State ex rel. Huggett v. Montgomery
Decision Date | 27 March 1936 |
Docket Number | 16372 |
Citation | 167 So. 147 |
Court | Court of Appeal of Louisiana — District of US |
Parties | STATE ex rel. HUGGETT, Judicial Sequestrator, et al. v. MONTGOMERY, Tax Collector |
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.
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 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:
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 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: About one year later, the court, in State ex rel. Board of Directors of Public...
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