
    No. 10,499.
    Louisiana and New Orleans Ice Company vs. C. H. Parker, State Tax Collector.
    Tlio amendment; to Art. 207 of the Constitution, the adoption of which was promulgated 12fch May, 1888, did not operate retroactively, and exempt property from taxation for the year 1888, assessed under the Revenue Act of 1886. The property so assessed owed the tax from the completion of the assessment rolls on the 31st March, 1888.
    APPEAL from the Civil District Court for the Parish of Orleans. VoorhieSj J.
    
    
      James B. Guthrie and Moise & Titche for Plaintiff and Appellee:
    1. An assessment is the official estimate of the sums which are to constitute the basis of an apportionment of a tax between individual subjects of taxation. Cooley Taxation 351; Welty on Assessment 3; Bouvier, Webster, Worcester, verbo “_s.ssessnn*iit;” Green vs. Gruber, 26 An. 696.
    2. The act of listing and assessing property does not lay the tax charge. The tax charge is laid and imposed by the levy. The levy is essentially a legislative act. Cooley on Taxation, 2d 3Cd. (p. 324) and authorities, Note 1; Blackwell on Tax Titles, Secs. 301, 304; State vs. Maginnis, 26 An. 558; Templeton vs. Board, 16 An. 118.
    3. A levy may he made upon past assessments. Municipality vs. Wheeler & Blake, 10 An. 745; 13 An. 268; 14 An. 853, 854; 15 An. 123; 21 An. 102; 4 Wallace 173; 16 An. 117. Or upon future assessments,as in the case of the Revenue Acts of 1880,1882, 1884,1886 and 1888, levying taxes upon assessments subsequently made in 1881, 1883,1885,1887 and 1889.
    4. When an amendment to Art. 207 of the Constitution, exempting ice manufactories from taxation, was adopted in April, 1888, and promulgated May 12,1888, and two months thereafter, to-wit, July 12th, 1888, the Legislature levies a tax for the year 1888 upon all property not exempted from taxation, the said levy is inoperative as against ice manufactories and the tax can not be enforcedBanlr cases, 15 An. 89, 107,123; Templeton vs. Board, IS An. 118.
    O. The fact that the property was listed and an estimated valuation placed thereon can not have the effect of mating the statute, operate retroactively so as to create a tax charge before the promulgation of the exemption. The tax for 1888 was not due nor laid until the levy made by Act 85 of 1888. At that tim e the exemption had full force and effect; hence the assessment was an absolute nullity.
    
      Walter JET. Rogers, Attorney General, and Wynne Rogers, Attorney for Tax Collector, for Defendant and Appellant:
    The assessment for the year 1888 was made and completed under the provisions of Act No. 98 of 1886, before the constitutional amendment was in force.
    When a revenue act provides for a future levy, and fixes the date for the deposit of the tax rolls in the offices of the collectors, that time is to be considered as the period when the taxes become due and collectible, especially when the deposit of such rolls is made the warrant of the collectors for the collection of all taxes.
    The Revenue Act of 1886 provides for future levies and fixes the time of such deposit of the tax rolls for 1888, before the passage of Act 85 of 1888.
    Revenue Acts are prospective in their operations. Act 85 of 1888 is not retroactive in its operations, no such object being expressed in its title.
    It would be manifestly unjust to excuse the plaintiff company from the payment of its taxes when under the decision of this Honorable Court another company similarly situated has had to pay. 33 An. 858 ; 36 An. 765; 39 An. 115; 40 An. 697
   The opinion of the court was delivered by

McEnery, J.

The plaintiff company enjoined the seizure of it» ice factory, situated in the City of New Orleans, by the State Tax Collector for taxes due in the year 1888, on the ground that the amendment to Art. 207 of the Constitution exempted said property-from taxation and was in force when the tax was levied.

There was judgment for the plaintiff and the defendant Tax Collector has appealed.

