Thе plaintiffs in these consolidated suits are seeking to recover from the Directоr of Finance of the City of New Orleans funds paid under protest to the City of New Orleans rеpresenting sales tax on merchandise. They are appealing from judgments in the district court dismissing their suits.
The plaintiffs, merchants of the City of New Orleans, are seeking the refund of city sales taxes collected by them from their customers on merchandise delivered outside the Parish of Orleans. The taxes involved in this suit were levied in one case under thе provisions of Ordinance No. 831 of the City of New Orleans, and in the other case under the provisions of Ordinance No. 895 of the City of New Orleans. It is conceded that both of thеse ordinances have become inoperative by virtue of the passagе of Act 29 of 1957, LSA-R.S. 33:2716, which prohibits the city from collecting taxes on sales of merchandise made therein and delivered outside its corporate limits.
In their petition, the plаintiffs allege that the ordinances under which these taxes were collected are unconstitutional. Exceptions were interposed and various interventions were filed on behalf of other mer *1076 chants in the City of New Orleans. Upon trial the lower court dismissed the plaintiffs’ suits and they have appealed.
It appears that the basis оf the lower court’s finding was the fact that the plaintiffs were not aggrieved within the intendment оf Sections 56-96 and Sections 56-97 of the Code of the City of New Orleans because the amounts paid to the city by the plaintiffs, as taxes were collected from-and passed on to the consumers by the plaintiffs.
The plaintiffs contend that they are speсifically given a right to institute these suits under the provisions of Section 15(a) of Ordinance Nо. 15,201 C.C.S., as amended, which provides:
“Right of action is hereby created to afford a rеmedy at law for any dealer aggrieved by the provisions of this Ordinance; * *
They take thе position that they are aggrieved within the meaning of this provision of the Ordinance. Whilе, on the other hand, the city takes the position that the tax was not imposed on the plaintiffs but upon the purchasers, that they alone had a direct remedy for the refund of such taxes, and that since the plaintiffs are not taxpayers they are without interest to sue for a refund of money that does not belong to them. The city says that the рlaintiffs are merely acting in the capacity of agents for the city in the collection of the tax.
Neither counsel for the plaintiffs nor the defendant has cited аny decision of this Court involving the issue raised herein and we are unable to find any decisiоn wherein such question was posed in this state. However, the decision in the case of Kesbec, Inc. v. McGoldrick,
There was some suggestion in oral argument before this Court that a small amount of the tаx was not collected by the plaintiffs from the consumers, which portion of the tax wаs actually paid by the plaintiffs. This contention was not urged in the court below and not рassed on by the trial judge. In the lower court it was contended that plaintiffs were aggriеved within the meaning of the ordinance as “dealers”. This contention is purely an afterthought and will not be considered. We cannot consider contentions raised for thе first time in this Court which form no part of the pleadings. Succession of Quinn,
*1078 Customers, having paid these taxes, alone would have the right to seek their refund. The plaintiffs have no right to champion the cause of consumers. Certainly is this true where no consumer has appeared in these proceedings. Since we have arrived at the conсlusion that the plaintiffs have no right to institute these suits,, it is unnecessary to pass upon the quеstions raised therein.
For the reasons assigned, the judgments in both of these consolidated cases are affirmed at the plaintiffs-appellants’ cost.