Vicksburg, Shreveport & Pacific Railway Co. v. Goodenough

108 La. 442

Opinion

The opinion of the court was delivered by

Nicholls, O. J.

The main issue in this case, as appears by the agreed statement of facts accompanying this opinion, is as to the constitutional right and power and the extent of the constitutional right and power of the taxpayers of the town of Ruston, in Lincoln Parish, to tax themselves in aid of a railroad enterprise, independently of the action of the taxpayers of the Parish of Lincoln, under the provisions of Article 270 of the Constitution of 1898. The question is whether, after the taxpayers of the Parish of Lincoln .as such, had voted in favor of a five-mill tax in aid of the construction of a railroad upon all of the property 'of that parish, including that within the town of Ruston, the taxpayers of the town of Ruston, as such, had the right and authority to vote in favor of a second five-mill tax in aid of the construction of the same or another railroad upon all the property in the town of Ruston. The plaintiffs urge that they had no such right, and that the power of the taxpayers of the town to tax themselves for such a purpose was exhausted when the taxpayers of the parish had exercised, their right of having a five-mill tax levied for thaf purpose on all of the property in the parish. They object that the taxpayers of the town cannot be made to contribute a ten-mill tax in aid of the construction of a railroad when those of the balance of the parish are to contribute only a five-mill tax for the same road or for other roads.

Article 232 of the Constitution of 1898 declares "that the State tax on property for all purposes whatever, including expense of government, schools, levees and interest, should not exceed in any one year six mills on the dollar of its assessed valuation, and except as otherwise provided in this Constitution, no parish, municipal or public board tax for all purposes whatsoever shall exceed in any one year ten mills on the dollar of valuation, provided that for giving additional support to public schools and for the purpose of erecting and constructing public buildings, public school houses, bridges, wharves, levees, sewerage work and other works of permanent public improvement, the title to which shall be in the public; any parish, municipal ward, or school district, may levy a special tax in excess of such limitation whenever the rate of such increase and the number of years it is to be levied and the purposes for which the tax iá intended shall have been submitted to a vote of the property taxpayers of such parish, municipality, ward or ■school1 district, entitled to vote under the election laws of the State, .and a majority of the same in numbers and in value voting at such election shall have voted therefor.

Article 270 declares that the General Assembly shall have power to enact general laws authorizing the parochial ward and municipal authorities of the State, by a vote of the majority of the property taxpayers in number entitled to vote under the provisions of this Constitution and in value to levy special taxes in aid of public improvements or railway enterprises; provided that such tax shall not exceed the rate of five mills per annum, nor extend for a longer period than ten years, and provided further that no taxpayer shall be permitted to vote at such election, unless he shall have been assessed in the parish, ward, or municipality, to be affected for property the year previous. The Article of the Constitution of 1879 corresponding to Art. 270 of that of 1898 was Art. 242. It read as follows: “The General Assembly .shall have power to enact general laws authorizing the parochial or municipal authorities of the State, under certain circumstances, by a vote of the majority of the property taxpayers in numbers and in value to levy special taxes in aid of public improvements or railroad enterprises, provided that such tax shall not exceed the rate of five mills per annum, nor extend for a longer period than two years.”

The General Assembly in' 1898 passed a law known as Act No. 202 ■entitled: “An Act authorizing the parochial, ward and municipal •authorities of the State, by a majority vote of the property tax-payers 'including women property taxpayers in number entitled to vote under ■the provisions of the Constitution of 1898, and in value to levy special taxes in aid of public improvements or railway enterprises when •authorized by a vote of a majority of the property taxpayers in number ■entitled to vote under the provisions of the Constitution and in value, provided that such tax shall not exceed the rate of five mills per annum, nor extend for a larger period than ten years, and provided further that no taxpayer shall be permitted to vote at such election unless he shall have been assessed on the parish, ward or municipality, to be affected for property the year previous.

The second section provided that the petition shall be signed by the property taxpayers of such parish, wa^d or municipality and shall designate the object and amount of th-5 taxes to be levied each year and the number of years it shall be levi-d.

The seventh section provided that tl.i Police Jury of any parish for said parish, or any ward therein or he municipal authorities of any municipality shall, when the vote is m favor of the levy of said taxes, levy and collect annually in addition to other taxes a tax upon all taxable property within said parish, ward or municipality, an amount sufficient to pay the amount specified to be paid in said petition, and such Police Jury .and municipal authorities shall have the same authority and right to enforce the collection of such special tax as may be authorized by such election as is or may be conferred upon them for the collection of other taxes, which taxes so collected shall be paid for the purposes named in said petition and paid over when collected by the proper officers to the treasurer for the person or corporation entitled thereto after deducting lawful commission for collecting same.

