
    No. 6071.
    City of New Orleans vs. F. P. Fourchy.
    One who claims exemption from an income tax on the ground that his income consists of property not liable to taxation, must affirmatively show that his income does so consist.
    The exemptions from taxation of $500 worth of household furniture, and $1000 of income, do not violate article No. 118 of the constitution of this State reouiring taxation to be ecjual, and uniform. It does not appear that unlawful exemptions of property, Or omissions to tax certain property, will affect the validity of an. entire assessment.
    Oral evidence is not admissible to prove the written demand made by a property owner in Now Orleans on the Administrator of Assessments, asking for a reduction of the assessment on his property. The written demand itsolf is the best evidenco.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.
    
    
      Samuel P. Plane for plaintiff and appellee.
    
      P. P. Forman, J. D. Hill, and A. & W. Voorhies for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

One of the questions most elaborately discussed in this case is dehors the record, to wit: That the tax on defendant’s income is unconstitutional, for the reason that the city had exempted $1000 of income in violation of article 118 of the Constitution. We do not find in defendant’s answer any allegation, nor in the record any proof of the fact that such an exemption was in reality made. True, there was a law of the State authorizing and directing such exemption, but non constat that the city did so, especially if the doing so would have been unconstitutional, as argued by defendant.

There is also assigned as error apparent on the face of the record, and by way of peremptory exception filed in this court, that the tax on defendant’s income is in violation of the act of Congress and the public policy of the United States exempting legal tender, and national bank notes from State and municipal taxation. The argument is that the income is assessed at $8000, and that we must presume these dollars to have been “ legal tender” or “ national bank ” dollars, and, therefore, not taxable. There are, perhaps, many satisfactory answers which might be made to this proposition. It suffices to say that a court can not presume that one falls within an exception to a general rule.' It must be proved. As there is no proof on the subject, and as the general rule is that incomes are taxable, we must hold that defendant falls within the rule and not within the exception.

In all other respects this case presents the same legal and constitutional questions as were presented in that of the “ City of New Orleans vs. J. Davidson and J. D. Hill, et al.,” lately decided. We have been pressed in earnest and able arguments to reconsider the grounds of our decision in that case. The questions are grave, and not free from difficulty; but, after much reflection, we are unable to reach any different conclusion from that already announced.

The question is, does article 118 of the Constitution of this State forbid the Legislature’s exempting from taxation $500 worth of household furniture? and what effects are produced on the assessment in general by illegal exemptions or omissions ? Article 118 reads as follows:

“Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law. The General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable purposes,” etc.

The defendant resists the payment of the taxes claimed of him by the city for the year 1875, for the reasons:

1. That the effect of the exemption of $500 worth of household furniture is to destroy the “ equal and uniform” character of the tax.

2. That the Constitution requires “ all property ” to be taxed, and that it must be taxed “in proportion to its value.” •

3. That the only property susceptible of being exempted is that “actually used for church, school, or charitable purposes,” and that household furniture does not fall within these exceptions.

First. As regards the equality and uniformity of taxation: It is manifest that the exemption of $500 worth of household'furniture operates equally and uniformly, since all persons, including the defendant, enjoy its benefits. But it is said that under the operation of this rule a man possessing as his only property $500 of household furniture pays no tax at all; while his neighbor, possessing $1000 worth, pays a tax on the excess over §500. That the per centum of tax increases, therefore, as the amount of assessable property •increases, and, therefore, the tax is not equal and uniform. This is undoubtedly mathematically true. The effect of every exemption, if we resort to abstract figuring, is, of course, to increase the per centum of tax on what is not exempted. But if we look at the question in the light of public policy, and of political economy, we can readily see that, perhaps, the exact sciences do not furnish absolutely the best rules for its solution. Judge Cooley, in his work on “Constitutional Limitations,” says: “As a matter of State policy it might, also, be deemed proper -to make general exemption of sufficient of the tools of trade, or other means of support, to enable the poor man, not yet a pauper, to escape becoming1 a public burden.” In other words, that by a judicious system of exemptions the per centum of taxation might, in fact, be reduced on the property subjected to taxation by preventing the public burdens from being increased. He says again: “ There is still ample room for apportionment after all such exemptions have been made. The constitutional requirement of equality and uniformity only extends to such objects of taxation as the Legislature shall determine to be properly, subject to the burden. The power to determine the persons and objects to be taxed is trusted exclusively to the legislative department,” etc. Burroughs, on Taxation, p. 62, says the rule of uniformity must extend to all property subject to taxation, so that all property may be taxed alike, equally, which is taxing by a uniform rule.” Again he says, p. 65: “ The provision of uniformity does not prevent the State from exempting from taxation objects of charity, etc.; and tools of mechanics to a limited extent.” Judge Cooley says taxes on incomes “ may be on all incomes, or on all with such exemption as will enable the taxpayer in a frugal manner to support himself and family.” Taxation, p. 20.

