Hollingsworth v. Thompson

• Decision Date: 01 January 1893
• Docket Number: 11,142
• Citation: 12 So. 1,45 La.Ann. 222
• Court: Louisiana Supreme Court
• Parties: A. M. HOLLINGSWORTH ET AL. v. A. R. THOMPSON, TAX COLLECTOR

12 So. 1

45 La.Ann. 222

A. M. HOLLINGSWORTH ET AL. v. A. R. THOMPSON, TAX COLLECTOR

No. 11,142

Supreme Court of Louisiana

January 1, 1893

APPEAL from the Second District Court, Parish of Bossier. Watkins, J.

Land &amp Land and Alexander & Blanchard, for Plaintiffs and Appellants.

Bell &amp Randolph, for Defendant and Appellee.

OPINION

WATKINS, J.

The object of this suit, and the prayer of the plaintiffs' petition is that the tax collector of the parish of Bossier be restrained and perpetually enjoined from collecting from them "the ten mill tax, the acreage tax, and the tax on cotton, levied for the year 1892" by the commissioners of the Bossier Levee District, under and in alleged conformity to the provisions of Act 89 of 1892, and that it be adjudged and decreed that said act "is not a law or statute of the State of Louisiana," and that the levy of said taxes is illegal, unconstitutional and void.

It is further alleged and prayed that, if it is ascertained and decided that said act was passed and approved in pursuance of the forms prescribed and required by the Constitution and laws of the State, said levy of taxes should be decreed null and void, because it is violative of the State and Federal Constitutions.

The grounds on which the foregoing relief is demanded are particularized and stated at length, and circumstantially, in the plaintiffs' petition, to be, that said Act 89 of 1892 -- it being an act to create the Bossier Levee District of the State of Louisiana -- was published and promulgated as a law of this State, whereas it is a fact that said act was never passed or enacted by the General Assembly of the State according to requirements of the Constitution and parliamentary law, for the reason that there was introduced and passed in the House of Representatives a bill with the same title as that of said Act 89 of 1892, which was thereafter sent to the Senate, and concurred in with certain amendments, five in number. That the said bill, with its amendments, was thereupon returned to the House of Representatives for its concurrence in said Senate amendments. That among said amendments was one -- it being the fifth or last in regular order of adoption -- purporting that there shall be no compensation or salary allowed to any levee commissioner for services rendered as such other than actual expenses, to be ascertained and allowed by the board; and that the House of Representatives, upon considering and passing upon the said Senate amendments concurred in the four preceding amendments by a yea and nay vote, as required by the Constitution, but "that said fifth amendment was not called up, read or voted on in said House * * * and was not concurred in by said House, nor acted on in any manner by either House from and after its adoption by the Senate, as hereinbefore set forth," as required by Art. 38 of the Constitution.

That the journal of the House of Representatives does not show any concurrence by the House in said Senate amendment No. 5, and that for the want of said concurrence said bill failed to become a law or enactment of the General Assembly, and was on that account improperly and unlawfully signed and promulgated as a law.

Petitioners represent that the Governor of the State appointed, under the aforesaid act, levee commissioners, who convened, organized and levied the taxes complained of as illegal, on the ground that the legislative act is illegal and unconstitutional for the reasons and causes we have enumerated; and, further, because, if otherwise valid, it is void, because it conflicts with the Constitutions of the State and the United States, in that (1) it authorizes a tax of ten (10) mills to be levied upon all property within said levee district subject to taxation; and (2) the levy of a forced contribution of five (5) cents an acre on each and every acre of land within said district that is alluvial; and, further, because, in the matter of said assessments, the said law contains no provision for notice to the tax-payer, and affords him no opportunity to be heard on the question of the listing and valuation of his property before any officer, board or court; but, on the contrary, makes the tax assessor an arbitrary judge as to what lands are subject to taxation, and what are exempt, and as to what persons shall be assessed and the valuation thereof -- thus depriving petitioners of their property without "due process of law," in violation of the Constitution of the United States, and depriving them of "the right of testing the correctness of their assessments before the courts of justice" within the intendment of the provisions of Art. 203 of the Constitution of the State.

