State ex rel. Chess & Wymond Co. of Louisiana v. Grace, 34388

• Court: Louisiana Supreme Court
• Writing for the Court: HIGGINS, Justice.
• Citation: 188 La. 129,175 So. 825
• Parties: STATE ex rel. CHESS & WYMOND CO. OF LOUISIANA v. GRACE. STATE ex rel. LAZARUS v. SAME
• Decision Date: 21 June 1937
• Docket Number: 34388,34389

175 So. 825

188 La. 129

STATE ex rel. CHESS & WYMOND CO. OF LOUISIANA
v.
GRACE.

STATE ex rel. LAZARUS
v.
SAME

Nos. 34388, 34389

Supreme Court of Louisiana

June 21, 1937

Rehearing Denied July 8, 1937

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; Charles A. Holcombe, Judge.

Proceedings by the State, on the relation of the Chess & Wymond Company of Louisiana and Eldon S. Lazarus, respectively, for a writ of mandamus to Lucille May Grace, register of the state land office. From a judgment of dismissal, relators appeal.

Affirmed.

George Wesley Smith, of Monroe, S.W. Plauche and N. F. Anderson, both of Lake Charles, and Thompson L. Clarke, of Monroe, for appellant Chess & Wymond Co.

Lazarus, Weil & Lazarus, of New Orleans, for appellant Eldon S. Lazarus.

Gaston L. Porterie, Atty. Gen., Lessley P. Gardiner, Asst. Atty. Gen., and Henry B. Curtis, Sp. Asst. to Atty. Gen., for appellee Lucille May Grace.

Harry P. Gamble, of New Orleans, Rownd & Tucker, of Hammond, and William W. Ogden and Rodney P. Woods, Jr., both of New Orleans, amicus curiae.

Emmet Alpha, of New Orleans, amicus curiae, for Property Owners Ass'n of New Orleans and others.

HIGGINS, Justice. ODOM and PONDER, JJ., dissent. O'NIELL, C. J.

OPINION [175 So. 826]

[188 La. 131] HIGGINS, Justice.

This is an appeal from a judgment holding that Act No. 183 of the Legislature of 1936, amending and re-enacting Act No. 161 of 1934 and Act No. 14 of the Fourth Extra Session of 1935, is unconstitutional, being violative of the provisions of article [188 La. 132] 4, section 13, of the Constitution of 1921. The crux of the case is whether or not the provisions of the statute are separable, for one part of the act is so obviously unconstitutional, its invalidity is conceded. However, relators contend that the provisions of the act are separable, i. e., that the unconstitutional part does not affect the valid part, and therefore the legal expression of legislative will should be enforced. Respondents argue that the purposes of the statute, as expressly declared therein to be the intention of the members of the Legislature, are so interwoven that the unconstitutional part, which is an important feature and integral part of the act, taints the entire statute and makes it void in toto.

The learned trial judge, in a well-written opinion, so clearly states the issues, analyzes them and supports his conclusions with pertinent authorities, we quote it in full with our approval:

"Relator Chess & Wymond Company of Louisiana, a corporation organized under the laws of the state of Kentucky, and domiciled in the city of Louisville, were the record owners of certain property situated in the parish of Morehouse. This property was sold on the 24th day of December, 1932, for the taxes of 1931, and adjudicated to the state of Louisiana. Relator avers that there were no taxes due to the state nor to any of its taxing subdivisions on the said property prior to the year 1931, and that the taxes for the year 1931, amounting to $ 255.75, were all of the actual taxes due to the state against said property at the time of the adjudication.

[188 La. 133] "Relator further avers that it has sought to redeem the said property under the provisions of Act No. 161 of 1934, as amended by Act No. 14 of the 4th Extraordinary Session of the Legislature of 1935, and by Act No. 183 of 1936, by paying the amount of actual taxes due the state in cash or by paying the same in five equal annual installments, the first installment to become due one year from the date of the redemption of said property, and one additional installment to become due each year thereafter for four consecutive years; and by paying the parish taxes for the year in which the said property was sold. That it presented its application to the register of the state land office to redeem the said land in conformity with said Act No. 161 of 1934, as amended, and requested the register to receive the said application and other documents attached, to file the same and to take such other action as might be necessary under the said act to perfect relator's redemption of its said property from the state, but that the register of the state land office has arbitrarily and contrary to law refused to receive said application and to issue the usual and proper certificate of redemption as required by law. Relator therefore prays that an alternative writ of mandamus issue herein directed to the register of the state land office, demanding her to receive relator's application to redeem said property in accordance with Act No. 161 of 1934, as amended by Act No. 14 of the 4th Extraordinary Session of 1935, and as amended by Act No. 183 of 1936, to file the same, and to take such other steps as may be necessary in order to effectuate a redemption of relator's [188 La. 134] property from the tax sale to the state of Louisiana for the 1931 taxes under and by virtue of the said acts of the Legislature of the state of Louisiana, or to show cause to the contrary.

