*1 ;877
LOUISIANA STATE AGRICULTURE v. SIBILLE.
No. 37474. 9, 1945.
Feb. April 30, 1945.
Rehearing Denied *2 Stanley, Atty. Gen., M. Suth-
Eugene A. Lewis, on, Atty. Gen., Sp. Seth Dist. Asst. Atty., David- Opelousas, and Davidson & appellant. son, Lafayette, for Lewis, Pavy W. both A. V. and John appellees. Opelousas, for HAMITER, Justice. taxes, payment of levied under
provisions of Act demanded is action. provides The mentioned for the Louisiana creation of Sweet Potato and, further, Agency Advertising Be imposing By collected Department Agriculture State Louisiana Immigration, potatoes on all sweet shipped the rate at per cent bushel from the of one effective 1, 1943, July date the act until and there- ggq null, unconstitutional, void and bushel. is per cents the rate two
after at however, effect, this, to-wit: Specifically exempt from the farm potatoes used on are sweet deroga “(a) Said Act violates is dehydrated, produced and those that (1) One (10) tion of Article Ten processed form. (cid:127)canned or of Louisi of the Constitution State the tax Agency, for the benefit of ana, question that the tax levied plan- duty of imposed, charged with the public purposes only, collected ‘for ad- campaign for conducting ning and wholly private levied and collected potatoes publicizing sweet vertising and purposes, purposes or for the than in- and, means, promoting by that ‘public purposes;’ consumption. creased “(b) Said Act further violates and plaintiff, petition suit of this derogation (10) Ten Agricul- Department of Louisiana (1) One of the said in that “the de- alleges Immigration, ture the tax is not levied and collected with Sibille, operating herein, Walter fendant ‘upon the uniformity same class sub- style Southern the name etc;’ jects, shipped certain Exchange, Sweet Potato “(c) in deroga- Said violates and is the State of *3 (10) Eight of Article tion Ten Section 27, 1943, April 16, April and between (8) of the Constitution the of State of due were 1943, potatoes there on which * Louisiana, and in that levies collects *;” amount of $37.24 taxes tax on agricultural pur- has made due been .and “that demand suits, is, effect, disguised occupa- and payment of the said Walter Sibille for the tional agricultural pur- license tax on an prayer for avail.” taxes no said suit; sum, together with judgment in the named interest, 20%, of costs. legal penalty and “(d) deroga- Said Act violates and inis of (4) (1) tion Article Four One Section answer, Defendant, he admits that his of the Constitution Louisi- of of made operations (cid:127)conducted and ana, provides in that it for the withdrawal the name of of and public moneys disbursement of Exchange, as al- Sweet Potato Southern Treasury the of the State of plaintiff; but denies that he leged by he any specific appropriation without made payment obligated legally for law, appropriate and also undertakes to and Supporting the are demanded. denial taxes proceeds disburse the of said tax for averments, contained in affirmative (cid:127)certain longer period years; than two unconstitutionality special .a attached answer, which read: deroga- and Act violates “(e) Said Fourteenth tion Amendment plaintiff, the act declared on “That States Regular United and Constitution Act No. Session i.e. (1) Article One Section of Second year Louisiana for (cid:127)of 884- public, tax is levied and for said collected Constitution of provide purposes' only and that Amendment Section aforesaid deprived his same uniformity upon with class person shall a, law, subjects. they discuss, only process property without due Also in-, extent, deprived slight respondent objection if said would be contained so (Italics paragraph executed and enforced.” (c), vio- which act Article 10 Louisiana. theirs.) lates Section Constitution in that it oh those- levies his at- Joining Sibille in the defendant argu- pursuits. No all de- statute, adopting tack on the ment whatever is advanced in favor of him, objections urged by fenses objections listed paragraphs (d) (e)- represent them- intervenors who numerous plea. of their potato buyers, grow- selves to be “sweet ers, shippers, in the State dealers Constitution,, Article of our defendant, They, along