
    Lewis A. GIRAUD et al. v. LOUISIANA TAX COMMISSION et al.
    No. 7615.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 20, 1976.
    Concurring Opinion in the Denial of Rehearing Sept. 14, 1976.
    Writ Refused Dec. 1, 1976.
    
      Thomas L. Giraud, New Orleans, for Lewis A. Giraud, Mrs. Elvira Louise Wiener Giraud and Mrs. Corinne Rotge Panquerne, plaintiffs-appellees.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert L. Danner, Jr., Asst. Atty. Gen., for Louisiana Tax Commission, defendant-appellant.
    Philip S. Brooks, City Atty., Lee R. Miller, Jr., Jackson P. McNeely, Asst. City At-tys., for Orleans Parish Board of Review, defendant-appellant.
    Thomas L. Giraud and Nat G. Kiefer, New Orlenas, for Dr. Claude Mauberret, Jr., and William P. Cy Hickey, Jr., interve-nors-appellees.
    Charles A. Verderame, New Orleans, for Gerald L. Schroeder, intervenor-appellee.
    Sidney M. Bach, New Orleans, for Decatur Realty Corp., intervenor-appellee.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

This is an appeal from a judgment enjoining the Louisiana Tax Commission and its individual members from ordering the assessors of the Second Municipal District and the Third Municipal District of the City of New Orleans to amend the 1976 tax rolls to increase assessment^ on vacant property in conformity with values recommended by the Orleans Parish Board of Review.

This litigation was initiated by property owners who were advised their 1976 tax assessments on vacant properties within the Second and Third Districts were to be significantly increased as the result of a citywide property revaluation program. Petitions of intervention were filed by William P. Cy Hickey, Jr., and Dr. Claude Mauber-ret, assessors for the Second and Third Districts respectively, and several other property holders in the affected area, praying for the injunctive relief sought by the original plaintiffs.

Those challenging the validity of the proposed increase contend defendants either ignored or circumvented laws in establishing 1976 tax assessments on vacant property in the Second and Third Districts. We need not detail the multiple complaints of illegality advanced by plaintiffs-taxpayers because they are not entitled to injunctive relief even if any or all legal propositions advanced by them have merit.

L.R.S. 47:2110 prohibits any court of this State from enjoining (1) the collection of taxes or (2) the enforcement of any provision of the tax law. In addition it provides a legal remedy for any complaining taxpayer and sets forth the procedure to contest an unauthorized tax law or a levy based on an invalid enactment. We quote and emphasize that portion relating both to resisting payment and laws under which payment is demanded:

“No court of this state shall issue any process whatsoever to restrain the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution. Any person resisting the payment of any amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax and shall give the officer notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If suit is filed within such time for the recovery of the tax, such amount so segregated shall be further held pending the outcome of the suit. If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the rate of two per cen-tum per annum for the period from the date such funds were received by the officer to the date of such refund.” (Emphasis added.)

The reason for prohibiting the use of injunctive process to restrain the collection of taxes levied or any law in connection therewith is apparent. Were it within the province of taxpayers to enjoin taxing authorities, it is conceivable that there would be no funds to pay for government services.

Appellees contend L.R.S. 47:2110 is inapplicable because they are not attempting to enjoin the collection of a tax, rather they are attempting to prevent “ * * * an unconstitutional and illegal attempt to usurp the powers and duties of two assessors relative to the assessment of real property. No attack is being made on any ad valorem tax.”

Appellees argue their action is properly brought under L.R.S. 47:1998 and this law is not subject to the restrictions of L.R.S. 47:2110. L.R.S. 47:1998 provides in part:

“Any taxpayer in any instance where he shall be dissatisfied with the action of the parish board of reviewers in refusing to make a recommendation with respect to an actual cash valuation to the tax commission or with the tax commission upon its refusal to comply with such recommendation, or in regard to the actual cash valuation fixed by the tax commission, may resort to the district court for review of such action. Where the parish board of reviewers have opposed and appealed the valuation fixed by the tax commission upon any class of property and the tax commission has not altered the valuation in accordance with such appeal, any taxpayer of such class, whether or not he has filed an initial complaint with the parish board of reviewers or with the tax commission, may resort to the district court for review of such action. Complaining taxpayers shall have until the first day of November following the determination appealed from to resort to the district court for review after which they shall not have such right.
“Any taxpayer in the state, the parish of Orleans excepted, who has filed a sworn list or return of his property for taxation on or before the first day of April of any year, shall have the right to institute suit in the court having jurisdiction of the cause of action, for the purpose of contesting the correctness or legality of any assessment made against the property listed on such return. Any such suit or legal proceeding shall not be instituted before the assessment rolls are filed in the office of the clerk of court of the parish in which the property is situated as now provided by law, nor later than thirty days following the date of filing of the rolls, except suits to test the correctness of changes in assessments made under written instructions of the tax commission, pursuant to R.S. 47:1990, which suits must be instituted within thirty days after the date of the written instructions of the tax commission ordering the change. No other condition precedent than those specified herein shall be required of the taxpayer in order to permit him to exercise the right of action hereby granted.
“The assessor shall bring suit, when necessary, to protect the interest of the state, and shall also have the right of appeal and such proceedings shall be without cost to him or the state.
“In all suits relating to property taxes the judge shall hear and try such cases without delay, in chambers if necessary, without cost to the reviewers or the assessors.”

