
    (68 South. 621)
    No. 21101.
    McCUNE et al. v. WHITE, Tax Collector, et al.
    (March 8, 1915.)
    On Rehearing, May 24, 1915.)
    
      (Syllabus by the Court.)
    
    1. Municipal Corporations <&wkey;957 — Assessment of Tax — Valuation of Property — Constitutional Provisions.
    That portion of section 35 of Act No. 136 of 1898 which authorizes the mayor and board of aldermen of- a city, town, or village to increase or diminish the valuation of property as assessed for taxation, held to be null and void, as in contravention of article 225 of the state Constitution, declaring that valuations for the purpose of state taxation shall be taken as the proper valuation for the purposes of local taxation.
    [Ed. Note. — For other cases, see Municipal Corporations. Cent. Dig. §§ 2015-2022; Dec. Dig. &wkey;957J
    2. Courts <&wkey;224 — Supreme Court — Jurisdiction.
    The Supreme Court has appellate jurisdiction in all cases wherein a law or ordinance has been declared unconstitutional.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 608, 609, 614, 616, 617; Dec. Dig. &wkey;224.]
    Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.
    Action by Ella McCune and others against William J. White, Tax Collector, and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed in part, and case transferred to the Court of Appeal.
    T. M. & J. D. Miller, of New Orleans, for appellants American Cotton Oil Co. and N.
    K. Fail-bank Co. F. A. Middleton, of Gretna, for appellants White and City of Gretna. L. H. Marrero, Jr., of Gretna, for appellees.
   On Motion to Dismiss.

LAND, J.

The judgment below was based on the alleged unconstitutionality of the part of section 35 of Act No. 136 of 189S, reading as follows:

“The mayor and board of aldermen of a city, town, or village may, at a regular or special meeting, to be held in September or October in each year, increase or diminish the valuation of property as assessed for taxation.”

As the jurisdiction of the Supreme Court under article 85 of the present Constitution extends to “all cases wherein * * * a law of this state has been declared unconstitutional,” it follows -that this court has jurisdiction of this appeal. It is ordered that the motion to dismiss is therefore overruled.

On the Merits.

The plaintiff, a taxpayer of Gretna, complained that the mayor and aldermen of that city, -acting under the authority of section 35 of Act No. 136 of 1898,-had, several months after the completion of the state- and parish assessment for the year 1914, raised the assessment of the plaintiff and lowered the assessments of certain other taxpayers of said municipality. The plaintiff alleged that said section violated that part of article 225 of the Constitution reading:

“The valuations put upon property for the purposes of state taxation shall be taken as the proper valuation for the purposes of local taxation, in every subdivision of the state.”

Plaintiff sued out an injunction to restrain the collection of taxes on the assessments aforesaid, and prayed for a mandamus to compel the municipal tax collector to receive and collect the city taxes on the valuations of property as fixed for the purposes of state taxation.

The defendants pleaded a number of exceptions, which were overruled, and judgment was rendered in favor of the plaintiff on the face of the papers. Defendants have appealed.

The city of Gretna has waived all other issues, and has submitted the case on the question of the constitutionality of section 35 of Act No. 136 of 1S9S.

Counsel for other defendants say in their brief that plaintiff’s petition presents “one issue alone,” and that is the constitutionality vel non of said section. The same counsel, however, complain of the action of the judge below in rendering a final judgment in the case “without giving the defendants an opportunity to answer to the merits or inquire into the verity of the allegations of the petition on matters of fact.”

Our jurisdiction in this case is limited to the question of the constitutionality of section 35 of Act No. 136 of 1898. See City of New Orleans v. Williams, 134 La. 421, 64 South. 229, and eases therein cited.

Article 225 of the Constitution of 189S, after laying down certain rules relating to taxation and the assessment of property, concludes as follows:

“The valuations 'put upon property for the purposes of state taxation shall be taken as the proper valuation for purposes of local taxation, in every subdivision of the state.”

Act No. 170 of 1898, to provide an annual revenue for the state, directs the assessment of all property subject to taxation, and the manner in which lots in cities, towns, and villages shall be designated on the lists. Section 8 of the act provides that:

“If there be any incorporated village, town or city in any parish, parish of Orleans excepted, the lists of property therein shall be taken up separately by the assessor, after the remainder of the ward in which it is situated is disposed •of, and shall be completed alphabetically.”

Under this section, the state assessor is required to make a separate and complete assessment of every lot in the city of Gretna, and under article 225 of the Constitution the valuations of such property for state taxation must be taken as the proper valuations for municipal taxation.

In the same year, the Legislature enacted Act No. 136 of 1898 for the creation and government of municipal corporations throughout the state, etc. Section 15 of this act empowers municipalities to levy .and collect taxes on all taxable property within their corporate limits, and provides that the valuation of such property shall be taken from the assessment rolls of the parish.” Section 35 of the same act reads in part as follows:

“That the municipal assessment of property for taxation shall be made by the clerk or tax collector, .by copying from the parish assessment rolls that portion thereof which embraces prop-erty or persons within the corporate limits; the copy may be made at any time after the assessment rolls are approved, and all changes in the parish assessment thereafter made shall likewise be made in the copy; and the said copy shall be placed in the hands of the municipal tax collector, and be his warrant for the collection of municipal taxes. In all Cases where persons or property have escaped taxation for .a' previous year, the clerk shall assess the same for taxation, and his assessment, when approved by the mayor and board of aldermen, on notice to the persons, assessed, shall be binding and conclusive, unless appealed from within five days after his approval. The mayor and board of aldermen of a city, town, or village, may, at a regular or special meeting, to be held in September or October in each year, increase or diminish the valuation of property as assessed for taxation. Ten days’ notice of the meeting at which such changes are to be made shall be given by posting written notices thereof in five or more public places in the municipality, and in cities the notice shall also be published in a newspaper, if there be one published therein.”

