State ex rel. Tulane Homestead Ass'n v. Montgomery, State Tax Collector for City of New Orleans, 33942

• Court: Supreme Court of Louisiana
• Writing for the Court: HIGGINS, Justice.
• Citation: 185 La. 777,171 So. 28
• Parties: 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

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

[185 La. 779] HIGGINS, Justice.

Relator instituted mandamus proceedings for the purpose of compelling the tax collector for the city of New Orleans [171 So. 29] 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 [185 La. 780] 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 [185 La. 781] 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 [185 La. 782] 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 [171 So. 30] 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 [185 La. 783] 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...