Opinion
No. 28632.
February 13, 1928. On Rehearing, July 2, 1928. On Second Rehearing, January 2, 1929.
Appeal from Seventeenth Judicial District Court, Parish of Lafourche; Robert B. Butler, Judge.
Action by the Board of Commissioners of Atchafalaya Basin Levee District against C. Lagarde Co., Limited, and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Charles E. Schwing and W.P. Obier, both of Plaquemine, for appellant.
Howell, Wortham Howell, of Thibodaux, for appellee Stark.
Milling, Godchaux, Saal Milling, of New Orleans, for other appellees.
This was originally a very complicated and much-involved case, as is evidenced by the fact that, although there is not a single disputed fact in the case, nevertheless it required 83 typewritten pages of transcript and 184 printed pages of brief merely to state the issues and develop the propositions advanced on one side or the other.
But during the argument before this court it ultimately developed that the case involved only a few comparatively simple issues which this court would be called upon to decide.
I.
Briefly stated, the question is whether the plaintiff, a state agency, established as part of the general levee system required by Const. 1879, arts. 213, 214 (Const. 1898, art. 238; Const. 1921, art. 16, § 1), may collect arrears of a certain produce tax levied by said board for the years 1919 to 1924, both inclusive, which this defendant C. Lagarde Company failed to pay on certain sugars manufactured by them in said district during said years.
II.
Said taxes were levied under the provisions of section 10 of Act 97 of 1890, creating said levee district, and have been held to be constitutional in principle. George v. Young, 45 La. Ann. 1232, 14 So. 137; Excelsior Planting Mfg. Co. v. Green, 39 La. Ann. 454, 1 So. 873. And the taxes so levied constitute a lien on the produce on which they are levied, Act 65 of 1894, § 4, which (in that respect) has not been repealed by any subsequent legislation, which lien, however, is lost when the produce is removed from the parish in which it is raised.
III.
The statute which controls the decision of this case is Act 140 of 1902 (amending section 10 of Act 97 of 1890, aforesaid), which provides that said tax shall be collected by the sheriff of the parish in which the produce is raised "in such manner and under such regulations as the board may direct," but in all cases before the produce is removed from the parish.
The trial judge held that, because the board failed to provide the manner in which said taxes should be collected and to prescribe regulations for their collection, therefore said taxes could not be collected at all.
We do not agree with this. It is true that, since the board failed in its duty, no one was at fault for not collecting the taxes. But that does not mean that the taxes themselves were not due by the produce on which they were levied; for in fact the taxes were levied, and thus became due.
The object of the Legislature in providing that the taxes should be collected "in such manner and under such regulations as the board may direct" was merely to allow the board to prescribe a direct and summary manner of collecting such taxes without recourse to the courts. But, where the board has failed to provide such direct and summary process, then the ordinary civil process might have been resorted to, in case the tax was not voluntarily paid, and a judgment "in rem" obtained against the property liable for the tax. Barber Asphalt Co. v. Watt, 51 La. Ann. 1345, 26 So. 70; Fristoe v. Crowley, 142 La. 393, 76 So. 812, L.R.A. 1918C, 254.
IV.
When the Lagarde Company removed the produce from the parish without paying the tax, thereby depriving plaintiff of its lien on said produce, it thereby made itself personally liable for the amount of the tax, although not personally liable therefor before that. For the owner who removes, or secretes or converts, property subject to a lien, and thereby deprives the lienholder of his lien, becomes personally liable to the lienholder for the amount of the lien. Marvin v. Weider, 31 Neb. 774, 48 N.W. 825; Michalson v. All, 43 S.C. 459, 21 S.E. 323, 49 Am. St. Rep. 857.
V.
There are several reasons why Act 140 of 1902 is not unconstitutional because it levies a produce tax on sugar cane shipped out of this levee district and beyond the limits of any levee district, whilst it does not levy a like tax on sugar cane raised in this levee district and shipped into another levee district:
(1) First of all, because defendant as a manufacturer of sugar (taxed as sugar) has no interest whatever in the question whether or not sugar cane be taxed or not taxed at all; no more than he, or a producer of sugar cane or cotton or potatoes (all taxed) has a right to complain that tobacco and corn and cabbage are not taxed.
(2) There is a good reason for taxing sugar cane shipped out of a levee district to a place where it will not be taxed as sugar, and not taxing sugar cane which is shipped into another district where it will be taxed as sugar. In the one case it eventually contributes its full share towards maintaining the levee system, and therefore should not be taxed where produced; in the other case, it would contribute nothing to the building of the levees unless taxed where it is raised.
