State ex rel. Huggett v. Montgomery, 16372

CourtCourt of Appeal of Louisiana (US)
Writing for the CourtWESTERFIELD, Judge.
Citation167 So. 147
PartiesSTATE ex rel. HUGGETT, Judicial Sequestrator, et al. v. MONTGOMERY, Tax Collector
Decision Date27 March 1936
Docket Number16372

167 So. 147

STATE ex rel. HUGGETT, Judicial Sequestrator, et al.
v.
MONTGOMERY, Tax Collector

No. 16372

Court of Appeal of Louisiana, Orleans.

March 27, 1936


E. M. Robbert, City Atty., and Henry B. Curtis, Asst. City Atty., both of New Orleans, for appellants.

Stanley W. Ray and Rene A. Viosca, both of New Orleans, for appellee Chris Reuter, Inc.

OPINION

WESTERFIELD, Judge. [167 So. 148]

This is a mandamus proceeding in which relator seeks to compel the tax collector for the city of New Orleans to cancel the taxes assessed for the years 1931, 1933, 1934, and 1935. The suit was instituted by John W. Huggett, the judicial sequestrator of Chris Reuter, Inc., the owner of certain real estate described in the petition He alleges that on September 5, 1935, he was authorized to sell certain property on St. Claude avenue belonging to Chris Reuter, Inc., according to an order on file in the matter of "Receivership of Chris Reuter, Inc.," No. 213419 of the docket of the Civil District Court; that on November 2, 1935, pursuant to the authority thus conferred, he sold the property to the Roman Catholic Church of the Diocese of New Orleans for the sum of $ 4,000 by act before Charles I. Denechaud, notary public; that the tax research certificates which had been obtained in conjunction with the sale of the property disclosed the fact that the property in question had been adjudicated to the state of Louisiana for nonpayment of taxes for the year 1932 and to the city of New Orleans for city taxes for the year 1930; that relator, acting in conformity with Act No. 161 of 1934, as amended by Act No. 14 of the Fourth Extraordinary Session of 1935, redeemed the property from the state and from the city of New Orleans, obtaining the proper certificates of redemption; that notwithstanding the provisions of Act No. 161 of 1934, as amended, which entitle relator to a cancellation of all assessments for taxes, state and city, except those for the nonpayment of which adjudication had been made to the state and city respectively, which relator paid, George Montgomery, state tax collector for the city of New Orleans, declined to recognize the certificates of redemption, in so far as the assessment for city taxes were concerned, and declined to cancel and erase the tax assessments, or to issue to relator a clear tax research certificate, with the result that a substantial portion of the purchase price of the property sold by relator was withheld by Charles I. Denechaud, notary public, which should be paid to relator for the benefit [167 So. 149] of the creditors and stockholders of Chris Reuter, Inc.

The respondent, George Montgomery, state tax collector for the city of New Orleans, answered admitting all of the essential allegations of relator, and, in explanation of the position taken by him, averred "that he was warned by the attorney for the City of New Orleans that Act No. 161 of 1934 and Act No. 14 of the Fourth Extraordinary Session of 1935, are unconstitutional, null and void; that an opinion was rendered by the Attorney General of the State of Louisiana in wich he ruled that taxes for the intervening years must be cancelled; and that in order to protect himself and his bondsmen, your respondent has refused to cancel the city taxes for the intervening years until ordered to do so by a court of proper jurisdiction."

Upon the trial of the case, Mr. Montgomery testified that he notified the city of New Orleans, the Orleans parish school board, the board of police commissioners, the board of fire commissioners, American Bank & Trust Company, National Bank of Commerce, Hibernia National Bank, Whitney National Bank, Sewerage & Water Board, and the board of liquidation of the city debt, of the pendency of the suit. None of these institutions intervened in the suit, which, after trial upon the merits, resulted in a judgment in favor of relator, as prayed for. Thereafter, and within the delays allowed for a suspensive appeal, the city of New Orleans and the Orleans parish school board, availing themselves of the provisions of article 571 of the Code of Practice by asserting an interest in the subject-matter of the suit, prosecuted a suspensive appeal to the Supreme Court of Louisiana, which appeal was subsequently transferred to this court under the authority of Act No. 19 of 1912.

