A. Clason & Co. v. The City of New Orleans

• Decision Date: 02 January 1894
• Docket Number: 11,285
• Citation: 14 So. 306,46 La. Ann. 1
• Parties: A. CLASON & CO. v. THE CITY OF NEW ORLEANS
• Court: Louisiana Supreme Court

14 So. 306

46 La.Ann. 1

A. CLASON & CO. v. THE CITY OF NEW ORLEANS

No. 11,285

Supreme Court of Louisiana

January 2, 1894

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

H Heidenhain, for Plaintiff and Appellee.

E. A O'Sullivan, City Attorney, and Henry Renshaw, Assistant City Attorney, for Defendant and Appellant.

OPINION

NICHOLLS C.J.

Plaintiffs allege themselves to be a firm domiciled in the city of Manchester, England, and doing business in the city of New Orleans.They aver that on October 14, 1892, through their representative in that city, Ernest Overbeck, they were served with a notice of threatened seizure (which they annexed to their petition) by the treasurer of New Orleans, calling upon them for the payment of a city tax of 1892 amounting to $ 400, besides interest and costs, based upon an alleged assessment on the sum of $ 20,000 on money at interest and cash.

They allege that during the year 1892they had no money at interest or cash in the city of New Orleans, and therefore said assessment is absolutely null and void.

That in pursuance of said notice the said treasurer had placed a keeper at their office, and claimed to have seized other property of theirs not assessed, all of which proceedings are null and void, arbitrary and unwarranted.

That if they owe any tax to the city of New Orleans, which is denied, then the proceedings of the treasurer are premature, because they have until the 1st of November to bring a direct action to cancel or reduce said assessment.

That they have taken all necessary legal steps to have said assessment canceled without success.

That they fear that, unless restrained, the treasurer would persist in his efforts to collect said illegal tax by the seizure and sale of property of theirs not liable therefor, and otherwise harass them to their great detriment and injury.

They prayed for an injunction restraining the city of New Orleans from attempting to collect the said tax by the seizure and sale of their property -- for citation upon the city and for a judgment in their favor perpetuating the injunction and annulling the assessment.

The injunction asked for was granted.

The notice referred to in the petition is as follows:

"NEW ORLEANS, October 14, 1892.

"To A. Clason &Co., No. 45 Union Street:

"By authority of the laws of the State of Louisiana and ordinances of the city of New Orleans demand is hereby made on you for the payment of city taxes for the year 1892, as per assessment for said year on money at interest, cash, etc.Amount of assessment, $ 20,000.

Amount of tax at 2.02

$ 404 00

10 per cent. interest from June 23, 1892

12 58

Advertising

Notices

Keepers at $ 1.50 per day, 1 day (10-14)

1 50

Total

$ 418 28

"In default whereof your property will be seized and sold, according to law.

(Signed)

CHARLES H. SCHENCK,

Treasurer of the City of New Orleans."

The city, reserving the benefit of any and all exceptions to which it might be entitled, filed an answer denying all and singular the allegations of plaintiffs' petition, and excepting that the State tax collector had not been made a party to the suit.It prayed that it be dismissed, with judgment in its favor.

No action seems to have been taken upon this exception.On trial of the case judgment was rendered in favor of the plaintiff and against the city of New Orleans, perpetuating the injunction issued and restraining the city from attempting to collect the tax claimed by it.Defendant has appealed.

During the trial a copy from the assessment rolls of the assessment against A. Clason & Co. was filed.It is as follows:

"Sq. No. 228, Union, Gravier, Carondelet and Baronne streets; Arthur Clason & Co., cotton buyers.

"Money loaned on interest, all credits and all bills receivable for money loaned, and all credits of any and every description, $ 10,000.

"Money in possession, on deposit or in hand, $ 10,000."

Only one issue is presented to us for consideration, that of the liability of the plaintiffs to taxation on moneys standing to their credit in bank.

The plaintiff is a commercial firm having its domicil in Manchester, England.It has an office in New Orleans at which its sign is displayed, and it pays a license for the privilege of carrying on its business.Its business in this State is confined to making, through a clerk or agent stationed here, purchases of cotton for shipment to the house in Europe.Its operations are extensive, requiring an outlay varying from $ 900,000 to $ 1,200,000 per annum for its cotton purchases, which average about 30,000 bales a year.The agent of the firm, in his testimony says that the money used to buy and pay for the cotton is raised through exchange."When he gets an order to purchase he pays for it when shipped -- he draws on the house in Manchester and gets the money from the bank.He delivers a bill of lading, and against that billhe draws a bill of exchange, which he deposits in bank and draws a check to pay for the cotton.He sells the...