(3) Any producer of sugar cane may ship his cane whithersoever he pleases, and thus pay or avoid the tax thereon at his pleasure. All have the same privilege; that is to say, all producers of sugar cane may, at their option, pay the tax thereon in the parish where produced, or in the parish where it is converted into sugar. All are treated alike.
VI.
The Lagarde Company went into the hands of a receiver in 1922, and therefore plaintiff must look to the receiver and the receivership proceedings for its taxes for 1922, 1923, and 1924: and the receiver is no party to this suit.
But it operated its factory during the years 1919, 1920, and 1921; and for those years it owes taxes on sugar and molasses amounting to $2,682.87 (i.e., $549.82, plus $902.80, plus $1,230.25; see calculations in plaintiff's brief, pp. 38 and 39).
Decree.
The judgment appealed from is therefore reversed, and it is now ordered that plaintiff have judgment against the C. Lagarde Company for the full sum of $2,682.87, with legal interest from judicial demand until paid and costs of both courts. It is further ordered that in all other respects plaintiff's demand be rejected.
On Rehearing.
The issues in this case are concisely and accurately stated in our original opinion, which was handed down February 13, 1928, and in which our decree reversed the judgment of the lower court and gave judgment for the plaintiff for $2,682.67, with legal interest from judicial demand, and costs in both courts, and rejected the plaintiff's demand in all other respects. Both litigants applied for a rehearing, and their applications were granted. Pending the resubmission of the case, the defendant filed, in this court, an exception or plea of prescription.
Both applications for rehearing were granted because of some doubt of the correctness of the conclusion expressed in paragraph IV of our original opinion.
We think the interposed plea of prescription is well founded, and, as this conclusion disposes of the case, we need not again discuss the issues raised on the merits further than to say that we adhere to the conclusions expressed in our original opinion. In that opinion we said:
"When the Lagarde Company removed the produce from the parish without paying the tax, thereby depriving plaintiff of its lien on said produce, it thereby made itself personally liable for the amount of the tax, although not personally liable therefor before that. For the owner who removes, or secretes, or converts, property subject to a lien, and thereby deprives the lienholder of his lien, becomes personally liable to the lienholder for the amount of the lien."
It is clear that our decree is based upon the theory that defendants committed a tort or quasi offense, an issue not raised by the pleadings and not considered by the trial court; and hence the plea of prescription was not filed until a rehearing hereof was granted. Actions in damages for tort, offenses, or quasi offenses are prescribed by one year. C.C. art. 3536. The petition in this case was filed December 10, 1925, and defendant accepted service thereof December 14, 1925, more than one year after the taxes sued for became due and exigible.
For these reasons our original decree is avoided, and it is now decreed that defendants' plea of prescription be, and it is hereby, sustained, and the judgment appealed from is affirmed at appellant's cost. The right is reserved to plaintiff to apply for a rehearing.
O'NIELL, C.J., and ST. PAUL, J., dissent.
The majority opinion and decree is so lacking in precedent, and so far-reaching and disastrous in its effect upon the governmental agencies and administrative boards of this state, that I feel compelled to record my dissent.
In our original opinion and decree, we recognized the constitutionality and legality of the tax on the sugar and molasses manufactured by the defendant.
We likewise held that, when the defendant removed the sugar and molasses from the parish without paying the tax, thus depriving the levee board of its lien and privilege, said defendant became responsible for the statutory charges against the said property.
But now, on rehearing, simply because the officers, whose duty it was to collect the tax, permitted the owner of the produce to remove the same from the parish, it is said the action of the levee board to recover the tax is prescribed.
And the basis for such ruling is that the owner of the produce committed an offense or quasi offense in removing the produce from the parish without paying the tax.
What analogy or what application the pleaded prescription governing actions arising ex delicto can have to taxes or local assessments, levied pursuant to constitutional authority, is beyond my ability to comprehend.
Taxes are not debts in any sense of the term. They are forced contributions, exacted of the citizen or his property, to support the government.
The demand made in this suit is not, therefore, a demand for a debt, nor is it a demand for damages occasioned by an offense or a quasi offense. It is a demand on the defendant to pay the plaintiff the statutory charges levied against the defendant's property.
At different times in the past history of this state, there were statutes limiting the time within which taxes of every character could be collected.