In the petition of the city of New Orleans and the Orleans parish school board for a suspensive appeal it is alleged that the judgment is erroneous because based upon Act No. 161 of 1934, as amended by Act No. 14 of the Fourth Extraordinary Session of 1935, which, if interpreted as authorizing the cancellation of taxes already accrued at the date of the enactment of that statute, is unconstitutional upon the ground that it is repugnant to article 4, §13 of the Constitution of Louisiana of 1921, which declares that the "Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishment, in whole or in part, of the indebtedness, liability or obligation of any corporation or individual to the State, or to any parish or municipal corporation thereof; provided, the heirs to confiscated property may be released from all taxes due thereon at the date of its reversion to them," and also for the reason that it contravenes article 14, §24, of the Constitution of 1921 (as amended), and section 10, art. 1, of the Constitution of the United States, which forbids any state to "pass any (3)5C law impairing the Obligation of Contracts."

In this court a motion to dismiss the appeal was filed by appellee upon the following grounds:

"1. That the appellants have no right or cause of action and no legal or other interest in this controversy, and are without right to appeal from the judgment of the District Court rendered on December 20, 1935, and signed on December 27, 1935.

"2. That the appellants are creatures of the State and subdivisions and agents thereof, and have no right or standing to attack the constitutionality of Act No. 161 of 1934 and Act No. 14 of the Fourth Extra Session of 1935 on the grounds set forth in paragraphs 4 and 5 of the petition for appeal, or on any other grounds whatsoever.

"3. That the appellants have no legal interest in asserting the rights of other persons and in urging the unconstitutionality of Act No. 161 of 1934 and Act No. 14 of the Fourth Extra Session of 1935 on the grounds set forth in paragraphs 4 and 5 of the petition for appeal, or any other grounds whatsoever.

"4. That the appellants are without right to raise the said constitutional questions, or any other constitutional questions whatsoever, for the reason that neither these nor any other constitutional questions were raised or pleaded in the district court."

During the argument of the case in this court, appellants filed an exception of no cause of action based upon the alleged unconstitutionality of Act No. 161 of 1934, as amended, upon the ground that the act is repugnant to the provisions of article 4, §13 of the Constitution of 1921.

The first point raised by the motion to dismiss is based upon the alleged lack of interest of appellant in the controversy. It is, we believe, sufficiently answered [167 So. 150] by article 571 of the Code of Practice, which provides:

"The right of appeal is given, not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment."

The second point involves the power of the city of New Orleans and the Orleans parish school board to attack the constitutionality of an act of the Legislature. In the early case of Mayor and Council of the City of Carrollton et al. v. Board of Metropolitan Police et al., 21 La.Ann. 447, it was held that the city of Carrollton had no right to question the constitutionality of an act of the Legislature which divested it of control over the police and conferred that authority upon the board of Metropolitan police created by an act of the Legislature of 1868 (No. 74). The case of State ex rel. Nicholls, Governor, et al. v. Shakespeare, Mayor of New Orleans, et al., 41 La.Ann. 156, 6 So. 592, 596, is authority for the proposition that officers charged with the administration of laws have no authority to resist their execution upon the ground that they contravened the Constitution. Quoting the language of the court: "Respondents, in their return, excuse themselves, because Act No. 63 of 1888 is unconstitutional, null and void, and was enacted in violation of the constitution of 1879, and particularly of article 253 of said constitution, and it was the duty of the mayor and council to refuse to obey and carry into execution said act. In this they have erred. A government whose laws can be ignored by those whose duty it is to execute them is feeble, weak, and inert, and is wanting in that vigor, strength, and energy that will insure its perpetuity. The mayor and council of the city of New Orleans are the officers of a subordinate political corporation, not only charged with municipal duties, but as a constituent part of the state government they owe allegiance and obedience to their sovereign, the state of Louisiana, whose majesty, dignity, and power they must uphold, and whose mandates they must obey. They cannot defy the law, constitute themselves the judges of its constitutionality, and pronounce upon its validity, when they are charged with its execution, in advance of the judicial tribunal whose sole prerogative it is to pass upon its constitutionality. It is their duty to obey the law until the law has been declared null and void by the judicial department of the government." About one year later, the court, in State ex rel. Board of Directors of Public Schools v. City of New Orleans, 42 La.Ann. 92, 7 So. 674, 675, without referring to the Shakespeare...

