43 La. Ann. 15 | La. | 1891
The opinion of the court was delivered by
These various consolidated causes are injunction proceedings taken against the Board of Commissioners of “ the Atchafalaya Basin Levee District” to prevent them from levying certain acreage and produce taxes, and from issuing certain bonds— all in pursuance of the provisions of Act 97 of 1890.
The levy of these taxes is assailed on the further ground that same are burdensome, oppressive and virtually amount to confiscation. Judgment went in favor of the defendants in each of the several cases in the District Court, and the various plaintiffs have appealed, and unite in one transcript.
I.
In so far as may appertain to the unconstitutionality of the act in question, in respect to Article 214, we collate from the briefs of ■appellants’ counsel the following synoptical statement of the grounds on which they rely, viz:
1. That the sole and exclusive authority of the levee commissioners to levy taxes in their respective districts for levee purposes is derived from Article 214 of the Constitution.
2. That Article 214 restricts and limits the authority and power of the levee commissioners to a levy of ten mills on taxable property situated within the alluvial portions of the district subject to overflow.
3. Authority to levy taxes on specified property, within specified limits within the- levee district, being conferred by the Constitution directly on the levee commissioners, the Legislature is without power to enlarge or extend that authority.
4. That the tax authorized by Article 214, from its very nature, the object of the levy, the purpose to which the proceeds are to be devoted, and the situation and nature of the property on which the levy is to be made, is a local tax or special assessment.
5. There is no warrant in the Constitution for the exercise of any taxing power by levee commissioners, by special assessment or otherwise, under and by virtue of any direct authority from the Legislature.
Article 214 reads as follows, to-wit: “ The General Assembly may divide the State into levee districts and provide for the appointment or election of levee- commissioners in said districts, who shall, in the manner and method to be provided by law, have supervision
In 1884 an amendment to this article was submitted, and same, was subsequently adopted by the people. It reads as follows:
“The General Assembly may divide the Ltate into levee districts, and provide for the appointment or election of levee commissioners in said districts, who shall, in the method and manner to be provided, by law, have supervision of the erection, repair and maintenance ■ of the levees in said districts; to that effect the levee commissioners may levy a tax not to exceed ten mifls on the property situated, within the alluvial portions of said district subject to overflow; provided that in ease of necessity to raise additional funds for the purpose of constructing, preserving and repairing any levees protecting the lands of a district the rate of taxation herein limited may be increased when the rate of such increase and the necessity and purpose for which it is intended shall have been submitted to a vote of the property tax payers of such district, paying taxes for himself, or in any representative capacity, whether resident or nonresident, or property situated within the alluvial portion of said district subject to overflow, and a majority of those in number and. value voting at such an election shall have voted therefor.” Act 112 of 1884.
The following alterations in the text of the article were made,, viz: The word “if” is omitted, and in its stead the words “the levee commissioners” are employed, and the word “Jive" is omitted and the word “ten" is inserted in its place. To this article, as thus altered, the proviso contained in the act of 1884 is added.
While it is true that the court has twice examined and construed the provisions of the original article, in reference to the particular subject matter under consideration — Charnock vs. Levee Company, 88 An. 323, and Planting and Manufacturing Company vs. Tax Collector, 39 An, 455 — the plaintiff’s counsel press a serious argument against the correctness of the principles therein announced; and insist, further, that if they be correct, they are inapplicable to the provisions of the amendment of that article. They further contend, that, had the amendment formed a part of Article 214 at the time.
It will be observed that no assault is made upon the ten mill district levee tax assessed by the levee commissioners under and in pursuance of Article 214; but the plaintiffs’ injunction is directed specifically against the acreage and produce taxes, which are authorized by the provisions of Act 97 of 1890, the unconstitutionality of which statute is grounded on the theory that Article 214, as it is amended, provides for a local assessment, and not a tax eo nomine, and therefore under the proviso of this amendment “ additional funds for the purpose of constructing, preserving and repairing levees ” could not be raised until same had been first duly authorized by a vote of the property tax payers of the district, and in the manner directed in Act No. 8 of 1888; said Act 97 of 1890 having made no such provision, and having delegated the power to levy said produce and acreage assessments directly to the levee commissioners without the constitutional power so to do.
Therefore the principal question for our determination is, the purport and meaning of said amendment; and in so doing to determine whether it limits and restricts the legislative power to authorize local assessments.
