174 So. 692 | La. Ct. App. | 1937
Relatrix, Mrs. Blanche R. Salomon, widow of Meyer J. Prince, is owner of a certain portion of real estate situated on Canal street in New Orleans. She seeks, by mandamus, the cancellation of the tax lien and privilege claimed by the city to still subsist as the result of the inscription of the tax assessment against the property for the year 1932, but which, she maintains, has been terminated by the prescription of three years established by article 19, § 19, of the Constitution of 1921, as well as by section 1 of Act No.
On December 1, 1934. the property was adjudicated to the city for the tax of 1931. At that time the tax for 1932 was also past due, as were other and later taxes. Relatrix made no effort to redeem the property until May 21, 1936, at which time, taking advantage of the redemption statute, Act No.
Relatrix, therefore, having redeemed the property for the taxes for 1931, paid the tax for 1933 and the tax for 1934, but contended that the lien for the tax for 1932 had prescribed. When the taxes for 1933 and 1934 were paid after the redemption, they were paid under an agreement that, by accepting those payments, the city should not be estopped to contend that the tax for 1932 was still due, and it was agreed to submit to the courts that question of whether the tax for 1932 had prescribed. This suit is the result.
In the district court, there was judgment recalling the alternative writ of mandamus, denying the injunction prayed for, and dismissing the suit of relatrix at her cost. She has appealed.
Respondents, the City of New Orleans and Jesse S. Cave, Commissioner of Public Finances of the city, show that from December 4, 1934, until March 21, 1936, the property stood adjudicated to the city for nonpayment of the 1931 tax and that there was nothing that they could do to collect the tax nor to extend the effect of the tax lien because of Act No.
Relatrix, in turn, argues that, since the statute of 1886 recognizes one situation from which the interruption of the prescription of a tax lien may result and fails to recognize any other situation or state of facts as sufficient to effect such interruption, none results except only in the one case set forth in the said statute. That one situation is "the pendency of any suit which prevents the collection of said taxes." Counsel point to the word "suit" and maintain that, whatever else it may be that prevents the collection of taxes, no interruption of prescription results.
When, in May, 1936, relatrix redeemed her property under Act No.
"We are of the opinion that it was never contemplated by the members of the Legislature and it was not their intention to deprive the city of New Orleans and its respective boards of the revenues which have accrued in the form of taxes prior to the adjudication of the property." State v. Montgomery, supra.
The taxes for 1932, 1933, and 1934, accrued prior to adjudication, and the effect of the decisions just above referred to was recognized by relatrix, who, as we have shown, paid the taxes for 1933 and 1934 and who concedes that, but for the alleged accrual of prescription, the property would still remain liable for the tax for 1932.
It is obvious that when, on December 4, 1934, the real estate was adjudicated to the city for the tax of 1931, it immediately — and so long as there was no redemption from or sale by it — lost all right to sell the property for any subsequent tax or to even receive any subsequent tax payment by reason of the Act of 1898, to which we have already referred. During that period the hands of the city were tied; it could do nothing whatsoever concerning the tax for 1932 — the very tax which is here involved. That prior to the special redemption statutes of 1934 and 1935 the prescription of the tax lien was in effect interrupted by adjudication to the taxing authority is very evident, for, in section 62 of the statute of 1898, it is provided that, whenever property is redeemed, however long it may have remained under adjudication, the amount paid in redemption must include "all taxes * * * due up to the day of redemption."
When we remember that by section 61 of the same statute the taxing authorities, during the period within which the property stands adjudicated, are prevented from collecting such subsequent taxes and then consider that, no matter how long the property may remain under adjudication, the taxes accruing from year to year remain effective against the property when it is redeemed, we at once see that, in effect at least, the legislators provided for the interruption of prescription during such period. We do not lose sight of the fact that it is true that it has been held that when there is a redemption it may be on such terms as the state may authorize and that, therefore, when, as in section 62, the state requires that all taxes must be paid, it does so under its right to make a contract on its own terms and not because prescription has not accrued. But we believe that, where the state has provided that taxes which would otherwise have prescribed must, nevertheless, be collected, there is recognition of the principle that, during the period within which there may be no action, prescription should not be permitted to run. "Contra non valentem agere non currit prescriptio."