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16 practice notes
  • Talbot v. Trinity Universal Ins. Co., No. 4534
    • United States
    • Court of Appeal of Louisiana (US)
    • December 23, 1957
    ...408; Devine v. National Life & Accident Ins. Co. of Nashville, Tenn., La.App., 166 So. 522; State ex rel. Huggett v. Montgomery, La.App., 167 So. 147; Geddes & Moss Undertaking & Embalming Co. v. First Nat. Life Ins. Co., La.App., 177 So. 818, affirmed 189 La. 891, 181 So. 436; State v. Spe......
  • City of New Orleans v. Grosch, No. 19669
    • United States
    • Court of Appeal of Louisiana (US)
    • December 11, 1950
    ...in the plea challenging the unconstitutionality of Act No. 23 of the Second Extra Session of 1950. In State ex rel. Huggett v. Montgomery, 167 So. 147, decided by this Court, the syllabus reads: 'Only constitutional objection to statute urged in exception of no cause of action filed in appe......
  • Unwired Telcom Corp. v. Parish of Calcasieu, No. 03-CA-0732 (La. 12/12/2003), No. 03-CA-0732.
    • United States
    • Supreme Court of Louisiana
    • December 12, 2003
    ...of no cause of action. City of New Orleans v. Grosch, 49 So. 2d 435, 442 (La. App. Orl. 1950); State ex rel. Huggett v. Montgomery, 167 So. 147 (La. App. Orl. 1936).19 Under the explicit provisions of LA. CODE CIV. PROC. ANN. art. 2163, a Page 13 may file a peremptory exception for the firs......
  • State ex rel. Chess & Wymond Co. of Louisiana v. Grace, 34388
    • United States
    • Louisiana Supreme Court
    • June 21, 1937
    ...of Orleans, in State ex rel. Huggett, Judicial Sequestrator, et al. v. Montgomery, Tax Collector, decided on March 27, 1936, and reported 167 So. 147, held that Act No. 161 of 1934, as amended by Act No. 14 of the Fourth Extra Session of 1935, did not apply to taxes due prior to the adjudic......
  • Request a trial to view additional results
16 cases
  • Talbot v. Trinity Universal Ins. Co., No. 4534
    • United States
    • Court of Appeal of Louisiana (US)
    • December 23, 1957
    ...408; Devine v. National Life & Accident Ins. Co. of Nashville, Tenn., La.App., 166 So. 522; State ex rel. Huggett v. Montgomery, La.App., 167 So. 147; Geddes & Moss Undertaking & Embalming Co. v. First Nat. Life Ins. Co., La.App., 177 So. 818, affirmed 189 La. 891, 181 So. 436; State v. Spe......
  • City of New Orleans v. Grosch, No. 19669
    • United States
    • Court of Appeal of Louisiana (US)
    • December 11, 1950
    ...in the plea challenging the unconstitutionality of Act No. 23 of the Second Extra Session of 1950. In State ex rel. Huggett v. Montgomery, 167 So. 147, decided by this Court, the syllabus reads: 'Only constitutional objection to statute urged in exception of no cause of action filed in appe......
  • Unwired Telcom Corp. v. Parish of Calcasieu, No. 03-CA-0732 (La. 12/12/2003), No. 03-CA-0732.
    • United States
    • Supreme Court of Louisiana
    • December 12, 2003
    ...of no cause of action. City of New Orleans v. Grosch, 49 So. 2d 435, 442 (La. App. Orl. 1950); State ex rel. Huggett v. Montgomery, 167 So. 147 (La. App. Orl. 1936).19 Under the explicit provisions of LA. CODE CIV. PROC. ANN. art. 2163, a Page 13 may file a peremptory exception for the firs......
  • State ex rel. Chess & Wymond Co. of Louisiana v. Grace, 34388
    • United States
    • Louisiana Supreme Court
    • June 21, 1937
    ...of Orleans, in State ex rel. Huggett, Judicial Sequestrator, et al. v. Montgomery, Tax Collector, decided on March 27, 1936, and reported 167 So. 147, held that Act No. 161 of 1934, as amended by Act No. 14 of the Fourth Extra Session of 1935, did not apply to taxes due prior to the adjudic......
  • Request a trial to view additional results

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