Counsel insist that the question thus presented is res nova, and not covered by the Charnock and Excelsior Planting Company cases.
The best way to test the correctness of this view is to briefly examine the opinions in those cases and compare the principles on which they are founded with the theory of the plaintiffs’ counsel in this respect.
Stated concisely, the question is whether the amendment authorizes the levy of a tax or a local assessment; for if it authorizes the former, the power of the Legislature is limited; and if it authorizes the latter, it is unlimited.
In the Charnock ease the principal question dealt with and determined was whether or not the power of local assessment was governed by the precepts of the Constitution or resided in the Legislature; and we held that the provisions of the Constitution did not control it. In the decision of that case strong reliance was placed upon the decision of this court in Board of Levee Commissioners vs. Lorio Bros., 38 An. 276, in which a similar issue was raised and decided; but it was insisted that same was not strictly applicable,
It “is technically correct, in the limited sense, that the particular question as to whether local assessments, of the character here presented, are governed by the provisions of the present Constitution on the general subject of taxation has not yet been distinctly decided.
“ After much reflection, however, we conclude that the principles on which such contributions were excluded from the operation of similar provisions in former Constitutions apply equally to that now in force ” — in effect deciding that the cited case was strictly applicable in principle.
The court then held that “ the exaction of such contributions was an exercise of the taxing power in its broadest sense,” though not controlled by statutes and constitutions on the subject of taxation, holding with Mr. Burroughs that such assessments are “ not imposed in the exercise of the general taxing power,” but that “ the word tax or taxes,” as used in constitutions and statutes, “ was not intendedlo include local assessments.” Burroughs on Taxation, See.'5.
It further said of the opposite view that “ in the course of time the matter has been considered over and over again in our own courts and in the courts of our sister States, and by an inveterate course of decision, with rare exceptions, it has ripened into a settled principle of constitutional construction that local assessments or contributions provided for the purpose of constructing public works for the advantage of particular districts, and levied on property benefited thereby, and with reference to such benefit, are not considered as taxes within the meaning of constitutional restrictions on the power of taxation.” (Italics are ours.)
In support of these views numerous authorities are cited, and on the faith of which we said:
“We are bound to assume that this principle was present to the minds of the framers of our present Constitution, and that they were well aware that, in the absence of special provision to that effect, the restrictions which they placed upon the exercise of the taxing power would not be considered as applicable to assessments of this character.
*24 “We have carefully scrutinized the unusually elaborate provisions on the subject of taxation, and the careful restrictions which have been placed upon the taxing power of the State, of parishes, and of municipalities, not only for general pixrposes of government, but also for works of public improvement; but we find none which cover, or exelude local assessments of the character presented in this case. Such assessments are not to be confounded with ordinary local taxation.”
The court then cites from Burroughs on Taxation the following extract, viz:
11 A tax for the local purposes of a county is imposed upon the persons or property within the county, as distinguished from other parts of the State, but it is usually imposed on all the subjects on which the State imposes a tax for State purposes. In local assessments, on the contrary, the tax is imposed on the real estate alone, and only on such real estate as is benefited by the local improvement. * * The benefit of the improvement is not only local, but also specific, benefiting particularized property, and, therefore, the tax may be levied on this property which receives a benefit. * * Assessment is not considered as a burden, but as an equivalent or compensation for the enhanced value which the property derives from the improvement.” P. 460.
“ When we closely examine the provisions of our Oonstitution, we find that they apply only to ordinary local taxation, levied in particular districts, it is true, but levied on ail taxable property within such districts without reference to special benefit to particular property. Such taxation must submit to the restrictions imposed thereby.
* * * * *
“ But these provisions have no application to that hind of taxation, which falls under the denomination of strict local' assessments which are not levied upon taxable property generally, for the common public interest, but upon particular property specially benefited, as an equivalent for the benefit conferred.
Assessments of this hind are not referred to in the provisions of the Constitution, upon the subject of taxation, which relate only to taxation upon property generally, whether throughout the State or within particular districts.”