Louisiana”. on the appellees predi- pray 1942 be declared un- that Act in> objections, provides, first two cate void, constitutional, null and and that pertinent, far that: plaintiff’s be dismissed. suit power “The of taxation vested' hearing judge, following The district his in the Legislature; shall never be sur evidence, judgment rendered in favor of rendered, suspended away; or contracted declaring intervenors, defendant and and all taxes shall be upon the- uniform void, unconstitutional, null and subjects same throughout class the ter his dismissing ruling, the suit. The ritorial limits of- the authority levying the- disclose, was written reasons for tax, and shall be levied and collected ” predicated conclusion that only. purposes particulars 10 Sec- in two violated Under juris our well-established Louisiana Constitution. prudence those provisions: appeal. perfected this Plaintiff When apply taxes; property they do not- hearing in this case was called imposing control of license or excise- submitted coúnsel all taxes. The are governed by latter Article- parties argu- on briefs and without oral of our Constitution. State ments. Railway Express American Company, *4 brief, appellees 1001, (de-’ 544; counsel La. In 159 106 their So. Cigar Lionel’s argue intervenors) principal- McFarland, fendant Store v. 162 956, La. 111 So. 341; objections ly or ex sus- State rel. the two contentions Porterie Hunt, v. H. L. judge 1073, trial Inc., 182 777, tained 162 La. 103 So. A.L.R. 9; Cusimano, 269, listed State v. 187 La. 174 So. (a) (b), paragraphs Therefore, under being these it 352. becomes necessary to levies:, the act violates 10 Section 1 determine whether Act of the Louisiana in that property the a a tax.
,'885 selling proportion union statutes measured in the retail three other states
In
price,
have
of a similar
imposing
tax
nature
judicially considered.
enacted and
.’been
price
though
selling
“Even
the retail
Citrus
Company
Florida
Floyd
v.
Fruit
article,
regarded
as
value of the
248, 112
565,
Commission,
175 So.
Fla.
and the tax
proportion of
therefore
aas
562,
assailed as
statute
A.L.R.
value, that
tax
alone would
make the
not
advertising tax
levied an
(cid:127)unconstitutional
property
Refining
tax. Gulf
Mc-
Co. v.
n of a
standard-
designated amount on each
Farland,
Accounts,
Supervisor of Public
in the
grown
citrus fruit
packed box
251,
154 La.
-out in
follows
that the
From this
statute levies
supra.
was a
levied on
Considered there
property tax;
and' its
a license
prod
tobacco and tobacco
retailing
(cid:127)the
tested
light
legality
ucts, and this
said
[162
of Article 10
So. 344]:
Constitution, which, under
authorities, apply only
above-cited
“What characterizes this
a license
taxes.
property
property tax,
not a
course,
aside
Of
con
collectable
are en-
limitation, it is a fundamental re
stitutional
selling
in the business of
tobacco
gaged
government
our form of
products
quirement
retail and
tobacco
.and
at
*5
prosperity and
of
of
welfare
the State
the
that
law of taxation
and under the
potato industry
only Louisiana and of
sweet
validly exercised
the
can be
power to tax
promot-
of the
for fostering
of
state and
and
public purpose.
this
By
reason
ing
merchandising
better methods
appellees’ conten-
of
and
requirement we consider
advertising
potatoes produced
the
potatoes is strict-
sweet
tax on
that
sweet
tion
the
purpose
solely in this state.
of
act is to
ly
private purpose
benefit
this
for a
—to
expand
consump-
market and increase
growers
product.
the
the
and
that
dealers of
potatoes by
of sweet
acquainting
tion
the
record,
According
to the evidence
public
-general
giving
with
health
quali-
the
standpoint of
the
from
and
ties
food
the
value of the sweet
acreage
production, constitutes
and value of
potatoes grown
Louisiana,
State of
the
major,
largest,
fourth
one
the
of
the
thereby promoting
general
the
welfare of
crops
ranking
commercial
people.”
our
cane,
sugar
and cotton.
only after
rice
The declaration that
the act was
excepted
Corn is
classification
that
passed
promote
to
the prosperity and wel
since
farms where
most of it
used
fare of
the State
its
produced
hogs,
cattle
other
feeding
people
expressed legislative
is an
recogni
animals.