These views are in accord with those expressed by this court in “State vs. Poydras,” 9 A. 165, where it was said : “ To be uniform, taxation need not be universal.. Certain objects may be made its subjects, and others .may be exempted from its operation; certain occupations may be taxed and others not; but as between the subjects of taxation in the same class there must be equality.” See, also, 26 A. 493. When we turn to the legislation of the State we find it continually proceeding upon these as the recognized rules of taxation. We find it exempting always “ all lands, buildings, etc., and all other property belonging to the United States, to this State, or to any parish, city, or incorporated town in this State.” “Colleges, and the lots of land appurtenant thereto, and their apparatus, etc.” “ Capital stock of literary institutions, and library associations, and public lyceums.” “Cemeteries and graveyards,” whether public or private. “ Household goods, and mechanics’ and laborers’ tools, to • the amount of $500,” and so on, in endless variety.

Second. But if defendant’s argument is good, all these' exemptions, except those for churches, schools, and charitable purposes, are unconstitutional, for he maintains that by the Constitution of 1868, “ All property” or none must be taxed; and he cites article 118, which, as seen, declares that “ all property shall be taxed in proportion to its value, to be ascertained as directed by law.” We do not construe that clause as does the defendant It simply means that the taxation of all property subject to tax shall be ad valorem. That specific taxes shall not be levied on property.

Third. We have seen that the uniform practice of the Legislature in this State has been to exempt many classes of property not embraced within the exception of “ church, school, and charitable purposes.” We have seen that that practice is sanctioned by the highest authority at home and abroad, as legitimate under similar constitutional provisions. We will only add that the question as to what property falls or shall be embraced within the class designated as for “ church, school, or charitable purposes” is, of necessity, largely one of legislative discretion, and that this court would with reluctance interpose its opinions to thwart this legislative discretion, unless there was a manifest and flagrant abuse of it. We are not prepared to say that in any of the exemptions complained of the Legislature has transcended its authority. On the contrary, we think it a wise and beneficent exercise of it to exempt enough of the indispensables of life to save the poor from pauperism, and thus protect property and society from increased burdens.

Holding, therefore, as we do, that none of the exemptions complained of transcend the legislative discretion, it is unnecessary to consider the defendant’s bills of exception to the refusal of the court below to allow him. to prove the aggregate amount of these exemptions.

Nor is it necessary, perhaps, to express any opinion as to the effect of unlawful exemptions or omissions upon the validity of the entire assessment. But it seems proper to say 'that in our opinion such exemptions or omissions, whether willful or not, can not have the effect of avoiding the entire assessment. To so hold would be to put it in the power of one man, or of a few men, by misconduct or ignorance, to stop the operations of the State Government itself. For if the principle contended for is correct, it does not admit of degrees, and hence the willful omission or exemption of property to the value of $10,000 from the rolls would as effectually invalidate the whole assessment as that of $1,000,-000. Besides, the weight of authority is greatly against the defendant’s views. See Cooley on Taxation, p. 155; People vs. McCreevy, 34 Cal. 432; 1 Dill. 536, 542; 17 Penn. 339; see, also, 26 A. p. 702.

The only remaining question is that presented by defendant in his bill of exceptions to the rejection by the court a qua of the testimony of sundry witnesses to prove that his property was assessed too high, and that he had made a written demand on the administrator of assessments for its reduction. Defendant’s allegation is that “ one piece of his property had been assessed at $23,600, when it was not worth over $6000, and that he had in due season made a written demand for its reduction.” The defendant seems to have been in error in this, for the tax list sued on enumerates four pieces of property, the highest value of any one piece being only $8000, and their aggregate value only $14,800.

The plaintiff, however, objected to the testimony of the witnesses offered, as not being the best evidence, as irrelevant, etc., and the court sustained the objection. We think the court did not err, as the proper and best evidence would have been the written demand, which the law required as a prerequisite to be made, and which defendant alleged he had made.

The judgment appealed from is affirmed with costs.

