Ewell v. Board of Sup'rs of Louisiana State University and Agr. and Mechanical College, 43742

• Decision Date: 10 February 1958
• Docket Number: No. 43742,43742
• Citation: 234 La. 419,100 So.2d 221
• Parties: Dave H. EWELL (Louisiana Agricultural Supply Co., Inc.) v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE.
• Court: Louisiana Supreme Court

Page 221

100 So.2d 221

234 La. 419

Dave H. EWELL (Louisiana Agricultural Supply Co., Inc.) v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE.

No. 43742.

Supreme Court of Louisiana.

Feb. 10, 1958.

D'Amico & Curet, Baton Rouge, for plaintiffs-appellants.

Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defendant-appellee.

SIMON, Justice.

The appellants seek to enjoin the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (hereinafter called Board of Supervisors of L.S.U.) from issuing and selling certain bonds under and by virtue of a resolution adopted by it, duly authorized under the provisions of Act 230 of 1954, the constitutionality of which is assailed herein.

Act 230 of 1954 authorizes the sale of bonds aggregating $850,000 for the purpose of constructing, furnishing, and equipping certain buildings on the campus of the University at Baton Rouge, Louisiana; of providing facilities for carrying out the duties and responsibilities of the state chemist as set forth in LSA-R.S. 3:1024, 3:1025, 3:1312, 3:1892 and Act 501 of 1952 (LSA-R.S. 3:1601--1609); and for the housing of the State Seed Laboratory. For the payment of said bonds the said Sec. 9 of Act 230 of 1954 authorizes the pledging of revenues to be received from the enforcement of LSA-R.S. 3:1311--1318, LSA-R.S. 3:1891--1898 and LSA-R.S. 3:1601--1609 (Act 501 of 1952), which statutes respectively provide regulations for the sale of fertilizers, commercial feeds and pesticides.

The relator and intervenor contend that the above three agricultural statutes are regulatory statutes, designed and intended for the public protection and welfare and enacted in the exercise of the state police power, and that therefore the pledging of the revenues as above stated constitutes a prohibitive abridgment of the exercise of the police power of the State. LSA-La.Const. of 1921, Art. 19, Sec. 18.

The respondent contends that the licenses, fees and penalties levied under the said feed, fertilizer and pesticide statutes, were levied in an exercise of the taxing power enjoyed by the Legislature, and that therefore Act 230 of 1954, pledging said revenues, is constitutional. La.Const. of 1921, Art. 10, Sec. 1.

The district court sustained the contention of the respondent.

It is conceded that the State has the authority to levy licenses, fees and penalties for the sale and inspection of fertilizer, feeds and pesticides either as revenue-producing measures under the taxing power of the Legislature, or as regulatory measures under its police power. It is also conceded that the constitutionality of Act 230 of 1954 hinges on whether the said levies were imposed as revenue-producing or regulatory measures. If the former, then Act 230 of 1954 is constitutional and the respondent has been properly authorized thereunder to borrow money and pledge the proceeds of the levies so dedicated by it to secure the payments of the bonds or other evidences of indebtedness. If the latter, then the said act is unconstitutional in that any enactment by the Legislature that pledges the proceeds of charges imposed under its police power would constitute an impairment thereof that specifically contravene Act. 19, Sec. 18 of the La.Const. of 1921.

It is fundamental under our system of law that the power of taxation is vested exclusively in the Legislature. La.Const. of 1921, Art. 10, Sec. 1.

A license may be defined as the formal permission granted by a sovereign, generally for a consideration, to a person, firm or corporation, to pursue some occupation or to carry on some business without which the act permitted would be illegal. City of Shreveport v. Brister, 194 La. 615, 194 So. 566; Monsour v. City of Shreveport, 194 La. 625, 194 So. 569.