is true that on
basis of
It
that
public
tion
tax is
for planted
acreage
the sweet
percentage of
benefit. To be
recognition
sure
.is
that
considerably
behind
crop falls
conclusive; it could not make the
one
major
crops;
commercial
three
public purpose
if in fact it were for
importance in
great
is of
nevertheless it
private purpose. Since,
however, the
agricultural
state as is
economy
this
Legislature
members
are the direct
ten-year
fact
during
attested
representatives of all
people
period
average
planting
annual
it had an
state, their
certainly
declaration
furnishes
104,000
average
yield
acres
annual
presumption
public generally
that the
7,185,000
Furthermore,
bushels.
tois
levy.
benefited
connection,
given
consideration is to be
agricultural trend in the
southern sec-
similar
Somewhat
to the instant issue was
our
which is
tion of
nation
to favor diversi-
presented
Co.,
&
State Wilson
thereby
farming,
avoiding
fied
a concentra-
179 La.
So.
wherein
crop
preventing
on one
serious loss
17Act
of 1932
was attacked
un-
particular
the farmer
entire
answering
constitutional.
In
the conten-
citizenry generally
the one crop
fails.
tion that
the tax levied
that statute
private purpose,
this court said:
enacting
question,
statute in
thereof,
Legislature, in
purpose
levying
ap-
declared
“The
production
pears
“the
act,
section
is to
important agricultural
one
eradicate the cattle
industries
fever tick from the
Louisiana;
state,
proceeds
that this
act
to be devoted
passed
promote
conserve
exclusively
purpose.
pur-
Such a
It
purpose.
Legislature may
proper,
as the
deem
ex-
pose
unmistakably
* * *
public cept
purpose as redounds
is such a
n
**
* *
growth
promotes
pursuits
welfare.
It not
sup-
industry,
important
but tends
As
pointed out
tax levied
above
*6
milk
healthy
and
meats
ply
people with
a
Act 294
of 1942 is a license
* * *
par-
fact
that
for food.
The
tax;
property
hence,
special
may
benefit
ticular class
receive
provisions just quoted
considered
be
must
public
affect
the tax does not
validity.
passing upon
in
statute’s
* * *”
tax.
character
that:
provides
Section 5 of the statute
proceeds of
sweet
tax
hereby imposed
“There
levied a
and
paid
growers of
to the
tax are not to be
* * *
in
potatoes shipped
on all sweet
individuals
commodity
any other
or to
that
**
*. This
commercially;
groups
with it
or
that deal
apply
tax
on all
sweet
shall
exclusively
advertising
they are devoted
inspection
potatoes
certificates
for which
promoting the
potatoes,
thus
the sweet
tags
Depart-
and
of the Louisiana State
major industry.
growth
important and
anof
Agriculture
Immigration are
ment of
and
advertising, especially in states
By that
**
issued
that:
Section 6 states
very
the value
little
known
imposed
“The tax
hereunder
and levied
potato, there
sweet
of the
usefulness
collected
This,
consumption.
increased
will
an
result
**
shipper
And
in
we
production and
compel larger
turn, will
in
find:
state,
con
throughout
more sales
“ *
**
per-
‘shipper’
shall mean
sequence
greater
which a
will
prosperity
son,
association,
corpora-
partnership,
or
directly in
be realized not
those
by
tion,
po-
engaged
shipping
of sweet
citizenry.
our entire
terested
also
transporting
potatoes
tatoes
or
Therefore,
since it redounds
;
owner, agent,
otherwise
whether as
or
welfare,
public purpose.
is for
‘shipment’
place
shall be
take
deemed to
contention,
Appellees’
urged
next
under
potatoes
loaded with-
are
the sweet
Paragraph (c)
of their
boat,
car,
or
in
railroad
truck
in
state
plea,
that the statute violates
and is in
conveyance
potatoes
in which sweet
derogation
of the
of Article
* *
transported;
are
Constitution,
it im-
poses
occupational
an
license
on
Counsel
contend
engaged
pursuit.
collection the
manner of its
The because
those,
part:
exempted
mentioned article
section read in
is not
engaged
ag
Constitution,
taxes
be levied on such
“License
:
pursuits,
arguing
persons,
they
persons
classes of
associations of
ricultural
the farmer or
corporations
any trade,
payable by
pursuing
busi- “The tax
ness,
but is re-
occupation,
or
of the sweet
profession, grower
vocation
n quired by
Section 6
the statute to
selling
farmer. The
incidént
was an
Depart-
the Louisiana
farming,
part
collected
may be said.
