
    (34 South. 665.)
    No. 14,257.
    ROCHEBLAVE MARKET CO., Limited, v. CITY OF NEW ORLEANS et al.
    (Feb. 2, 1903.)
    TAXATION OF FRANCHISE — ASSESSMENT—EXEMPTIONS — APPEAL—JURISDICTION.
    1. In estimating the value of a franchise, the earning capacity of the franchise is the proper basis to adopt.
    Twelve per cent, is a fair basis on which to capitalize the earnings of a market franchise for the purpose of tax assessment.
    2. For the reasons assigned in the case_ of Maestri v. Board of Assessors, 34 South. 658, this day decided, the market franchise involved in this case is held not to be exempt from taxation, but the market property itself is held to be so exempt.
    On Rehearing.
    3. Where the validity, under the law or constitution, of an assessment is not at issue, and, therefore, the suit presents no question of the legality or constitutionality of a tax of which the assessment is the predicate, and the rate of taxation calculated on the amount of assessment (to reduce which is the object of the suit) shows a sum in taxes, for the year in which and for which the assessment is returned, under the minimum jurisdictional limit of this Court, the appeal will he dismissed.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.
    Action by the Rocheblave Market Company, Limited, against the city of New Orleans and others. Judgment for plaintiff, and defendants appeal.
    Dismissed.
    Henry Garland Dupré, Asst. City Atty., for appellant city of New Orleans. Edward K. Skinner, for appellants State Board of Assessors. Francis Charles Zaeharie, for appellant tax collector. Olegg & Quintero (Frank Zengel and Hugh S. Suthon, of counsel), for appellee.
    
      
      Ante, p. 517.
    
   PROVOSTY, J.

For the reasons assigned in the decision this day handed down in the ease of C. N. Maestri v. Board of Assessors, 34 South. 658, it is held that the market franchise involved in the instant case is not exempt from taxation, hut that the market property is.

In estimating the value of the franchise in question, the hoard of assessors adopted as a basis the earning capacity of the franchise. This was in accordance with both section 28 of Act 170 of 1898, and the decisions of this court. New Orleans & C. R. Co. v. City of New Orleans, 44 La. Ann. 1053, 11 South. 687; Crescent City R. Co. v. City of New Orleans, 44 La. Ann. 1055, 11 South. 681; New Orleans City & L. R. Co. v. City of New Orleans, 44 La. Ann. 1057, 11 South. 820; In re Wallace, 31 La. Ann. 335; St. Charles St. R. R. Case, 48 La. Ann. 1157, 20 South. 670. They took the net earnings of the franchise, and capitalized same on a basis of 12 per cent. We are not favored with any evidence or argument going to show that this was not a fair estimate.

It is therefore ordered, adjudged, and decreed that the judgment appealed from he set aside, and that the plaintiff’s suit be dismissed, with costs iu both courts.

BREAUX, J.,

dissents in this case for the reasons assigned by him in the case of C. N. Maestri v. Board of Assessors et al. (No. 14,259 on the docket of this court) 34 South. 663.

On Rehearing.

BLANCHARD, J.

By opinion and decree heretofore handed down at the present term of court, the main question presented in this cause was determined against the plaintiff, reversing, in so doing, the judgment appealed from, and holding the franchise held by plaintiff company to be taxable, and sustaining the valuation at which the same had been assessed for taxation, to-wit: — $30,000.00.

Afterwards, on application made, a rehearing was granted on the question, solely, of reduction of assessment, which had, in the lower court, been covered by the alternative prayer of the petition filed by plaintiff.

The case is now before us on such rehearing.

Counsel for the Board of Assessors suggest the want of jurisdiction, ratione materia, in this Court. Their contention is that the former judgment of the court herein being res judicata in so far as the legality of the tax sought to be enforced is concerned, and this rehearing having been granted solely for the purpose of considering whether the amount of the assessment is equitable, the matter at issue, the sum involved, the thing in controversy, is below the minimum jurisdictional limit of this court.

True it is that the validity vel non under the law, of an assessment for taxation is not now at issue in the case. On that issue the case has gone against the plaintiffs.

True it is that the sole remaining question left open is as to the true amount at which the plaintiff company’s franchise should be assessed for taxes for the year 1901.

And true it is that the assessment being $30,000.00, the rate of taxation (a little less, all told, than three per cent.) calculated thereon shows a result, as the amount of taxes due on such assessment for 1901, far below the minimum jurisdictional limit of the court.

This being so the court is'Without jurisdiction to pass upon the question now at issue, and its former decree was, in that respect, erroneous.

See Zeigler v. Board of Assessors, 107 La. 572, 32 South. 67, and authorities there cited.

The plaintiff cumulated two causes of ac-' tion in one petition — one contesting the validity of the assessment itself, raising the-question that whatever rights the company had in, to and under its contract with theOity of New Orleans relating to the Rocbeblave Market, the same were not subject to-assessment and taxation; the other that, if it should be held such rights were taxable,, then, in the alternative, that the assessment placed on same was and is excessive.

The suit, therefore, in its first cause of action challenged the legality itself of the tax sought to be enforced and this being so, this Court, under article 85 of the Constitution, had jurisdiction without regard to' the amount involved.

But its second cause of action — which remained dormant pending decision on the first cause of action, and only became of consequence and active after decision against the plaintiff on the first — presenting no issue of the legality or constitutionality of a tax, and the thing in contestation being below two' thousand dollars, this Court has no jurisdiction to entertain.

It was stated at the argument that an. appeal on this branch of the case was, through abundant caution, taken to the Court of Appeal for the Parish of ‘Orleans at the-same time the appeal was taken here, and that said appeal is now pending there.

It is, therefore, ordered that the appeal herein, in so far as the same is now pending, be dismissed at the costs of the plaintiff, leaving this controversy over the amount at1 which plaintiff company’s franchise for the year 1901 should be assessed to be determined by the Court of Appeal for the Parish of Orleans. 
      
      Ante, p. 517.
     