Opinion
No. 31013.
On Motion to Dismiss Appeal February 2, 1931. Rehearing Denied on Motion to Dismiss March 2, 1931. On the Merits March 30, 1931. Rehearing Denied April 27, 1931.
Appeal from Twelfth Judicial District Court, Parish of Avoyelles; L.P. Gremillion, Judge.
Suit by Mrs. George G. Snowden and others against the Red River and Bayou des Glaises Levee and Drainage District and others for injunction. A restraining order was issued, and from a judgment dissolving the restraining order, refusing to issue the injunction, and dismissing plaintiffs' suit, plaintiffs appeal, and defendants move to dismiss the appeal.
Motion to dismiss denied, and judgment affirmed.
Joffrion Bordelon, of Marksville, for appellants.
W.E. Couvillon, of Marksville, and Percy Saint, Atty. Gen., for appellees.
On Motion to Dismiss.
The plaintiffs in this case are the widow and the minor children of George G. Snowden, deceased. They are the owners of a large quantity of land, comprising 19,994.89 acres, subject to overflow, located within the boundaries of the Red River and Bayou des Glaises levee and drainage district. The levee district has assessed against the land an ad valorem tax, amounting to $600, and an acreage tax, amounting to $3,998, for the year 1929, which the sheriff intends to collect, unless restrained.
Plaintiffs contend that the levy of these taxes can be of no benefit to their land, since the district has abandoned all hopes and plans for furnishing protection to the property, and that to enforce payment of them is to deprive plaintiffs of their property without due process of law, in violation of the Constitution. Other grounds of unconstitutionality and nullity are urged against the taxes or some part of them.
The prayer of the petition is that a rule nisi issue, directed to the commissioners of the levee district, to the sheriff and ex officio tax collector, and to the assessor of the parish of Avoyelles, ordering them to show cause why a preliminary writ of injunction should not issue, restraining them from attempting to collect the taxes, levied against the property, for the year 1929; that the writ of injunction, in due course, be perpetuated; that there be final judgment, declaring the levy of the taxes null and void; and that, in the alternative, it, at least, be decreed that the acreage tax is unconstitutional, or, in any event, that this tax is null in so far as the board of commissioners of the levee district increased it from seven cents to twenty cents an acre; and that the act of the Legislature, purporting to authorize its increase, be decreed to be superseded by the Federal Flood Control Act of May 15, 1928 (33 USCA §§ 702a-702m, 704).
The trial court ordered the rule nisi to issue. The sheriff and the levee district appeared and filed exceptions of no cause of action to plaintiffs' petition. The assessor appeared and filed an exception of estoppel. Both the sheriff and the assessor, in their exceptions, ask that, under the provisions of section 56 of Act 170 of 1898, there be awarded against plaintiffs 10 per cent on the amount of the taxes and penalties collected, as costs, for the benefit of their respective attorneys, who represent them herein.
After the exceptions were heard, the court took them under advisement. While they were under advisement, no restraining order having issued, the sheriff proceeded to advertise the property for sale for the levee taxes, assessed against it, the remaining taxes having been paid. The day of sale approaching, the judge's attention was called to the fact, and he then, in order to keep matters in statu quo, while the exceptions were under advisement, of his own motion, and without objection from either side, issued a restraining order, prohibiting the sheriff from proceeding with the sale, until the further orders of court.
Later, the court rendered judgment, sustaining the exceptions of no cause of action and the one of estoppel, dissolving the restraining order, refusing to issue the injunction, and dismissed plaintiffs' suit at their costs. The judgment allows the sheriff and ex officio tax collector, against plaintiffs, 10 per cent. attorney's fees on the principal and interest of the taxes, the collection of which plaintiffs sought to enjoin, the fees to be collected as costs by the tax collector with the taxes, involved in the suit, as provided by section 56 of Act 170 of 1898.
Plaintiffs obtained an order for both a suspensive and a devolutive appeal from the judgment rendered, and furnished bond for each appeal.
