Brock v. St. James Parish Council

400 So. 2d 745, 1981 La. App. LEXIS 3976
CourtLouisiana Court of Appeal
DecidedJune 15, 1981
DocketNo. 5-56
StatusPublished
Cited by8 cases

This text of 400 So. 2d 745 (Brock v. St. James Parish Council) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brock v. St. James Parish Council, 400 So. 2d 745, 1981 La. App. LEXIS 3976 (La. Ct. App. 1981).

Opinion

BOUTALL, Judge.

Within sixty days of an election submitting to the voters of St. James Parish a proposition permitting the Parish to impose a sales tax of 1% and authorize issuance of bonds, Henry J. Brock, a registered voter and tax payer brought this election contest. Brock’s suit is based upon two major grounds: First, it is alleged that there was improper publication of the election notice and that the notice was published in a paper unqualified to serve as the official journal of the parish; second, the validity of the tax itself is questioned because it will not be uniformly collected throughout the parish. The trial court dismissed his suit and Brock appeals.

The first issue is the validity of that portion of the judgment maintaining an exception of no cause of action.

The defendants filed exceptions of no cause of action based upon the provisions of LSA-R.S. 18:1401(C) which authorizes a person in interest to bring an action contesting any election in which any proposition is submitted to the voters “if he alleges that except for irregularities or fraud in the conduct of an election the result would have been different.” Brock in his petition alleges only that “Had the ordinance properly been advertised in the paper that should have been the official journal, more people would have been put on notice and the result of the election could have been different. It is impossible to determine the effect the use of the proper official journal would have had.”

The trial judge concluded that that allegation was insufficient to fulfill the requirements of § 1401(C) and dismissed that portion of the suit. We agree with the reasons that he detailed and adopt them as our own.

[747]*747Additionally, it should be noted that the trial judge permitted evidence to be introduced on this issue in order that a complete record might be had. We have examined that evidence, and we find that the plaintiff has not proven facts which would support his contention. During the pertinent time, the St. James Council had appointed a newspaper to be an official journal, and the validity of that appointment has never been adjudicated upon. Accordingly, that newspaper is the parish journal at the time in question. We do not think it appropriate to inquire into the qualifications of that newspaper and the validity of its appointment in the context of this suit. However, even conceding for the sake of argument that the newspaper was not qualified as an official journal, nevertheless the facts show it to be a newspaper of general circulation in the parish and fulfilling the qualifications imposed by LSA-R.S. 18:1285. Lastly, we point out that there is no evidence adduced which showed that any more or less voters would have voted or that they would have voted differently. Accordingly, we conclude that plaintiff’s attack on the election process lacks merit.

The second basic issue raised is the validity of the imposition of the sales tax itself.

The factual background is this. Within the geographical area of St. James Parish there had been three sales taxes imposed. In two separate elections the St. James Parish School Board imposed a sales tax of 1% in each election making a total of 2%. Another 1% sales tax had been imposed in the municipal limits of the municipalities of Luteher and Gramercy under the provisions of LSA-R.S. 33:2737.9, which created the “Lutcher-Gramercy General Improvement District” and authorized the district to levy and collect a sales and use tax not to exceed 2%. Thus there is already in existence a total 3% sales tax in the geographical limits of Luteher and Gramercy but 2% in the rest of the parish. It is contended that the 1% sales tax sought to be imposed in this election will be in violation of the Louisiana Constitution of 1974, Article 6, § 29 which imposes a limitation of 3% on sales taxes collected within any local governmental subdivision. Thus the tax would be unevenly applied because it would be imposed upon sales made outside of those municipalities but not imposed upon sales made inside those municipalities.

It has been argued that the parish intends to impose the tax only in those sections outside of the municipalities. If this plan was contained within the confines of the proposition submitted to the voters, we would agree basically with the detailed reasons for judgment given by the trial judge, in his disposition of this contention. However, we see the matter as presenting a different resolution.1 The proposition put before the people is as follows:

“PROPOSITION
Shall the Parish Council of the Parish of St. James, State of Louisiana (the “Council”), under the provisions of Article VI, Section 29(A) of the Constitution of the State of Louisiana of 1974, and other constitutional and statutory authority supplemental thereto, be authorized to levy and collect, and adopt an ordinance providing for such levy and collection, a tax of one per cent (1%) (the “Tax”) upon the sale at retail, the use, the lease or rental, the consumption, the storage for use or consumption, of tangible personal property and on sales of services in the Parish of St. James (the “Parish”), to the extent permitted by law, all as presently defined in R.S. 47:301 through 47:317 with [1] twenty-five per cent (25%) of the proceeds of the Tax (after paying reasonable and necessary costs and expenses of collecting and administering the Tax) to be used for the purpose of providing care and assistance to the elderly persons of the Parish and providing health service to the residents of the Parish, including the acquisition, operation and maintenance of [748]*748vehicles necessary in connection therewith; [2] twenty-five per cent (25%) of the Tax to be used to provide solid waste management and disposal, including the acquisition of land, plants, buildings, machinery and equipment necessary in connection therewith; [3] twenty-five per cent (25%) of the Tax to be used to pay the cost of providing recreational facilities including the acquisition of land, buildings, machinery and equipment necessary in connection therewith; and [4] twenty-five per cent (25%) of the Tax to be used for the payment of the general operation and maintenance expenses of the Parish and/or for the acquisition of capital improvements for the Parish; and shall the Council be authorized to fund the proceeds of the Tax into bonds from time to time for the purpose of making capital improvements for the purposes listed above for the Parish to the extent and in the manner permitted by the laws of Louisiana, including, but not limited to, Sub-Part F, Part III, Chapter 4, Title 39 of the Louisiana Revised Statutes of 1950?”

It will be noted that the Council seeks the authority to impose the tax both under the provisions of the Constitution, Article 6, § 29 and the statutory law, “to the extent permitted by law”. We refer to LSA-R.S. 33:2721 which specifically authorizes St. James Parish to levy and collect within the parish a sales tax not exceeding 1%. Thus the real problem presented is whether the imposition of the 1% tax by the Lutcher-Gramercy General Improvement District prevents St. James Parish from enacting its 1% sales tax. We hold that it does not. We reiterate that this is not a contest involving a municipal tax and a parish tax, but one involving a district tax and a parish tax.

The authority for St. James Parish to impose a sales tax is found statutorily in LSA-R.S. 33:2721, and constitutionally in Article 6, § 29.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Opinion Number
Louisiana Attorney General Reports, 2003
Gruner v. Claiborne Parish Police Jury
417 So. 2d 18 (Louisiana Court of Appeal, 1982)
Brock v. St. James Parish Council
407 So. 2d 1265 (Louisiana Court of Appeal, 1981)
Brock v. St. James Parish Council
400 So. 2d 1391 (Supreme Court of Louisiana, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
400 So. 2d 745, 1981 La. App. LEXIS 3976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brock-v-st-james-parish-council-lactapp-1981.