As we view it, this statute simply permits an aggrieved taxpayer to have a judicial review of what he considers an illegal assessment. Even were we to agree this procedure contemplates granting in-junctive relief under certain circumstances (and we do not), it would still be incumbent on plaintiffs to show irreparable injury before they could demand extraordinary relief. C.C.P. art. 3601 reads:

“An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.
“During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, in accordance with the provisions of this Chapter.
“Except as otherwise provided by law, an application for injunctive relief shall be by petition.”

Appellees argue they have made a sufficient showing for injunctive relief. In brief it is submitted:

“As to the use of injunction, Article 3601 of the Louisiana Code of Civil Procedure provides that an injunction shall issue in cases where irreparable injury, loss, or damages may otherwise result to the applicant . . . . Irreparable injury is not the only basis for the issuance of an injunction. Loss or damages to the applicant are also independent bases for the issuance of an injunction.”

We think the adjective “irreparable” modifies the nouns “damage” and'“loss” as well as “injury” and therefore cannot subscribe to appellees’ theory that the complaining taxpayers suffer a loss because they are deprived of the use of their money if they follow the procedure of payment under protest. While we recognize this deprivation during the pendency of the suit, we cannot subscribe to a theory that this is a sufficient showing to warrant issuance of an injunction or to conclude that the litigant prevailing will suffer irreparable damage or loss during the pendency of this suit. The deprivation of money has not historically been construed as an irreparable damage or loss. Accordingly we find that the taxpayers have not established irreparable damage or loss—a prerequisite for the extraordinary remedy of injunctive relief.

In L.R.S. 47-1998, three separate actions are granted. Paragraph 1 permits the taxpayer to have his assessment judicially reviewed after exhausting his administrative remedies. Paragraph 2 permits all Louisiana residents, other than those residing in the Parish of Orleans, to file suit to contest the correctness or legality of any assessment. Paragraph 3 permits the assessor to file any suit necessary to protect the interest of the State.

Thus under this statute the assessors may only file suit to protect the State’s interest. Parenthetically we note the continued nonuniform system of taxation which the City has attempted to remedy. In 1972 the City inaugurated a tax equalization program to reappraise property throughout the City. In Probst v. City of New Orleans, 325 So.2d 665, (La.App. 4th Cir. 1976), we held the plan unconstitutional because the equalization program was launched without comprehensive planning and scheduling for revaluation of various classes of property in a given period. The Supreme Court granted writs, the matter is now pending there and because of the present status of Probst, we will not base our result on our holding in that case. In any event, the properties selected for revaluation in 1975 were vacant lots within the Second and Third Districts. Both intervenors initially agreed to adopt as their own the new valuations fixed by appraisers hired by the Board of Review. In fact they verbally made a commitment to the Commission to assess on the basis of the valuations of which they now complain and requested the Commission issue a letter so directing them. Their posture in this suit in no way can be construed as an action to protect the interest of the State. Accordingly they have not met the requisites of L.R.S. 47-1998 necessary to state a cause of action.

For the reasons assigned, the judgment granting a preliminary injunction is annulled. Appellees are to pay all costs of this litigation.

ANNULLED.

LEMMON, J., concurs with written reasons.

GULOTTA, J., dissents with written reasons.

LEMMON, Judge

(concurring).

The judgment appealed from indirectly enjoins collection of ad valorem taxes assessed to plaintiff taxpayers, in violation of R.S. 47-2110, and must be reversed.

Notice and hearing were afforded to all taxpayers whose assessments were increased in accordance with valuations estimated for purposes of equalization by independent appraisers employed by the Board of Review. R.S. 47-2110 obviously prohibited these taxpayers from directly enjoining collection of taxes in the amount increased by the Tax Commission order. The fact that plaintiff taxpayers deftly attempted to circumvent the prohibition by seeking restraint of the order does not change the reality that they are actually attacking the result of the order (collection of their taxes) in an injunction proceeding. The judgment decreeing the preliminary injunction resulted in restraint of collection of ad valorem taxes and effectively granted plaintiff taxpayers the prohibited result they were ultimately seeking.

Inasmuch as we have decided that injunc-tive relief to plaintiff taxpayers cannot be permitted, we did not consider the merits of their attack on the validity of the Commission order. Nothing in this judgment, however, prevents payment under protest and subsequent suit for recovery based on arguments advanced in this suit or on other grounds.

