Liter v. City of Baton Rouge

245 So. 2d 398, 258 La. 175, 1971 La. LEXIS 4431
CourtSupreme Court of Louisiana
DecidedFebruary 24, 1971
Docket51081
StatusPublished
Cited by28 cases

This text of 245 So. 2d 398 (Liter v. City of Baton Rouge) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liter v. City of Baton Rouge, 245 So. 2d 398, 258 La. 175, 1971 La. LEXIS 4431 (La. 1971).

Opinions

McCALEB, Chief Justice.

In this suit, C. P. Liter, a citizen and taxpayer of the City of Baton Rouge and the Parish of East Baton Rouge seeks to enjoin the collection of sales and use taxes levied by the city and the parish, and to [181]*181further enjoin these political subdivisions from funding any of the proceeds of the taxes into bonds.

From a judgment dismissing the suit plaintiff prosecutes the instant appeal.

Pursuant to Constitutional authorization [Art. 14, Sec. 3(a)], the City of Baton Rouge and the Parish of East Baton Rouge operate under a “Plan of Government” which became effective January 1, 1949. Section 1.3 of the Plan provides that “The City of Baton Rouge shall continue its existence as a political subdivision of the state and a body corporate under its charter as heretofore enacted except as the same is inconsistent with the provisions of this plan of government. * * *”

Section 3.02 of the plan further declares that:

“The City of Baton Rouge as extended by this plan of government shall continue to have all the powers and duties, except as provided in this plan of government, heretofore possessed by the City of Baton Rouge under its charter and the general laws of the state, and such other powers and duties not inconsistent with this plan of government as hereafter may be conferred or imposed on municipalities of the same population class. All provisions of the charter of the City of Baton Rouge not in conflict with the provisions of this plan of government are expressly continued in force and effect * *

We concur with the holding of the trial judge (and it is not assailed by the appellant) that that part of Section 20 of Act 169 of 1898, as amended by Act 334 of 1946, which sets forth the City’s taxing power is not in conflict with any of the provisions of the plan and, that consequently, it contains the City’s authorization to impose taxes. The pertinent part thereof provides:

“The Council shall have the power to enact all laws and ordinances necessary for the general welfare of said corporation, and the inhabitants thereof; and to this end, the Council is specially empowered to pass ordinances; * * * to levy taxes, licenses and assessments; to levy, impose and collect any and all kinds and classes of taxes or licenses or fees that may be imposed that are necessary for the proper operation and maintenance of the municipality, provided same is not expressly prohibited by the Constitution of the State of Louisiana * * s(s a

On December 10, 1969 the City Council passed an ordinance providing for the levying of a sales and use tax at the rate of 1%, this, in addition to a similar existing tax of lj4%. On March 25, 1970, by Ordinance No. 2473 the Council effected a reduction in amount of the tax to )4%-The latter ordinance further provides that: At least 662/z% of the newly imposed tax should be budgeted and expended for capi[183]*183tal improvements, the balance to be used for general municipal purposes.

On January 14, 1970 the Parish Council of East Baton Rouge Parish adopted an Ordinance (No. 3212) which provided for the levying of a 1% sales and use tax "to become effective when authorized by appropriate action of the Legislature” of the state, in addition to 1)4% tax then being collected.

On July 22, 1970 the ordinance was amended and reenacted by Ordinance 3400 so as to provide for only an additional J4% sales and use tax. Like the city ordinance, it also provided that at least 66J4% of the additional millage should be used for capital improvement. Ordinance 3400 provided that it should become effective September 1, 1970.

This parish tax was levied purportedly under the authority of Act 559 of 1970, which granted to the Parish of East Baton Rouge the right to levy a 2% sales and use tax. [The parish had theretofore been authorized to levy such a tax only in the amount of 1J4%. (LRS 33:2741).] The act was passed by the legislature subsequent to the adoption of Parish ordinance 3212, but prior to its amendment and reenactment by Ordinance No. 3400. However, it did not become effective until July 29, 1970 after the adoption of both ordinances.

At the same session of the legislature, by Act 561 of 1970, the City and Parish were authorized to fund into negotiable bonds-proceeds of the sales and use tax collected by them, respectively. The act also recognized the right' of these subdivisions to enter into joint construction of projects to be so funded by way of a “local Service Agreement” between them as was authorized by their Plan of Government and general law.

Pursuant to the authority granted by Act 561 of 1970 the Councils of the respective-political subdivisions on August 26, 1970 adopted resolutions authorizing the issuance and sale of bonds, secured by a pledge of the avails of the sale and use taxes.. (No. 3390 of the City and 8969 of the Parish) This suit ensued.

In the brief filed in this Court the plaintiff reurges the numerous attacks made in-the district court on the validity of the-various statutes, and the ordinances and. resolutions of the respective Councils,, which are set out in the brief as “specifications of error” and shall be so referred, to hereafter.1 Also a brief has been filed in this court by John Bourg, Sr. as amicus curiae, in which he joins with plaintiff in-one of the points at issue, as will be hereafter shown.

[185]*185Plaintiff urges first that Section 20 of Act 169 of 1898, as amended, does not constitute adequate legislative authority to the City of Baton Rouge to enact the sales tax in question. He argues that:

“What was intended by the Legislature in 1898 — a time more than 50 years before sales taxes were dreamed of was to permit the City of Baton Rouge to levy the 7 mills general alimony tax now found in Article XIV, Section 12, of the Constitution of 1921.”

There is no merit in this argument. Prior to Act 334 of 1946, the city, with regard to its taxing powers, was granted the right to “levy taxes, licenses and assessments.” (See Act 224 of 1938). The much broader language presently in effect was added by the act of 1946. It could have been for no other purpose than to remove any doubt as to the broad power intended. This conclusion strengthened by the fact that the language added in 1946 was identical to that contained in the Charter of the City of New Orleans, and which was successfully relied on to sustain the validity of the imposition of a sales and use tax imposed by the City of New Orleans. Mouledoux v. Maestri, 197 La. 525, 2 So.2d 11, decided by us in 1941.

Next plaintiff urges that if the language of the taxing authority granted to the city is so plenary, it is so extraordinary as to be equivalent to the surrender and abandonment of its taxing power by the legislature in violation of that part of Article X, Section 1 of the Louisiana Constitution of 1921, which declares that: “The power of taxation shall be vested in the Legislature; shall never be surrendered, suspended or contracted away * * *.”

This identical argument was answered in Mouledoux v. Maestri, supra, where it was pointed out that the same authority given by the legislature to the City of New Orleans was a “delegation” and not a “surrender” of the taxing power.

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Bluebook (online)
245 So. 2d 398, 258 La. 175, 1971 La. LEXIS 4431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liter-v-city-of-baton-rouge-la-1971.