Defendant's answer admits the levy, assessment and proceedings having been inaugurated for the collection of the tax as well as the forced contribution complained of, but it avers the legality and constitutionality of the act, and alleges that same was regularly passed and approved in accordance with forms of law and the requirements of the Constitution.

It distinctly and particularly alleges that Senate amendment No. 5 was concurred in by the House of Representatives, and that such concurrence is shown by the journals of the Senate and House of Representatives.

"He further avers that if the court should find that the House journal does not particularize the said amendment, as it may appear in the purported printed journals, that the failure to particularize is an omission and mistake and error of the printer or minute clerk of the House, and that the true record and journal of the House and the engrossed bill and endorsements thereon show that the fifth Senate amendment, as well as all the other amendments, were concurred in by the House." (Plaintiff's brief.)

It finally denies that said act violates any article of the State or Federal Constitution, or that it contemplates the taking of property without due process of law.

On the trial there was judgment in favor of the defendant, and the plaintiffs have appealed.

The two propositions that are thus presented for consideration and decision are, (1) whether Act 89 of 1892 is unconstitutional, intrinsically, and (2) whether it is constitutional extrinsically.

I.

The effort is made by the plaintiffs to show by the legislative journals of the session of the General Assembly of 1892 that the published and authorized statutes of that year contain an incorrect report of the law as it was actually and really enacted; and that the proof afforded by the journals discloses that the original bill, as it was adopted in the House of Representatives where it originated, was amended in the Senate, and that the amendments were not subsequently concurred in by the House of Representatives. That it shows that unless the proposed amendments were accepted by the House of Representatives, there was no concurrence of the two houses of assembly, and the unconstitutionality of the whole statute necessarily follows:

Looking into the journals we find the following pertinent facts, to-wit:

Senate Journal, June 23.

"House Bill No. 257.

'By Mr. Boggs:

"An Act to Create the Bossier Levee District of the State of Louisiana. * * * * * * * * * * *

"Reported favorably by the Committee on Agriculture, Commerce and Levees, with the following amendments, which were read: In line 17, section 1, page 3, after the word 'dividing' strike out the words, 'township 20 and 21 N.,' and insert in lieu thereof the words, 'the north half from the south half of township 20 N.'

In line 26, section 1, page 3, after '21 N.,' strike out the figures '19 and 20,' and insert in lieu thereof the words, 'and the south half of township 20 N.'

"In line 1, section 2, page 5, after the word 'act,' strike out the word 'four,' and insert in lieu thereof the word 'five.'

In line 13, section 3, page 6, after the word 'times,' add the words, 'and at such place as is most convenient.'

"Add the following at the end of section 3: 'There shall be no compensation in salary allowed to any commissioner for his service as such; provided, however, the board may allow to each commissioner the actual expenses incurred by him in attending the meetings of the board and while engaged in the performance of duties ordered by the board.'

"On motion of Mr. Stroud, the amendments were adopted.

"The bill was read in full as amended.

"Mr. Stroud moved that the bill be passed to its third reading.

"The motion was agreed to. (See pp. 250-251.)"

June 27.

"The bill passed the Senate on a yea and nay vote, the title was read and adopted, and a motion to reconsider laid on the table. (See p. 277.)"

House Journal, June 28.

"Senate returned, 'with amendments,' House Bill No. 257. (See p. 503.)

House Bill No. 257.

"By Mr. Boggs:

"An Act to Create the Bossier Levee District of the State of Louisiana * * * * * * * * * * * was taken up with the following Senate amendments:

"In line 17, section 1, page 3, after the word 'dividing,' strike out the words, 'township 20 and 21 N.,' and insert in lieu thereof the words 'the north half from the south half of township 20 N.'

"In line 26, section 1, page 3, after the figures '19,' strike out '20 and 21 N.,' and insert in lieu thereof the words, 'and the south half of township 20 N.'

"In line 1, section 2, page 5, after the word 'act,' strike out the word 'four,' and insert in lieu thereof the word 'five.'

"In line 13, section 3, page 6, after the word 'times,' add the words, 'and at such places as is most convenient.'

"Mr. Boggs moved that the House do now concur in the Senate amendments.

"The roll being called resulted as follows:

"Yeas * * * * *

"Total, 76.

"Nays, none.

"Absent * * * * *

"And the House concurred in the Senate am...