And to-day the Constitution (section 19, art. 19, of 1921, and article 186 of 1913) provides that tax liens, mortgages, and privileges shall lapse in three years from the 31st day of December in the year in which the taxes are levied, and this whether such liens, mortgages, or privileges are recorded or not.
There is no statute of this state, however, fixing a period in which taxes themselves are prescribed. The general rule, in the absence of such a statute, is that taxes are imprescriptible.
The statute under which the tax in question was levied creates a lien not only upon the property subject to the tax, but also upon all other property of the person owning same at the time the tax becomes due.
This was in accord with paragraph 2 of article 233, Constitution 1913, and paragraph 3, § 11, art. 10, Constitution 1921, which declares that taxes on movables shall be collected by the seizure and sale of the movable property of the delinquent, whether it be the property assessed or not.
If this decision stands, then the constitutional provisions referred to are rewritten by the court so as to limit the privilege to one year, for there can be no privilege for taxes for three years when the taxes themselves prescribe in one year.
The rule is well settled that the statutes of prescription are to be strictly construed, and cannot be extended from one action to another.
And another recognized rule is that revenue laws are sui generis and are not to be assimilated to those on any other subject. State ex rel. Jackson v. Recorder, 34 La. Ann. 178; Davidson v. Lindop, 36 La. Ann. 765.
Hence "the provisions of the Civil Code under the title of prescription do not apply to the limitation prescribed by statute in respect to the collection of the revenue." Reed v. Creditors, 39 La. Ann. 115, 1 So. 784.
As before stated, this action is not brought for damages. It is in no sense an action arising out of an offense or quasi offense.
The defendant's able counsel expressly repudiate such a theory.
The plaintiff, in effect, says that a definite and fixed amount of taxes was levied on defendant's property, secured by a lien and privilege. The defendant removed and sold that property, and therefore owes the amount of said taxes.
The answer of this court is, in effect, we concede, this, but, in refusing to pay the tax and in selling the property, the defendant was guilty of a quasi offense, and the plaintiff's action, being one for damages, is prescribed by one year, as are all other actions in tort.
On Second Rehearing.
The main issue presented on this rehearing is different from any presented on the previous hearings of the case. This is due to the fact that it is urged that, since the last opinion herein was handed down, the right to collect the taxes involved in this case has been withdrawn by the repeal of the statutes conferring the right. We shall now consider whether this right has been withdrawn by repeal, and, if so, what is the effect of the repeal on this case.
The special assessments or forced contributions, imposed and involved herein, were levied under Act 140 of 1902, which amends and re-enacts section 10 of Act 97 of 1890. This section of the Act of 1890, as amended by the Act of 1902, was expressly repealed, following the rendition of our last opinion in this case, by Act 117 of 1928. The Act of 1928, after reciting section 10 of the Act of 1890, as amended by the Act of 1902, enacts that the section so amended "be and the same is hereby repealed." The act then, in its second and last section, reads:
"That all laws, and parts of laws wherein authority is granted to the Atchafalaya Basin Levee District to levy and collect a special assessment or forced contribution on agricultural products, be and the same are hereby repealed."
The sole purpose of the Act of 1928 is to repeal all laws and parts of laws authorizing the levy and collection of forced contributions or special assessments on agricultural products by the Atchafalaya basin levee district, with specific mention of the repeal of section 10 of the Act of 1890, as amended by the Act of 1902, which is the law that authorized the levy and collection of the tax. The law, therefore, that authorized the levy and collection of the tax, has unquestionably been repealed.
But plaintiff urges that the repeal has no retrospective effect, but applies to only future levies, and the right to collect thereunder. The repeal, we may say, seems to be broad enough to cover the right to collect levies already made.
