State ex rel. Tulane Homestead Ass'n v. Montgomery, State Tax Collector for City of New Orleans

• Decision Date: 30 June 1936
• Docket Number: 33942
• Parties: STATE ex rel. TULANE HOMESTEAD ASS'N v. MONTGOMERY, State Tax Collector for City of New Orleans
• Court: Louisiana Supreme Court

171 So. 28

185 La. 777

STATE ex rel. TULANE HOMESTEAD ASS'N v. MONTGOMERY, State Tax Collector for City of New Orleans

No. 33942

Supreme Court of Louisiana

June 30, 1936 ^[*]

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Proceedings by the State, on the relation of the Tulane Homestead Association, for a writ of mandamus to George Montgomery State Tax Collector for the City of New Orleans, in which such city and the Orleans Parish School Board intervened. From a judgment for relator in part, it appeals.

Affirmed.

Rene A Viosca, Leon Sarpy, Allain C. Andry, Jr., and Edward Dinkelspiel, all of New Orleans, for appellant.

Joseph M. Bowab, of New Orleans, for appellee George Montgomery.

E. M. Robbert, City Atty., and H. B. Curtis, Asst. City Atty., both of New Orleans, for appellees City of New Orleans and Orleans Parish School Board.

OPINION

HIGGINS, Justice.

Relator instituted mandamus proceedings for the purpose of compelling the tax collector for the city of New Orleans to cancel the assessments for taxes levied by the city of New Orleans, accruing prior and subsequent to the years of 1933 and 1934, at which time 21 pieces of real estate belonging to relator were adjudicated to the state and the city, claiming that the provisions of Act No. 161 of 1934, as amended by Act No. 14 of the Fourth Extra-Ordinary Session of 1935, entitles it to this relief. The respondent tax collector concedes that the assessments for taxes levied subsequent to the adjudication should be canceled under the provisions of the statutes, but denies that these acts cover assessments levied and taxes accruing prior to the adjudications, except the assessment of 1931, which he admitted was prescribed.

The city of New Orleans and the Orleans parish school board, with leave of court, filed interventions and answers to the relator's petition, reiterating the defenses urged by the tax collector and averring that, if the court were to construe the provisions of the statutes as affecting assessments and taxes prior to the date of the adjudications, the acts would be in violation of the provisions of article 4, § 13, of the Constitution of this state of 1921, and therefore unconstitutional.

There was judgment in favor of relator, issuing a peremptory writ of mandamus directed to the tax collector, commanding him to cancel the assessments and taxes levied in behalf of the city of New Orleans, subsequent to the adjudications and the assessments for taxes of 1931, which were conceded to have been prescribed, but denying relator's claim to have the assessments made and taxes accruing prior to the adjudications canceled.

Relator has appealed.

The facts in the case are undisputed and the record shows that the relator homestead association is the owner of 21 pieces of real estate situated in the city of New Orleans. With the exception of 2 pieces, one of which was adjudicated to the state, and the other to the city, 19 of these properties were adjudicated to both the city of New Orleans and the state of Louisiana for the nonpayment of taxes. All of the adjudications were made during the years of 1933 and 1934. The homestead, availing itself of the provisions of Act No. 161 of 1934, as amended by Act No. 14 of the Fourth Extra-Ordinary Session of 1935, redeemed all of the properties from both the city and state and secured certificates of redemption from the city of New Orleans and the register of state lands, in accordance with the provisions of the statutes, which permit redemption by payment on an installment basis.

The homestead thereupon secured from the Louisiana Tax Commission orders addressed to George Montgomery, state tax collector for the city of New Orleans and tax collector also of city taxes of New Orleans, directing and ordering the cancellation of all assessments bearing upon the properties for the years 1931 and 1936, inclusive. The homestead then applied for city and state tax research certificates and demanded that Mr. Montgomery, city and state tax collector, cancel these assessments from the city and the state tax rolls and issue clear city and state tax research certificates. Mr. Montgomery canceled the assessments from the state tax rolls and issued clear certificates on the properties for the years 1931 to 1936, inclusive, but declined to cancel the assessment from the city tax rolls and refused to issue clear tax research certificates as to the city assessments and taxes accruing prior to the adjudication.

