Shaw v. Board of Com'rs of Bayou Terre-Aux-Bœufs Drainage Dist.

70 So. 910, 138 La. 917, 1915 La. LEXIS 1919

• Court: Supreme Court of Louisiana
• Decided: June 29, 1915
• Docket: No. 20832
• Status: Published

Opinions

Statement of the Case.'

MONROE, C. J.

In June, 1913, plaintiff obtained a preliminary injunction, restraining the sheriff of St. Bernard parish from selling, for acreage taxes of 1911, 1912, and 1913, some 4,000 acres of land which he had acquired in that parish in July, 1911, alleging that he had offered to pay all the taxes claimed, save those levied by the board, here made defendant, for drainage purposes, and that his offer had been refused; and further alleging as follows:

“That all of the * * * lands lie outside of the levee system which the board * * * are building, or proposes to build, for the purpose of draining the lands within the district established by said board, and * * * will not receive any benefit therefrom; * * * that his said lands have been erroneously assessed for the said drainage tax, and the assessments * * * for the years 1911, 1912, and 1913 should be canceled, * * * for the reason that in accordance with section 21 of Act 317 of 1910, and section 2 of Act No. 219 of 1912, such acreage tax shall only be imposed upon such lands * * * as are especially benefited by the drainage, and his said * * * lands will not be benefited by the drainage contemplated by said board.”

He prayed for citation upon the sheriff, the board, and the assessor, for the perpetuation of the preliminary injunction, and for judgment ordering the cancellation of the assessment. The board, by way of exception, alleges that plaintiff’s lands were adjudicated to the state, in 1912, for taxes of 1911, and have not been redeemed, and hence that plaintiff is without interest to prosecute the suit; but, in the next paragraph (with which the answer begins), it “acknowledges that the said Daniel Shaw is the owner of the lands.”

Further answering, the board sets up certain defenses, in which it is joined by Dr. Paul Hill Saunders, who has intervened as ’the owner of three bonds, of $1,000 each, issued by the board, and the proceeds of which it expended in the work of drainage undertaken by it. Those defenses will be more particularly referred to and considered hereafter.

The facts, disclosed by the evidence and admissions, are as follows:

In July, 1908, the Bayou Terre-aux-Bceufs drainage district was established, legally and politically, and delimited, territorially, and the board of commissioners, here made defendant, was organized and assumed jurisdiction of its affairs and of all the lands within its boundaries. In 1909, in order to obtain the money required for the drainage of the district, in accordance with its views, and with the views of a majority in number and amount of the property tax payers, qualified to vote, who conferred the authority at special elections, held for that purpose, the board issued the bonds of the district, to the amounts of $60,000 and $165,000, respectively, having 40 years to run and secured by tax levies of 3 and 6 cents per acre upon all the lands in the district, which bonds were sold upon the market at par, and the proceeds expended in the work of drainage.

The legality of the first bond issue, of $60,000, having been called in question, was affirmed by this court in a decision handed down in June, 1909, in the case of Board v. Baker, 124 La. 216, 50 South. 16, and it was more than a year afterwards, and after the subsequent issue of $165,000 of bonds and the levy of the 6-cent acreage tax for their payment, that plaintiff acquired his lands. In August, 1912, the property tax payers authorized another issue of bonds, to the amount of $500,000, and the levy of a tax of 16 cents per acre, upon all the land in the district for their payment, and $250,000 of the bonds are shown to have been sold upon the market. It has also been shown that the lands of the plaintiff were, and are, within the boundaries of the drainage district in question.

Plaintiff’s counsel offered testimony to the effect that:

His lands “lie outside of the levee system which the board of commissioners of the Bayou Terre-aux-BceUfs drainage district of St. Bernard parish are building or propose to build,-for the purpose of draining the lands within the district established by said board, and that the lands will not receive any benefit therefrom.’’

And the following objection was interposed by counsel conducting the defense, and sustained by the court, to wit:

“I object to this kind of evidence going in on the question of benefits to be derived, and also object on the ground that the attack started is, in effect, an attack upon the validity of the taxes levied by the Bayou Terre-aux-Bccufs drainage district, and is also, in effect, an attack upon the- validity of the bonds issued by the Bayou Terre-aux-Boeufs drainage district, which are to be paid with the proceeds of those taxes; and my objection is, further, that the said bonds were issued and sold, as set forth in the petition, prior to the constitutional amendment, adopted in November, 1912, that was a sweeping validation of bonds previously issued, or previously authorized by vote of the people, not contested on any ground of fraud, and, there being no issue of fraud raised in this case, no evidence is admissible until it is shown that these bonds do not come within the validating effects of article 2S1 of the Constitution.”

