Gulf Refining Co. of Louisiana v. McFarland

• Decision Date: 11 July 1923
• Docket Number: 25892
• Citation: 154 La. 251,97 So. 433
• Court: Louisiana Supreme Court
• Parties: GULF REFINING CO. OF LOUISIANA v. McFARLAND, Supervisor of Public Accounts

97 So. 433

154 La. 251

GULF REFINING CO. OF LOUISIANA v. McFARLAND, Supervisor of Public Accounts

No. 25892

Supreme Court of Louisiana

July 11, 1923

Original Opinion of July 11, 1923, Reported at 154 La. 251.

LAND J. O'NIELL, C. J., ST. PAUL, J., dissents. BRUNOT, J. takes no part.

OPINION On Rehearing.

LAND, J.

Anapplication for rehearing was granted on behalf of defendant, in order that we might review that part of our former decision in which we required the defendant, supervisor of public accounts, in collecting the 3 per cent. severance tax, to give credit to plaintiff for the 2 per cent. license severance tax already paid, as of the date when it was paid.

A re-examination of the petition and prayer in this case discloses the fact that this is an injunction proceeding whose sole object is to restrain the defendant, supervisor of public accounts, from collecting the 3 per cent. severance tax imposed under Act 140 of 1922, on the ground that said tax and said act are unconstitutional.

The petition in this case neither alleges the payment of said license severance tax by plaintiff, nor claims credit for same on the amount of the severance tax to be collected during the year 1923. No such issue, therefore, is before us for decision in this case.

As was said by the United States Supreme Court:

"The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. * * * No stipulation of parties or counsel, whether in the case before the court, or in any other case, can enlarge the power, or affect the duty of the court in this regard." California v. San Pablo & T. R., 149 U.S. 308, 13 S.Ct. 876, 37 L.Ed. 747, 749.

Therefore, any discussion in this opinion as to whether plaintiff is entitled to judgment decreeing a credit for the license severance taxes paid, or whether the plaintiff can offset the amount of the severance tax to be collected by the state in 1923, with the debt due by the state to plaintiff for the amount of the license severance taxes paid, would be a discussion merely of a moot question.

Nor has this situation been altered by the admission in the record that plaintiff paid the license severance taxes, as said admission was objected to by counsel for defendant as irrelevant to the issues, and said objection is obviously sound and well taken. It cannot be contended, therefore, that the issues as created by the pleadings have been enlarged by the admission made in the case.

The money paid by plaintiff as license severance taxes, though wrongfully collected by the state, has gone into the public fisc, and, presumably, has been appropriated. Its withdrawal from the state treasury is prohibited by the Constitution, "except in pursuance of specific appropriation made by law." Const. 1921, art. 4, § 1.

This court, without any such issue properly...