State ex rel. Porterie v. Grosjean

• Decision Date: 29 April 1935
• Docket Number: 33380
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. PORTERIE, Atty. Gen., v. GROSJEAN, Supervisor of Public Accounts (STANDARD OIL CO. OF LOUISIANA, Intervener)

161 So. 871

182 La. 298

STATE ex rel. PORTERIE, Atty. Gen., v. GROSJEAN, Supervisor of Public Accounts (STANDARD OIL CO. OF LOUISIANA, Intervener)

No. 33380

Supreme Court of Louisiana

April 29, 1935

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; James D. Womack, Judge.

Suit for mandatory injunction by the State, on the relation of Gaston L. Porterie, Attorney General, against Alice Lee Grosjean, Supervisor of Public Accounts, in which the Standard Oil Company of Louisiana intervened. A rule nisi issued to show cause why a preliminary injunction should not issue, and from a judgment on a trial on the rule and on the merits recalling the rule nisi and dismissing the suit plaintiff appeals.

Affirmed.

Gaston L. Porterie, Atty. Gen., Geo. M. Wallace, First Asst. Atty Gen., and James O'Connor, Second Asst. Atty. Gen., for appellant.

F. A Blanche, of Baton Rouge, for supervisor of public accounts.

T. M. Milling, F. L. Hargrove, and A. M. Curtis, all of New Orleans, for Standard Oil Co. of Louisiana, intervener.

Huey P. Long, of New Orleans, amicus curiae.

OPINION

LAND, Justice.

Act No. 15 of the Third Extra Session of 1934, approved December 21, 1934, is an act imposing occupation-license taxes upon those engaged in various businesses, trades, and professions.

Section 41 of this act levies a tax of 5 cents per barrel of 42 gallons upon every person, firm, corporation, etc., "engaging, being occupied or continuing in the business of refining, heating, cracking, or distilling petroleum, crude oil or products thereof, and manufacturing, refining or distilling products out of said petroleum, crude oil or products thereof."

The tax is due and payable quarterly, the first payment being due March 31, 1935. Paragraphs (f) and (g), § 41, Act No. 15 of the Third Extra Session of 1934.

At its Extra Session of 1935, by House Concurrent Resolution No. 1, designated as Act No. 25 of the First Extra Session of 1935, the Legislature authorized the Governor to suspend the provisions of section 41 in so far as the same levies or imposes a tax in excess of 1 cent per barrel.

By section 2 of Act No. 5 of the First Extra Session of 1935, the Legislature also authorized the Governor, by adding a new section, 41 1/2 to Act No. 15 of the Third Extra Session of 1934, to suspendsection 41 by placing the tax at 1 cent per barrel of 42 gallons, "under the authority vested in him by Concurrent Resolution No. 1."

On March 2, 1935, the Governor issued his proclamation suspending the law, as authorized, for a period of 8 months from January 9, 1935, the effective date of Act No. 15 of the Third Extra Session of 1934, and ending September 9, 1935.

Asserting that the proclamation, and House Concurrent Resolution No. 1 (Act No. 25 of the First Extra Session of 1935) and section 2 of Act No. 5 of the First Extra Session of 1935, adding section 41 1/2, were unconstitutional, and that the state of Louisiana has a pecuniary interest in the whole of the tax levied by Act No. 15 of the Third Extra Session of 1934, the state of Louisiana, on the relation of the Attorney General, filed this suit for a mandatory injunction to compel the supervisor of public accounts, the officer charged with the collection of the tax, to collect the full amount levied by Act No. 15, 5 cents per barrel, and to restrain that official from collecting less than the full amount of the tax. A rule nisi issued to show cause why a preliminary injunction should not issue.

On the date set for the trial of the rule, the supervisor of public accounts answered, alleging the validity of the proclamation made by the Governor, and the constitutionality of House Concurrent Resolution No. 1 and of section 2 of Act No. 5 of the First Extra Session of 1935, adding section 41 1/2, and averring her intention to collect a 1 cent refining occupational tax in this case.

The Standard Oil Company of Louisiana intervened, and also alleged the validity of the proclamation made by the Governor, and the constitutionality of the Resolution, and of section 2 of Act No. 5 of the First Extra Session of 1935, adding section 41 1/2.

Answers were filed by the state and by the supervisor of public accounts to the intervention of the Standard Oil Company. The whole matter was then put at issue by the various pleadings and was tried on the rule and on the merits.