Thereafter, counsel conducting the defense placed of record the following admission, concerning the relation of the drainage work to plaintiff’s lands, to wit:

“I will admit that your property is located beyond the canal lines, as presently constructed by the Bayou Terre-aux-Bmufs drainage district, in its work, so far as it has been entailed” (sic).

Counsel for plaintiff, when referring to the work done and contemplated by the defendant board, persistently used the words “levee system,” to which counsel for the defense objected, and insisted that the term “canal,” or “drainage,” system should be employed. The evidence is uneontradicted to the effect that the work done has consisted of digging canals, and that levees have been constructed by the deposit of the earth excavated in so doing.

Opinion.

On Motion to Dismiss the Appeal.

[1] The intervener moves to dismiss the appeal, upon the ground that this court is without jurisdiction to entertain it, by reason of an amendment to the Constitution, proposed by Act 192 of 1914, and adopted in November, 1914, which reads, in part, as follows:

“That all bonds heretofore issued, under and by virtue of this article 281 of the Constitution,. by the governing authority of any subdivision, which have heretofore not been declared invalid by a judgment of a court of last resort in the state of Louisiana, and more than sixty days have elapsed since the promulgation of the proceeding's evidencing the issuing of said bonds, are hereby recognized and declared to be valid and existing bonds and obligations of the district or subdivision issuing the same, and no court shall have jurisdiction to entertain any contest wherein their validity or constitutionality is questioned.”

This suit had been pending in the district court for some weeks before Act 192 of 1914 was passed, and the appeal had been lodged in this court for several months before the amendment proposed by that act was adopt- | ed; nevertheless, if the amendment, so adopted by the sovereign people of the state, had declared that no existing court in this state should thereafter have jurisdiction of any cause, civil or criminal, it would Be difficult to find the authority under which any one could exercise the functions of a judge of a state court. But, in such case, the amendment would not be so interpreted as to deprive a litigant of all remedy for the protection of life, liberty, and property, if it could be avoided.; and so, in this case, we will not assume that it was the purpose of the amendment to deprive any citizen of all remedy against the alleged unlawful deprivation of his property, which the law afforded him, and which he had invoked when the amendment was adopted, and to leave him altogether without remedy. The language does not so read. It specifies “any contest wherein their legality or constitutionality” (meahing the legality or constitutionality of certain bonds issued under the authority of article 281 of the Constitution) “is questioned.” But the plaintiff herein has not questioned the legality or constitutionality of the inrervener’s bonds. He was engaged, when the intervention was filed, in trying to prevent the sheriff from selling his lands, for a tax which, he alleges, was erroneously and unlawfully imposed upon it, and, being erroneously and unlawfully imposed, was erroneously and unlawfully assumed to have been pledged for the payment of those bonds. A contract represented by a bond or note, however, is one thing, and the pledge, whereby the bond or note is said to be secured, is another, and an attack upon the pledge does not, of necessity, involve an attack upon the main contract. The motion to dismiss is therefore overruled.

On the Exception.

[2] The allegation in the exception is that plaintiff is without interest, because the property claimed by him had been sold to the state for taxes and had not been redeemed, and, in support of that allegation, defendant offered a sheriff’s deed, showing the alleged sale, which was admitted over plaintiff’s objection that defendant, in the same pleading with the exception (as, also, the intervener), had admitted that plaintiff owned the property. We are of opinion that the objection should have been sustained. Conflicting allegations in pleadings are construed against the pleader.

On the Merits.

