Texas Oil Co. v. City of New Orleans

3 Pelt. 243, 1920 La. App. LEXIS 26

• Court: Louisiana Court of Appeal
• Decided: February 9, 1920
• Docket: No. 7689
• Status: Published

Opinion

CHARLES 3#\ CLAIPOm*!, JUDGE.

This is a suit for the reimbursement of a. tax paid error.

This suit vies filed on "day 26th., 1917. The plaintiff alleges that oy an act dated April 28th., 1916 it purchased of Philip G. Veith, two certain lots of ground, and assumed the payment of taxes thereon for the year 1916; that the assessment of said two lots had a]ready been completed in the name of its vendor the said Philip G. Veith; that when the City taxes for 1936 oecame due, in August 1916, petitioner’s agent paid said taxes, not only upon the two lots purchased by it from Veith, end assessed at ¿¿2,000, out also oy error upon 17 other'properties assessed »t ¿'--55,2.00.00 in the name of V.eith and deccrioed on the tax-hi 1.1 in h j s name; chat the tax on the £55,200.00 amounted to the sun of £1,221.00; that the said payment v/as made in error; that petitioner -’»s not pound either civilly or naturally to pay Sc id amount of -caxes r**d ¡nerefore the City of New Orleans is legally oound to reimburse the amount to it, and it prays for judgment accordingly.

Tne defendant ad nit led the payment of (¿1,221*. 00 alleged in plaintiff’s petition, out avvered that the error in the payment was due entirely to the negligence of the plaintiff; that the error ras patent and could have teen discovered by slight attention; that the defendant refused to reimburse the amount for the f ollOY'ing reasons

1st. That suuseijuent to l^e payment of said taxes and prior to the filing of t) is sjit defendant issued to Philip G. Veith a duplicate tax receipt cy which the defendant may oe bound as regards third persons.

2nd. That plaintiff’s error ’-as due entirely to his own negligence, and that with little care it could have avoided the error.

3rd. That the phyment of said taxes wag entirely voluntary.on the part of the plaintiff, and was not the result of demand or compulsion on the part of the defendant.

4th. That the amount of taxes paid by plaintiff had gone into the City Treasury and had been disbursed for public purposes before demand for reimourseraent was made.

There was judgment for the defendant, and the plaintiff ..has appealed. All the facts are admitted.

The plaintiff pitches its case upon the following article of the Civil Code.

Art. £133 .(2199 ). E^ery payment presupposes a debt; what has been paid wi. out having oeen due, is suoject to be reclaimed. That cannot be reclaimed that has been voluntarily giv-/t en in discharge of a natural pbligation. C. N. 1235.

Art. 2301 (2279) "He who has oaid through mistake, believing himself a. debtor may reclaim what he has paid." C. If, 1377

Art. 2303 (2281) "To acquire this right, it is necessary that the thing paid be not due in any manner, either civilly or naturally. A natural ocligation to pay will be sufficient to prevent the recovery."

C. P. IS " He who pays through error what he does not owe, has an action for the repetition of what he has thus paid, unless there was a natural pbligation to make such payment; but he must prove that he paid through error, otherwise it shall oe presumed that he intended to give."

Hut it has be*\specific&lly held by the Supreme Court of this State that these articles have no application to taxes. In the case of Lisso vs. Police Jury 127 La. 283 the court said ¿n page 285:-

"The learned counsel for plaintiffs predicate- their asserted rigi'.t of recovery upon the articles of the Civil Code 2301 2302 rnd 2303 reguiatim the rights of parlies "-ith respect to payments made and received in error; ?nd in so doing they lose sight of the fact that laws regula tin., th*3 collection of to^Les are sui generis, and constitute a system to whichthe general provisions of the Civil Code have ordinarily or no application". A Quoting 37A. 735 -39 A. 121.

This decision was affirmed in Simpson vs. City, 133 La. 384 (389).

In Tactors and Traders Ins. Co. vs. City 25A. 454 (457) Justice Howell questioned whether Art. 2303 of the Civil Code was,"applicable to the subject of taxation."

Hut even under the Code the plaintiff would not oe entitled to relief. Article 2310 (2288) provides:-"He who through mistake has paid the deot of another to whom he oelieved himself indented, has a claim to restitution from the creditor. This right ceases, if, in consequence of the payment, the creditor has destroyed or parted with his title; out the recourse still remains to the person paying against the true debtor."

The City on''Hew Orleans flakes an annual oudget of the ■j amounts of money required to pay its oonded debt, its contracts, and other municipal expenditures set forth in said budget. In ov-der to pay those appropriations, it levies annual licenses and taxes. There is no item of appropriation for the purpose of paying an amount such as plaintiff claims. To provide for it, it would be necessary for the city either to levy an additional tax, which it has no right to do, or to divert other funds from other municipal purposes or creditors^, t!o the detriment of the latter, which plaintiff cannot demand - 38 A. 119 (123).

He cannot, for his individual oenefit throw tne finances of the parish into inextricable confusion". 107La. 221 (231). - 112 La. 525 (531).

In the same case of Lisso vs. Police Jury 127 La. the court said on page 292:-

" It may be remarked in conclusion, that the assessments here involved were mainly for the years 1900 - 1901 - 1902. They constituted the oasis upon which the Police Jury of the Parish of lmtchitoches prepared its budget and regulated its expenses for each succeeding year; the money collected has Ion*, since beer, spent; and the claim of the plaintiffs, through whose voluntary acts the present condition of affairs has been brought about, that it should now oe refunded to them, tnereoy^eruaps, involving the necessity of imposing a special tax for their benefit, appears to us to be entirely without merit, either in law or equity.

And continuing on page 293 the court said:-

lf It may be that the particular amount claimed by the plaintiffs now before the court can be paid by the Parish of Natchitoches without embarrassment; but the granting of their demands involves an acquiescence in the proposition that every one who chooses to speculate in tax titles and to assume the quality of owner with respect to property which he does not own, which he may readily inform himself that he does not own, but which he may hope thereby to make his own, may do so at the risk of the State or Parish and not at his own risk, A proposition which,in view of the laws regulating tax sales and the collection and expenditure, for government purposes, of money paid for taxes, we are unable to entertain."

In Simpson vs. City 133 La. 384 the syllabus reads "An amount of money, which has been voluntarily and without threat or coercion paid to a municipal corporation as for a license tax legally due, and which has gone into the public fisc and oeen disbursed for public purposes cannot be recovered upon the ground that it was paid in ignorance and error of the law even though the tax was illegally imposed, and // the law under which it was imposed was unconstitutional.

In thus denying plaintiff a right of action against the defendant no injustice seems to be done to it as the law seems to reserve to it recourse against Veith the debtor of the tax.

In the present case the City has issued its receipt for those taxes to the plaintiff herein, and a duplicate receipt to Veith, and the fact of the payment has been entered upon all the books of the city. If Veith has used his receipt in conferring rights upon his properties to third persons, the City^in case it refunded the money received by it, would be estopped from denying the payment of 'those taxes^ at*least as far as such third persons would be concerned.

In the following cases it was held that the party who has made the payment in error cannot recover the amount paid, when the creditor, dtn the faith of the payment, has relinquished snd lost any of his rights. C. C. 2310 . 3 A. 409 (414) 52 A. 965 (967). 110 La. 481 -482. 117 La. 336 - 33 Dalloz Rep. Leg. p. 1211 5551_ 3 ¿4^1- t&J'f $ ^^7

It is therefore ordered' that the judgment he affirmed.

February 9th., 1920.