The property under seizure was assessed for taxation in the year 1888 under the provisions of Act 98 of 1886 and the assessment rolls were completed on the 31st of March, 1888, and were filed with the Tax Collector on August 26 following. The tax rolls should have been filed with the proper official of the City of New Orleans by the first day of May and with the Auditor of the State by the first day of July. Sec. 3 of Act 98 of 1888.

Act 109 of the Acts of 1882 compels the City of New Orleans to levy a tax for each year between the 1st day of May and the 30th day of June.

The question at issue is, was the property of the plaintiff company liable to taxation before the adoption of the constitutional amendment exempting it from taxation.

The property could have been assessed only under Act 98 of 1886, as it was the revenue law in force when the assessment was made. This act required the assessment to be completed by the 81st of March of each year, and directs copies of the rolls for the City of New Orleans to be delivered to the City of New Orleans by the 1st of May, and to the Auditor of the State by the 1st day of July, so that the City of New Orleans can proceed to collect the municipal taxes in pursuance of the directions contained in Act 109 of 1882. For the parishes, other than Orleans, the rolls, by Act 98, are directed to be returned to the recorder of mortgages, sheriffs and the auditor as soon as practicable, but before the first day of September of each year.

The law does not declare at what precise time the tax is due, but makes it collectible from the date of the filing of the rolls. The date of the collection depends upon the energy and ability of the assessors to furnish copies of the rolls, and.this dates from any day between the closing and completion of the assessment to the last day provided for the filing of the same.

The tax is due, that is, the property assessed owes the tax, from the completion of the assessment on the 31st of March of each year as provided for by the Act 98 of 1886.

The last day for the filing of the rolls with the City of New Orleans and the Auditor of Public Accounts was fixed respectively the first day of May and the first day of July. The rolls ought to have been filed, in accordance with the provisions of the act, “ as soon as practicable,” and the delay of the assessors in performing their duty can not have the effect of relieving the property from the burden of taxation which the law had imposed;

When the rolls of the City of New Orleans aré filed with the Auditor, this, of course, authorizes the State Tax Collector to proceed to the collection of the State taxes as they are charged to him in the auditor’s office. Had the rolls been filed in accordance with law he would have been authorized to collect the tax after the first day of July.

He could have collected the tax had they been filed on any day be - fore this date after the completion of the rolls on the 31st of March. The tax is apportioned and extended on the rolls by the assessors, and the rolls, when completed and delivered, is the authority for the State Tax Collector to collect the tax.

As he could have done that at any time after the Slst of March, had the assessors filed the rolls with the Auditor, it is evident that the property was liable for the tax after the rolls had been completed, although the collection was postponed until they were filed with the Auditor and charged to the collector.

The promulgation of the adoption of the amendment was issued on the 12th of May, 1888, after the property had become liable to taxation by its assessment and the completion of the assessment rolls. The delay in delivering and filing the assessment rolls can not defeat the tax or change the status of the property as it was fixed on the rolls at the completion of the assessment.

The amendment to Article 207 of the Constitution did not operate retroactively and exempt the property for the tax which rested on it prior to its adoption. Stern’s Fertilizer Co., vs. City of New Orleans, 40 An. 697.

It is therefore ordered, adjudged and decreed that the judgment appealed be overruled and annulled and it is now ordered and decreed that there be judgment in favor of defendant dismissing plaintiff’s demand and dissolving the injunctions issued herein, with costs and 10 per cent, special damages as attorney’s fees.

On Application for Rehearing.

Had not the Revenue Act of July 12, 1888, been passed by the Legislature, no one -would contend that the constitutional amendment promulgated on May 12, 1888, would have operated to exempt plaintiff’s property from the tax of 1888, which had then been regularly levied under the act of 1886, duly assessed and was then duly collectible. To hold otherwise would be to give a retroactive operation to the amendment, which we have heretofore distinctly denied. 40 An. 697.

The claim of exemption from taxation for the year urged by plaintiff is, therefore, based, not on the constitutional amendment, but on the subsequent legislative act.

Nothing is better settled than that the Legislature is powerless, directly or indirectly, to grant exemptions from taxation.

This view is conclusive against the plaintiff’s pretensions.

Rehearing refused.  