Dissenting Opinions.

DeBlanc, J.

The Constitution provides — not that all the property which the Legislature shall think proper to tax — but that all properly, nothing less — and not excluding even property used for church, school and charitable purposes — shall be taxed in proportion to its value. As to property actually used for such purposes — and none other — the Constitution empowers the Legislature to exempt it from taxation. To that exception, no exception can be added without violating the letter, and— I believe — the spirit of the constitutional enactment.

For two reasons, the exemption complained of is unconstitutional:

1. It withdraws, from the list of property subject to taxation, a considerable portion of the property, every fraction of which should be taxed.

2. It extends to property not used for church, school and charitable purposes, and — it is evident — not embraced in the constitutional exception.

The exemption — as to the income — is more clearly unconstitutional than that already referred to. The Constitution commands that an income tax shall be levied — not on any restricted class of persons — but upon all persons pursuing any occupation, trade or calling — not on any excess of their income over one thousand dollars, but pro rata on the amount of the income. Can we qualify and restrict that unqualified and unrestricted clause, and hold — though the Constitution orders the levy of that tax on all persons, and on the amount — whatever it may be —of the income, that the Legislature had or has the power to ordain, an exemption repugnant to that clause, and to eDaet that said tax shall be levied but on one class of persons — those whose income exceed one thousand dollars, and on only the excess of the amount fixed by its •enactment? This — I apprehend — can not be done without violating the Article of the Constitution, relied upon by the defendants — 0. art. 118.

Were taxes imposed, levied and paid in strict accordance with the provisions of that article, they would cease to be a discouraging burden, And would — light and multiplied tributes, almost unfelt by the people, ■come from every class and every direction.

Eor these reasons, I respectfully dissent from the opinion and •decree read.

Egan, J.

I concur in the views expressed in the dissenting opinion ■of Mr. Justice DeBlanc ; and the more readily because by a comparison •of the terms of article 118 of the Constitution of 1868, and those of •article 124 of the Constitution of 1864, with those of article 123 of the ■Constitution of 1852, and article 127 of 1845, it will be perceived that there is a very marked and significant change which could not have been unintentional or without meaning. The Constitution of 1812 was entirely silent in regard to the power, mode, and objects of taxation, so that it furnishes no guide in this inquiry. Article 127 of the Constitution of 1845 reads: “ Taxation shall be equal and uniform throughout the State (after the year 1848); all property on which taxes may he levied ■in this State shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value on which taxes shaft he ■levied. The Legislature shall have the power to levy an income tax, and to tax all persons pursuing any occupation, trade, or profession.” The language of article 123 of the Constitution of 1852 is identically the same, leaving out the words “after the year 1848,” while, for the first time in the history of the State, article 124 of the Constitution of 1864 altogether omitted the important qualifying words “on which taxes may be levied,” and the words “on which taxes shall be levied,” and simply provided that “taxation shall be equal and uniform throughout the State. All property shall he taxed in proportion •to its value, to be ascertained as directed by law; ” followed immediately by the provision: “ The General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable purposes; ” and by the positive, mandatory words: “ The General Assembly shall levy an income tax upon all persons pursuing 'any occupation, trade, or calling, and “ all tax on income shall be pro rata on the Amount of income or business done.” The provisions of article 118 of the Constitution .of 1868 are the same, except that the word “ may ”■ instead of “ shall ” is used in regard to the levy of a tax upon income.

It thus appears that in the two later Constitutions, including the present, all property except that specially exempted is required to be taxed, as well as to be taxed ad valorem; and that all incomes, if any tax on income is imposed, are required to be taxed, as well as to be taxed pro rata on their amount. I think that the Constitution contemplates that all property not embraced within the exemptions stated in it shall be taxed, and that the burdens of taxation on the defendants have been increased without warrant of law, and that they have a right to redress through the courts, their only resort. The evidence is more full on all the points in the case of Davidson & Hill. In City vs. Davidson & Hill it is admitted that the exemptions complained of amount to millions of dollars, but it is sufficient in all. I think the rule, and reason of the rule, as announced by Cooley and Burroughs, can not operate in the teeth of the provisions of the Constitution of this State to the contrary. I base my conclusions wholly upon those provisions which are unlike in important particulars those invoked as similar. Were it otherwise, the general principle invoked by the plaintiff might apply.

I therefore conclude that this case, and the others of the same character, are with the defendants, and dissent from the views of a majority of the court, and from its decrees in all of them.  