The taxes referred to in Article 232 of the Constitution as parish, municipal or public hoard taxes, are those which are levied by the political bodies named in their regular, general and well recognized powers of administration. The Constitution, after ordaining that no parish, municipal or public board tax shall exceed in any one year ten mills on the dollar, added by way of proviso that any parish, municipal corporation, ward or school district may, for certain purposes specially enumerated, levy a special tax in excess of the said limitation whenever the rate of such increase and the number of years it is to he levied and the purposes for which the tax is intended shall have been submitted to a vote of the property taxpayers of such parish, municipality, ward or school district entitled to vote under the election laws of the State and a majority of the same shall have voted therefor. It will be seen that the action of the taxpayers at the election here provided for is not to constitute these various local authorities, public agencies, to carry out the expressed will of the taxpayers in respect to matters outside o £ their regular ordinary legislative authority and functions, but to sim ply furnish additional means to those which might be deemed necessary to carry out properly and successfully certain specified .objects already falling under and within their general jurisdiction. The taxes to be levied and collected were still to be parish taxes, municipal taxes and public board taxes, and to be utilized and administered upon by the local authorities in their respective capacities. I

The taxes to be levied and raised under Art. 270 of the Constitution are for purposes which are withdrawn entirely from within the jurisdiction of these local authorities acting in their general legislative capacities. Any action taken for the purpose of affording aid to public improvements of the character referred to in Art. 270 of the Constitution and for railway enterprises would be taken not of the parish or municipalities or wards, through authorities acting for and in behalf of the corporate bodies, but for the property taxpayers of the parishes; those of the municipalities and those of the wards supposed to be specially interested and affected thereby. To the property taxpayers within certain territorial limits, identical with those of certain recognized political subdivisions was granted "local option” in respect to furnishing the aid authorized to be extended by Art. 270 of the Constitution. The taxpayers within the parish limits, those within the municipal limits, and those within the ward limits, were each vesied with local option power of limited taxation for local benefit in respect to the particular subject of extending aid for railway enterprises. The elections to be held within these different territories to ascertain the will of the taxpayers on this subject are not initiated by these authorities, but called ¡by the parochial authorities at the instance of taxpayers, residing anywhere within a parish when aid is sought to be extended by the taxpayers of the parish at large, and by the city or town authorities when the aid is sought to be extended -by the taxpayers of a city or town. The elections held are parish elections or city elections as the case may be, the votes -are cast and the result announced under different sets of officials, so also are the taxes levied, collected and distributed. Where a taxpayer within a city votes at a parish election, he votes as a parish taxpayer; when he votes at a town election, he does so as-a city taxpayer; when aid is sought to be extended by the parish taxpayers the interests of particular towns within the parish limits are only incidentally considered and concerned. The benefit to the parish .as a whole is the object in view; when aid is-sought to be extended by the city, it is the interest of the taxpayers of that particular city and the benefits to be received by them which controls the situation.

'Counsel for defendant in their brief say: “The source and object of these special taxes are so essentiality different from those of ordinary governmental taxation, that entirely different rules of interpretation have been, and must be applied to the two cases. A local assessment is not a tax, but a consideration for the enhancement of the value of the property of the community. This court has expressly decided that a local assessment is not a tax eo nomine, and is not governed by the provisions of the Constitution on the general subject of taxation, but is levied entirely independently of all said provisions. (Munson vs. Board of Commissioners, 43 Ann. 15.) They refer the court, in support of the position taken by them in this case, to Town of Mansfield vs. Parish of DeSoto, 47 Ann. 1257; Fullilove vs. Police Jury of Bossier, 51 Ann. 359; Wilson vs. Board of Trustees of the Sanitary District of Chicago, 133 Ill. 443. (36 Am. & Eng. Cnp. Cases, 340.) Adams and East River Savings Institution, 136 N. Y. 52 (N. E. Reporter); State vs. Lancaster Co., 6 Neb. 214; Jones vs. Hurlburt, 13 Neb. 131; Irwin vs. Loire, 89 Ind. 540; Todd vs. City of Laurens, 48 S. Car., 395 (26 S. E. Rep., 682.)

City of Iola vs. Merriman, 46 Kan. 39 (36 Am. & Eng. Cnp. Cases, 569; 26 Pac. Rep. 485); Scott vs. Hansheer, 94 Ind. 1 (7 Am. & Eng. Cnp. Cases, 353); United States vs. Macon County Court Justices and Treasurer (75 Fed. 259) ; Adams & East River Savings Inst. (20 N. Y. Supp. 12); Board of Education vs. Bitting (9 New Mex. Rep. 588); State vs. Common Council (71 N. W. 87); Wabash, St. Louis & Pac. Ry. Co. vs. MeCleve, 108 Ill. 368; Board of Ed. vs. National Life Ins. Co., 94 Fed. 324; C. B. & 2 R. Co. vs. Klein, 52 Neb. 258; Campbell vs. City of Indianapolis, 155 Ind. 186; Etna Life Ins. Co. vs. City of Burnton (75 Fed. 962.)