Touching such repeals, it is said in 25 Ruling Case Law, § 193, p. 940, that:
"The repeal, without a saving clause or provision, of a statute imposing a tax or fee takes away the right to collect an unpaid tax which is due even though a suit to collect the tax is pending. By the repeal of statutes which authorize the making of assessments and the collection thereof, not only the remedy for the collection of an assessment but also the lien or right is taken away, although expenses have been incurred on the faith of such assessment. And nothing less than a plain exception of existing cases or claims from the operation of the repealing act or the continuance of the same system of taxation under new regulations will save such cases or claims from the effect of the repeal. * * *"
In Cooley on Taxation (3d Ed.) p. 21, it is said:
"The repeal of a tax law puts an end to all right to proceed to a levy of taxes under it, even in cases already commenced, unless the right is reserved in the repealing statute; and statutory remedies for the enforcement of a tax are gone when the statute is repealed without an express saving. * * *"
The repealing statute, in this instance, has no saving clause, preserving taxes not collected and the procedure for their collection. Moreover, the statute shows a clear intention to destroy the right to collect such taxes. Where such is the case, the right to collect taxes already levied is taken away. Everything not fully executed thereunder falls with the abrogated law. Crow v. Cartledge, 99 Miss. 281, 54 So. 947, Ann. Cas. 1913E, 470; Bradstreet Co. v. City of Jackson, 81 Miss. 233, 32 So. 999; St. Joseph County Court v. Ruckman, 57 Ind. 96; City of Augusta v. North, 57 Me. 392, 2 Am. Rep. 55.
Plaintiff, for the purpose of showing that it was not the intention of the Legislature by the repealing act, to affect the collection of taxes already levied, cites City of New Orleans v. Vergnole, 33 La. Ann. 35; Succession of Dupuy, 33 La. Ann. 259; City of New Orleans v. New Orleans Carrollton Railroad Co., 35 La. Ann. 679; and City of New Orleans v. L'Hote Co., 35 La. Ann. 1177.
In the Vergnole Case, the issue was whether an ordinance levying a license tax, adopted prior to the Constitution of 1879, was abrogated by the adoption of that Constitution. The contention was that the ordinance was abrogated by article 206 of that instrument, which prohibited a political corporation from imposing a greater license tax than is imposed by the General Assembly for state purposes. The court held that the article of the Constitution did not have a retroactive effect, and that, for a statute to act retroactively, the intention of the lawmaker in that respect must clearly and unambiguously appear. In the case at bar we think that it does appear that the lawmaker intended that the repealing act should have a retrospective effect as to all local assessments or forced contributions on agricultural products, not collected, because he took away the right to collect all assessments or contributions on such products which includes those not collected, as well as future assessments.
In the Succession of Dupuy, the question was whether the levy of taxes made by the city of New Orleans, in December, 1879, prior to the time the Constitution of that year became operative, was affected by that instrument, and by a statute adopted pursuant to it, and, adopting the views entertained in the Vergnole Case, the court held that the levy was not affected. For the reason just stated by us, we think that the cited case is not in conflict with the view entertained by us that the right to collect the taxes involved herein has been abrogated.
As relates to the two remaining cases, cited by plaintiff, we find nothing in either of them which militates against the conclusion reached by us, relative to the abrogation of the right to collect the taxes involved in this case. In the New Orleans Carrollton Railroad Co. Case, the questions presented were whether Act No. 9 of 1878, authorizing the assessment of taxable property, omitted from the rolls of previous years, was in conflict with article 110 of the Constitution of 1868, prohibiting retroactive legislation, and whether Act 96 of 1882, directing the assessment of stock to shareholders, was retrospective. It was held that the Act of 1878 was not in conflict with the cited article of the Constitution, and that the Act of 1882, as appeared from its wording, was prospective only.
In the L'Hote Co. Case, the question involved was whether property that was subject to taxation, against which a tax was levied while it was subject to taxation, was relieved from the payment of the tax by the adoption of the Constitution of 1879, which exempted property, of the description involved, from taxation. It was held that the property was not relieved thereby, as the Constitution of 1879 was not retrospective in that respect. The court rested its ruling entirely on the reasoning in the Vergnole Case and in the Succession of Dupuy. Therefore the reasons why we think those cases are not in conflict with the views expressed in the case at bar are applicable to show that those views are not in conflict with the case now under consideration — that is, the L'Hote Co. Case.
But plaintiff urges that the repealing act should not be so interpreted as to violate the obligation of a contract, and points out that the Atchafalaya basin levee district has issued bonds, and that the taxes here involved are intended for the purpose of paying, in part, the bonds issued, and are dedicated to that end. It is a fundamental principle that no law can be passed and permitted to stand that violates the obligation of a contract. However, we are not prepared to hold that the repeal of the laws authorizing the levy and collection of this produce tax will affect the payment, in due course, of the bonds issued. The district has other means provided it and set aside for that purpose. It is fair to presume that the Legislature considered this question before passing the repealing act and found that the laws authorizing the collection of the taxes involved herein could be repealed without detriment to the bonds issued.
For these reasons, the judgment appealed from is affirmed.