City of New Orleans v. Paciera

• Decision Date: 26 November 1934
• Docket Number: 33073
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. PACIERA

158 So. 1

180 La. 869

CITY OF NEW ORLEANS v. PACIERA

No. 33073

Supreme Court of Louisiana

November 26, 1934

Appeal from First Recorder's Court, Parish of Orleans; Robert J Skinner, Recorder.

Proceeding by the City of New Orleans against Anthony Paciera for alleged violation of the gasoline tax ordinances. From a judgment of conviction, the defendant appeals.

Affirmed.

Titche & Titche and Robert D. Samsot, all of New Orleans, for appellant.

Edward M. Robbert, City Atty., and Walter M. Barnett, Jr., Asst City Atty., both of New Orleans, for appellee.

OPINION

LAND, Justice.

Alfred M. Daspit, chief auditor of the gasoline tax department of the city of New Orleans, made an affidavit in the first recorder's court of that city, charging defendant with violating section 5 of Ordinance No. 14003, C. C. S., as amended by section 3 of Ordinance No. 14037, C. C. S., of the city of New Orleans. Defendant was convicted and sentenced to pay a fine of $ 25 or serve 30 days in default of payment.

The ordinances in question are known as the gasoline tax ordinances of the city of New Orleans.

Counsel for defendant filed two motions to quash the affidavit on the following grounds:

(1) That Ordinances No. 14003 and No. 14037, C. C. S., of the city of New Orleans, are unconstitutional on the ground that the same violated the constitutional provisions contained in article 14, § 24, of the Constitution of 1921.

(2) That, more particularly, section 5 of Ordinance No. 14003, as amended by section 3 of Ordinance No. 14037, C. C. S., of the city of New Orleans, is unconstitutional, null, and void, for the reason that it required dealers as defined in the ordinance to "secure, maintain, and keep for the period of two years a full and complete record of gasoline sold or purchased for consumption in the Parish of Orleans by said dealer, retailer, handler, or distributor, together with invoices, bills of lading, and other pertinent records and papers as may be required by the Gasoline Tax Department for the reasonable administration of this ordinance," without prescribing any definite criterion under which the discretion of the gasoline tax department of the city of New Orleans is to be exercised, and therefore enables the gasoline tax department to make invidious discriminations against dealers.

The motions to quash were overruled, and an appeal was granted defendant to this court on the question of the constitutionality of the gasoline tax ordinances.

Defendant was also granted an appeal to the criminal district court on the facts of the case, with which we are not concerned.

In Lacoste v. Department of Conservation, 151 La. 909, page 911, syllabus 15, 92 So. 381, 382, it was held that: "Act No. 135 of 1920, § 3, imposing a so-called severance tax of two cents on the dollar on skins or hides of wild animals or alligators, and authorizing the Department of Conservation to ascertain the actual price paid and determine the time when and the manner in which the tax shall be paid and adopt rules and regulations not contrary thereto to carry the act into effect in relation to the collection of the tax, and section 6, requiring records to be kept by buyers and dealers and to be open to inspection by the Department, delegates only executive and not legislative power and gives the Department no arbitrary power to oppress legitimate business."

The case of Lacoste v. Department of Conservation, cited supra, was affirmed by the United States Supreme Court, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437, and is applicable to the case at bar.

Unless the gasoline tax department of the city of New Orleans could require dealers, retailers, handlers, or distributors to keep "a full and complete record" of gasoline sold or purchased for consumption in the parish of Orleans, it would not be possible for that department to collect the gasoline tax in an efficient manner. It is specifically provided in the ordinance that the department may require such records as may be necessary for "the reasonable administration of this ordinance."

The State License Law, Act No. 190 of 1932, § 47, also requires the keeping of a reasonable record of gross sales, subject to inspection and examination by the supervisor of public accounts and his assistants or by any authorized accountants appointed by municipalities.

The same records are exacted by the ordinance from all dealers in gasoline, without distinction; and there is nothing in the terms of the ordinance itself that enables the department to make invidious discriminations against dealers.

The mere fact that a statute or ordinance might be misused or abused in its...