State of Louisiana v. Texas Co.

• Decision Date: 06 May 1941
• Docket Number: No. 68.,68.
• Citation: 38 F. Supp. 860
• Parties: STATE OF LOUISIANA v. TEXAS CO.
• Court: U.S. District Court — Eastern District of Louisiana

38 F. Supp. 860

STATE OF LOUISIANA v. TEXAS CO.

No. 68.

District Court, E. D. Louisiana, Baton Rouge Division.

May 6, 1941.

E. L. Richardson, Justin C. Daspit, F. A. Blanche, and H. A. Brumfield, Jr., all of Baton Rouge, La., for plaintiff.

Charles H. Blish and R. C. Milling, both of New Orleans, La., for defendant.

BORAH, District Judge.

Proceeding summarily by motion, and allegedly under the authority of Act No. 14 of the Second Extraordinary Session of the Legislature of Louisiana for the year 1935, the State of Louisiana, by and through W. A. Cooper, Collector of Revenue for the State of Louisiana, instituted this proceeding in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, to recover occupational-license or privilege taxes, penalties and attorney's fees which it is claimed are due by defendant under the provisions of Act No. 15 of the Third Extraordinary Session of the Louisiana Legislature for the year 1934, as amended by Act No. 333 of 1936.

The action was removed here by the defendant on the ground that Cooper, a resident of Louisiana, is the true plaintiff, and that the requisite diversity of citizenship exists since defendant is a resident of Delaware. The matter is now before the Court on plaintiff's motion to remand the action to the State court.

Defendant seeks to sustain the removal on the ground that this proceeding was instituted by Cooper and not the State, and maintains that a consideration of the provisions of the aforementioned statute demonstrates the correctness of its position. Defendant points out that Section 41 of this statute, as amended, imposes the tax in controversy and provides that the tax levied by this section shall be collected by the Supervisor of Public Accounts in the same manner as are collected the licenses provided for in the general tax laws of this State, except as otherwise provided in this section. That with respect to the language "except as otherwise provided", this section otherwise provides that if the tax is not paid at the time and in the manner stipulated, the Supervisor of Public Accounts shall make in any manner feasible and record in the mortgage records of the parish a statement evidencing the amount of the tax, which shall operate as a first lien on the property of the tax debtor, and the property will be subject to seizure and sale by the Sheriff for its payment. The defendant further points out that the general license tax law at that time was Act No. 15 of the Third Extraordinary Session of 1934, the identical statute which levied the license tax sought to be recovered herein; that Section 47 of this statute provided a method of procedure for the collection of delinquent licenses and under this procedure the Supervisor of Public Accounts was required to "sue out a rule" for the collection of delinquent license taxes, "through the Attorney herein provided for"; and that Section 51, as amended by Act No. 429 of 1938, provided that the Governor was authorized to name an attorney at law in each parish to aid the Collector of Revenue in the parish for which he was appointed in the collection of state licenses provided by this Act. In other words, defendant maintains that it is the duty of the Supervisor of Public Accounts to collect these license taxes, and in the fulfillment of that duty he is authorized under Section 41 to collect delinquent taxes by filing a lien and seizing property for the payment thereof, or he can proceed under Section 47 through the attorney appointed to collect the tax by rule as that section provides that, "the Supervisor of Public Accounts, whose duty it is to issue licenses, shall, through the Attorney herein provided for, on motion in the proper courts as provided for in the Constitution, * * * sue out a rule on the tax debtor to show cause * * * why said party * * * should not pay the amount of the licenses claimed * * * and be ordered to cease * * * business * * * and if said rule be made absolute, the order thereon rendered shall be considered a judgment in favor of the State, for the amount decreed to be due * * * and shall be executed in the same manner as other judgments, * * *."

Defendant contends that the quoted language from Section 47 clearly means that the rule would be filed by the Supervisor, that judgment would be secured by him, and if judgment were rendered, it would not be in favor of the State but would be considered a judgment in favor of the State.

Defendant further contends that the Constitutional Amendment of 1921 (Act No. 69 of 1936) which created the Department of Revenue, directed and controlled by a Collector of Revenue, and which abolished the office of Supervisor of Public Accounts and created the office of Supervisor of Public Funds, in effect created the Department of Revenue with the Collector of Revenue at its head, as an independent board and administrative office of the State, separate and distinct from the State; and that the action instituted to collect the tax in question, instituted in the name of the State "appearing herein by and through W. A. Cooper, Collector of Revenue," is the suit of Cooper and is removable. This, in brief, is the theory upon which defendant seeks to sustain the removal of this action, and the case of State of Missouri v. Homesteaders Life Ass'n, 8 Cir., 90 F.2d 543, 545, is the authority on which defendant relies.

This action was instituted under the authority of Act No. 14 of the Second...