Roberts v. City of Baton Rouge
| Decision Date | 26 May 1958 |
| Docket Number | No. 43832,43832 |
| Citation | 236 La. 521,108 So.2d 111 |
| Parties | Wilfrid S. ROBERTS, d/b/a Robert's Esso Service Station, et al. v. CITY OF BATON ROUGE et al. |
| Court | Louisiana Supreme Court |
Durrett, Hardin, Hunter, Dameron & Fritchie; Cadwallader & Perkins, Baton Rouge, for plaintiffs.
William L. Murdock, City Atty., Robert E. Eatman, Asst. City Atty., Shreveport, Frank H. Peterman, City Atty., Alexandria, Haynes Harkey, Jr., City Atty., Monroe, A. R. Le Compte, City Atty., De Ridder, Arthur C. Watson, City Atty., Natchitoches, Alvin J. Liska, City Atty., Ernest L. Salatich and Dominic C. Grieshaber, Asst. City Attys., New Orleans, amici curiae.
R. Gordon Kean, J., Parish Attorney, John V. Parker, Asst. Parish Atty., Baton Rouge, for defendants-appellees.
The Court of Appeal, 1st Circuit, has certified questions of law to us for instructions, and under Sec. 4 of Rule XIII of this Court, the Court of Appeal has certified its findings of fact on which the said questions of law are predicated. Rather than submit our instructions on the questions of law certified and remand the case to the Court of Appeal for decision we exercise the privilege accorded us by Sec. 25 of Art. VII of our Constitution, LSA, of considering and disposing of the whole matter in controversy as though it had been appealed directly to this Court1
We consider the findings of fact of the Court of Appeal pertinent to the issues here involved are as follows:
'This is a declaratory judgment action brought by certain service station operators against the City of Baton Rouge and its treasurer. Plaintiffs seek judgment interpreting Section 62, Title 9 of the Baton Rouge City Code2, in the light of Section 24.1 of Article XIV of the Louisiana (LSA-) Constitution, and decreeing that plaintiffs are entitled to occupational licenses to operate service station Without including in the computation of the occupational license taxes due by them to the City, their gross sales of gasoline, motor oils and other motor fuels.
'The city ordinance in question affecting the occupational license tax owed by all businesses within the corporate limits including plaintiffs, provides that:
"The amount of the license tax levied herein in each case is hereby fixed, determined and ordained to be the same as that fixed, levied and collectible by the State of Louisiana under, and shall be graded in accordance with, the provisions of Louisiana (LSA-) Revised Statutes, Title 47, Sections 341--405, both inclusive, as amended, and all other applicable laws of Louisiana, all of which for the purposes of this ordinance are made a part hereof by reference as fully as if written herein in extenso.'
'The authority for the State and for local subdivisions to impose occupational license taxes is found in Section 8 of Article X of the Constitution of 1921, and which pertinently provides as follows:
"License taxes may be levied on such classes or persons, associations of persons and corporations pursuing any trade, business, occupation, vocation or profession, as the Legislature may deem proper * * * No political subdivision shall impose a greater license tax than is imposed for State purposes * * *'
'The State occupational license tax upon retail gasoline dealers such as plaintiffs provides that the gross sales by which it is measured shall include gasoline sales. LSA-R.S. 47:353.
'The City Treasurer of the City of Baton Rouge therefore requires plaintiffs-appellants to include in their gross sales (by which their city occupational license tax is measured) their sales of gasoline products, just as is done for the purpose of measuring the State occupational license tax due.
'Plaintiffs urge that the inclusion of their sales of gasoline products used in the generation of motive power violates the constitutional provisions found in Section 24.1 of Article XIV of the Constitution, which provides:
"No parish, municipality or other political subdivision, shall levy an excise, license or privilege tax upon gasoline, kerosene or other combustibles used in the generation of motive power; provided that nothing in this Constitution shall be construed to limit the right of the Legislature to levy State taxes on gasoline, benzine, naphtha and other motor fuels."
The district court, in rendering judgment in favor of the defendant City held:
(1) that an occupational license tax measured by the gross sales of gasoline in the generation of motive power is not an 'excise, license or privilege tax' on gasoline such as is prohibited by Sec. 24.1 of Art. XIV of the Louisiana Constitution, and
(2) in concluding that parish, municipal, and other local political subdivisions are not prohibited by said section and article from requiring the inclusion by service station operators of sales of gasoline products in the gross sales by which their local occupational license tax is measured.
On the basis of the conclusions reached by the district court and the factual findings submitted by the Court of Appeal, as aforesaid, the issue presented for our determination is whether an occupational license tax measured by the gross sales of gasoline used in the generation of motive power is an 'excise, license or privilege tax' on gasoline such as is prohibited by Sec. 24.1 of Art. XIV of the Louisiana Constitution.
