Weixel & Janssen, Inc. v. City of New Orleans

167 So. 179, 184 La. 651, 1936 La. LEXIS 1098

• Court: Supreme Court of Louisiana
• Decided: February 3, 1936
• Docket: No. 33664.
• Status: Published

Opinions

BRUNOT, Justice.

The plaintiff alleged the unconstitutionality of Ordinance No. 14,241, C.C.S., of the city of New Orleans, and prays for an injunction restraining the enforcement of the provisions of said ordinance. Issue was properly joined, the case was heard, and, from a judgment dismissing the suit, at their cost, plaintiffs appealed.

Pursuant to the authority conferred upon the city of New Orleans by Act No. 180 of the Regular Session of the Legislature of Louisiana of 1924, which act was submitted to the voters of the state at the general election held on the 4th day of November, 1924, and adopted by the electorate of the state as a constitutional amend•ment, the commission council of the city of New Orleans, on April 2, 1934, adopted Ordinance No. 14,096, C.C.S.

This ordinance provided for the annual levy, beginning in 1934, óf the following tax:

“A tax of one (1^) cent per gallon on all kerosene or other explosives iised for the generation of motive power, such as fuel oil> distillates, gas oil, crude oil, naphtha and other derivatives of crude oil sold or purchased for consumption in the Parish of Orleans.” (Italics by the court.)

On March 14, 1935, Ordinance No. 14,-096, C.C.S., was amended by the adoption of Ordinance No. 14,241, C.C.S. The amending ordinance merely struck from Ordinance No. 14,096 the words italicized supra, to wit:

“Or other explosives used for the generation of motive power, such as fuel oil, distillates, gas oil, crude oil, naphtha and other derivatives of crude oil.”

It is apparent that Ordinance No. 14,096 taxes kerosene that was used for the generation of motive power only, while the city attorney interprets the amending ordinance as taxing all kerosene sold or purchased for consumption in the parish of Orleans. The city attorney’s contentions are similar to those urged by the respondent in the case of Miss Alice Lee Grosjean, Supervisor of Public Accounts, v. Standard Oil Company of Louisiana, 184 La. 45, 165 So. 325, 326. In that case the court said:

“The respondent’s second contention is that Act No. 15 of the First Extra Session of 1934 dedicates the tax levied by it to the stamping out of tuberculosis in the state, while section 22 of article 6 of the Constitution, as amended, dedicates all taxes levied on kerosene to the highway fund. The defendant has fallen into error. The constitutional provision relied upon reads as follows:

“ ‘On all kerosene or other explosives used in the generation of motive power, the Legislature may impose a tax to be collected as may be prescribed by law.’ ”

This provision of the Constitution limits the taxing power of the Legislature to the levying of a tax on kerosene or other explosives when used for the generation of motive power. When the taxing power of the Legislature is thus limited by the Constitution, it is idle to contend that a municipality, which derives all of its powers from the Legislature, may tax kerosene beyond the quoted constitutional limitation.

This conclusion disposes of the case.

We find no ambiguity in Ordinance No. 14,241, C.C.S., of the city of New Orleans, but, if we are in error, the ordinance cannot be interpreted as authorizing the city to levy any tax on kerosene, for the purposes enumerated in said ordinance, other than the tax which is authorized by the Constitution.

For the reasons stated, the judgment appealed from is avoided and reversed, and the injunction, as prayed for in appellant’s petition, is granted, at appellee’s cost.

FOURNET, J., takes no part. O’NIELL, C. J., dissents and hands down reasons.