State ex rel. McGregor v. Diamond

• Decision Date: 30 April 1936
• Docket Number: 5269
• Citation: 167 So. 760
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE ex rel. McGREGOR et al. v. DIAMOND, Marshal, et al

167 So. 760

STATE ex rel. McGREGOR et al. v. DIAMOND, Marshal, et al

No. 5269

Court of Appeal of Louisiana, Second Circuit.

April 30, 1936

Thos H. McGregor, of Alexandria, for appellants.

W. A Cooper, of Rayville, for appellees.

OPINION

DREW Judge.

This is the second time this case has been before us, first on an exception of no cause of action, which was sustained below. We reversed the lower court and remanded the case for trial on its merits. McGregor v. Diamond, 164 So. 436, 440. After trial on the merits, the lower court rejected plaintiffs' demands and they have prosecuted this appeal.

When the case was formerly before us, in our opinion we quoted the petition in full and, for the sake of brevity, we will now only refer to those parts of the pleadings which are pertinent to the question presented for determination.

Plaintiffs were the record owners of certain properties situated in the town of Rayville, Richland parish, La. The properties were adjudicated to the state for the unpaid state and parish taxes for the year 1931, and in January, 1933, the town marshal and ex officio tax collector for the town of Rayville advertised the same properties for sale to pay the unpaid taxes due the town for the year 1931. When the property was offered for sale, there were no bidders and plaintiffs allege that it was struck off or adjudicated to the town of Rayville, as provided by Act No. 170 of 1898, as amended. They further allege that it is admitted that the marshal did not execute a deed to the town and did not file for recordation, in the office of the clerk of court and ex officio recorder for the parish of Richland, a deed or list of the property alleged to have been adjudicated. In 1935, the town marshal again advertised the same property for sale to pay the unpaid taxes due the town for the years 1932 and 1933, and, after offering same for sale and there being no bidders, the property was adjudicated to the town of Rayville and a deed executed, filed, and recorded in the office of the clerk of court and ex officio recorder.

Plaintiffs applied to the register of land office for the state and, upon agreeing to pay the amount of actual taxes due for the year 1931 in five equal installments, were granted a redemption deed, duly executed by the register, in accordance with Act No. 161 of 1934. Plaintiffs then offered to pay to the town of Rayville the amount of taxes due for the year 1931, and requested that the town marshal record a deed, in accordance with the alleged adjudication in January, 1933, and that after this was done, the town execute to them a redemption certificate, as provided by Act No. 161 of 1934. This the town, through its proper authority, refused to do. Plaintiffs then filed this suit praying that a mandamus issue ordering and commanding the town marshal to file for recordation in the office of the recorder of conveyances a deed, in accordance with the alleged January, 1933, adjudication of plaintiff's property to the town for the unpaid taxes of 1931, and that the mayor of said town be ordered and commanded to issue to them, upon their paying to the town the taxes due for the year 1931, a certificate of redemption, as provided by Act No. 161 of 1934; and, further, that the clerk of court and ex officio recorder be ordered and commanded to cancel and erase from the records of his office the deed to the town of Rayville executed by the town marshal at the tax sale in 1935, and for the unpaid taxes for 1932 and 1933, which deed or deeds, they allege, are nullities and of no effect.

All three defendants joined in one answer. They admitted the property in question had been adjudicated to the state for the taxes of 1931, and that a redemption certificate had been issued to plaintiffs by the register of land office; they admitted the taxes due the town of Rayville for the year 1931 were not paid and that the property upon which said tax lien rested, was advertised, according to law, and offered for sale and that there were no bidders on same; they denied that the property was adjudicated to the town; they admitted that the marshal did not execute and record a formal title, deed, statement, or proces verbal showing an adjudication, for the alleged reason that he did not adjudicate the said property to the town; they admitted the request for and refusal to execute a redemption certificate to plaintiffs; and they admitted the adjudication at an alleged tax sale of the property to the town in 1935, for the unpaid taxes of 1932 and 1933.

