Realty Owners' Protective Alliance, Inc. v. City of New Orleans

• Citation: 115 So. 444,165 La. 159
• Decision Date: 28 November 1927
• Docket Number: 26822
• Parties: REALTY OWNERS' PROTECTIVE ALLIANCE, Inc., v. CITY OF NEW ORLEANS et al
• Court: Supreme Court of Louisiana

115 So. 444

165 La. 159

REALTY OWNERS' PROTECTIVE ALLIANCE, Inc., v. CITY OF NEW ORLEANS et al

No. 26822

Supreme Court of Louisiana

November 28, 1927

Rehearing Denied January 18, 1928

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Proceeding by Realty Owners' Protective Alliance, Inc., against City of New Orleans and another to enjoin the further collection of a tax. Judgment for defendants, and plaintiff appeals.

Affirmed.

Richard A. Dowling and William R. Kinsella, both of New Orleans, for appellant.

Bertrand I. Cahn, City Atty., H. B. Curtis, Asst. City Atty., and Gus A. Llambias, Sp. Counsel for Sewerage and Water Board of New Orleans, all of New Orleans, for appellees.

OPINION

ST. PAUL, J.

On June 6, 1899, the property taxpayers of the city of New Orleans voted upon themselves until 1942 a special tax of two mills on the dollar of assessed value, as a basis for issuing bonds for some $ 12,000,000 for sewerage, water, and drainage purposes, which tax was approved by special constitutional legislative, and municipal authority. See the history thereof in full in State ex rel. Saunders v. Kohnke et al., 109 La. 838, 874, 33 So. 793.

I.

In petitioning the city council to submit to the voters the proposition for levying said tax, the property holders "further petitioned" that said tax should cease in a certain contingency, to wit, whenever the surplus net proceeds of a certain other tax, known as the "debt tax," and levied under Act 110 of 1890 (Const. 1898, art. 314), should suffice to pay the interest on said bonds. And the city council, in the ordinance levying said tax, No. 15391, C. S., "reserved the right and declared its intention" to cease levying said tax whenever said contingency should occur.

II.

Plaintiff, a property holder, seeks to enjoin the defendant from further collecting said two-mill tax, on the ground that the foregoing constituted "a contract" between the taxpayers and the city to cease levying said tax whenever said contingency came to pass, and that same has now come to pass because the surplus net proceeds of the other tax now more than suffice to pay the interest on said bonds.

III.

It is quite irrelevant for the purposes of this controversy to inquire whether the foregoing evidences "a contract" between the taxpayers and the city, for it is certain that there has never been any contract entered into between the state and the taxpayers in connection with this tax. The state merely gave the city authority to levy the tax and issue the bonds; it simply "legislated" on the subject. State v. Kohnke, supra.

IV.

Hence the state was quite free to levy any tax it saw fit, or (what amounts to the same thing) to continue or extend or increase any existing tax (within constitutional limits). But even if the proceedings could be said to be "fraught with strong elements of contract [with the state]," it is quite certain that the state could not by such a contract (i. e., with its own citizens relative to general taxation) tie its own hands in a matter relating to a subject within the domain of the general legislative power of the state and involving the public welfare of the entire community affected by it. State v. Kohnke, supra, citing Newton v. Mahoning County, 100 U.S. 548, 25 L.Ed. 710.

V.

Accordingly by legislative act and...