Defendants have moved to dismiss the suspensive appeal taken, on the ground that plaintiffs are not entitled to a suspensive appeal from the judgment rendered, since a suspensive appeal does not lie from a judgment, dissolving a restraining order and refusing to issue an injunction.
A restraining order is intended to serve only a temporary purpose, namely, to maintain the status quo until, after a hearing, the judge determines whether the preliminary injunction, prayed for, should be granted. That such an order is intended to serve only a temporary purpose appears, not only from the fact that in the very law that provides for its issuance it is designated a "temporary restraining order," but also from the fact that it expires within such time after entry as the court may fix, which must not exceed ten days, unless within the time so fixed the order is extended for a like period for good cause shown. Section 2 of Act 29 of 1924. When the judge decides that the injunction should not issue, the restraining order has served its purpose. Therefore, no appeal, whether devolutive or suspensive, lies from an order, dissolving a restraining order. Section 5 of Act 29 of 1924. But, a devolutive appeal lies from an interlocutory order or decree, refusing to grant a preliminary injunction, but not a suspensive appeal. Section 5 of Act 29 of 1924.
If the judgment, appealed from, were merely an interlocutory decree, dissolving a restraining order and refusing to issue an injunction, it would be beyond dispute, under the very terms of Act 29 of 1924, that only a devolutive appeal would lie, and that, only from the order refusing to grant the preliminary injunction. But, the judgment does more than that. It sustains exceptions of no cause of action, directed against plaintiffs' petition, and also a plea of estoppel, and dismisses plaintiffs' suit, which includes, not only a demand for the injunction, but also a demand to declare null the taxes, sought to be collected, and assesses a penalty against plaintiffs. Such a judgment is not an interlocutory decree, but is a final judgment. It determines the entire case, as presented by the pleadings, leaving nothing more for the trial court to pass upon, in the case. Code of Practice, art. 539; Martel v. Rovira, 164 La. 1099, 115 So. 283.
Since the judgment, appealed from, is a final judgment, resort must be had to the laws, governing appeals generally, to determine what kind of an appeal may be taken. Washington v. Page Son, 165 La. 1000, 116 So. 486. The general rule of law is that, when a judgment is appealable, a suspensive appeal, if timely taken, always lies, unless the judgment comes within one of the excepted classes. Thus, in Young v. Village of Bossier City, 152 La. 18, 92 So. 719, it was said:
"It is immaterial what might or might not have been plaintiff's right to appeal had the injunction been dissolved by interlocutory judgment, on rule or otherwise. In the case before us there was, as above shown, a final judgment, disposing of the whole case on the merits, from which judgment plaintiff was entitled to an appeal as a matter of right. C.P. art. 565. And having a right of appeal, the law itself regulates the effect to be given to such appeal. The suspensive appeal is the rule (C.P. art. 575); the nonsuspensive appeal the exception (C.P. art. 580). That is to say some judgments may not be appealed at all. C.P. arts. 566, 567. But when appealable a judgment may always be appealed from suspensively, unless it comes within one of the excepted classes. * * *"
The final judgment, appealed from, in this case, does not come within one of the exceptions to the rule. Hence, a suspensive appeal lies from it. It does not follow, however, that a suspensive appeal, in every instance, has any greater effect than would a devolutive appeal. The judgment may decree nothing to suspend. In this instance, no preliminary injunction ever issued, and hence no preliminary injunction was ever dissolved, to be reinstated, as it were, by a suspensive appeal. Therefore, unless the restraining order, granted by the trial judge, while the rule nisi was pending before him, is effective, during the period of a suspensive appeal by virtue of its reinstatement as a consequence of the appeal, there is no reason why the sheriff may not proceed to enforce payment of the taxes, for the restraining order is all that prevented him from doing so at any time.