"The register of the state land office for answer to relator's petition admits the sale and adjudication of said property to the state for the taxes of 1931, but denies that it has the right at this time to redeem said property under the terms and provisions of Act No. 161 of 1934, as amended by Act No. 14 of the 4th Extraordinary Session of the Legislature of 1935, and as amended by Act No. 183 of 1936. The defendant admits that the relator had the [175 So. 827] right to redeem said property in accordance with the terms and provisions of Act No. 161 of 1934, as amended by Act No. 14 of the 4th Extraordinary Session of 1935 at any time between the effective date of Act No. 161 of 1934 and the 20th day after the adjournment of the Regular Session of 1936, that is, July 28, 1936, but respondent avers that at no time during the said period did relator attempt to redeem its said property in accordance with said acts, nor did it ever tender to respondent the amount required to redeem its said property.

"Respondent in her answer avers that her refusal to comply with relator's request was in accordance with an opinion rendered on December 11, 1936, by the Honorable Gaston L. Porterie, Attorney General of the state, who is her official legal advisor, and she attaches to her answer a copy of said opinion, and makes the same a part of her answer.

[188 La. 135] "She further avers that for the reasons set forth in the opinion of the Attorney General, Act No. 183 of 1936 is without any force or effect; that the purpose of said act was to provide for the cancellation of taxes which had accrued prior to the adjudication of property to the state or to one of its political subdivisions, as well as taxes accruing subsequently to such adjudication, and the only way in which the said Act No. 183 of 1936 could have had any constitutional validity or any effect whatsoever was by amendment to the Constitution of Louisiana of 1921, and particularly article 4, section 13 thereof; that accordingly the Legislature at the same session at which it enacted Act No. 183 of 1936, adopted Act No. 319, a joint resolution proposing an amendment to article 4, section 13, of the Constitution of Louisiana of 1921, relative to the release of real property for taxes due the state or due to any of its political subdivisions; that this proposed amendment to the Constitution was defeated by the voters at the General Election on November 3, 1936, and that the said amendment having failed to carry, Act No. 183 of 1936, is without effect and is unconstitutional, null and void and in violation of article 4, section 13, of the Constitution of the state, in that it is an attempt on the part of the Legislature to extinguish or release, in whole or in part, the indebtedness, liability or obligations of corporations or individuals to the state or to the parish or municipal corporations thereof. Respondent especially pleads the unconstitutionality of Act No. 183 of 1936 and prays that relator's suit be dismissed at its cost, and that the alternative [188 La. 136] writ of mandamus issued herein be recalled, vacated and set aside.

"For the reasons above set forth, respondent denies that relator has any right to redeem its said property, except in accordance with the provisions of Act No. 175 of 1934, with the terms of which respondent avers relator has never complied or attempted to comply.

"On the trial of the case it was admitted:

"1. That the property of relator was sold to the state on the 24th day of December, 1932, for the taxes of 1931, and that the deed, regular and legal in form, was recorded in Morehouse parish on February 28, 1933.

"2. That relator secured from the register of the state land office two redemption certificates covering the two tracts of land as described in the deed, which certificates were signed on the 7th day of December by the register of the state land office, and that they were submitted to the state land office, who refused to receive and file the same, or to take such other steps as might be necessary to effectuate the redemption of the land described.

"3. That the amount named in the certificates referred to is the amount which would have been required to redeem the property under Act No. 183 of 1936, and that no taxes other than for the year 1931 were due on the property described in relator's petition and in the certificates.

"4. That the refusal of the register to receive and file said certificates was based upon the aforesaid opinion of the Attorney General of date December 11, 1936.

[188 La. 137] "5. That the Regular Session of the Louisiana Legislature for the year 1936 adjourned on July 8, 1936, and that the joint resolution embodied in Act No. 319 of 1936, proposing an amendment to section 13 of article 4 of the Constitution of 1921 was submitted to the electors of Louisiana at the general...