108 So. 479 | La. | 1926
Section 12 of article 14 of the Constitution provides that — *273
"Except as otherwise provided in this Constitution, no municipal tax, for all purposes whatsoever, shall exceed, in any one year, seven mills on the dollar of assessed valuation; provided, that where any municipality is, by its charter or by law, exempt from payment of parish taxes or, under legislative authority, maintains its own public schools, it may levy an annual tax not to exceed ten mills on the dollar of assessed valuation. This section shall not apply to the city of New Orleans."
The city of Opelousas does not claim that it comes within the proviso of this article. Nevertheless, its mayor and board of aldermen levied, by ordinance, for general revenue purposes, for each of the years 1922, 1923, and 1924, a tax of eight mills on the dollar, on the assessed valuation of all property subject to taxation within the city. The tax, to the extent of 1 mill for each of said years, was levied indisputably in violation of the prohibition contained in the section of the Constitution, quoted above.
The plaintiffs in this suit, four in number, paid the eight mill tax levied for each of said years. In September, 1925, they discovered that they had paid an eight mill tax instead of a seven mill tax, and made demand on the city to refund them the excess exacted of them and paid. The city refused to refund the excess demanded, and plaintiffs then instituted this suit to recover it. Their contention is that, when they made payment, they were unaware of the fact that this excess had been exacted of them; that they paid it in error; and that the error was superinduced by fraud. The city denies that it is indebted to plaintiffs for any part of the tax collected by it; denies that it fraudulently collected any part of said tax; and avers that the tax was paid by plaintiffs without duress or compulsion, and hence voluntarily; and that, having been so paid, and having been disbursed, no part thereof can be recovered.
This court in a number of cases has had occasion to consider the right of a taxpayer to recover a tax paid by him on the *274 ground that the tax was illegally exacted, or upon other grounds. In New Orleans Canal Banking Co. v. City of New Orleans, 30 La. Ann. 1371, it was said with reference to the right of recovery, quoting from Dillon on Municipal Corporations, that, to justify the claimant's action, three principal facts must concur, to wit:
"The authority to levy the tax must be wholly wanting, or the tax itself wholly unauthorized; in which cases the assessment is not simply irregular, but absolutely void. 2. The money sued for must have been actually received by the defendant corporation, and received by it for its own use, and not as an agent or instrument to assess and collect money for the benefit of the state, or other public corporation or person; and 3, the payment by the plaintiff must have been made upon compulsion, to prevent the immediate seizure of his goods or the arrest of the person, and not voluntarily. Unless these conditions concur, paying under protest will not give a right of recovery. The same principles are applicable to actions for the recovery back of money paid for illegal license taxes or fines imposed by a municipal court."
And in Fuselier v. St. Landry Parish,
"The coercion or duress which will render a payment of taxes involuntary must in general consist of some actual or threatened exercise of power, possessed or believed to be possessed by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means or reasonable means of immediate relief except payment."
In the case at bar, the tax, in so far as it exceeded seven mills on the dollar, as said, was clearly levied in contravention of the section of the Constitution, quoted supra, and hence to that extent was void. Therefore plaintiffs' case is in accord with the first condition necessary for a recovery, as laid down in the rule, quoted above. The tax, in so far as it exceeded seven mills on the dollar, was *275 actually received by the city, and for its own use. Therefore, plaintiffs' case is in accord with the second condition necessary for a recovery, as laid down in the rule quoted above. But, barring for the time being the questions raised relating to error and fraud, plaintiffs fail when it comes to the third condition necessary to recover, stated in the foregoing rule, if that rule is to be applied, for it does not appear that the tax, or any part of it, was paid under duress or coercion. In fact, it is conceded, in effect, that no part of the tax was so paid. However, plaintiffs contend that the rule, relative to payment under duress or coercion, has no application to the facts of this case. Their contention is that they are entitled to recover under article 18 of the Code of Practice, and under articles 2133 and 2302 of the Civil Code. The article of the Code of Practice, relied on, reads:
"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 obligation to make such payment; but he must prove that he paid through error, otherwise it shall be presumed that he intended to give."
Article 2133 of the Civil Code, relied upon by plaintiffs, reads:
"Every payment presupposes a debt; what has been paid without having been due, is subject to be reclaimed.
"That cannot be reclaimed that has been voluntarily given in discharge of a natural obligation."
Article
"He who has paid through mistake, believing himself a debtor, may reclaim what he has paid."
To these we may add article
*276"To acquire this right [that is, the right to reclaim], it is necessary that the thing paid be not due in any manner, either civilly or naturally. A natural obligation to pay will be sufficient to prevent the recovery."
Plaintiffs contend that there is neither a civil nor a natural obligation to pay such part of a tax as may be levied in excess of the tax permitted by the Constitution. In this, we think that plaintiffs are correct, and, were these codal articles applicable to their full extent to this case, plaintiffs, to say the least, would have a strong case. But these articles have little or no application in determining the right of one to recover taxes paid by him on the ground that the taxes were illegally levied and were paid in error by him. This was held, as relates to the articles of the Civil Code, quoted above, in Lisso Bro. v. Police Jury,
"Every man is supposed to know the law, and, if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as a reason why the state should furnish him with legal remedies to recover it back. * * * Mistake of fact can scarcely exist in such a case except in connection with negligence, as the illegalities which render such a demand a nullity must appear from the records, and the taxpayer is just as much bound to inform himself what the records show or do not show as the public authorities."
As relates to the contention that the tax, in so far as it exceeded the constitutional limitation, was fraudulently levied and collected, it is sufficient to say that we do not find this contention sustained. The mayor and board of aldermen were simply in error as to the number of mills they could levy for general revenue purposes. The ordinance, adopted each year, levying the taxes, showed that the tax levied for the year, for general revenue purposes, was eight mills on the dollar. However, for the year 1924, due to an error of the printer in printing the sheets for the rolls and the tax receipts, the general revenue tax was shown thereon as a tax of five mills on the dollar, and a special tax for the redemption of public improvement bonds was shown thereon as an eight mill tax, when the tax for general revenue should have appeared on the rolls and receipts as an eight mill tax, and the special tax should have been *278 shown as a five mill tax. Plaintiffs argue that there was an attempt here, on the part of the city authorities, to conceal the fact that they had levied an eight mill tax for general revenue purposes. We do not so conclude. The showing of the eight mill tax as a special tax was merely due, as stated, to an error of the printer, which was evidently deemed, as it in fact was, harmless. The error could have scarcely served to deceive, as a majority of the taxpayers must have known what the number of mills of the special tax was, and, moreover, the error was one that was readily detectable by reference to the ordinance, levying the taxes.
Our conclusion is that, having paid the tax without coercion, plaintiffs cannot recover.
For the reasons assigned, the judgment appealed from is affirmed; appellants to pay the costs of this appeal.