We cannot look upon the tax for the year 1932 as a mere bookkeeping entry, as such an inscription for taxes accruing during adjudication must be considered (State ex rel. Huggett v. Montgomery, supra; State ex rel. Tulane Homestead Association v. Montgomery, supra), for, since it accrued prior to adjudication, it was an actual debt and could not, for constitutional reasons, be canceled by legislative enactment. Article 4, § 13, Constitution of 1921. Therefore, to grant to relatrix the relief for which she prays would be to permit an unconstitutional result to flow indirectly from the application of the emergency redemption statutes of 1934 and 1935.
If those statutes had not been enacted, the redemption, because of section 62 of Act No.
Relatrix asserts that the City of New Orleans could have protected its rights to the tax of 1932, even under the emergency redemption statutes, by adjudicating the property (in 1934) for the tax of 1932 together with the tax of 1931, since at that time both, and also the taxes for 1933 and *695
1934, had accrued. It may be that that result could have been accomplished in that way, though there may be some doubt as to that, since the tax adjudication section (section 61 of Act No.
When the adjudication was made in 1934, the only statute which affected the situation was the act of 1898, which required that on redemption all past due taxes should be paid. There was, then, no reason for the city at that time to anticipate that it would be necessary for it to protect itself by selling the property for taxes for more than one year in order that it might guard against the effect of a statute not passed until a year later.
Although the action of the Legislature in 1934 and in 1935 in suspending, for almost a year, the right to enforce the collection of taxes is not seriously relied upon as extending the period of prescription except to the extent of the periods of the two moratoria, still we find interesting the discussion indulged in by the Supreme Court in the Tulane Homestead Case,
"The effect of these two concurrent resolutions was to suspend for two periods, aggregating almost a year, any action on the part of the tax collector to enforce collection of taxes. Article 19, § 19, of the Constitution of 1921, granted to the taxing authorities three full years within which to collect the taxes due the state, parish, or municipality. If, by law, this period was interrupted and the right to collect the taxes suspended, then the taxing authorities are entitled to additional time within which to collect the taxes and, at the very least, should have the same amount of time as was taken away from them by the laws which suspended the collection of the taxes. This is true where the other construction might make the acts unconstitutional. Taylor v. Succession of Sweetman,
The court, it will be noted, did not state that the prescriptive period must commence to run anew, but merely that there is taken out of it the time within which no action may be taken. In that case the time covered by the two moratoria, if deducted, would have left less than three years, and therefore it was held that the prescription had not accrued. In the case at bar, if we deduct the period covered by the two moratoria, still more than three years will have run.
But respondents point not only to that period as being one in which they could take no action, but they also point to the period during which, because of the adjudication itself, they could do nothing, and we think that the legal principle which the Supreme Court followed and which is indicated in the above quotation is applicable equally to the one period as to the other.
We think it proper to refer to the fact that in each of the three cases so often referred to in this opinion the city inadvertently and improperly conceded that in just such a situation as is presented here prescription had accrued and that the tax lien had been lost thereby. But the city has now discovered the legal error into which it fell in each of those cases and, having made the discovery, it cannot be bound perpetually by its former mistake, for, as stated by counsel for respondents in their brief, "it is elemental that no action or inaction on the part of the City officials can prejudice the fisc." Either the taxes for 1932 are due or they are prescribed. And the fact that the city, in earlier cases, made erroneous concessions as to *696 matters of law can have no effect in this litigation.
Counsel for amici curiæ contend that the doctrine "contra non valentem agere non currit prescriptio" cannot be applied for the reason that the inability of the city to act resulted — so counsel maintain — from the city's own neglect and they cite several cases in which it was held that the doctrine could not be applied; for instance, Klopstock Co. v. United Fruit Co.,
The judgment appealed from is affirmed, at the cost of relatrix.
Affirmed.