83 So. 455 | La. | 1919
Plaintiff brought this suit to enjoin the sale of its property by the defendant for the general municipal taxes of the year 1915, upon the following grounds, to wit:
(1) Because the said tax was not levied at a regular meeting of the board of aldermen of said village, as provided by section 35 of Act 136 of 1898, under which defendant is chartered, but was levied at a special meeting of said board.
(2) In the alternative, if the ordinance levying said tax was not illegal for the reason just stated, it was void because not adopted by a yea and nay vote, as required by section 33 of said act.
(3) Further in the alternative, that the said action of the board of aldermen was illegal because of the failure to give the notice to the delinquent as required by the Constitution and laws of this state, and particularly sections 50 and 51 of said act (Act 170, Laws 1898).
(4) Also in the alternative, because the village was seeking to recover 2 per cent, per month interest upon the taxes claimed.
Defendant village admitted that the ordinance was not passed at a regular meeting, or adopted by a yea and nay vote, and averred that written notice of delinquency was given to plaintiff as required by law, but, of course, denied that the matters complained of rendered its action void, or entitled plaintiff to the writ.
After hearing the rule nisi was recalled, and the injunction denied at plaintiff’s cost.
From this judgment plaintiff appeals.
Opinion.
The important facts in this case are not disputed and the issues depend upon the question of whether the provisions of Act 136 of 1898 are mandatory or merely directory.
Should the revenue ordinance have been passed at. a regular meeting?
“ * * * The mayor and board of aldermen shall levy the municipal taxes at the regular meeting in September of each year, or, in case of failure to do so, at any other regular meeting thereafter. * * * ”
This section also deals with the matter of copying the municipal assessment from the rolls of the parish, and empowers the municipality to increase or diminish the valuations at a regular or special meeting m September or October, provided certain notices are published, but, in so many words, provides that the revenue ordinance shall be adopted at a regular meeting. Logically, the specific selection of a regular meeting would indicate the intention to exclude action at a special meeting, unless, when construed with other provisions and on taking into consideration the objects and purposes of the law, it should be apparent that the clause was merely directory. The lawmaker evidently foresaw that circumstances might arise which would make it impracticable, if not impossible (such as the failure of the parish assessor to timely complete and file his rolls), to levy the tax at the regular meeting in September, and hence provided
Defendant has cited a number of authorities to the point that time is not of the essence of a statute requiring that assessments or tax levies shall be made by or within a given time. Among them we find the case of N. O. v. Bank, 15 La. Ann. 107. That was a case in which the statute provided that a certain ordinance to make provision for the payment of interest on railroad bonds should be passed in January of each year, and, the city not having done so until the 23d of February, it was contended that the power to act had been lost. However, the court found that all other ordinances of the city, with the exception of one, were declared to be invalid until the interest for the bonds was , provided, and held that, in the light of this requirement, it could not be said that the Legislature intended to deprive the municipality of the right to provide for its other needs because of its failure to pass timely the railroad ordinance, which was made a condition precedent, as above indicated; but that, under those conditions, it was evident that the provision mentioned was intended to be only directory. To the same effect are .the other cases which deal with the making and filing of assessments or the levying of revenue, taxes on or by certain dates.
In the present case no such condition exists; for the board of aldermen could, under the express provision of the statute, act at any regular meeting from the month of September on.
Did the ordinance require a yea and nay vote?
We find it unnecessary to determine tbe other issues.
Por tbe reasons assigned, tbe judgment appealed from is annulled and reversed, and it is now ordered, adjudged, and decreed that tbe defendant be, and is hereby, perpetually enjoined from proceeding further with tbe advertisement and sale of plaintiffs property under tbe ordinance and tax levy of November 29, 1915; defendant to pay all costs.