City of New Orleans v. W. Horace Williams Co.

• Decision Date: 10 November 1947
• Docket Number: 38365.
• Citation: 212 La. 831,33 So.2d 653
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. W. HORACE WILLIAMS CO.

33 So.2d 653

212 La. 831

CITY OF NEW ORLEANS v. W. HORACE WILLIAMS CO.

No. 38365.

Supreme Court of Louisiana

November 10, 1947

Appeal from Civil District Court, Parish of Orleans Nat W. Bond, judge.

Henry G. McCall, City Atty., and Alden W. Muller, Asst. City Atty. both of New Orleans, for plaintiff-appellant.

Deutsch Kerrigan & Stiles and Breard Snellings, all of New Orleans, for defendant-appellee.

FOURNET Justice.

The W. Horace Williams Company, a commercial partnership engaged in the business in the City of New Orleans of contracting on both a fixed-fee and a cost-plus basis, having tendered and paid to the City of New Orleans an occupational license tax for the year 1946 based on its gross earnings within the territorial limits of the city for the year 1945, the city contending that such tax should be computed on the basis of the entire gross receipts of the partnership whether derived from work within or without the city, proceeded by rule to collect the difference between the amount of the tax tendered and paid and that allegedly due, plus the interest penalty and attorney fees as provided for in the ordinance levying the occupational tax. The city is now appealing from the judgment of the district court dismissing its suit.

The case was tried on an agreed statement of facts wherein it was stipulated that the defendant paid to the State of Louisiana as an occupational license tax for the year 1946 an amount based on its gross receipts in the sum of $625,058.97 for work performed throughout the state on a fixedfee basis, and on $79,783.07 for cost-pluscontracts, whereas the occupational license tax paid the City of New Orleans was based on fixed-fee work amounting to $86,811.84 and cost-plus work amounting to $13,868.44, being the amounts received for work actually done within the territorial limits of the City of New Orleans. It is further stipulated in this agreed statement of facts that 'No municipal license tax for the year 1946 has been demanded of or paid by this company to any other municipality for work performed outside of Orleans Parish.'

The Legislature of the State of Louisiana, in pursuance of the provisions of Section 8 of Article X of the Constitution of 1921, adopted at its Third Extra Session of 1934 a general occupational license tax act for the state as a whole, Act 15, and therein provided 'That any municipal or parochial corporation in the State shall have the right to impose a license tax on any business, occupation or profession herein provided; provided that all such license taxes shall conform to the provisions of Section 8 of Article X of the Constitution.' Section 42.

Availing itself of the authority thus conferred upon it by the legislature, the City of New Orleans, on December 4, 1945, adopted its Ordinance No. 16,357. This ordinance, for all intents and purposes, is identical with the 1934 act, as amended. In Section 19 thereof it is provided 'That every individual, firm, company or corporation carrying on the profession or business of contractor on a lump sum basis, or any other basis than cost-plus, shall pay a license taxed upon the gross annual receipts of said business, which license shall be fixed and graded, as follows, to wit' (the licenses to be levied in the respective classes and grades being given in detail). In this section it is further provided 'that every individual, firm, company or corporation carrying on the business of contractor on a cost-plus basis, commission or percentage plan, shall pay a license based upon the gross annual earnings from such business, which license shall be fixed and graded as in Section 3 of this Ordinance for those carrying on a commission or brokerage business.'

Counsel for the defendant are in error in their contention that 'This ordinance, like the State Act, makes no mention as to its territorial scope,' for in Section 58 of the ordinance is found the provision 'That all gross receipts derived from any mercantile business or occupation whatsoever, as hereinbefore provided, whether earned within or without the city shall form the proper basis upon which all licenses shall be assessed and collected by the Commissioner of Public Finance.' The corresponding article in the state act provides that 'except as otherwise in this Act provided, all gross receipts derived from any mercantile business or occupation whatsoever, as hereinbefore provided, shall form the proper basis upon which all licenses shall be assessed and collected by the tax collector.' Section 53. (Italics in the city ordinance section quoted are ours.)

The constitution, in Section 8 of Article X, not only provides that license taxes may be levied on such classes of persons associations of persons and corporations pursuing any trade, business, occupation, vocation or profession, as the Legislature may deem proper (with certain exceptions not pertinent here), but it also provides that such taxes may be classified, graduated, or progressive. The only limitation to be found in the constitution with respect to the city's right to levy such a tax is that found in this same section. It prohibits municipalities from imposing a greater license tax than is imposed for state purposes. Since the tax here sought to be levied is in fact equal to that levied by the state, it cannot be...