The plaintiff relies principally upon the substitution of the word “and” in Art. 270 of the Constitution of 1898, for the word “or” in Art. 242 of the Constitution of 1879, which bore upon the same subject matter, and the fact that Mr. Justice Miller, the organ of the court in Washington State Bank vs. Baillio (47 Ann. 1471), in construing Art. '209 of the Constitution of 1879 gave weight to the use of the word “or” instead of the word “and” in reaching his conclusions, saying: “The .alternative, we think, marks the limitation for the town or parish, not the aggregate of the tax of both — each is entitled to levy a tax up to ten mills.” In the original opinion in that case the court said: “If the view prevailed that the parish and town tax together was intended to be subject to the ten-mill limitation, then the tax of either might exclude or leave little scope for the tax by the other.” In the opinion ■on rehearing, allusion was again made to the disjunctive “or” as indicating an intention in that article to deal with parish taxation and municipal taxation separately. The court in that opinion said: “If, as stated in the original opinion, the limit was applicable to the aggregate of parish and town taxation, there would be no specific limit on each, and hence no guide for each to observe. The parish might attempt to tax up to the ten mills and so might the town. In that contingency the aggregate taxation could not be maintained and the courts would have to distribute the tax between the parish and town— a function legislative in character not judicial.”

We do not give to the expressions of the organ of the court in that ease the force and scope that plaintiffs attach to them. The word “or” is frequently used as having the same meaning as “and,” particularly in permissive affirmative sentences. We are satisfied with the conclusions reached in that ease and the basis upon which they were really based.

There is nothing unusual in the fact that the taxpayers within a particular territory should have to pay taxes at the same time to different taxing political organizations for the same purpose. We have had in this State for years levee taxes, levied simultaneously by the General Assembly on the property of the parish, and by municipalities on the property of the city. We have now taxes levied for general school purposes by the State and special local purposes by subordinate local organizations. In levying these taxes these bodies do not act jointly but independently of each other. Plaintiffs’ special objection ■seems to ibe leveled at the fact that the same railroad company should have received aid from both the parish taxpayers as a whole and the taxpayers of one of the towns through which it passes, but that fact does not reach the legal question involved. If the taxpayers of the town had the legal right and power to tax their property in aid of a ■railroad enterprise, notwithstanding the fact that the taxpayers of the parish had also consented to tax their property to aid in the construction of a railroad enterprise, they were left free to exercise their right and power in the special direction they might think best for their local benefit and interest. There was no constitutional or statutory restriction or limitation upon their action. They were the best and only judges as to what was most needed for their local requirements, and if local interests in their judgment would be best subserved by contributing to the construction of the same railroad to which the parish taxpayers as ■a whole had consented to contribute this, was simply a matter of fact ■arising out of special local conditions playing no legal part whatever in the premises.

The plaintiffs, property taxpayers in the town of Euston, enjoined the ■enforcement with interest and penalties upon their property of a five-mill tax, levied in aid of the construction of a railroad through that town by the Junction City, Alexandria and Shreveport Eailroad Company.

The District Court rendered judgment in favor of the plaintiffs, sustaining their injunction to the extent of preventing the defendants from attempting to sell the property of plaintiffs for the purpose of collecting the two per cent, penalty. It decreed that in all other respects their injunction be dissolved with permission to the defendants to proceed to the collection of the special tax. It furthermore rejected the demand filed in reeonvention and that defendant pay •costs.

Plaintiffs appealed, and defendants prayed that judgment be ■amended by allowing five per cent, interest on the taxes from the date they fell due and awarding them five hundred dollars for damages.

We think the judgment appealed from should be amended so as to allow legal interest on the taxes from the date they fell due. We do not think damages should be allowed. See 104 La. 284, R. R. Cos., Receiver, vs. Sheriff; Vicksburg, Shreveport and Pacific R. R. Co. vs. Traylor, 105 La-148.

Eor the reasons assigned, it is ordered, adjudged and decreed, that the judgment appealed from be -annulled, avoided and reversed in so far as it perpetuates plaintiff’s injunction restraining the tax collector ■from payment of the taxes claimed, with legal interest thereon, from the date at which payment thereof (became due, and it is now ordered,, adjudged and decreed, that plaintiffs’ injunction in that respect be dissolved with permission granted to the defendants to proceed with the collection of the tax claimed with legal interest thereon from the date that payment thereof became due, and that as so altered and amended the judgment appealed from is affirmed, appellants to pay the cost'of the appeal.

Rehearing refused.