In the foregoing quotations we have italicized the pertinent points
In the Planting and Manufacturing Company case plaintiffs enjoined the execution of the provisions of Act 14 of 1886, creating “the Board of Commissioners for the Fifth Louisiana Levee District,” and defining the powers and duties of certain levee commissioners ; and one of the plaintiffs’ principal contentions was that said act violated the provisions of the 214th article of the Constitution,” because the last clause thereof, authorizing the levy of a tax not to exceed five mills, on the taxable property situated within the alluvial portion of said districts subject to overflow, is a provision of the means for the exercise of the prior power granted, and which is restrictive and impliedly prohibitive of a resort to any other means, and that this prohibition is violated because the act, after authorizing the levy of the five mill tax, proceeds to authorize the collection of certain local contributions or assessments on particular property benefited by the levees.”
But in considering this proposition we said that “the power granted to levy the five mill tax would be exclusive and prohibitive of any levying of any greater tax; but the analogy fails entirely when the effort is made to extend the prohibition to the provision of other means than taxes. It is obvious that the object of the last clause of Article 214 was not to exclude the power of local assessment, but simply to confer the power of taxation. It was necessary for the latter purpose, because without it such power could not have been exercised, being in violation of other constitutional provisions on the subject of taxation. But the power of local assessment * * * is exerted entirely independent of this and all other provisions on the subject of taxation. To hold that the power of local assessment was taken away because the power of taxation was conferred would be to reverse the purpose of the article, and to convert what was evidently intended as the grant of a new and additional power into a distinction of a power already possessed.”
Taking up the particular assessments authorized by the act in question, which declare that in case additional funds are needed “to locate, repair and construct levees, so as to prevent disastrous floods, the said board shall have authority to levy a special assessment or forced contribution not to exceed fifty cents per bale on each and every bale of cotton,” etc.,.and which were assailed as
“ It is self-evident that if the contributions here involved are embraced within the scope rnd meaning of the words taxes ’ and ‘ taxation,’ as employed in those articles, they would unquestionably violate both their letter and their spirit.”
We then referred to what was said on this subject in the Charnock case, and said:
“ On the most careful reconsideration of the question under all of the additional light thrown upon it by the arguments of counsel, and * * * we remain fully convinced of the correctness of our former decision.”
In the recent ease of Asphalt Paving Company vs. Gogreve, 41 An. —, at page 263, we had under consideration, and decided a charge of unconstitutionality of the charter of the city of New Orleans (Act 20 of 1882), on the ground that the provision thereof which authorized the local assessment of certain property fronting on a street recently paved was violative of Article 209 of the Constitution as an exercise of the taxing power.
On this question we said, quoting the article: “These provisions have exclusive reference' to the ad valorem taxation of all the property of the inhabitants of the city for purposes of revenue only;” and we quoted from Mr. Cooley a pertinent definition to the effect that “ special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for State and municipal purposes, and governed by principles that do not apply generally. The general levy of taxes is understood to exact contributions in return for general benefits of government, and it promises nothing to the person taxed beyond what maybe anticipated from an administration of the laws for individual protection and the general good.
“ Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and in addition to the general levy they demand that the special contributions, in consideration of the special benefits, shall be made by the persons receiving it.”
We then announced our concurrence in the principles of the
Those cases were carefully considered, and, by an unanimous court, were decided upon a due consideration and full review of all authorities bearing on the subject. They treat fully of the distinction between the terms “ tax ” and “ local assessment;” and of the exercise of the taxing power, under Article 214 of the Constitution, and under statutes similar in purport to the one under consideration; and they uphold the validity and constitutionality of the latter, because of the difference which existed between a local assessment and a tax.
It is our deliberate conviction, after a careful reconsideration of them, and of the authority on which they are bottomed, that the principles announced are correct, and they are, therefore, unreservedly affirmed.
Accepting them as correct, we find the following propositions established, viz:
1. That a tax for the local purposes of a particular district of country is imposed on the persons domiciled, or property therein situated, as distinguished from other parts of the State; and it is usually imposed upon all the subjects on which the State imposes a tax, within that particular district of country, for State purposes, without any attention being paid to the benefits to be conferred. Such a tax is the one provided for and contemplated in Article 214 of the Oonstitution.
2. A local assessment, on the contrary, is a contribution for the purpose of constructing works of public improvement, for the advantage of a particular district, and not to be levied upon taxable property generally, but upon “particularized property ” to be benefited thereby, and with direct reference to such benefit as this property may receive.
3. The levy of a local assessment is an exercise of the taxing power, in its broadest and most comprehensive sense; yet it is not a tax eo nomine, and is not governed by the provisions of the Oonstitution on the gen eral subject of taxation; but it is exerted entirely independent of all its provisions on the subject of taxation.