There are two kinds of licenses, one of which requires a license fee imposed for the purpose of raising revenue, and the other imposed as a police regulation. Parish of East Feliciana v. Levy, 40 La.Ann. 332, 4 So. 309; State v. Hammond Packing Co., 110 La. 180, 34 So. 368; State v. American Ry. Express Co., 159 La. 1001, 106 So. 544; Lionel's Cigar Store v. McFarland, 162 La. 956, 11 So. 341; Giamalva v. Cooper, 217 La. 979, 47 So.2d 790. A license imosed for revenue is an exercise of the taxing power and is in effect a tax. La.Const. Art. 10, Secs. 1 and 8. Parish of East Feliciana v. Levy, supra; State v. Schofield, 136 La. 702, 67 So. 557; Mouledoux v. Maestri, 197 La. 525, 2 So.2d 11. a license imposed for the purpose of regulation and the protection of the public health, morals and general welfare is an exercise of the police power of the State. State v. Schofield, supra; City of Shreveport v. Brister, supra; De Gruy v. Louisiana State Board of Pharmacy, 141 La. 896, 75 So. 835.

An examination of the fertilizer statute (LSA-R.S. 3:1311--1318) discloses that it provides regulations for the sale of commercial fertilizer in the State of Louisiana, defines the powers and responsibilities of the Commissioner of Agriculture and Immigration and of the state chemist, and imposes licenses, fees, fines and penalties in connection with the sale thereof. In particular, LSA-R.S. 3:1317 provides for the disposition of funds derived from the collection of inspection fees, fines or other sources incident to the operation of this statute and directs that all monies so derived shall be deposited in the general fund of the state treasury, two-thirds thereof to be made available to the commissioner for defraying expenses for the inspection of fertilizer or for such other purposes as may be deemed necessary by him, and one-third thereof to be transmitted quarterly to the state chemist to be used for such purposes as they contribute to the knowledge of the properties, values and proper use of commercial fertilizers in this State.

The feed statute (LSA-R.S. 3:1891--3:1898) provides regulations for the sale of commercial feeds in the State of Louisiana, defines the duties and the powers of the Commissioner of Agriculture and Immigration and of the state chemist, imposes licenses, fees, fines and penalties in connection with the sale of such feeds, and directs the disposition of the funds collected therefor. LSA-R.S. 3:1897 provides that all funds derived from the collection of inspection fees, fines or other sources incident to the sale of commercial feeds shall be deposited in the general fund of the state treasury, two-thirds thereof to be made available to the commissioner and one-third thereof to be transmitted quarterly to the state chemist.

The pesticide statute (LSA-R.S. 3:1601--1609, Act 501 of 1952) regulates the sale and purity of pesticides or agricultural poisons, defines the duties and powers of the Commissioner of Agriculture and Immigration and of the state chemist, provides for the registration, inspection and analyses of all pesticides sold or exposed for sale in Louisiana, and imposes registration fees and fines and penalties for violation of the provisions of this act. In particular, LSA-R.S. 3:1606 provides for the disposition of funds derived from the collection of registration fees, penalties, fines or other sources incident to the sale of pesticides, directing same to be deposited in the general fund of the state treasury, allotting one-half thereof to be made available to the commissioner and one-half to be transmitted annually to the state chemist.

Thus, in short, each of the said agricultural statutes provides for the issuance of licenses for the sale of the various products covered thereby for the levying of certain fees for the issuance of said licenses, for certain inspection services and for the levying of fines and penalties. Each directs the disposition of the monies derived from the collection of registration fees, penalties, fines or other sources incident to the operation of the particular statute, directing same to be deposited in the general fund of the state treasury and allotting same in certain proportions to the Commissioner of Agriculture and Immigration and to the state chemist, whose duties are therein defined.

The appellants contend that the prime purpose of the three acts is to regulate the sale of fertilizer, feeds and pesticides for the protection of and for the general welfare of the public and that the levy of fees, licenses and penalties were therefore imposed under an exercise of the police power. Th...