State v. Cusimano

• Decision Date: 26 April 1937
• Docket Number: 34057
• Citation: 174 So. 352,187 La. 269
• Court: Louisiana Supreme Court
• Parties: STATE v. CUSIMANO

174 So. 352

187 La. 269

STATE v. CUSIMANO

No. 34057

Supreme Court of Louisiana

April 26, 1937

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

Action by the State of Louisiana against Frank J. Cusimano. Judgment for plaintiff, and defendant appeals. On defendant's plea in bar and motion to dismiss plaintiff's demand.

Plea overruled, motion denied, and judgment affirmed.

Hugh M Wilkinson, of New Orleans, for appellant.

Charles J. Rivet, of New Orleans, for the State.

ROGERS Justice. O'NIELL, Chief Justice (concurring).

OPINION

ROGERS, Justice.

The State of Louisiana, through its supervisor of public accounts sued Frank J. Cusimano for the balance due on a license which he procured for engaging in the business described in section 1 (a) of Act No. 24 of the Third Extra Session of 1935. Defendant made no denial of the facts alleged by the plaintiff. His only defense to the suit was that Act No. 24 of the Third Extra Session of 1935, on which it is predicated, is unconstitutional. The court below overruled the plea of unconstitutionality and on the merits rendered judgment for plaintiff. From that judgment defendant has appealed.

In this court defendant has filed a plea in bar and a motion to dismiss plaintiff's demand. The plea and motion allege that the statute on which the suit is based was repealed by Act No. 338 of 1936, leaving the State without any right to prosecute the suit and collect the tax claimed.

We find no merit in the plea in bar and motion to dismiss. The license tax herein claimed became due August 31, 1935. The statute permitted its payment in three installments falling due August 31, and December 31, 1935, and April 30, 1936. Defendant paid the first installment, but neglected to pay the second and third installments. The judgment appealed from is for the amount due on the past-due installments. There is nothing in Act No. 338 of 1936 which can possibly be construed as depriving the State of the right to collect the amount of the delinquent installments.

Act No. 338 of 1936 is a special law which amends certain provisions of the charter of the city of New Orleans. Section 1 (f) grants the city the right to levy, impose and collect all taxes, licenses and fees necessary for the proper operation and maintenance of the municipality. The third paragraph of section 37 (as re-enacted), page 827, directs the commission council at its first meeting in December, 1936, to impose a license tax which shall be due and payable during the month of January, 1937.

The repealing clause of Act No. 338 of 1936 is: "That all laws and parts of laws in conflict herewith be and the same are hereby repealed." The right of the State to collect a license tax which became due in August, 1935, is not in conflict with the provisions of a statute which authorizes the imposing by the city of New Orleans of a license tax in December, 1936, collectible in January, 1937. See State v. Whitehead Motor Co., Inc., 180 La. 221, 156 So. 228.

Act No. 24 of the Third Extra Session of 1935 levies an additional license tax on all persons, firms and corporations engaged in the parish of Orleans in the business of selling, handling, storing, distributing, etc., liquor; and in section 1 (a) the statute provides that those engaged in the business of selling at retail for consumption of liquor on the premises, shall pay an annual license tax of $ 500 for each place of business.

Defendant pleads that the statute is unconstitutional, because: It is a special and local law and fails to show that notice of intention to pass the law was published for 30 days prior to its introduction as required by section 6 of article 4 of the Constitution; it violates the provision of section 5 of article 4 of the Constitution, prohibiting the indirect enactment of special or local laws by the repeal of a general law; it violates the uniformity clause of section 1 of article 10 of the Constitution, as amended in 1926; it is an attempt to indirectly amend by a special or local law the charter of the city of New Orleans, having over 2500 inhabitants, without so stating, in violation of section 4 of article 4 of the Constitution; and, lastly, it is a special or local law, limited to the city of New Orleans alone, and, as such, is violative of section 8 of article 10 of the Constitution, which provides that the Legislature shall have power to levy a general license tax throughout the State. We shall discuss and dispose of defendant's contentions in the order of their statement.

1. Publication of notice of intention to apply for the passage of the statute was unnecessary. The intention to apply alluded to in the constitutional provision means only that of private individuals seeking some private advantage or advancement for the benefit of private persons or property within a certain locality. Davidson v. Houston, 35 La.Ann. 492; State v. Dalon, 35 La.Ann. 1141, 1142; Excelsior Planting & Mfg. Co. v. Green, 39 La.Ann. 455, 1 So. 873.

The power of taxation vested in the Legislature by section 1 of article 10 of the Constitution, as amended in 1926, is unlimited, except where specifically restricted. Interstate Tax Bureau v. Conway, 180 La. 453, 156 So. 463.

It is impossible to suppose that the power to perform such duty should remain paralyzed until some private person at his own expense should see fit to prepare and publish for 30 days a notice stating the substance of the contemplated law. Even if some individual should conclude to act in the premises, non constat that the substance of the law contemplated by him would meet the legislative idea of the proper law required; and thus a power expressly granted on motives of public policy, and without express subjection to the constitutional provision requiring publication of notice, might be indefinitely held in suspense, however essential to the public weal the Legislature might consider its exercise. See Davidson v. Houston, 35 La.Ann. 492.

The Governor is authorized by article 5, § 14, to convene the Legislature to legislate as to objects specially enumerated in his proclamation convening such extraordinary session. No contention is made by the defendant that the subject matter of the statute under attack was not one of the objects specially enumerated in the Governor's proclamation convening the Third Extra Session of 1935.

The power conferred on the Governor by the constitutional provision to convene the Legislature to legislate on designated subjects, and on the Legislature so to legislate, presupposes an urgent necessity for prompt action, and the exercise of such power is not controlled by the constitutional requirement that previous notice of the intention to enact permitted local or special laws shall be published for 30 days. State ex rel. v. Michel, 127 La. 685, 53 So. 926.

2. No convincing argument is made and no pertinent authority is cited by defendant in support of his contention that the statute under attack violates the prohibition contained in section 5 of article 4 of the Constitution against the enactment of special or local laws by the repeal of a general law. Act No. 24 of the Third Extra Session of 1935 does not indirectly enact a special or local law by the partial repeal of a special law. The statute is a plenary one. It is direct and not indirect legislation.

3. The requirement of section 1 of article 10 of the Constitution that all taxes shall be uniform applies only to property taxes and not to license taxes. State ex rel. v. H. L. Hunt, 182 La. 1073, 162 So. 777, 103 A.L.R. 9.

4. The constitutional prohibition as to the passage of any special or local law creating corporations, or amending, renewing, extending or explaining the charters thereof, is not applicable to the statute under review. The prohibition is itself restricted by the proviso that it shall not apply to municipal corporations having over 2500 inhabitants. It is not disputed, of course, that the city of New Orleans has a population of more than 2500 inhabitants.

5. There is no language contained in section 8 of article 10 of the Constitution which sustains defendant's conclusions. Act No. 24 of the Third Extra Session of 1935 levies an additional license tax on those engaged in the parish of Orleans in the business of selling, handling, storing distributing, manufacturing, distilling, blending or processing any malt, cereal, vinous, spirituous or other fluid, or solid capable of being converted into a fluid, suitable for human consumption and having an alcoholic content of more than 6 per cent. of alcohol by volume; the revenues derived therefrom are dedicated for the exercise and maintenance of functions of the police power of the State in the parish of Orleans; and the license tax is imposed in lieu of any permit, charge, tax, license or excise imposed or levied by the...