The trial judge rendered a judgment, maintaining the validity of the proclamation made by the Governor, and the constitutionality of House Concurrent Resolution No. 1, and of section 2 of Act No. 5 of the First Extra Session of 1935, adding section 41 1/2 to Act No. 15 of the Third Extra Session of 1934, etc., and recalling the rule nisi, and dismissing the suit of the state, and from this judgment the state has appealed.

(1) The Governor is authorized to make the suspension in this case by proclamation "pursuant to the authority vested in the Legislature by Section 5 of Article XIX of the Constitution," which provides that: "No power of suspending laws of this State shall be exercised unless by the Legislature, or by its authority."

The Attorney General has attacked the constitutionality of House Resolution No. 1 and of section 2 of Act No. 5 of the First Extra Session of 1935, adding the new section 41 1/2 to Act No. 15 of the Third Extra Session of 1934, on the ground that both authorize the Governor, "in his discretion," to make the suspension, and that the Legislature has no power to vest the authority to suspend a law in any person to be exercised at his discretion.

The two controlling paragraphs of House Concurrent Resolution No. 1 (Act No. 25 of the First Extra Session of 1935) are as follows:

"Whereas, for the purpose of securing better employment and promoting more business in the United States of America it is advisable that the Chief Executive of the State be vested with the power to suspend the provisions of the law insofar as the same provides for the collection of said occupation-license tax in excess of 1 cent per barrel, and * * *

"Be it further resolved by the Legislature of Louisiana, the House of Representatives and the Senate concurring, that the Governor of the State be and he is hereby empowered and authorized to suspend the provisions of sub-division (b) of Section 41 of Act No. 15 of the Third Extraordinary Session of the Legislature of Louisiana, insofar as the same levies or imposes an occupation-license or privilege tax for the manufacturing, refining, heating, cracking or distilling petroleum, crude oil or products thereof in excess of one cent (1 cent) per barrel of forty-two (42) gallons; that the said Governor shall by proper proclamation or proclamations make such suspension on such dates or occasions and for such period or periods of time or duration as may be prescribed by him in the proclamation making such suspension, such suspensions not to be effective beyond noon of the twentieth day after the adjournment of the Regular Session of the Legislature of Louisiana for the year 1936, and. * * *" (Italics ours.)

It is true that the Governor is authorized, "in his discretion," to make the suspensions, but it will appear hereafter in this opinion that the advisability and the necessity for same are controlled by "conditions, circumstances and emergencies" stated in Resolution No. 1.

The Legislature itself, in Concurrent Resolution No. 1, has fixed the reduction of the tax to 1 cent, and the Governor has no discretion whatever to fix the tax at 2 cents or 3 cents or 4 cents, or at anything that he may wish between 1 cent and 5 cents. The only discretion conferred upon the Governor is that he may "make such suspension on such dates or occasions and for such period or periods of time or duration as may be prescribed by him in the proclamation making such suspension," which are limited in duration to "noon of the twentieth day after the adjournment of the Regular Session of the Legislature of Louisiana for the year 1936."

The legislative reason and intent in passing Resolution No. 1, designated as Act No. 25 of the First Extra Session of 1935, is specifically declared, in the preamble of the resolution, to be "for the purpose of securing better employment and promoting more business in the United States," and that "it is advisable that the Chief Executive * * * be vested with the power to suspend the provisions of the law in so far as the same provides for the collection of said occupation-license tax in excess of 1 cent per barrel"; that "the advisability of and the necessity for the same is controlled by conditions, circumstances and emergencies which arise and subside from time to time and which are varied and modified in such manner and to such extent as renders it a matter of practical impossibility for reasonable or satisfactory regulation or suspension to be made by positive provision of the law"; and that the Legislature "does by this Act repose confidence and authority in the Governor of the State as a practical means of effectuating such desired objects." (Italics ours.)

Necessarily, in making such suspensions, the Governor must consider the "conditions, circumstances and emergencies" enumerated in the act, and the fact-finding involved under this general authority covers a large field. The suspensions which the Governor may make are not left, therefore, to his arbitrary discretion.

(2) Under section 41 1/2, the new section added to Act No. 15 of the Third Extra Session of 1934, the General Occupation-License Tax Law, the Governor may make suspensions, "under the authority vested in him by Concurrent Resolution No. 1 of the First Extra Session of the Louisiana Legislature for the year 1935."

It is provided in section 41 1/2 that "no tax in...