Art. X, Sec. 8 of the Louisiana Constitution delegates to the Legislature the power to provide for the levying of license taxes upon certain trades, businesses and occupations, the pertinent part of which reads as follows:
'License taxes may be levied on such classes of persons, associations of persons and corporations pursuing any trade, business, occupation, vocation or profession, as the Legislature may deem proper * * *'
Art. X, Sec. 8 of the Constitution was last amended by Act 77 of 1934, and adopted by the electorate on November 6, 1934, which will be hereinafter referred to. Subsequent to this last amendment of Article X, Sec. 8 of the Constitution, Article XIV, Sec. 24.1 of the Constitution was amended by Act 395 of 1940 and adopted by the electorate on November 5, 1940, to provide as follows:
'No parish, municipality or other political subdivision, shall levy an excise, license or privilege tax upon gasoline, kerosene or other combustibles used in the generation of motive power; provided that nothing in this Constitution shall be construed to limit the right of the Legislature to levy State taxes on gasoline, benzine, naphtha and other motor fuels.'
The Legislature has acted under the authority of Art. X, Sec. 8 of the Constitution to levy a State occupational license tax and to provide that municipalities may levy similar taxes, provided that the said taxes conform to the State Occupational License Tax Laws. Pursuant thereto, Legislature adopted LSA-R.S. 47:341 and LSA-R.S. 47:397.
The City Council of the City of Baton Rouge imposed and levied the occupational license tax herein opposed upon '* * * each person who may be subject to such license tax under the Constitution and Laws of Louisiana, pursuing and conducting any business within the corporate limits of the City.' The amount of the said occupational license tax is provided for as abovestated, and as follows:
'The amount of the license tax levied herein the each case is hereby fixed, determined and ordained to be the same as that fixed levied and collectible by the State of Louisiana under, and shall be graded in accordance with, the provisions of Louisiana (LSA-) Revised Statutes, Title 47, Sections 341--405, as amended, and all other applicable laws of Louisiana, all of which for the purposes of this ordinance are made a part hereof by reference as if written herein in extenso.' (Sec. 62, Title 9, Baton Rouge City Code.)
Plaintiff contends that Sec. 24.1 of Art. XIV of the Constitution, as amended by Act 395 to 1940, prohibits any political subdivisions of the State from levying any tax on gasoline or other motor fuels which is either an excise tax, a license tax or a privilege tax; that once the amendment of 1940 became effective the Constitution of Louisiana authorizes the Legislature to permit the levying of license taxes by political subdivisions of the State, under authority of Art. X, Sec. 8, only if the license tax is not an excise, license or privilege tax on gasoline or other motor fuels, the levying of which is proihibited by Sec. 24.1 of Art. XIV; that therefore the attempt on the part of the City of Baton Rouge to collect an occupational license tax from these plaintiffs is unconstitutional insofar as it attempts to tax plaintiffs' gross receipts from sales of gasoline and other motor fuels.
On the other hand, the City of Baton Rouge contends that the tax imposed by the ordinance in question is a tax, under the authority of Art. X, Sec. 8 of the Constitution, on the privilege of pursuing a trade, occupation, vocation or profession and is not a tax upon the sale of gasoline and other motor fuels; that it is a separate and distinct tax from...
To continue reading
Request your trial
-
In re Ballard
...215 La. 939, 41 So.2d 837, 843 (1949); see also, Theriot v. Midland Risk Ins. Co., 694 So.2d 184, 186 (La.1997); Roberts v. City of Baton Rouge, 108 So.2d 111, 124 (La.1958); Melancon v. Mizell, 216 La. 711, 44 So.2d 826 (1950); State of La. ex rel. A.M., 1999 WL 455463 (La.1999). 101 City ......
-
New Orleans Fire Fighters Pension & Relief Fund v. City of New Orleans
...charged with administering the statute is given substantial and often decisive weight in its interpretation. Roberts v. City of Baton Rouge , 236 La. 521, 108 So.2d 111 (1958) ; Esso Standard Oil Co. v. Crescent River Port P. Assn. , 235 La. 937, 106 So.2d 316 (1958) ; and decisions therein......
-
New Orleans Fire Fighters Pension & Relief Fund v. City of New Orleans
...charged with administering the statute is given substantial and often decisive weight in its interpretation. Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958); Esso Standard Oil Co. v. Crescent River Port P. Assn., 235 La. 937, 106 So.2d 316 (1958); and decisions therein cit......
-
Bonnette v. Karst
...as are applicable to other laws. State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477, 486; Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111. The trial court stated that discussion before it centered around the question of whether retirement for less than full pay ......