43 So. 2d 909 | La. | 1949
[1] The State of Louisiana is appealing from a judgment dismissing its suit against the Standard Dredging Corporation wherein it seeks to recover taxes accrued through 1945 in the total sum of $11,701.35, with interest and penalties, claimed as being due the State of Louisiana under the provisions of Act No.
[2] This suit, when originally instituted in December, 1940, was to recover taxes alleged to be due the State at that time in the amounts of $150, additional taxes for the year 1939, and $1,012.50, taxes for the fiscal year ending July 31, 1940, with interest, penalty and attorney's fees. Defendant filed certain exceptions, and because of repeated continuances the trial on the merits was delayed. In December, 1945, in order to avoid a multiplicity of suits, a supplemental petition was filed claiming taxes which had accrued through 1945.
[3] The defendant, a New York corporation with its principal office and place of business in New York City but qualified to do business in Louisiana, is a contractor engaged in deepening, widening, improving, extending and clearing navigable waterways, and for many years has been pursuing this business in the State of Louisiana under license as contractor issued pursuant to the provisions of Section 24 of Act No. 15 of the Third Extra Session of the Louisiana Legislature for the year 1934, commonly known as the general occupational license tax statute. In the conduct of its business defendant uses dredges which are licensed by the Bureau of Marine Inspection and Navigation of the Department of Commerce of the United States to engage in the coasting trade. These dredges are operated by mechanical power produced by their machinery, and the tax here sought to be imposed is based on the power generated by the engines of defendant's dredges in the conduct of its business while the dredges were on waters within the territorial limits of the State of Louisiana, under the authority of Sec. 3, Act No.
[4] "In addition to all other taxes of every kind imposedby law, every person, firm, corporation or association of persons engaged in the State of Louisiana in any business or occupation which person, firm, corporation or association of persons uses in the conduct of such business or occupation at any time, electrical or mechanical power of more than ten horsepower and does not procure all the power required in the conduct of such business or occupation from a person, firm, corporation or association of persons subject to the tax imposed by Section 1 or Section 2 of this Act, shall be subject to the payment of an excise, license or privilege tax of Fifty Cents (50¢) per annum for each horsepower of capacity of the machinery or apparatus, known as the `prime mover' or `prime movers,' operated by such person, firm, corporation or association of persons, for the purpose of producing power for use in the conduct of such business or occupation; * * *." (Emphasis supplied.)
[5] It is the contention of the defendant, in which it was sustained by the lower court, that the imposition of this license tax constitutes double taxation. Defendant argues that it has paid to the State an occupational license tax on the basis of gross receipts of its business as contractor for the years during which the power tax is claimed, and the generation of the mechanical power is a necessary part of its business as contractor, and that therefore the power tax as applied to it, already licensed as a contractor, is void under Article
[6] The jurisprudence of Louisiana with reference to power tax statutes implies an adverse answer to defendant's first contention. See State ex rel. Porterie v. H. L. Hunt,
[7] Article
[8] The authorities relied on by the defendant in support of its argument that this tax constitutes double taxation, namely, Williams v. Garignes, 30 La.Ann. 1094, Walker v. City of New Orleans, 31 La.Ann. 828, and State v. City Savings Bank Trust Co.,
[9] In the third case relied on by the defendant, State v. City Savings Bank Trust Co., the tax collector claimed the license tax on the business of leasing surplus space in the bank's building, under the omnibus clause of an act of the Legislature which did not expressly levy a license tax on the business of operating an office building. The only question therefore was whether such business was embraced in the omnibus clause, levying the tax on "any other business not provided for in this Act," [
[10] We pass now to a consideration of defendant's second contention. Relying on the cases of Sinnot v. Davenport, 22 How. 227,
[11] The right to regulate commerce and control navigation is in the Congress of the United States, Const. art. 1, § 8, the various states, in adopting the Constitution, having surrendered to the Federal Government all authority in such matters; and the states and their political subdivisions are therefore without authority to enact laws which will interfere with commerce or which will impede or place a burden on navigation. However, the tax here imposed, as previously stated, is solely on the use of electrical or mechanical power produced by the defendant corporation and used in its business while within the territorial limits of the State of Louisiana, and is on only that part of the power which is used in connection with the particular business of dredging, and not on that part which may be used in the navigation of the vessels — though produced by the same machinery. It is clear, therefore, that the imposition of the power tax in no way affects the permission granted under the Federal license to navigate waters of the United States for the purpose of carrying on the coasting trade, and imposes no additional condition to the privilege of carrying on such trade; nor does it result in the regulation or impeding of navigation.
[12] For the reasons assigned, the judgment of the lower court is annulled and set aside, and it is now ordered that there be judgment in favor of the State of Louisiana and against the Standard Dredging Corporation in the sum of $8,343.00, representing the total tax due, plus $2,048.25 as penalty, together with six (6%) per cent per annum interest on the tax due for each of the tax years involved, i. e., on $150.00 from September 1, 1939, until paid; on $1,012.50 from September 1, 1940, until paid; on $1,064.50 from September 1, 1942, until paid; on $3,782.00 from September 1, 1943, until paid; and on $2,334.00 from September 1, 1944, until paid; plus an additional amount of ten (10%) per cent on the total amount of taxes, penalties, and interest, for attorneys' fees and costs; and that the lien and privilege of the State of Louisiana on all property of the defendant Standard Dredging Corporation within the State be recognized and enforced for the payment of the above tax, penalty, interest, attorneys' fee and costs.