Opinion
No. 7098.
January 2, 1976. Rehearing Denied January 28, 1976. Writs Granted March 19, 1976.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, DIVISION B, STATE OF LOUISIANA, HONORABLE ADRIAN G. DUPLANTIER, J.
Montgomery, Barnett, Brown Read, Nathan T. Gisclair, Jr., New Orleans, for plaintiff-appellant.
Philip S. Brooks, City Atty., Beuker F. Amann, Lee R. Miller, Jr., Philip D. Lorio, III, Asst. City Attys., for the City Council of New Orleans and the City Council of New Orleans, defendants-appellees.
Gasper J. Schiro, New Orleans, for Lawrence Comiskey, defendant-appellees.
William J. Guste, Jr., Atty. Gen., Robert L. Danner, Jr., Staff Atty., New Orleans, for the Louisiana Tax Commission and the State of Louisiana, defendants-appellees.
Before SAMUEL, STOULIG and BOUTALL, JJ.
This appeal concerns the validity and constitutionality of a 1973 ad valorem tax on realty within the Central Business District (CBD) of the City of New Orleans. In 1972, Harry B. Schmidt, Jr., paid a $3,686 city property tax on a parcel of ground fronting on Tulane Avenue between Loyola Avenue and South Rampart Street. In 1973 he was billed $6,455.80 for taxes on the same property. The increase resulted from the taxing authority's revaluation of property in the geographic district designated by city officials as the CBD.
Plaintiff paid the 1973 tax under protest and then filed suit to (1) recover the excess between the 1972 and the 1973 taxes; (2) to have the 1973 assessment declared unconstitutional; and (3) to have the 1972 value reinstated. From a judgment dismissing his suit, plaintiff has appealed.
This case was consolidated for trial with a suit entitled Probst v. The City of New Orleans, et als., La.App., 325 So.2d 665, and has been appealed as part of a consolidated case. The Probst matter bears number 7097 of our docket.
For the reasons assigned in the Probst case, the judgment appealed from is annulled and set aside insofar as it decrees the 1973 Central Business District assessment constitutional and it is now ordered that said assessment be decreed to be unconstitutional. The increased amount of the 1973 assessment stated herein is declared to be null and void. Insofar as it dismisses plaintiff's suit for the return of the taxes paid under protest, the judgment appealed from is affirmed.
Annulled in part; affirmed in part; and rendered.
ON APPLICATIONS FOR REHEARING
We recall that part of our original decree dismissing plaintiff's suit for a refund of taxes paid under protest for failure to join "the officer designated by law for the collection of tax." Under C.C.P. art. 646 we remand this matter to permit plaintiff to join the tax collector, who, we hold, is an indispensable party defendant. Accordingly the decree is amended as follows:
For the reasons assigned in the Probst case, the judgment appealed from is annulled and set aside insofar as it decrees the 1973 Central Business District assessment constitutional and it is now ordered that said assessment be decreed to be unconstitutional. The increased amount of the 1973 assessment stated herein is declared to be null and void. Insofar as it dismisses plaintiff's suit for the return of the taxes paid under protest, the judgment appealed from is set aside and this matter is remanded for the limited purpose of joining the tax collector as a party defendant and cite him to present whatever defense, if any, he has, so that an appropriate judgment may be rendered. Assessment of costs is to await the final determination of this matter.
Except as amended herein, we adhere to our original opinion. The applications for rehearing are refused.
Original decree recalled and reinstated as amended; rehearings refused.