It
Agriculture
Immigration
farmer,
ment of
pursuit
thereby
from his
as a
he
shipper.”
argument
But
overlooks
way
merchant.
peddler
became a
aor
above-quoted
the fact that
terms
exemption
covers
both
farmer
grower
.and definitions
farmer or
is a
the sale
his
farmer
that which
shipper,
subject
payment
thus
the industry produces.
gathered
Rice
when he loads his
or oth-
placed
unquestionably
truck
field and
in sacks is
”
* *
conveyance
potatoes
er
with sweet
agricultural product.
transports them the market.
And while
Therefore,
held that
must be
transporting
shipping
Act 294 of 1942 is violative
farm,
produce
of his
he is
also
Section 8
of the Louisiana
pursuit.
.an agricultural
so far as
levies a tax on sweet
shipped
transported
grower
by the
him
(cid:127)
Hayes,
In the
case
State v.
self.
143, 144,
pro-
78 So.
which involved a
vision
the 1913 Constitution identical
But
this does
mean that
quoted,
that above
stated:
it was
shippers
act
not effective as
*7
growers
other than the
thereof.
by
has
this court that
“It
been decided
shipper may
A
frequently
be and
deal
goes
place
place
from
is a
farmer
to
(cid:127)a
who
produce
in
products
farm
in
grown by him,
at retail
er
selling
of his farm
only pursuing
agricul
he is
farming
is
his
which
in
business
case
and.
pursuit
occupies
tural
peddler
is not a
or hawker. He is
the status
aof
in,an agricultural pursuit,
is,
commodity.
commercial handler of
by
defendant,
Constitution,
operates
.terms of
article 229 of the
n exempt
any
from
v. name of Southern
Roy
Exchange,
license
Sweet
tax.
Potato
Schuff,
86,
appears
belong
51
to
class.
La.Ann.
invalid, the Therefore, assigned, the reasons thereof applicability the act and/or 294 of 1942 is hereby declared unconstitu- thing shall circumstance any person, levies, tional, null and void far as it in so thereby.” not be affected imposes grow- a tax farmers or the list ers extent complaint, and to that Appellees’ fourth judgment the district is af- plea, Paragraph (d) ed firmed; 1- respects judg- in all 4, Section the statute violates aside, providing ment is reversed set of the Louisiana overruled, in- money disbursement of terventions, specific except growers, are- any to the without Treasury dismissed, dis undertaking and there is now appropriation and longer against in- proceeds tax for favor tribute the defendant $37.24, legal The referred the sum of interest years. period than two “No judicial part: paid, provision reads in thereon from demand until treasury plus principal penalty on said money shall drawn 20% specific appropria pay shall except pursuance amount. Defendant all costs law; appropria courts. tion made nor both term longer money made
tion of years.” According than two O’NIELL, J.,C. concurs in the decree- the tax statute, proceeds holding liable defendant for the tax deposited special must be fund opinion penalty, but the-' Potato all the Louisiana Sweet used adjudge court should not—in this case— pub Advertising Agency conducting unconstitutional far campaign. By this licizing promotion imposes the tax levies or farmers or dedication, not there method is created potatoes. growers con appropriation, mentioned provision violated. stitutional ROGERS, J., opin- concurs in the above Charity Hospi of Administrators of Board Chief ion Justice. 735; Richhart, 71 So. 139 La. tal v. Hospital Charity rel. Porterie ex O’NIELL, Chief (dissenting: *8 So. 606. Justice judgment rendering from the of a on the is said the statute Finally it that question whether Act 294 1942is uncon- process clauses the due violates far levy so stitutional said to Constitutions. Federal upon farmers).. tax sweet made Wilson objection in. the was same levy 294 of 1942 does not terms Florida, case, Idaho as well as upon growers farmers or of sweet supra, cases, cited in each the tax Michigan all 89o li- X of violate 8 of Article
potatoes.