4. A local assessment is not considered a burden, but as an equivalent or compensation for the enhanced value which property peculiarly situated, as respects a contemplated improvement, may derive
The purpose and effect of which is that a “ tax,” whether general, special or particular, is a burden, while. a local assessment is. an imposition laid upon “ particularized property ” which, it is supposed on the part of the Legislature, will be specially benefited by the expenditure of the fund to be realized, in improvementthereon.. Such an assessment is not considered as a burden on the tax payer,, but as an equivalent taken from the particular property, the value of which is enhanced thereby.
Whether particular property will be benefited at all, and to what extent it should be thus locally assessed, are purely political questions with which the Legislature is certainly most competent to deal, and why should not the people trust in its discretion and competency to determine them judiciously ?
When, however, a question arises of the necessity for increasing the burdens of taxation, for any purpose whatever, it is meet and proper that the property tax payers of the district within which the-increase is proposed should be consulted.
And we take it to be quite a significant circumstance that there was incorporated in the amendment to Article 214 the identical. proviso contained in Article 209, directing that any increase “ of the rate of taxation therein limited ” should be the first submitted to a vote of the property tax payers. It seems to be indicative of the similarity of the taxing power which is conferred in each article; each being designed for similar specific purposes — the erection of a court house, or the construction of a levee.
By the amendment two important changes in Article 214 are made, viz: (1) An increase in the rate of taxation therein limited from five to ten mills; and (2) a proviso whereby there might be obtained a further increase, by submitting the question of such increase to a vote of the property tax payers of the levee district.
The language employed in the proviso of the amendment clearly indicates that it is an increase of the ten mill tax, which is provided for in the body of the amendment, that was contemplated. The proviso declares “that in case of necessity to raise additional funds for the purpose of constructing, preserving and repairing any levees protecting the lands of a district, the rate of taxation herein limited
But plaintiffs’ counsel strenuously deny that any such parallel exists between the provisions of Article 209 and the amendment to Article 214, as we suggest, and insist, on the contrary, that there is a manifest distinction between the general tax which a municipal corporation is authorized to levy on all property within its limits for governmental and administrative purposes, and the special assessments — as they term them — which may be imposed within subordinate divisions of municipal territory. This argument is based principally upon the text of the amendment which provides.that the tax therein provided for is to be levied only “ on property situated within the alluvial portion of said district subject to overflow,” etc ; and of it, counsel say in their brief: “Therefore the underlying principle in Article 214 is that the high lands shall be excluded from district contributions, and that the burden shall be borne by property within the alluvial portions of the district subject to overflow.”
Hence they contend that “ Article 214 imports the levy of a special assessment for local purposes, because it is for a specific object and on specified property within prescribed limits, on the basis of benefits — that is, on the property situated within the alluvial portions of said district subject to overflow.” Page 37.
Act 14 of 1886, which we had under consideration and treated in Planting and Manufacturing Company case, contained precisely the same language as that of the amendment, and which was assailed as unconstitutional, because in violation of Article 214, though for somewhat different reasons from those urged here; but the complaint was not favorably entertained.
While it is true that the tax specified in the Article and amendment is only to be laid “ on property situated within the alluvial portions of the district subject to overflow,” and is to be levied for the specific purpose of “ constructing, preserving and repairing the levees protecting the land of a district,” it is but a “ tax ” for the local purposes of that district of country, and is imposed on the persons therein domiciled, and the property therein situated, and upon all the subjects on which the State imposes a tax for State purposes. It is not a “local assessment” for the construction of a
But learned counsel inquire, “How could a ‘necessity to raise additional funds ’ and to increase the rate of taxation for levee purposes ever arise if the Legislature possesses unlimited power to authorize the levee commissioners to levy unlimited acreage taxes and taxes on products for the identical purposes under the transparent disguise of a mere name or designation.” Brief, pp. 41 and 42.
We will assume, and we think with just propriety, that the Legislature will not act unwisely, harshly or injudiciously in the exercise of its practically unlimited authority in the exertion of the taxing power for the purposes of local assessment; nor indeed that same will be used at all, unless it be satisfactorily determined that the ten mill tax authorized by the amendment is insufficient!' And it is, only in the event that the tax and relief by local assessment are found inadequate for levee purposes that an increase of the rate of taxation beyond the ten mills should be proposed to the property tax payers. That is a dernier resort.
