McElveen v. Calcasieu Parish Police Jury

443 So. 2d 666, 1983 La. App. LEXIS 9508
CourtLouisiana Court of Appeal
DecidedNovember 15, 1983
Docket83-272
StatusPublished
Cited by9 cases

This text of 443 So. 2d 666 (McElveen v. Calcasieu Parish Police Jury) 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
McElveen v. Calcasieu Parish Police Jury, 443 So. 2d 666, 1983 La. App. LEXIS 9508 (La. Ct. App. 1983).

Opinion

443 So.2d 666 (1983)

Wayne McELVEEN, Sheriff of Calcasieu Parish, Plaintiff-Appellee,
v.
CALCASIEU PARISH POLICE JURY and The Parish of Calcasieu, Defendants-Appellants.

No. 83-272.

Court of Appeal of Louisiana, Third Circuit.

November 15, 1983.
Writ Denied January 27, 1984.

*667 Michael H. Bercier, Lake Charles, for defendants-appellants.

William J. Doran, Baton Rouge, for intervenor-appellee.

Wallace A. Hunter, Baton Rouge, amicus curiae.

Fred A. Book, Jr., of Book & Thibodeaux, Lake Charles, for plaintiff-appellee.

Before FORET, STOKER and YELVERTON, Judges.

STOKER, Judge.

The issue in this suit is whether the Sheriff of Calcasieu Parish is the only official legally authorized to collect the occupational license tax levied by Calcasieu Parish. The Calcasieu Parish Police Jury passed an ordinance in which it designated the Parish Treasurer as the official collector of the parish occupational license taxes. Plaintiff, Wayne McElveen, Sheriff of Calcasieu Parish, contends that this action is both in violation of statutory law and unconstitutional. The Sheriff sued the Calcasieu Parish Police Jury and the Parish of Calcasieu, seeking (1) to enjoin them from collecting these taxes, (2) seeking to have the ordinance declared unconstitutional and (3) seeking a decree declaring the Sheriff of Calcasieu Parish to be the proper official to collect these parish taxes.

The Police Jury Association of Louisiana, Inc., intervened as a party-defendant.

After a trial on the merits, the trial court, finding for the Sheriff, ordered that a permanent injunction issue directed to defendants enjoining "them, their agents, employees and all other persons acting or claiming to act on their behalf, from collecting the Occupational License Tax of the Parish of Calcasieu". The trial court considered the Sheriff's prayer for a declaratory judgment as being moot in view of its decision on the permanent injunction. Defendants appeal, urging that the permanent injunction was improperly ordered and that the Parish has the authority to designate someone other than the parish sheriff as the official collector of the parish occupational license tax. The Louisiana Sheriff's Association, Inc. has filed an amicus curiae *668 brief on this appeal in support of plaintiff's position. We reverse.

FACTS

Prior to legislative action in 1981, certain occupational license taxes were levied by the State of Louisiana. Although payable to the Collector of Revenue for the State of Louisiana, the state license taxes were collected by the respective sheriffs in each parish of the State. Where parishes also levied occupational license taxes, the sheriffs also often collected such taxes for their parishes. In its 1981 session, the Legislature took the state out of the occupational license tax field. At the same time the Legislature took care to permit political municipalities and parishes of the State to continue to levy occupational license taxes.

On September 2, 1982, the Calcasieu Parish Police Jury adopted an ordinance designated No. 2379, which reads in pertinent part as follows:

"Section 1. In accordance with R.S. 47:341 and R.S. 47:342, the Parish Treasurer in and for the Parish of Calcasieu, Louisiana, is hereby designated as the official parish official whose duty it shall be to receive and collect the occupational license taxes due to Calcasieu Parish, Louisiana, commencing on January 1, 1983, and for each succeeding year thereafter."

This ordinance was adopted in view of the legislative action mentioned above, Act No. 567, Sec. 1, of 1981, which by its terms became effective January 1, 1982. Act 567 amended and re-enacted LSA-R.S. 47:341, 47:342, 47:397 and 47:401.

On December 21, 1982, Sheriff McElveen instituted this suit for injunctive relief and a declaratory judgment. He claimed that he alone pursuant to LSA-Const. Art. V, Sec. 27, as Sheriff and Ex-Officio Tax Collector of Calcasieu Parish, was the proper authority to collect the occupational license taxes of the parish. The Sheriff further contends that he was entitled to deduct the 15% commission for the collection of such license fees under LSA-R.S. 33:1423. Therefore, he sought to permanently enjoin the defendants from in any manner collecting these taxes, and to have the ordinance declared unconstitutional as well as a declaration decreeing the Sheriff of Calcasieu Parish to be the proper official to collect these taxes.

A hearing to show cause why a preliminary injunction should not issue was ordered for December 29, 1982. Apparently this hearing was waived, and all issues were heard at the trial on the merits for a permanent injunction held on January 31, 1983. Until the date of the trial, a series of temporary restraining orders were issued permitting defendants to collect the parish occupational license taxes but preventing them from disposing of any of the proceeds.

Upon completion of the trial, the trial court gave judgment in favor of the Sheriff and ordered that a permanent injunction issue against the defendants prohibiting them from collecting the taxes at issue. The judgment made no ruling on the Sheriff's prayer for declaratory judgment. In its oral reasons for judgment, the trial court stated the prayer for declaratory relief became moot in view of its action on the injunction.

In this conclusion, the trial court erred. Any decision on the issue of the permanent injunction necessarily involved deciding whether the Sheriff of Calcasieu Parish was the proper official in the parish to collect the taxes and necessarily included the question of whether the ordinance was constitutional. Because the entire record is before us, under our constitutional authority and in view of judicial economy, we decide these questions. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

The central issue on appeal is whether or not the Calcasieu Parish Police Jury has the authority to designate someone other than the Sheriff of Calcasieu Parish as the Collector of the parish's occupational license tax. Preliminary to deciding this issue we consider whether the trial court erred in ordering a permanent injunction to issue against defendants.

*669 DID THE TRIAL COURT ERR IN ORDERING A PERMANENT INJUNCTION TO ISSUE?

The defendants urge that the trial court erred in ordering a permanent injunction to issue because there was no prima facie showing of irreparable injury in the plaintiff's petition and, therefore, the petition fails to state a cause of action for injunction. Although irreparable harm is the usual issue in an injunction proceeding, when the plaintiff is alleging the defendant is acting in violation of the law, there is no need to prove irreparable harm. Hays v. City of Baton Rouge, 421 So.2d 347 (La. App. 1st Cir.1982), writ denied, 423 So.2d 1166 (La.1982). The Sheriff clearly alleges in his petition that he has the sole authority, under LSA-Const. Art. V, Sec. 27, to collect the parish occupational license taxes and hence that the defendants are without lawful authority to designate any other person to perform this duty.

For this reason, the defendants' contention that the failure of the Sheriff to allege or show irreparable injury has no merit.

DOES THE CALCASIEU PARISH POLICE JURY HAVE THE AUTHORITY TO DESIGNATE SOMEONE OTHER THAN THE SHERIFF OF THE PARISH AS COLLECTOR OF THE PARISH'S OCCUPATIONAL LICENSE TAX?

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