ute
merely
did
It
levies the
Constitution.
pota-
upon
sweet
cense
tax, upon
toes, or,
occupation
as an
judgment de-
argued
If it
that
potatoes.
shipping
business of
“unconstitutional, null
claring the statute
imposes
far as it levies and
for- and void
not
in this case did
The defendant
growers
or the
of sweet
exemption
Sec-
mally claim the
allowed
farmers
judgment
potatoes”
in favor of those
X the Constitution
tion 8 of Article
* *
po-
growers
who
interveners
agricultural
engaged
“those
* * *
tatoes,
intervener
the answer
that
pursuits”,
pleaded
that
in his defense of
joins
defendant
of the Consti-
section
statute
that
violated
a defense
inject
right to
into it
those suit has no
tution,
it levied
that
the defendant.
unavailing
the which
pursuits. When
agricultural
engaged
not
was
defendant
court
found that
petition
Besides,
allegations of the
pursuit,
agricultural
engaged in an
—and
put
never
case were
in this
of intervention
exemption al-
not entitled to the
was
hence
was
intervention
petition of
issue. The
at
X
8 of
of the Con-
Article
lowed
answered
either the
put
stitution,-
have
should
end
—that
defendant;
nor
awas
taken
that sec-
the statute violated
preliminary
even a
default en-
default—nor
tion of the Constitution.
petition
tered—on the
No
of intervention.
defendant,
might
argued that the
It
support
allega-
evidence was
offered to
agricultural
in an
although not
petition
intervention
pleading
an interest in
pursuit, had
them—were
interveners —or
some
that,
plead
if the
right statute
hence the
“growers”
Nor was
potatoes.
of sweet
8 of Article X of the
violated Section
Con- any
evidence
to sustain
offered
stitution,
the allegation
petition
intervention.
respect
all
of its
rendered
unconstitutional.
Hence
forbid the
The rule which should
argued that for
might be
that reason the
un-
Act 294
case
in this
to declare
pleading,
had an interest in
defendant
con-
might be
far as it
constitutional in so
right
plead
though
hence
he
levy
—even
on farmers
growers
a tax
strued
pursuit
in an
was
should
potatoes is
a court
of sweet
statute did violate
Section 8
—that
of never
a statute unconstitutional un-
declare
X of the Constitution. The
obvi-
necessary'to
less it is
do so in order to de-
that,
that is
ous answer to
when the court
matter in contest between
liti-
cide
might
universally recognized.
that the statute
gants.
found
The rule is
violate Section
X the
Cooley’s
8 of Article
Constitution
Limi-
without
is stated in
Constitutional
It
unconstitutional,
Ed.,
tations,
there
Vol.
II and
8th
Ch.
Sec.
otherwise
necessity
deciding
III,
338-340,
whether
pp.
the stat-
—thus:
*9
ord, yet if the record also ground upon
other and clear thereby judgment, rest question immate- constitutional
render the adopt- case, will be that course
rial to the power question
ed, and the until a case consideration
will be left disposed of without
arises which cannot be consequently it,
considering question will be un- upon such
decision
avoidable. objec- listen to an Nor a court
“III. will constitutionality of an act
tion made to affect, party rights does not
by a whose interest has therefore no de-
and who feating The statute is assumed it. valid, complains some one until whose
rights invades.” from which I judicial declaration case, might
dissent, considered unimportant and hence if dictum
obiter opinion rendered
appeared court; part of court’s being a objec-' makes the declaration
decree is what against plaintiff, whom
tionable. rendered, cannot extent
decree to that rehear- asking for a
get rid it without rehearing
ing; yet petition for in this place where —as
might seem out plaintiff obtained a has
case—the prayed for.
for all that