87 So. 310 | La. | 1921
Defendants appeal from a judgment rendered in a mandamus proceeding, commanding the board of commissioners of the defendant drainage district to pay a judgment held by relator, and, if necessary, to levy a special tax for that purpose. The judgment appealed from is in the following language, viz;
“It is ordered, adjudged, and decreed that the alternative writ of mandamus herein issued be made peremptory, * * * commanding the said respondents to pay to said relator the amount of the judgment rendered in suit No. 2518, being the sum of $5,379.34, with interest thereon at the rate of 5 per cent, per annum from May 24, 1917, until paid, and the further sum of $31.15, as well as all costs of this proceeding; and to take such steps as are incidental and necessary under the law to enable them to pay said amount as the law provides; if necessary, levying and causing to be collected*605 as provided by law a tax upon the property situated in said drainage district, within constitutional limits, sufficient in amount to pay and satisfy the said sum, in principal, interest, and costs, as aforesaid.”
The defense to the suit is contained in an exception of no cause of action. The argument in support of the defense is threefold, ■viz:
(1) That plaintiff did not allege,that the defendant corporation had any funds with which to pay the judgment, and that the evidence shows that the corporation has no funds on hand, nor revenues except taxes which have been funded into negotiable bonds and are dedicated to pay the bonds and the interest thereon.
(2) That the defendant board of commissioners has no authority to levy a tax, without submitting the proposition to a vote of the taxpayers of- the district, or for any other purpose than to pay its bonded debt and the interest thereon.
(3) That that part of the decree which •commands the board of commissioners “to take such steps as are incidental and necessary under the law to enable them to pay said amount,” which part of the decree is in response to the prayer of relator’s petition, is without force or effect, because the steps to be taken are not prescribed or pointed out, either in relator’s petition or in the decree itself.
Counsel for relator put great stress upon the language conferring upon the drainage commissioners authority to levy “any tax or forced contribution which is now or may hereafter be authorized by the Constitution and laws of this state.” It is argued that the Constitution authorizes any legislation that it does not expressly forbid. That is true, and the argument might have some force if the statute merely authorized the levying of any tax or forced contribution which is now or may hereafter be authorized by the Constitution. But, for a political corporation or subdivision to be authorized by the laws of this state, to levy a tax or forced contribution, the power must be eon-' ferred in terms — not be merely tacitly permitted or implied.
Counsel for relator contend that article 224 of the Constitution confers upon all political boards, as well as parishes and municipal corporations, power to levy taxes for local purposes, strictly public in their nature. But the article merely declares that the taxing power may be exercised by public boards, as well as by parishes and municipal corporations, “under authority granted to them by the General Assembly, for parish, municipal and local purposes, strictly public in their nature.” It is quite plain that public boards have not the taxing power, for local
Counsel for relator -point to the proviso in the fourth paragraph of the constitutional amendment adopted in 1918, pursuant to Act 191 of that year, declaring that the five-mill limit of taxation, fixed in the second paragraph of the amendment, for parishes, ' municipalities, levees, and public boards, shall not apply to such special taxes as may be required each year to pay the principal and interest on the bonded indebtedness of the parish, municipality, or public board. But the second paragraph of the amendment declares merely that the limit of taxation which the General Assembly may authorize a parish, municipal corporation, levee board or other- public board to impose, shall' be- five mills on the dollar. The amendment itself does not confer the taxing power upon parishes, municipal corporations, levee boards, or other public boards, but merely puts a - limit upon the authority of the General Assembly to confer such power. And the fourth paragraph merely declares that that limit shall not include or apply -to such special taxes as may be levied under authority of article 2S1 of the Constitution and the statutes putting it into effect.
Counsel for relator point to several provisions of the law from which the authority of a political corporation or subdivision to levy taxes without submission of the proposition to a vote of the taxpayers might be implied or inferred. For example, it is observed that the fourth paragraph of Act 191 of 1918 declares that local special taxes, levied annually to pay maturing bonds and the interest thereon, shall be ample for that purpose, but shall not allow any substantial excess to accumulate. Hence it is argued that a drainage district cannot have any alimony except what is necessary to pay its bonded indebtedness and the interest thereon; notwithstanding such political corporations must have some expenses for ordinary administrative purposes. It is pointed out that section 6 of Act 317 of 1910, as amended by Act 227 of 1914, authorizes drainage districts to incur debt and contract obligations, and to sue and be sued, etc. From which it is inferred that the boards of commissioners of drainage districts must have authority to levy and collect taxes to pay their obligations and to respond to judgments that may he rendered against them. The argument, in reality, is not that drainage districts have, but that they ought to have, authority to levy taxes, for such purposes. It is the province of the Legislature, not of the courts, to consider such argument.
Our conclusion is that the defendant board of ‘commissioners has no authority to levy the tax which the judgment appealed from commands the board to levy, and that the judgment is therefore unenforceable and without effect.
The judgment appealed from is annulled, and this suit is dismissed at relator’s cost.