The assessors perhaps could have sought to restrain the order (or certainly could have sought declaratory relief) after filing their rolls, either with or without the ordered changes. However, their failure to file their rolls resulted in stifling the process of government to a far greater extent than possibly would have been caused by the prohibited injunctive relief to several individual taxpayers. Under these circumstances the court should not entertain the assessors’ intervention, even if they otherwise stated a cause of action.

GULOTTA, Judge

(dissenting).

I dissent from the conclusion reached by the majority that injunctive relief is not the proper remedy in the instant case. It is clear, as pointed out by the majority, that courts cannot restrain the collection of ad valorem taxes. See LSA-R.S. 47-2110. However, plaintiffs do not seek to restrain collection of property taxes. Plaintiffs seek to restrain the Tax Commission and its members from “ordering and compelling” the assessors of the Second and Third Municipal Districts of the City of New Orleans to “alter or change” the tax assessment rolls for 1976 to “reflect the increases in tax assessments recommended by the Orleans Parish Board of Review”. The trial judge issued a preliminary injunction in conformity with plaintiffs’ demand. The City has not been enjoined from doing that which is necessary under the statutes to further the collection of taxes based up¿n assessments made by the assessors on the 1976 assessment rolls.

Furthermore, no contest exists as to the 1976 assessment on improved property in the Second and Third Municipal Districts. No impediment exists to the collection of property taxes by the City on improved property in the Second and Third Municipal Districts based on the assessments made by the assessors on the 1976 assessment rolls.

As pointed out in the majority opinion, the purpose of LSA — R.S. 47-2110, which prohibits the use of injunctive process to restrain the collection of taxes, is apparent. However, as pointed out hereinabove, neither the suit nor the judgment enjoins the collection of taxes.

Arguably, if plaintiffs had filed suit to mandamus the city to assess taxes based on the assessment rolls as determined by the tax assessors, the mandamus suit would not be subject to the prohibition against injunc-tive relief as set forth in LSA-R.S. 47-2110, because the suit would neither seek injunc-tive relief nor restrain the collection of taxes. Logically, if mandamus were not an objectionable action, a suit for injunctive relief, seeking, in effect, a similar result, would not be objectionable. This is not to say that procedural safeguards can be set aside to obtain a given end. Nevertheless, courts cannot permit an interpretation of procedural statutes to unnecessarily defeat an adjudication of a matter on its merits. Bolding v. Eason Oil Company, 170 So.2d 883 (La.App. 4th Cir. 1965). To do so would be to revert to the archaic common law writ system. Such a result is untenable.

I find no merit further to the argument that plaintiffs will suffer no irreparable injury. The Commission and the Board correctly point out that the amount of the increased assessment can be measured by pecuniary standards. Nevertheless, irreparable injury may result. A taxpayer may be irreparably injured if an unreasonably high assessment is placed on his property, resulting in the taxpayer’s inability to pay taxes based on this high assessment. Conceivably, the taxpayer may simply not be able to pay the tax. Furthermore, in the event that the erroneous assessment is collected by the City, the number of manpower hours expended by City employees in,, refunding the erroneous assessments would result in untold cost to the City and to the taxpayer property owners.

I am of the opinion that this matter should be considered by us on the merits. Accordingly, I respectfully dissent.

LEMMON, Judge,

concurring in the denial of application for rehearing.

On application for rehearing plaintiffs argue that our decision resurrects the “theory of the case” doctrine. I personally abhor this doctrine and would not participate in its resurrection.

At the beginning of the hearing the trial court clearly announced that only the rule for preliminary injunction was being tried. Therefore, we could not, on appellate review of the judgment on that rule, consider the merits of the case with regard to other possible relief. 
      
      .Suit was originally filed in the 19th Judicial District Court for the Parish of Baton Rouge, the domicile of the Louisiana Tax Commission, but was transferred to the Civil District Court for the Parish of Orleans because it was a more convenient forum for all the litigants.
     
      
      . Lewis A. Giraud, Mrs. Elvira Louise Wiener Giraud and Mrs. Corinne Rotge Panquerne.
     
      
      . G. L. Schroeder and Decatur Realty Corporation.
     
      
      . There is no contention that the increased rate of taxation was confiscatory, which was the critical contention in Churchill Farms, Inc. v. Louisiana Tax Commission, 249 So.2d 594 (La.App. 4th Cir. 1971).
     
      
      . Significantly, plaintiff taxpayers did not seek equalization of the entire system, as did the plaintiffs in Bussie v. Long, 257 La. 623, 243 So.2d 776 (1971). They instead sought in effect to perpetuate the obviously unconstitutional existing system, which places the vast majority of the cost of government on those taxpayers who own recently transferred property and which unequally favors long-time owners of immovable property.
     