[3, 4] In 1909, when a majority, in number and value, of the property tax payers of the district who were qualified to vote, authorized the bond issues of $60;000 and $165,000, respectively, and the 3 and 6 cent acreage taxes, and when the bonds were issued and the taxes levied, the constitutional provision by which the matter was governed was that found in the amendment proposed by Act 122 of 1906, and thereafter adopted, which confers upon drainage districts the power to levy acreage taxes and issue bonds in the following terms, to wit:

“Shall * * * have the further power and authority to levy and assess annual contributions or acreage taxes, for the purpose of providing and maintaining drainage systems, on all lands situated in such districts, not exceeding twenty-five. (25) cents per acre for a period not to exceed forty (40) years, when authorized to do so by a vote of a majority in number and amount of the property tax payers of said districts, qualified to vote as electors under the laws of this state, voting at an election held for that purpose, as provided in the first part of this article, and said drainage districts, through the boards of commissioners thereof, may incur indebtedness and issue negotiable bonds therefor payable in principal and interest, out of, and not to exceed in principal and interest, the aggregate amount to be raised by said annual contributions during the period for which the same are levied.”

It is not here pretended that the foregoing provisions of the Constitution, or» those of the enabling statutes, in force in 1909, were not complied with, either in the creation and delimitation of the Bayou Terre-auX-Bceufs drainage district, or in the issuance, by the board of commissioners of that district, of the bonds and the levying of the taxes above mentioned ; and though, as held by this court, the tax levy was required to he made annually in order to meet the changing conditions, resulting from the reduction of the debt, by the-payment, from time to time, of the bonds, the action of the property tax payers in authorizing, and of the board in issuing, the whole amount of the bonds and declaring the whole amount of the taxes pledged for their payment, operated to impose upon every acre of land in the district a liability for its proportion of that debt; and the plaintiff herein, thereafter, acquired his land subject to that condition. If it be said that he has at least the right that his author in title, who owned the lands when the tax was voted and levied, would have had, to contest the validity of the tax, upon the ground that the lands would receive no benefit from the drainage and had been “erroneously assessed for said tax, * * * for the reason that, in accordance with section 21 of Act 317 of 1910 and section 2, of Act 219 of 1912, such acreage tax shall only be imposed upon such lands in the district as are especially benefited by the drainage,” the answer appears to be that the taxes for the payment of the bond issues of $60,000 and $165,-000, respectively, were levied and pledged before the acts of 1910 and 1912 were passed, and that they, as also those constituting the authorized bond issue of $500,000, were levied under and in accordance with the requirements of article 281 of the Constitution, amended as proposed by Act 122 of 1906, and authorizing such levy, within the limit of 25 cents per acre, “upon all land situated within such districts.”

In the case of City of Lafayette v. Bank of Lafayette, recently decided (137 La. 92, 68 South. 238), the question presented was whether the city of Lafayette could lawfully impose a tax upon the property within its corporate limits, for the building and maintenance of public roads outside of those limits, and this court had occasion to distinguish ■between the power of the Legislature, in the matter of taxation, and the power of the sovereign, for in that case, as in this, the power to levy the tax came directly from the Constitution, and not from the Legislature. -

The opinion quotes Judge Dillon (inter alia) as follows:

“Taxation implies, as we have seen, an imposition for a public use; and it also implies that the imposition shall be upon some system of apportionment, so as to secure uniformity among those who are, or ought to be, subject to the particular tax or assessment. * * * But where the imposition is properly a tax, and no specific or express constitutional limitation exists, the power of the Legislature is supreme and without any theoretical bounds. ‘If the right to impose a tax exists,’ says the. Supreme Court of the United States, ‘it is a right which, in its nature, acknowledges no limit’; and the reason is that the needs of the public or of the government, ordinarily, have no bounds set to them.” Dillon, Mun. Corp. (4th Ed.) vol. 2, p. 896, § 737.

We may say here, as was said (quoting in part) in the case thus cited:

“In the instant case, there is no question, either of ‘mere legislative authority,’ or of private interest involved, for the grant of authority comes direct from the Constitution,”

The work to which the taxes are to be devoted is a public work; and, whether they would fall equally upon all persons and property affected, in proportion to the benefit received, was a matter with reference to which the power of those who adopted the Constitutional amendment of 1906 (that is to say, the sovereign people of the state) was supreme. Again, it has several times been held by this court that the creation of a drainage district and the distribution of the burden of taxation for its drainage involves the exercise of legislative power, and that a court will not undertake to substitute its judgment for that of the political body by which the power has been exercised, merely because of a difference of opinion as to the policy or expediency of its action, or because all persons affected do not receive the same measure of benefit.