Defendants further averred that Act No. 175 of 1934 had not been complied with by plaintiffs and that said act requires that they pay all taxes, state, parochial, district, and municipal, due on said property up to the date of redemption, and until same is done, plaintiffs have no right to demand a redemption deed. They further alleged the redemption from the state by plaintiffs is null and void and of no effect; and, further, that the town of Rayville, through its proper officers, has not declared an emergency to exist, as required by Act No. 6 of the Third Extra Session of 1934, and has not passed any ordinance or resolution reducing or abrogating any tax penalties or interest, as required by said act, and has not provided, by ordinance or otherwise, for the redemption of property adjudicated for taxes, in accordance with Act No. 161 of 1934.

Defendants further answered as follows:

"34. That all of the taxes due by plaintiffs on the property described in paragraph 1 of their petition have been specially set aside and dedicated to the payment of outstanding bonds and obligations of the said Town of Rayville, Louisiana, and that if defendants are deprived of the right to collect delinquent taxes for the years 1932, 1933, 1934 and 1935, under Act 161 of 1934, the holders of the said bonds and other obligations of the Town of Rayville, Louisiana, which have been secured by taxes due from this property and dedicated for that purpose, that the said Act 161 of 1934 is unconstitutional and violative of the provisions of Section 15 of Article 4 of the Constitution of the State of Louisiana, for the year 1921, in that it will divest vested rights in the holders of said obligation, and, therefore, unnecessarily punish and penalize all other property tax payers in the Town of Rayville, Louisiana.

"35. Your defendants further aver: that Act 161 of 1934 is null and void in so far as the Municipality of the Town of Rayville is concerned, for the reason that it violates Section 13 of Article 4 of the Constitution of the State of Louisiana for the year 1921, which prohibits the Legislature from releasing or extinguishing in whole or in part any indebtedness, liability or obligation of any corporation or individual to the State of Louisiana or to any Parish or Municipal corporation thereof.

"36. Your defendants further aver: that the said Act is in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, in that it takes from your defendants its property rights without due process of law, and that it abrogates the obligation of its contract entered into prior to the enactment of said statute.

"37. Your defendants herein further answering, show that the Town of Rayville had no lien or privilege on the property described in plaintiffs' petition for taxes due for 1931, and, if they did have, it has long since been prescribed against, for the reason that the Assessment Roll for the year 1931 was not filed with the Recorder of Mortgages for Richland Parish, Louisiana, and that therefore there was no adjudication to the Town for taxes for the year 1931, and no steps have been taken to perfect such adjudication, if there had been one. Any claim of the Town of Rayville for the taxes for that year has long since prescribed.

"38. Your defendants further aver: that of the taxes due by the plaintiffs herein on the property described in plaintiffs' petition, there are outstanding bond issues of lights, water, old sewerage bonds and new sewerage bonds and new improvement bonds, and of which taxes the bulk of the same is pledged to pay said bonds, all of which will be more fully shown on the trial hereof, and that said amounts have been dedicated and set aside and pledged to secure the payment of said bonds and that therefore the effort of the plaintiffs herein to be relieved of the taxes for the years 1932, 1933, 1934 and 1935, would be divesting vested rights of the bond holder, and that any legislation which attempts to accomplish such a purpose is violative of Article 4 of Section 13 of the Constitution of the State of Louisiana, and is prohibited by said Article and Section of the said Constitution."

The lower court rendered a written opinion in the case, which is as follows:

"This case was dismissed on an exception of no cause of action by this court, appealed to the Court of Appeal and sent back for trial on its merits. The Court of Appeal said in its opinion "whether or not the property was adjudicated to the Town is a matter to be determined upon the merits of the case.' We think, therefore, that this is one of the main issues before the court.

"All parties admit that the property was advertised at Town of Rayville tax sale to take place on January 7, 1933, for the unpaid taxes of 1931. It is further a fact that this sale was duly held, and the property offered, but that there were no bidders for the same. Plaintiffs contend that the adjudication takes place automatically as soon as there is an offering and there are no bids for the property. We cannot follow this reasoning, and do not think the Court of Appeal holds that view, inasmuch as the case was remanded to determine, on the merits, whether there was an adjudication to the Town. We...