Fontenot v. Hurwitz-Mintz Furniture Co., 36437.

• Court: Supreme Court of Louisiana
• Citation: 200 La. 210,7 So.2d 712
• Docket Number: 36437.
• Decision Date: 30 March 1942
• Parties: FONTENOT, Director of Revenue, v. HURWITZ-MINTZ FURNITURE CO. et al.

7 So.2d 712

200 La. 210

FONTENOT, Director of Revenue,
v.
HURWITZ-MINTZ FURNITURE CO. et al.

No. 36437.

Supreme Court of Louisiana

March 30, 1942

[200 La. 211] McCloskey & Moore and Joseph McCloskey, Jr., all of New Orleans, for plaintiff and appellee.

Robert A. Ainsworth, Jr., of New Orleans, for defendants and appellants.

McCALEB, Justice.

Rufus W. Fontenot, Director of Revenue, filed this summary proceeding to recover [7 So.2d 713] from the defendants certain Public Welfare Revenue Taxes allegedly due to the State of Louisiana and the City of New Orleans. The taxes sought to be recovered for the State were levied under Act No. 2 of 1938. The taxes claimed on behalf of the City of New Orleans were imposed by Ordinance No. 14,751 Commission Council Series, which was enacted in pursuance [200 La. 212] of the power conferred upon the City by Act No. 2 of 1938.

Plaintiff represents the State in his official capacity as Director of Revenue and appears for the City by virtue of Ordinance No. 14,778 Commission Council Series, which was enacted under authority of Paragraph (f) of Section 1 of the City Charter, as amended by Act 338 of 1936.

The defendants do not deny liability to the State of Louisiana for the taxes claimed by the plaintiff. However, they have resisted the demand for the taxes due the City of New Orleans on the ground that, since Act No. 82 of 1940, which repealed Act No. 2 of 1938 and City Ordinance No. 14,751, did not contain a saving clause reserving to the City the right to recover any taxes accruing under the ordinance, the City's claim has abated and the Director of Revenue is without authority to sue on its behalf.

The Judge of the District Court rejected this defense and gave judgment in plaintiff's favor. Defendants have appealed from the adverse decision.

By Act No. 2 of 1938, a tax of 1% was levied on the price of retail sales. This tax was to be collected by all dealers from their purchasers and the former were made responsible to the taxing authorities for the payment of the tax. In Section 15 of the Statute, the right was granted to the City of New Orleans to levy a tax similar to that levied by the State. In pursuance of the authority conferred by that section, the City of [200 La. 213] New Orleans enacted Ordinance No. 14,751 whereunder a City Sales Tax of 1% was imposed.

Act No. 2 of 1938 was repealed by the Legislature in 1940 by Act No. 82 of that year, wherein it was provided that the repeal would become effective on December 31, 1940, 'provided, however, that nothing herein contained shall be construed as a waiver by the State, because of any repeal herein contained, of any accrued taxes and penalties due the State under the provisions of Act 2 of 1938, and such taxes accrued, or which may accrue up to the effective date of said repeal, and penalties thereon shall be collected by the Collector of Revenue in the manner provided by said Act.' In Section 3 of the act, it is declared:

'That all laws or parts of laws as may conflict herewith, including all ordinances of any municipalities passed under authority of said Act No. 2 of the Legislature of 1938, are hereby repealed, * * *.'

Counsel for the defendants, while conceding that the taxes claimed on behalf of the City had accrued prior to the time the City Ordinance was repealed, maintains that the plaintiff is without right to recover these taxes because Section 3 of Act No. 82 of 1940 does not contain provisions reserving the right to the City to recover any taxes which accrued while the ordinance was in force but which have not been claimed until after the effective date of the repeal. In stressing this argument, counsel says that the intention of the Legislature to relieve the [200 La. 214] delinquent tax debtors of the City is manifest inasmuch as the repealing act specifically reserves to the State the right to collect accrued taxes and is silent with respect to the City.

Conversely, counsel for the plaintiff maintain that the language of the repealing statute does not indicate that the Legislature intended such a result. They assert that the reservation contained in Act No. 82 of 1940 respecting the right of the State to recover any accrued taxes due is broad enough to include any subdivision of the State which had passed ordinances under authority of Act No. 2 of 1938. Alternatively, they claim that the repeal of the City Ordinance levying the tax does not repeal Ordinance No. 14,778 under which the Director of Revenue is appointed as agent for the City to collect taxes due it and that, therefore, the repeal of the taxing ordinance has not abrogated plaintiff's authority to sue for and collect accrued taxes levied under it. And, finally, counsel maintain that, if the repealing statute is interpreted to mean that the Legislature intended to release tax debtors of the City for any taxes which had accrued under the...