36 So. 552 | La. | 1904
Lead Opinion
Statement of the Case.
The plaintiff proceeds by rule against the Moss Hotel Company, Limited, Edward Nereaux, M. F. Smith, L. B. Delahoussaye, Alphonse Lacour, Ralph Landry, and Jos. Maniscako to compel them each to pay a license of $1,000 as retail liquor dealers in New Iberia for the year 1904. The four defendants first named answer, admitting that they have been in the business since January 1, 1904; denying that they owe more than $150, which they allege that they have tendered; alleging that the ordinance under which the plaintiff claims is void for the reasons that it was not signed by the mayor until after its promulgation, and that, in any event, it is illegal and unconstitutional, because it fails to graduate the license. The answers of the three defendants last named differ from the others only in that they allege that those defendants have each, by error, paid $250, and that they are entitled to recover $100 as overpaid.
The following facts are admitted or proved: That the town charter authorizes the mayor and board of trustees to impose a liquor license as contemplated by article 229 of the Constitution; that upon August 3, 1903, the ordinance here relied on, reading as follows,
Opinion.
According to the charter, the governing body of the town of New Iberia consists of the mayor and six voters and taxpayers, duly elected; and the duties of the mayor, in connection with the adoption and promulgation of ordinances, are prescribed as follows: “The mayor shall * * * sign all resolutions, by-laws and ordinances and affix the corporate seal thereto except as may be otherwise herein provided. * * * He shall have the right to veto any law, by-law, resolution, or ordinance of the board, and any law, by-law, resolution, or ordinance, so vetoed, shall be re-submitted to the board, and, if passed by the votes of five members, shall become a law without his signature. He shall, upon the signature of all laws, bylaws, resolutions and ordinances, or, upon their becoming of force without his signature, cause them to be published in the official journal, or in the manner to be prescribed by the board, whereupon they shall be of force as law.”
The language thus used is about as specific and mandatory as'could well have been selected. The mayor “shall” sign all ordinances, or, if he vetoes, he “shall” resubmit, them to the board, in which ease they-acquire the force of laws only when passed by the votes of five out of the seven members, constituting the board. “Upon the signature” (being affixed), or, upon the ordinances being passed over his veto, he “shall” cause them to. be published, “whereupon they shall be of force as law.” “Whereupon,” as thus used, means “after which”; and the meaning of the provision is that, after the commands of the law, as thus given, have been obeyed, and not before, the ordinances “shall be of the-force of law.”
The ordinance in question was promulgated. August 15, 1903, without having been signed by the mayor, or passed over his veto, and although the mayor afterwards, on January 4, 1904, affixed his signature, it has never-been promulgated since that time. It is said that it makes no difference whether the may- or signed before or after the promulgation,, but we are unable to concur in that view..
In the case of Mayor of Breaux’s Bridge v. Dupuis, 30 La. Ann. 1105, it appeared that the charter of Breaux’s Bridge required the mayor to “sanction” all ordinances passed by the board, that the ordinance there in question had been passed and promulgated, and that the mayor was prosecuting the suit in its enforcement. Our predecessors in this court nevertheless held that it was inoperative, because the mayor had not signed it.
The language of Act No. 37, p. 71, of 1876, which was interpreted in the case of Town ex rel. Thompson v. Andrus, 37 La. Ann. 699, was not as explicit or peremptory as that with which we are now dealing, and could reasonably be held not to have made the president of the board, as such, a constituent part of the legislative power; his function in signing ordinances being ministerial, and involving the exercise of no discretion. Upon the other hand, in the recent case of Town of Mandeville v. Band, 111 La. 806, 35 South. 915, the decision in the case of Mayor of Breaux’s Bridge v. Dupuis, supra, has been affirmed, and it has been held that, the signature of the mayor being required, his failure to affix it at the proper time was fatal to the ordinance, and that the defect was not cured by his signing upon the day of the -trial. Our conclusion upon this branch of the case is that, whether the mayor’s signature is indispensable to the validity of an ordinance, and whether such signature may be affixed at one time as well as at another, depends upon the language of the charter under which he exercises his functions, and that the charter which we are now considering makes it essential to the validity of all ordinances that they should be signed by the mayor before their promulgation.
Another question forced upon our consideration is whether the ordinance violates those provisions of the Constitution which require that licenses shall be graduated.
Article 224 of the Constitution provides that “the taxing power may be exercised by * * * parishes and municipal corporation * * * under authority granted them by the General Assembly,” etc.; and article 229 provides that: “The General Assembly may levy a license tax, and in such case, shall graduate the amount of such tax. * * * No political corporation shall impose a greater license tax than is imposed by the General Assembly for state purposes. This restriction shall not apply to dealers in distilled, alcoholic or malt liquors.” Whatever power a municipal corporation may possess to levy taxes must unquestionably be derived from the General Assembly, and in the way of licenses such corporation may not levy a greater tax than is imposed by the General Assembly for state purposes, provided “this restriction shall not apply to dealers in distilled, alcoholic, or malt liquors.” That is to say, construing together the tw.o articles quoted, a municipal corporation, if so authorized by the General Assembly, may levy a greater license tax upon liquor dealers than is levied by the General Assembly for state purposes. There is, as we have seen, a specific admission in the record to the effect that the plaintiff is authorized by its charter, as amended by Act No. 130, p. 196, of 1898, to levy upon retail liquor dealers license taxes in excess of those imposed by the state, and subject to no other limitation than such as
The defendants admit that they are each, liable for $150, and those who have not paid will be condemned upon the admissions so made. Three of them have paid $250 as installments upon the license of $1,000, which they assumed had been legally imposed, and which they intended to pay until they were otherwise advised, and they 'each seek to recover the difference between that amount and the $150 which they admit to be due. This relief cannot be afforded them. Fuselier v. St. Landry Parish, 107 La. 221, 31 South. 678. Counsel for plaintiff argue that defendants are estopped to question the validity of the ordinance by reason of the fact that after its promulgation (in December, 1903) they petitioned the board of trustees to reduce the amount of the license from $1,000 to $500, and also because they each acknowledge an obligation to pay $150. We, however, find no ground of estoppel in this conduct. It does not appear that the defendants were aware, when they presented their petition, that the ordinance was incomplete, and of no effect; and, if they had known it, their asking that a lower license be imposed by a valid ordinance would not estop them to contest the validity of the ordinance of which they were complaining. We are not advised why the defendants who have not paid admit that they each owe $150, and can find no reason for holding that such admission estops them to deny owing $1,000. Nor do we think that the other defendants who have each paid $250 should be estopped to deny that they owe $750 more, since the discovery has been made that the ordinance under which they paid is illegal.
For these reasons it is ordered, adjudged, and decreed that the judgments herein rendered against the Moss Hotel Company, Limited, Edward Nereaux, M. F. Smith, and L. B. Delahoussaye be amended by reducing the principal amounts thereof from $1,000 to $150, and, as amended, affirmed; and that the judgments rendered against Alphonse Lacour, Ralph Landry, and Joseph Maniscako be annulled, avoided, and reversed, and the demands against them rejected, at the cost of the plaintiff in both courts.
It is further adjudged and decreed that the demands in reconvention of the three defendants last mentioned be dismissed without prejudice to their right to reassert them in the event of their being hereafter disturbed by the plaintiff with reference to licenses for the year 1904.
It is further adjudged and decreed that the plaintiff pay the costs of this appeal.
Rehearing
On Application for Rehearing.
(May 9, 1904.)
Whether the plaintiffs are authorized at this time to adopt an ordinance imposing a retail liquor license for the unexpired term of
Rehearing refused.