“Judicial judgment,” said the court, in one case, “is not to be substituted, lightly, for legislative judgment. The benefits contemplated need not be direct nor immediate.” De Gravelle v. Iberia and St. Mary Drainage District, 104 La. 703, 29 South. 302; Bernard v. Portage Drainage District, 130 La. 640, 58 South. 493; Myles Salt Co. v. Board of Commissioners, 134 La. 903, 64 South. 825; George et al. v. Sheriff, 45 La. Ann. 1232, 14 South. 137; Hill et al. v. Sheriff, 46 La. Ann. 1566, 16 South. 475; Cooley on Taxation, pp. 428, 429.

Still another recognized rule of law which is to he taken into consideration is that the state, through its Legislature, and, a fortiori, through the people, acting directly in their sovereign capacity, may compel its political subdivisions to pay debts legitimately contracted, and, for that purpose, to levy taxes 'upon the property within their respective jurisdictions. Forman v. Sewerage & Water Board, 135 La. 1037, 66 South. 351, L. R. A. 1915D, 927 (quoting McQuillin on Municipal Corporations, vol. 1, p. 536, § 237). And, since the bond issues of $60,000 and $165,000 were made, the people of the state have, by constitutional amendments, twice, in effect, affirmed their validity, and, once, in specific terms, declared that a tax for the payment of such bonds shall be levied. Thus, the amendment proposed by Joint Resolution 132, of 1912, and adopted in November of that year, provides that:

“When bonds of any subdivisions have been heretofore issued for any of the purposes specified in paragraph 1 of this article” (which includes drainage), “and issue has been authorized by the vote of a majority in number and amount of the property tax payers qualified to vole under the Constitution and laws of this state who voted upon the proposition to issue such bonds at an election held for that purpose, and where such bonds have been issued and sold by such subdivision for not less than the par value thereof, the said bonds * * * are hereby validated, ratified and confirmed; provided, that such bonds did not, at the time of their issue, exceed ten per centum of the assessed valuation of the property in such subdivision; and such bonds, hereby ratified, approved and confirmed, shall be deemed to be the valid and incontestable obligations of such subdivision, and a tax for the payment of the principal and interest thereof and to create a sinking fund for their redemption shall be levied and collected in the manner and within the limits prescribed by said paragraph 1 of this article. This entire article is to be considered a full grant of power to the subdivisions of the state, as set forth herein.”

The issue of $500,000 of bonds was authorized by the taxpayers, at an election held for that purpose on August 26, 1912, and it is alleged by plaintiff that the authority to impose the tax for their payment was derived from the acts of 1910 and 1912, to which we have referred; but we do not so understand it. The tax was authorized before the act of 1912 became a law, in the parish of St. Bernard, and the scheme of taxation contemplated by section 21 of Act 317 of 1910 being entirely different from that contemplated by the constitutional amendment of 1906, in accordance with which the tax here in question was levied. The scheme proposed by the statute must have been intended as an alternative to that provided for by the Constitution, and was necessarily optional, and not compulsory, since the statute could not have been intended to repeal the Constitution.

The case of Marceaux v. Cameron Drainage District No. 3, 136 La. 913, 67 South. 956, is based upon provisions of the constitutional amendment of 1914 (other than that heretofore referred to) which contemplate the establishment of systems of “gravity” drainage, make it the duty of drainage commissioners to pursue a particular method in providing for both drainage and reclamation of lands which must be leveed and pumped, and authorize a maximum acreage tax of $3.50- per acre.

It is evident that the change in the law was made because it was thought that the rights conferred, and obligations imposed, by the new constitutional enactment, had not been conferred and imposed by the old, which was true. And it is equally evident that the change was by constitutional amendment, because it was thought, in view of the existing provisions of the Constitution, that the General Assembly was powerless to make it, which was also true. But the amendment in question does not affect, or purport to affect, rights acquired under the Constitution, as it stood prior to the adoption of the amendment, and hence the decision in the Mareeaux Case has no bearing in this case.

Our conclusion, then, as relates to the tax of 16 cents per acre, levied for the payment of the bond issue of $500,000, as also the taxes of 3 and 6 cents per acre levied for the other bonds, is that they were validly levied, under the amendment proposed by Act 122 of 1906, upon “all lands situated in the Bayou Terre-aux-Boeufs drainage district,” and that plaintiff has no standing to question their validity upon the grounds alleged in his petition.

The judgment appealed from is therefore affirmed.