The restraining order, however, ceased to operate, if it had not already ceased to be effective, pretermitting its dissolution by the trial judge, when he refused to grant the injunction. The order had then served its purpose. The law does not contemplate that a restraining order, granted by the trial judge, pending an application for a preliminary injunction, should be, as it were, reinstated by a suspensive appeal, and operate during the pendency of the appeal. It contemplates that such an order shall pass out of existence, and so remain, in the lower court. This appears from the fact that the effectiveness of such orders are limited in time, which, in no instance, may exceed ten days from their entry, unless the time, for cause shown, be extended, for another like period. Section 2 of Act 29 of 1924. This limitation of the time precludes any idea that a restraining order, granted, pending an inquiry in the trial court, is reinstated by, and operates, during the pendency of a suspensive appeal. It would be utterly impossible to dispose of the appeal before the stay order expired, and, if it were possible to obtain extensions, the number of extensions that would be required would render the proceeding utterly impracticable. Hence the suspensive appeal does not prevent the sheriff from proceeding to enforce payment of the taxes.
As to the 10 per cent. attorney's fees, which the judgment allows against plaintiffs, the suspensive appeal has the effect of suspending their collection. The judgment casting plaintiffs for these fees was rendered under section 56 of Act 170 of 1898, page 373, and is, in accordance with this section, a judgment against plaintiffs, in the nature of a penalty, for which they are personally liable. It is true that the section, after providing that the fees shall be paid by the party against whom the judgment is rendered, provides that they shall be collected by the tax collector as costs at the same time that the taxes and other penalties are collected, but this provision, as to the manner of collection, is purely directory, at least where the fees are in contest.
While the suspensive appeal, in this case, may not be of any great benefit to plaintiffs, yet, as the law allows it, it should not be dismissed.
The motion to dismiss is therefore denied.
O'NIELL, C.J., concurs in the result.
On the Merits.
The principal allegations under which plaintiffs ask relief and the proceedings had in this case are stated in our opinion on the motion to dismiss, and we shall not restate them in detail.
The rule is well established that in passing on an exception of no cause of action the court must accept as true the allegations of fact set out in the petition. This rule does not apply, however, to those allegations which are mere conclusions of the pleader.
Plaintiffs' chief complaint is that their lands have not been and will not be benefited by the levy, assessment, and collection of these taxes, and that the board of commissioners does not contemplate the building of additional levees or the taking of further steps to protect their lands from overflow.
These being allegations of fact we accept them as true. But it does not follow that because of these facts and conditions these plaintiffs are entitled to the relief they seek, in view of certain other allegations which we shall state later in this opinion.
This levee and drainage district was created under Act 109 of 1904. Section 2 of that act provides that the control and management of the said district "shall be, and is hereby vested in a Board of Commissioners." By section 4 it is provided that said board of commissioners "shall be, and is hereby declared to be, and is created a corporation and body politic, and invested with all the powers, privileges and immunities conferred by law upon other corporations of like character within this State."
Section 6 of the act provides that for the purpose of raising revenues to carry out the projects contemplated by the act, said board of commissioners may levy annually an ad valorem tax of ten mills on the dollar of the assessed valuation of the land in the district, said taxes to be extended on the tax rolls by the assessor "and the Tax Collector * * * shall collect the said District Tax in the same manner as State Taxes are collected."
Under sections 7 and 8 of the act, the board is authorized to levy local assessments or forced contributions and acreage taxes, and under section 10 "to issue bonds to the amount of Three Hundred Thousand Dollars," said bonds to be "secured by taxes, assessments and forced contributions, * * * all of the said bonds to become due in fifty years, * * * the said interest to be evidenced by coupons attached to the said bonds, payable annually * * * out of the revenues hereinbefore provided."
Section 11 of the act provides that the board of commissioners may negotiate said bonds and "that the interest on the said bonds shall be paid out of the funds arising from the collection of the revenues hereinbefore provided," and section 12, that after twenty five-years from the execution of the said bonds, the state treasurer shall each year "set aside out of the revenues of the District a sum in excess of the interest on said bonds to * * * constitute a sinking fund for the payment of the principal of said bonds when due."
