Soniat v. Board of State Affairs

• Decision Date: 03 November 1919
• Docket Number: 23338
• Citation: 83 So. 760,146 La. 450
• Court: Louisiana Supreme Court
• Parties: SONIAT v. BOARD OF STATE AFFAIRS et al

83 So. 760

146 La. 450

SONIAT v. BOARD OF STATE AFFAIRS et al

No. 23338

Supreme Court of Louisiana

November 3, 1919

Rehearing Denied February 2, 1920

Appeal from Sixteenth Judicial District Court, Parish of St. Landry B. H. Pavy, Judge.

Suit by Leonce M. Soniat against the Board of State Affairs and others for a judgment decreeing void an assessment for taxes. Judgment annulling the assessment in its entirety, and defendants appeal. Judgment annulled and plaintiff's demands rejected and suit dismissed, and judgment rendered in favor of L. Austin Fontenot, appearing as attorney for the Tax Collector, and against plaintiff in a certain sum as the commission and penalty imposed by statute, with legal interest thereon from date on which judgment shall become final until paid.

L Austin Fontenot and R. Lee Garland, both of Opelousas, for appellants.

E. B Dubuisson, of Opelousas, for appellee.

OPINION

Statement of the Case.

MONROE C. J.

`Plaintiff brought this suit in March, 1918, praying that the board of state affairs, the police jury of the parish of St. Landry, the assessor, and the tax collector be cited and that he have judgment decreeing void, in whole or in part, the assessment for the taxes of 1917 which had been placed upon some 18,000 acres of land situated in that parish and of which he is the owner; his complaint being that the actual cash value of the land as fixed by the board of state affairs is excessive, and that the assessment should be annulled in toto, or, should that view not prevail, then that the actual cash value as fixed by the assessor and the police jury sitting as a board of reviewers exceeds the value as fixed by the state board and thereby contravenes article 225 of the Constitution and Act 140 of 1916, p. 330, and should be annulled to the extent of the excess.

As shown by the evidence, plaintiff made no complaint of the assessment in question prior to the bringing of this suit, either to the assessor or the board of reviewers, though the roll was held open for correction, as required by law. The board of reviewers held its sessions during the month of June, and in July the roll was forwarded to the state board, which for state purposes placed a lower valuation on plaintiff's property than had been adopted by the assessor and board of reviewers for local purposes, and in August returned the roll, notifying the assessor of the change so made and directing him to hold the roll open to await its report of changes to be made by it for state purposes in the assessments of horses, mules, cows, sheep, goats, and vehicles; the board of reviewers considered the valuation which the state board had had thus placed on plaintiff's property, but declined to make any change in its own valuation; the report by the state board of the changes made by it in the assessments of animals and vehicles was made to the assessor in September, but there was a further delay in the matter of the closing of the roll by reason of the failure of the state board to complete its assessment of public utility corporations, which was not done until some time in November, and, in consequence of the changes and delay thus mentioned, the assessor was thrown behind in the matter of the completion of the roll and its delivery and filing, in triplicate, to the tax collector and in the offices of the auditor and recorder of mortgages, and he did not accomplish such delivery and filing until January 30, 1918. That delay had, however, no connection with assessments other than those above mentioned by which it was occasioned, as to which the last work was done by the board of reviewers in June, and by the state board prior to its return of the roll in August.

The allegations contained in articles 5, 6, and 14 of plaintiff's petition are admitted to be correct, and are to the effect that the actual cash value placed on the property here in question by the local authorities is $ 428,210, and by the state board $ 277,480; that 40 per cent. of $ 428,210, amounting to $ 170,280, was adopted as the assessment for purposes of local taxation, and 50 per cent. of $ 277,480, amounting to $ 138,740, as the assessment for purposes of state taxation; and that the total amount of taxes claimed from plaintiff is $ 8,519.57. Some testimony was taken, and some excluded, on the trial, upon the question of the actual cash value of plaintiff's land; but in the view that we take of the case we find it unnecessary that it should be considered.

Opinion.

