State ex rel. Ascension Red Cypress Co. v. New River Drainage Dist.

Citation87 So. 310,148 La. 603
Decision Date31 January 1921
Docket Number24019
CourtSupreme Court of Louisiana
PartiesSTATE ex rel. ASCENSION RED CYPRESS CO. v. NEW RIVER DRAINAGE DIST. et al

Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Philip H. Gilbert, Judge.

Mandamus proceedings by the State on the relation of Ascension Red Cypress Company against the New River Drainage District and others. From a judgment making alternative writ peremptory defendants appeal.

Judgment annulled, and suit dismissed.

C. C Weber, of Donaldsonville, for appellants.

Borah Himel, Bloch & Borah, of Franklin, and Howell, Wortham & Howell, of Thibodaux, for appellee.

OPINION

O'NIELL, J.

Defendants appeal from a judgment rendered in a mandamus proceeding, commanding the board of commissioners of the defendant drainage district to pay a judgment held by relator, and, if necessary, to levy a special tax for that purpose. The judgment appealed from is in the following language, viz:

"It is ordered, adjudged, and decreed that the alternative writ of mandamus herein issued be made peremptory, * * * commanding the said respondents to pay to said relator the amount of the judgment rendered in suit No. 2518, being the sum of $ 5,379.34, with interest thereon at the rate of 5 per cent. per annum from May 24, 1917, until paid, and the further sum of $ 31.15, as well as all costs of this proceeding; and to take such steps as are incidental and necessary under the law to enable them to pay said amount as the law provides; if necessary, levying and causing to be collected as provided by law a tax upon the property situated in said drainage district, within constitutional limits, sufficient in amount to pay and satisfy the said sum, in principal, interest, and costs, as aforesaid."

The defense to the suit is contained in an exception of no cause of action. The argument in support of the defense is threefold, viz:

(1) That plaintiff did not allege that the defendant corporation had any funds with which to pay the judgment, and that the evidence shows that the corporation has no funds on hand, nor revenues except taxes which have been funded into negotiable bonds and are dedicated to pay the bonds and the interest thereon.

(2) That the defendant board of commissioners has no authority to levy a tax, without submitting the proposition to a vote of the taxpayers of the district, or for any other purpose than to pay its bonded debt and the interest thereon.

(3) That that part of the decree which commands the board of commissioners "to take such steps as are incidental and necessary under the law to enable them to pay said amount," which part of the decree is in response to the prayer of relator's petition, is without force or effect, because the steps to be taken are not prescribed or pointed out, either in relator's petition or in the decree itself.

With regard to appellants' first and third defenses, it is well settled that the want of funds is a complete answer to a petition for mandamus to compel the governing authorities of a political corporation to pay a judgment against the corporation, unless the corporation has authority to collect revenues with which to pay the judgment. 18 R. C. L. (p. 227) § 151. The decree commanding the defendant board to pay the judgment adds nothing to the original judgment, which ordered the defendant board to pay the amount of the judgment, with interest and costs. The mandate to take such steps as are incidental and necessary to enable the board to pay the judgment is also unenforceable and without effect, because it leaves it optional with the members of the board to do whatever they may deem necessary. As a matter of fact, the board of commissioners had no funds with which to pay the judgment, at the time the suit was tried. It appears that there were surplus funds sufficient to pay the judgment, when the suit was filed, but the funds had been expended when the suit was tried.

The only remaining question is whether the board of commissioners has authority to levy the necessary tax; for the board cannot be legally commanded to levy the tax unless the authority has been conferred by legislative enactment. 18 R. C. L. p. 231, § 155.

The right of a political corporation or subdivision of the state to levy taxes must be conferred in terms. It is not to be implied from the mere fact that the Legislature has created the corporation. Cooley on Taxation (3d Ed.) 465.

Counsel for relator contend that drainage districts have authority to levy taxes without submission of the proposition to the taxpayers, and for purposes other than for paying their bonded indebtedness. But we do not find the authority conferred in terms in any statute on the subject of drainage districts. It is said that, by the terms of section 9 of Act 317 of 1910, as amended by Act 227 of 1914, the Legislature has dispensed with the necessity of submitting to the taxpayers a proposition of the commissioners of a drainage district to levy taxes. But an examination of the section of the law referred to discloses that the only case in which a tax or forced contribution can be levied without...

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    • April 21, 1947
    ...Board is empowered to levy taxes or assessments is found in State ex rel. Ascension Red Cypress Co. v. New River Drainage District, 148 La. 603, 87 So. 310. The fallacy of appellants' position lies, we think, in their misconception of the meaning of the word "surplus" with respect to the fi......
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