Section 13 provides:
"That the issue of said bonds is hereby declared to create a valid contract between the said Board of Commissioners, the State and each and every holder of said bonds, which neither the said Board of Commissioners nor the State shall impair."
These petitioners allege that since this levee district was created and the board of commissioners organized under said act, the board has issued bonds in the sum of $300,000, which have been sold and the proceeds already expended in the building of levees. It is conceded that these bonds are now outstanding in the hands of persons unknown. Under the precise letter of the law, these bonds are valid contracts between the board of commissioners and the state on the one hand, and the holders of them on the other. For their payment, together with all interest due thereon, the said board of commissioners and the state have pledged their faith and credit.
The only means provided for the payment of these bonds and the interest is by the levy, assessment, and collection of taxes. The board of commissioners has provided this means by levying the taxes and the tax collector is attempting to collect them. These plaintiffs are now before the court attacking the levy of these taxes and are seeking to restrain the tax collector from collecting them on the ground, mainly, that the general scheme adopted by the board of commissioners of said levee district for the protection of their lands from overflow has resulted in failure and that there is no room for hope that any relief will be afforded in the future.
The court cannot entertain their demands. Whether the board of commissioners acted wisely or unwisely in issuing and negotiating the bonds, whether it erred in judgment in the expenditure of the proceeds thereof, or whether the lands intended to be protected have been or ever will be benefited or not, are matters and issues which cannot now be raised and gone into by these plaintiffs as owners of property in the district. These matters and issues are foreclosed. The bonds have been issued and sold and must be paid. They cannot be paid if the machinery which the Legislature created for the raising of funds for that purpose is disrupted. The faith and credit of the levee district and of the state are behind these bonds. The board of commissioners must see that taxes to pay them are levied, the assessor must extend the taxes on the rolls of the parish, and the tax collector must collect them. These duties must be performed by these officials. The act specifically provides in section 13 that:
"The taxes and assessments required for the payment of the interest and sinking fund of said bonds shall, to the extent required to provide for the payment thereof, as above set forth, be assessed and collected each year until the interest and principal of said bonds shall have been paid in full."
If the board of commissioners, the assessor, and the tax collector should fail to levy, assess, and collect these taxes, they could be compelled to do so, for the act provides in section 13:
"And the judicial power shall be exercised by any Court of competent jurisdiction within the State of Louisiana, when necessary to secure such levy, collection and payment."
The act goes further and provides in section 13 that:
"No court shall enjoin the payment of the principal or interest thereof, or the levy and the collection of the tax therefor."
These plaintiffs are therefore now seeking to prohibit these officials from doing what they are commanded to do under the express provisions of the law, and which they may be compelled to do by the exercise of the judicial power, and are asking the court to do the very thing which the law specifically prohibits it from doing.
As the situation is presented by plaintiffs in their petition, they and their property are now within the very teeth of the law and there is no escape for them.
It is alleged, and counsel say in oral argument and in brief, that under the general plan contemplated by the federal government for the control of the flood waters in the Mississippi Valley, their lands will be within the Atchafalaya Spillway and will be inundated when the Red and Mississippi rivers overflow, and that their value will thereby be utterly destroyed. The allegation that their lands will be destroyed is a mere conclusion of the pleaders. But conceding that such may ultimately be the case, yet according to their allegations, the lands have not yet been taken over by the government for that purpose, nor is it certain that they ever will be. With these bonds outstanding and unpaid, unless and until plaintiffs' lands are taken over by supreme governmental power and authority, and so long as they exist and are subject to private ownership, they are subject to taxation and their owners must pay the taxes levied and assessed by legal authority.
It is alleged that the board of commissioners of said drainage district has ceased to function. That may be true so far as constructive work is concerned. But the board cannot legally become functus officio as long as these bonds are outstanding and unpaid.
