Gaither v. Green

• Decision Date: 01 March 1888
• Docket Number: 10,123
• Citation: Gaither v. Green, 40 La.Ann. 362, 4 So. 210 (La. 1888)
• Court: Louisiana Supreme Court
• Parties: MRS. VARINA B. GAITHER v. T. K. GREEN, TAX COLLECTOR, ET AL

4 So. 210

40 La.Ann. 362

MRS. VARINA B. GAITHER v. T. K. GREEN, TAX COLLECTOR, ET AL

No. 10,123

Supreme Court of Louisiana

March 1, 1888

Rehearing refused.

APPEAL from the Ninth District Court, Parish of Concordia.Young, J.

Conner & Conner and J. N. Luce, for Plaintiff and Appellee.

Steele Garrett & Dagg, for Defendants and Appellants.

OPINION

WATKINS J.

The questions raised in this case are the legality and constitutionality of the five mill district levee tax that was levied in 1886 for the Fifth Levee District.

The plaintiff's contentions are:

First -- That if the tax is claimed to have been levied by the Comisioners of the Fifth Levee District at a meeting alleged to have been held on the 22d of January, 1886, at Delta, Louisiana, it is null and void because there was, in point of fact, no such meeting held, and no such tax levied; but that three members of said Board of Levee Commissioners did meet at Vicksburg, Mississippi, on the night of the said 22d of January, and then and there attempt to levy this pretended, false and fraudulent tax.

Second -- That if the legality of said levy be conceded in this respect, then it is null and void, because act 33 of 1879, creating the Fifth Levee District, was repealed by act 44 of 1886, and such taxes as may have been levied under the former, and not collected prior to the passage of said repealing act, were thereby abrogated, and their collection cannot be now enforced in consequence thereof.

Third -- That it said tax was levied by the General Assembly in section 8 of said repealing statutes, it is unconstitutional and void, because said section, thus construed, violates articles 203 and 214 of the Constitution.

On the trial, the district judge held that the tax which was levied by the Commissioners of the Fifth Levee District on the 22d of January, 1886, was abrogated by reason of the repeal of the law, under the authority of which the levy was made; that, in so far as section 8 of the repealing statute was intended to operate as levy of said five mill tax by the General Assembly, the law was unconstitutional, and could not be enforced; and from a judgment annulling the tax and perpetuating plaintiff's injunction, the defendant has appealed.

I.

The official minutes of the proceedings of the Board of Levee Commissioners show, that they levied the tax in question at a meeting, duly convened and held at Delta, Louisiana, on the 22d of January, 1886.

Plaintiff's counsel sought to impeach this record with parol evidence, but the introduction of it was successfully resisted by defendants, on the grounds, viz:

First -- That the official minutes of the board constitute a public record which imports absolute verity on its face, and same cannot be contradicted by parol, nor attacked in collateral proceedings to which said commissioners are not made parties.

Second -- But, if parol proof be deemed admissible, that F. S. Shields was not a competent witness by whom to prove its falsity, because he was a member of the board and attested the genuineness and correctness of said minutes as the secretary of the board.

It is elementary that parol evidence cannot be received for the purpose of impeaching or contradicting the records of judicial proceedings and the decrees of courts; nor for the purpose of explaining or amplifying a legislative or congressional enactment; and it is contended, on the part of the defendant, that a similar protection is thrown around the proceedings of such political or municipal corporations as the Legislature may create.

But, in our view of this question, it cannot be examined and decided in this collateral way, and in a suit to which the commissioners, who levied the tax, are not made parties.

It is so held by Judge Cooley in his treatise on taxation in the following terse and apposite language:

"It is generally held that the returns and certificates required of an officer, in the performance of official duty, are to be taken in the proceeding in which they are made, as of unquestionable verity.They are not to be attacked, and proof entered into, in a collateral proceeding, to which the officer is not a party, to show that they are false."Cooley on Taxation, p. 195.

This principle is in consonance with the views expressed by Mr. Justice Dillon on the subject:

"Parol evidence, in a collateral action, cannot be received to contradict the records of a public corporation, required by law to be kept in writing, or to show a mistake in the matters therein recorded.

"The remedy is to have him (the officer), if in office, to correct the record according to the truth."1 Dillon's Munic.Corp., Sec. 236.

This opinion is maintained by the courts of our sister States, and the following quotation is selected from a leading case in Connecticut:

"If a town corporation makes an erroneous record of its proceedings, this cannot be contradicted in a collateral action.

"In such action the record is conclusive.If false, and the corporation will not correct the record, a party interested may, by mandamus, compel it to make the correction."Boston Turnpike Company vs. Pomfut,20 Conn. 500.

But even this remedy must be seasonably applied.

It will be too late to resort to mandamus after the officers of the board, or corporation, have become functus officii.

On this subject Mr. High says:

"Mandamus will not go to a board of supervisors, requiring them to make corrections in the assessment of taxes for the county, after the assessments have been completed, and warrants have been issued to the receiver of taxes, and the matter has passed beyond the control of the supervisors, since the writ would be nugatory if issued, and the rule is well established that mandamus will never issue when it would be nugatory, from want of power in the respondent to perform the act required."High's Ex. Legal Rem., Secs. 140, 141.

This agreement, in opinion of text writers of first ability, appears to our minds conclusive and their reasoning irresistible.

It is equally clear to our minds that this is a collateral proceeding -- a third opposition, coupled with an injunction against the enforcement of the tax, and wherein the tax collector is the soledefendant.

The Legislature required the commissioners to levy the tax "payable on the assessment roll" of each current year.Sec. 8 act 33 of 1879.

It imposed upon them no other duty.That duty is separate and quite distinct from that imposed on the assessor.

The law has confided the levy, assessment and collection of the special tax in question to three sets of officials:

1.Its levy, to the Board of Levee Commissioners.

2.Its extension on the assessment roll, to the parish assessor.

3.Its collection, to the State tax collector.

There is, between their respective duties, a line of...