CO., Limited, et al

No. 28632

Supreme Court of Louisiana

February 13, 1928

On Rehearing, July 2, 1928; On Second Rehearing, January 2, 1929

Appeal from Seventeenth Judicial District Court, Parish of Lafourche; Robert B. Butler, Judge.

Action by the Board of Commissioners of Atchafalaya Basin Levee District against C. Lagarde Co., Limited, and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Charles E. Schwing and W. P. Obier, both of Plaquemine, for appellant.

Howell Wortham & Howell, of Thibodaux, for appellee Stark.

Milling Godchaux, Saal & Milling, of New Orleans, for other appellees.

OPINION

ST. PAUL, J.

This was originally a very complicated and much-involved case, as is evidenced by the fact that, although there is not a single disputed fact in the case, nevertheless it required 83 typewritten pages of transcript and 184 printed pages of brief merely to state the issues and develop the propositions advanced on one side or the other.

But during the argument before this court it ultimately developed that the case involved only a few comparatively simple issues which this court would be called upon to decide.

I.

Briefly stated, the question is whether the plaintiff, a state agency, established as part of the general levee system required by Const. 1879, arts. 213, 214 (Const. 1898, art. 238; Const. 1921, art. 16, § 1), may collect arrears of a certain produce tax levied by said board for the years 1919 to 1924, both inclusive, which this defendant C. Lagarde Company failed to pay on certain sugars manufactured by them in said district during said years.

II.

Said taxes were levied under the provisions of section 10 of Act 97 of 1890, creating said levee district, and have been held to be constitutional in principle. George v. Young, 45 La.Ann. 1232, 14 So. 137; Excelsior Planting & Mfg. Co. v. Green, 39 La.Ann. 455, 1 So. 873. And the taxes so levied constitute a lien on the produce on which they are levied, Act 65 of 1894, § 4, which (in that respect) has not been repealed by any subsequent legislation, which lien, however, is lost when the produce is removed from the parish in which it is raised.

III.

The statute which controls the decision of this case is Act 140 of 1902 (amending section 10 of Act 97 of 1890, aforesaid), which provides that said tax shall be collected by the sheriff of the parish in which the produce is raised "in such manner and under such regulations as the board may direct," but in all cases before the produce is removed from the parish.

The trial judge held that, because the board failed to provide the manner in which said taxes should be collected and to prescribe regulations for their collection, therefore said taxes could not be collected at all.

We do not agree with this. It is true that, since the board failed in its duty, no one was at fault for not collecting the taxes. But that does not mean that the taxes themselves were not due by the produce on which they were levied; for in fact the taxes were levied, and thus became due.

The object of the Legislature in providing that the taxes should be collected "in such manner and under such regulations as the board may direct" was merely to allow the board to prescribe a direct and summary manner of collecting such taxes without recourse to the courts. But, where the board has failed to provide such direct and summary process, then the ordinary civil process might have been resorted to, in case the tax was not voluntarily paid, and a judgment "in rem" obtained against the property liable for the tax. Barber Asphalt Co. v. Watt, 51 La.Ann. 1345, 26 So. 70; Fristoe v. Crowley, 142 La. 393, 76 So. 812, L. R. A. 1918C, 254.

IV.

When the Lagarde Company removed the produce from the parish without paying the tax, thereby depriving plaintiff of its lien on said produce, it thereby made itself personally liable for the amount of the tax, although not personally liable therefor before that. For the owner who removes, or secretes or converts, property subject to a lien, and thereby deprives the lienholder of his lien, becomes personally liable to the lienholder for the amount of the lien. Marvin v. Weider, 31 Neb. 774, 48 N.W. 825; Michalson v. All, 43 S.C. 459, 21 S.E. 323, 49 Am. St. Rep. 857.

V.

There are several reasons why Act 140 of 1902 is not unconstitutional because it levies a produce tax on sugar cane shipped out of this levee district and beyond the limits of any levee district,...