Section 14, Act 109 of 1904, creating said board, reads in part as follows:
"Sec. 14. Be it further enacted, etc., That the corporate existence of said Red River and Bayou Des Glaises Levee and Drainage District, and the Board of Commissioners thereof, as provided for in this Act, shall continue [not may continue] until all the bonds issued in accordance with the provisions of this act shall have been paid and extinguished."
But it was contended that the so-called Flood Control Act adopted by Congress in May, 1928 (33 USCA §§ 702a to 702m, 704). superseded and set aside all state laws enacted for the purpose of levying and draining lands situated in the Mississippi Valley from the Head of Passes to Cape Girardeau, Mo.; in other words, that the board of commissioners of this and all other levee districts have been put out of existence.
If it be true, as counsel argue, that the federal government has authority to set aside such state laws, it is not true as a matter of fact that Congress intended to or did attempt to set aside and render functus officio these levee boards. To the contrary, the Flood Control Act specifically recognized these boards and enjoined upon them certain duties and exacted of them certain obligations in connection with the general flood control scheme.
We quote extracts from the Flood Control Act, as follows: "It is hereby declared to be the sense of Congress that the principle of local contribution toward the cost of flood control work, which has been incorporated in all previous national legislation on the subject, is sound, as recognizing the special interest of the local population in its own protection." (Section 2, 33 USCA § 702b.)
"Except when authorized by the Secretary of War, upon the recommendation of the Chief of Engineers, no money appropriated under authority of sections 702a to 702m of this title shall be expended on the construction of any item of the project until the States or levee districts have given assurances satisfactory to the Secretary of War that they will (a) maintain all flood-control works after their completion, except controlling and regulating spillway structures, including special relief levees; maintenance includes normally such matters as cutting grass, removal of weeds, local drainage, and minor repairs of main river levees; (b) agree to accept land turned over to them under the provisions of section 702d; (c) provide without cost to the United States, all rights of way for levee foundations and levees on the main stem of the Mississippi River between Cape Girardeau, Missouri, and the Head of Passes." (Section 3, 33 USCA § 702c.)
In Major General Edgar Jadwin's report to the President, dated December 8, 1927, he said with particular reference to Atchafalaya Basin:
"Sec. 105. The levee lines are laid out so as to avoid drainage problems as much as possible. Where drainage is interrupted, gaps will be left until local authorities can arrange for the proper drainage. Sec. 106. Most of the levee lines confining the northern portion of the floodway can be constructed now. The levees confining the southern portion should be constructed as fast as justified economically and as the requisite drainage projects are developed by local authorities."
As to whether the general plan of federal government will destroy or ever render less valuable the property in the Atchafalaya Basin, where plaintiffs' lands are situated, General Jadwin said:
"Sec. 109. The proposed plan gives the river room to expand when in extraordinary flood, but does not take away from the existing land owners any of the protection which they now have. History indicates that overflows over the relief levees will not recur on an average more often than once in fifteen years. Some spaces must be available for the Mississippi to spread into, and this territory is most suitable hydraulically and the most undeveloped economically. It is largely swamp land now. The floodways are necessary to make other parts of the Mississippi Valley safe, and no existing protection is to be reduced."
Under Act 195 of 1928, the board of commissioners increased the acreage tax from 7 to 20 cents an acre. This increase is attacked upon the ground that said act was adopted subsequent to the passage of the Flood Control Act and is superseded by it.
There is no merit in this contention, as we have already shown.
The contention that the acreage tax is unconstitutional because the consent of the property owners was not secured before its levy is also without merit. The assessment of an acreage tax or forced contribution by levee boards is not within the scope of the limitations in the Constitution on general taxation.
See John Hill et al. v. Fontenot, Sheriff, etc., 46 La. Ann. 1563, 16 So. 475, and the many authorities there cited.
For the reasons assigned the judgment appealed from is affirmed, with all costs.