Our conclusion is, that the tax provided for in the constitutional amendment to Article 214 is not a local assessment, and the legislative act injoined is valid and constitutional.
II.
The next proposition for consideration is the alleged uneonstitutionality of that provision of the act which authorizes the issuance of levee bonds. Plaintiffs’ contention is, “that there is not only no warrant in the Constitution for the authority granted by the legislative ” act in question * * * “to the levee commissioners to issue bonds, but same is in violation of Article 215, which fixes a period to the duration of the taxing power for levee purposes.” Brief, p. 46.
Their argument is, that no authority can be vested in levee commissioners to raise funds for levee purposes, beyond what is conferred upon them by Article 214, and which is, necessarily, exclusive of every other. It is further to the effect that the legislative authority delegated to the commissioners to issue bonds is in con
In addition to the foregoing, various other specific objections are urged to the bonds themselves, and to the terms of. the act, as appertaining thereto. For instance, that the authority to issue bonds, and pledge therefor the levee taxes, for an indefinite period of time, is contrary to the genius and spirit of the Oonstitution. That the Legislature had no constitutional authority to authorize the levy of a tax beyond the term of its own constitutional existence. That the Legislature was without constitutional authority to empower the levee commissioners to encumber the taxable property within the levee district with a tax levy for an unlimited amount, and for an indefinite time. That the Legislature was without constitutional authority to enact, that “inno event shall the tax assessed and levied for the payment of said bonds be reduced, repealed or abated until each of said bonds * * * shall have been fully paid off and extinguished.”
Through the instrumentality of this legislation, plaintiffs charge that the General Assembly has practically “invested the levee commissioners with perpetual existence, and with powers which are not only in flagrant disregard and violation of Articles 214 and 215, but would forestall and paralyze the future action of the Legislature during the period of at least one generation.” Brief, p. 49.
We think that the apprehension of such dire consequences is not well founded.
The Legislature was evidently authorized by Article 214 to “divide the State into levee districts,” and to “ provide for the appointment or election of levee commissioners in said districts.”
That article undoubtedly declares that the levee commissioners “ shall, in the method and manner to be provided by law, have supervision of the erection, repairs and maintenance of the levees in said districts.”
It also authorized the commissioners to levy a tax. From what has been said in a preceding paragraph of this opinion, it is also manifest that, as the Legislature had unlimited power in the matter of local assessments, independently of the Oonstitution, it had a perfect right to impose such penalties and confer such liens and privileges as might be necessary to enforce their collection; and it
In the very nature of thirgs the board of levee commissioners were intended to be — and should have been — of long-continued existence, because of the character of the undertaking proposed; and it was manifestly necessary that the tax authorized by the amendment to Article 214 of the Constitution should have equal duration as the bonds themselves.
The General Assembly, in all likelihood, found it necessary, and deemed it expedient, to provide means whereby money could be raised and placed in the hands of the levee commissioners, so that' levee construction might not be hindered and delayed by delinquent tax collections. Of this question it was a competent judge. What other expedient could have been resorted to than that of authorizing the commission to issue and hypothecate district levee bonds? For this purpose the Legislature was capacitated to provide.
As we said of similar bonds, in the case of Planting & Manufacturing Co. vs. Tax Collector, 39 An. 459, we hold in this:
“The bonds authorized to be issued by the corporation are issued for its own exclusive purposes and benefit.”
They are not bonds of the State. We are of the opinion that the bonds in question are of unquestionable validity, and that the Legislature had constitutional authority for its enactment.
In so far as the alleged violation of Article 215 is concerned, we can not see the force or pertinency of the contention.
The provision of that article, relied upon, is as follows, viz:
“The provisions of the above two articles shall cease to have effect whenever the Federal government shall assume permanent control, and provide ways and means for the maintenance of levees in this State.” Article 215.
It is certainly manifest that the Federal government has not, as yet, assumed “ permanent control ” of the levees in this State, and that it has not, as yet, provided “ways and means” for their maintenance. There appears to be not even a likelihood that it will do so at an eaxfiy date. Then, the constitutionality vel non of the act in this respect depends upon a contingency that may or not happen in the future; and that is conclusive, against the chai’ge of unconstitutionality preferred against it.
Our conclusion is that the judgment appealed from is correct, and it is therefore affirmed.
