38 La. Ann. 323 | La. | 1886
The opinion of the Court was delivered by
The defendant is the same corporation which figured as plaintiff in the case of Board of Levee Commissioners vs. Lorio Bros., decided by us in 1881 and reported in 33d Ann. 276.
Although tbe present case comes up in somewhat different shape, and although some other questions are raised in the pleadings, the only point insisted on before ns is tbe same which was determined in tbe Lorio case, viz : the constitutionality of the assessment or contribution levied by defendant upon lands protected by its levee, in conformity with Acts No. 78 of 1876 and 46 of 1877.
Plaintiff, however, calls our attention to the fact that although the Lorio case was decided after the adoption of the Constitution of 1879, yet the assessment there concerned had been made prior thereto and was governed by the Constitution of 1868. Hence be insists that with regard to the assessment now in contest, which was levied in 1884, it is governed by the present Constitution, and as the provisions of the latter instrument on the subject of taxation are different from, and much more extensive than, those contained in former constitutions, bis case presents a new and different question from any hitherto determined. His contention is technically correct in the limited sense that the particular question as to whether local assessments of the character here presented are governed by tbe provisions of the present Constitution on the general subject of taxation, has not yet been distinctly decided.
After much reflection, however, we conclude that the principles on which such contributions were excluded from tbe operation of similar provisions in former constitutions, apply equally to that now in force.
We concede, at once, tbe first proposition of plaintiff, viz: that the
Indeed, this has never been seriously contested. In referring to the cases in which it was held that such contributions were not governed by provisions of statutes and constitutions on the subject of taxation, Mr. Burroughs says: “An examination of the cases in which these expressions wexe used will show that it was not claimed that these burdens imposed upon the citizen were not imposed in the exercise o the taxing power, but merely that the word tax, or taxes, as used in some statute or in the Constitution of a State, was not intended to include local assessments; it was a question of intention tobe deduced from the instrument in which the word tax is used.” Burroughs Taxation, § 5.
In a very able argumént counsel for plaintiff refers to the original cases in which this doctrine was established in this and other States, and shows that many of the reasons assigned would have been inapplicable to the provisions of our present Constitution ; and we are free to confess that as an original question, it would be difficult to support the exclusion of local assessments from the operation of these provisions.
But, in the course of time, the matter has been considered over and over again in our own courts and in the courts of our sister States and by an inveterate course of decision, with rare exceptions, it has ripened into a settled principle of constitutional construction, that local assessments or contributions provided for the purpose of constructing public works for the advantage of particular districts and levied on property benefited thereby and with reference to such benefit, are not considered as taxes within the meaning of constitutional restrictions on the power of taxation. Board vs. Lorio Bros., 33 Ann. 276; Railroad vs. Board of Health, 36 Ann. 666; Burroughs on Taxation, Chap. 22; Cooley on Taxation, Chap. 20.
We are bound to assume that this principle was present to the minds of the framers of our present Constitution, and that they were well aware that, in the absence of special provision to that effect, the restrictions which they placed upon the exercise of the taxing power, would not be considered ai- applicable to assessments of this character.
We have carefully scrutinized the unusually elaborate provisions on the subject of taxation and the careful restrictions which have been
Such assessments are not to be confounded with ordinary local taxation. The distinction is well pointed out by Mr. Burroughs : “A tax for the local purposes of a county is imposed on the persons or property within the county, as distinguished from other parts of the State, but it is usually imposed on. all the subjects on which the State imposes a tax for State purposes. In local assessments, on the contrary, the tax is imposed on the real estate alone and only on such real estate as is benefited by the local improvement. * * The benefit of the improvement is not only local but also specific, benefiting particularized property, and therefore the tax may be levied on this property which receives a benefit. * * Assessment is not considered as a burden, but as an equivalent or compensation for the enhanced value which the property denves from the improvement.” Burr. Tax. p. 460.
When we closely examine the provisions of our Constitution we find that they apply only to ordinary local taxation, levied in particular districts, it is true, but levied on all taxable property within such districts without reference to special benefit to particular property. Such taxation must submit to the restrictions imposed thereby. Thus, under Article 209, a parish or municipality desiring to levy an increased tax on all the taxable property within its limits for some work of public improvement, could not do so without compliance with the requirements of that Article under legislation carrying the same into effect. And so we have held. Surget vs. Chase, 33 Ann. 233.
But these provisions have no application to that kind of taxation which falls under the denomination of strict local assessments which are not levied upon taxable property generally for the common public interest, but upon particular property specially benefited, as an equivalent for the benefit conferred.
Assessments of this kind are not refeired to in the provisions of the Constitution upon the subject of taxation, which relate only to taxation upon property generally, whether throughout the State or within particular districts. If we were to deny the legislative power to ordain or sanction such assessments we should destroy a common and most useful function of government. Thus it would not be possible for the city of New Orleans to pave or widen a street or sidewalk without first submitting the question to a vote of all its taxpayers and without making the burden common to them all, although only a particular part of the property would monopolize the benefits.
Such was not the intent of the Constitution, nor the interpretation placed on it in practice and legislation.
The assessments involved here belong strictly to this class, as appears from the Acts authorizing them and from the evidence in this record.
We have che satisfaction of knowing that the legislative department of the government, under the existing Constitution, concurs with us in sustaining the constitutionality of these Acts and assessments, as shown by Act No. 97 of 1882, referring to and confirming the same.
Judgment affirmed.