Relator challenges the right of respondent and interveners as subdivisions and officers of the state to question the constitutionality of state statutes, citing State ex rel. Nicholls, Governor, et al. v. City of New Orleans, 41 La.Ann. 156, 6 So. 592; State ex rel. New Orleans Canal & Banking Co. & La. Nat. Bank v. Heard, State Auditor et al., 47 La.Ann. 1679, 18 So. 746, 47 L.R.A. 512; Crespo v. Viola, 152 La. 1088, 95 So. 256; Atchafalaya Land Co. v. Dibert, Stark & Brown Cypress Co., 157 La. 689, 102 So. 871, and State ex rel. Porterie v. Walmsley, 183 La. 139, 162 So. 826. The argument is that subordinate subdivisions of the state and state officials must obey and enforcestate statutes until they are declared unconstitutional by a court of competent jurisdiction.

The plea of respondent and interveners is that, if the interpretation contended for by the relator were adopted, the statutes would be unconstitutional. They are clearly entitled to have the court decide whether or not the acts affect assessments and taxes prior to the adjudication, in short, to have the court construe and interpret the acts, for they would then be endeavoring to determine the legislative will and not be trying to defeat it. It is only in the event that the court were to hold that the statutes apply to assessments and taxes prior to the adjudication that the constitutional question would be presented. Be that as it may, the identical issue was raised in the case of the City of Gretna v. Bailey, 141 La. 625, 626, 75 So. 491, 493, Ann.Cas.1918E, 566, and, in answering the question in the affirmative and overruling the case of Mayor and Council of City of Carrollton v. Board of Met. Police, 21 La.Ann. 447, this court said:

"It would be an absurdity to hold that a corporation created by the Legislature, with authority to prosecute and defend suits in the courts, cannot invoke the protection afforded by the Constitution to prevent a violation of the rights granted to it. The decision cited in support of that doctrine is more of a historical incident than a proposition of law, and we feel no compunction in overruling it."

"Of course, a municipal corporation, being a creature of the Legislature, cannot question the authority of the creator of its charter to amend the same, except in so far as the Legislature attempts to exceed its own constitutional authority. But the General Assembly is as well bound not to violate the mandates expressed in the Constitution as a corporation created by the Legislature is controlled by its statutes."

As pointed out by the Court of Appeal for the parish of Orleans, in the case of State ex rel. Huggett v. Montgomery, 167 So. 147, there was uncertainty in the jurisprudence prior to the case of City of Gretna v. Bailey, supra, but, other than obiter dicta, there is no case subsequent to the Bailey Case in conflict therewith. See, also, State ex rel. Board of School Directors of Pub. Schools v. City of New Orleans, 42 La.Ann. 92, 7 So. 674.

The case of State ex rel. Porterie v. Walmsley, 183 La. 139, 162 So. 826, is not in point, because the question here presented was not involved, considered, or discussed there.

We are of the opinion that the respondent and interveners have the capacity and authority to have the statutes construed and interpreted by the court and to question the constitutionality of them in court.

Act No. 161 of 1934 authorized owners or persons interested in property adjudicated prior to the passage of the act "to redeem such adjudicated property from the State, or any of its political subdivisions, from the date of the passage of this Act, and up to and including September 30th, 1935, upon the payment in five equal annual installments of the amount of the actual taxes for which said lots or lands were adjudicated to the State, or any other of its political subdivisions."

Act No. 14 of the Fourth Extra-Ordinary Session of the Legislature of 1935 amended the statute so as to extend the redemptive period "to twelve o'clock noon of the twentieth day after the regular session of the Legislature of 1936 shall have adjourned." The act was also amended so as to include the parish of Orleans which had been expressly excepted from the provisions of the act of 1934.

Under the laws that existed before 1934, the owner whose property was sold for taxes, in order to redeem his property, would have had to pay all taxes up to the date of redemption, including, of course, taxes accruing subsequent to the date of the adjudication of the property to the city or state. Section 62 of Act No. 170 of 1898, as amended by Act No. 72 of 1928; Act No. 85 of 1888; Gamet's Estate v. Lindner et al., 159 La. 658, 106 So. 22. The only authority for ordering the cancellation of such assessments and taxes is Act No. 161 of 1934, as amended, which the legislators were prompted to enact due to economic conditions, in order to relieve distressed property owners.

It is clear, and it is conceded, that, under these relief measures state and city assessments for taxes becoming due subsequent to the years in which the property was adjudicated shall be canceled. The difficulty arises as to the applicability of the provisions of the statute to the assessment and taxes due for the years prior...