The law regulating the assessment and collection of taxes, requiring returns to be made by the taxpayers, affording them opportunities to have their assessments corrected by the assessing officer, and providing for and limiting the time within which appeals may be made to the courts in that behalf, is to be found in articles 225 and 226 of the Constitution (amended and readopted as proposed by Act 168 of 1916), and Acts 170 of 1898, p. 358, 130 of 1902, p. 219, 63 of 1906, p. 96, 182 of 1906, p. 331, 194 of 1906, p. 348, 220 of 1910, p. 363, 140 of 1916, p. 330. Section 26 of Act 170 of 1898, p. 361 (amended and re-enacted by Acts 130 of 1902, § 3, p. 223, and 63 of 1906, § 2, p. 99), requires the taxpayer to bring his suit for the correction of his assessment on or before the 1st day of November of the year in which the assessment has been made, and we find no subsequent change in that respect.

According to the jurisprudence of this court (and, as to the returns, by express provision of law), it is a condition precedent to the exercise of such right that he shall have made his return as required by law and shall have availed himself of the opportunities afforded him to apply for the correction of his assessment to the officers authorized to make it, and while the roll is open for that purpose; and if he fails to comply with that condition, or having complied, fails to bring his suit within the prescribed limit of time, he loses the right to bring it and cannot thereafter be heard. In Shattuck & Hoffman v. New Orleans et al., 39 La.Ann. 206, 1 So. 411, it was held that (quoting the syllabus):

"The taxpayer, before bringing suit for the reduction or correction of an assessment, must, as a condition precedent, make the preliminary opposition thereto and application for redress provided for by law."

And that ruling has been affirmed in the following (among other) cases: State ex rel. Johnson v. Tax Collector, 39 La.Ann. 538, 2 So. 233; State v. V. & A. Meyer, 41 La.Ann. 436, 437, 6 So. 590; Brewing Co. v. Board, 41 La.Ann. 565, 6 So. 823; Oteri v. Parker, 42 La.Ann. 374, 377, 378, 7 So. 570; Insurance Co. v. Levi, 42 La.Ann. 432, 435, 7 So. 625; Leeds & Co. v. Hardy, 43 La.Ann. 810, 9 So. 488; Behan et al. v. Board, 46 La.Ann. 870, 875, 15 So. 397; Oil Co. v. Assessor, 48 La.Ann. 1350, 1358, 20 So. 1007; Liquidating Com'rs v. Tax Collector, 106 La. 130, 133, 30 So. 305; Marston v. Elliott, 138 La. 574, 581, 70 So. 519, Ann. Cas. 1917D, 94.

Where there is an alleged assessment of property that is exempt by law from taxation, or is not within the territorial jurisdiction of the assessor, or where the assessment has not been made by the assessor, or has not been completed, and in other like cases, the limitation of time within which an action may be brought for its correction is inapplicable, and an action in nullity may be brought, without regard to such limitation; since such alleged assessment is not an assessment within the contemplation of the law, is not, and can never become, the basis for the levy of a valid tax, and may be annulled and canceled from the records, as may any other unwarranted incumbrance upon a title. But, where officers charged with that duty have made and completed an assessment for the taxation of property which is subject to taxation and within their jurisdiction, there results an assessment which is presumed to be valid, unless and until, in a proceeding authorized by law and brought within the time and under the conditions prescribed by law, it be shown to fall below or to exceed some definite and determined limitation of valuation which the law has established; in which event, though it is not open to attack, in an action of nullity, as having no legal existence, it is open to correction, by an increase or reduction in the valuation, through the action above mentioned.

"A distinction," this court has said, "is to be drawn between suits to correct an assessment and suits which go to the inherent validity of an assessment and to the legality of the tax based thereon. In the first class are to be put those suits in which an assessment is complained of and attacked for overvaluation and misdescription of the property listed, involving merely the regularity or correctness of the assessment. In the second class are to be enumerated those actions attacking an assessment as void on account of radical defects, and drawing into question, not the correctness merely of an assessment, but the existence of any valid assessment." Ry. & S. S. Co. v. Sheriff, 50 La.Ann. 737, 742, 23 So. 948, 950.

And in another and more recent case it was said:

"The assessments are grossly excessive. * * * But the suit for the reduction of the assessments * * * is barred by the said statute [referring to Act 170 of 1898, § 26, p. 360]. As to them, the court is powerless to grant relief. A plain and positive provision of law cannot be disregarded even for the purpose of correcting gross injustice. * * * The contention of plaintiff's learned counsel [is] that assessments so grossly excessive as those here in question -- six times as large as they ought to be -- are absolutely null, in that they are not the result of an exercise of judgment on the part of the assessor, as the law requires...