The first paragraph of the section is in accord with article 225 of the Constitution of 1898, and with section 15, supra, as it adopts the assessments made for the purposes of state taxation. The third paragraph of the section, however, confers on the mayor and board of aldermen the power to “increase or diminish the valuation of property as assessed for taxation,” and, as argued by defendant’s counsel, makes such mayor and aldermen the final board of review as to all taxable property within the municipal limits.

The third paragraph of the section, as thus construed, violates that part of article 225 of the Constitution of 1898, which declares that the valuations for the purposes of state taxation “shall be taken as the proper valuation for purposes of local taxation.” This proposition is too plain for serious dispute, as said paragraph authorizes municipalities to increase or decrease valuations made by state officers for state purposes.

The organic law must control, and any law or ordinance to the contrary is utterly null and void.

We affirm the judgment on the issue of constitutionality.

Judgment affirmed.

On Rehearing.

SOMMERVILLE, J.

Counsel for defendants say on their brief:

“Briefly stated, our position is: The Constitution prohibits the collection of taxes by the municipalities on a different assessment from that on which the state collects its taxes, but it does not prohibit the municipal authorities from participating- in the fixing of the assessments, when authorized by law to do so.”

To the General Assembly alone the Constitution gives the right to provide and establish a method of assessment of property throughout the state for taxation. The restrictions are that taxation shall be equal and uniform throughout the territorial limits of the authority levying the tax, and that all property shall be taxed in proportion to its value, provided the assessment of all property shall never exceed the actual cash value thereof, and that taxpayers shall have the right of contesting the correctness of their assessments before the courts of justice.

In order to arrive at this equality and uniformity, the General Assembly is directed to provide a system of equality and uniformity in assessments based upon the relative value of the property in different portions of the state. And the Constitution further provides that the valuations put upon property for the purposes of state taxation shall be taken as the proper valuation for purposes of local taxation in every subdivision of the state. Constitution, arts. 224 and 225.

In the case now before the court, plaintiff is not complaining of any action of the parish assessor who has made the assessment of her property, together with that of others owning property in the city of Gretna, for the year 1914. I-Ier complaint is confined to the acts of the municipal tax collector and the city officials of Gretna, who have raised the assessment on her property and have reduced the assessments on the property of the several defendants in this case, for the year 1914, thus attempting to make her and them pay taxes on assessments in the city of Gretna which are not the same as the assessments made for state and parish taxation during that same year. And she says that these officers cannot lawfully do these things. The defendant municipal officers .argue-that they are authorized by section 35, p. 240, of Act No. 136 of the General Assembly of 1898, to increase or diminish the valuation of property assessed by the state or parish authorities, and that they had lawful authority to increase the assessment of plaintiff’s property and to decrease the assessments of' their eodefendants’ property in 1914. The provision of the statute referred to has been copied in the original opinion of the court, and it is found in the act entitled:

“An act for the creation and government of municipal corporations throughout the state and defining their powers and duties and providing for the extension or contraction of their limits.”

The title does not indicate that the Legislature was about to legislate upon the matter of the assessment of property for taxation within municipalities throughout the-state. It does not indicate that the act would contain a provision forming a part of a system of assessments in the state. This view is termed superficial by counsel for defendants, and they say it should not be considered, “as it would make the statute clearly unconstitutional, whereas it can be, and, we respectfully submit, should be, otherwise construed.”

Nevertheless, it is a fact that section 35, under consideration, has the effect of authorizing municipalities to make different valuations or assessments of property for municipal taxation from those fixed on the same property for state and parish taxation, and for that reason the section is unconstitutional.

It may well be that the General Assembly,, in its wisdom, might provide that municipal councils or other municipal bodies should form parts of the machinery for making assessments. on property for state, parish and. muiiicipal purposes; and it has done so im constituting police juries throughout the state, and the council of the city of New Orleans,. boards of review, for the respective parishes and the city, to do and perform the duties imposed upon them in the statute. Sections 23 and 70, Acts 1898, p. 358. And in doing so the Legislature has repealed section 35, by excluding tax collectors and municipal councils from performing such duties.

Section 35 of act No. 136 of 1898, p. 240, explicitly provides for municipal assessments, separate and apart from state assessments. It says:

“That the municipal assessment of property for taxation shall be made by the clerk or tax collector, by copying from the parish assessment rolls that portion thereof which embraces property of persons within the corporate limits.
“The mayor and board of aldermen of a city, town, or village, may at a regular or special meeting, to be held in September or October in each year, increase or diminish the valuation of property as assessed for taxation,” etc.

But this provision of Act No. 136, adopted July 13, 1898, it is repeated, was repealed by the General Assembly by the adoption of Act No. 170, approved the next day, July 14, 1898. The latter is the state revenue act, in which is provided a method of assessing property for taxation throughout the state, and every portion of the state; and in the last section it is provided:

“That all laws or parts of laws inconsistent to or in conflict with the Constitution of the state, or are inconsistent with, or contrary or superseded by or in conflict with the provisions of this act, be and the same are hereby repealed, and that the provisions of this act shall take effect from and after its passage and promulgation.”

In section 85 of the later act (page 383) the provisions of that act are made to apply directly to assessments for municipal taxes in the following words:

“The provisions of this act shall apply to the assessment and tax sale of all property for parish and municipal taxes.”

The revenue act provides for parish assessors, except in the city of New Orleans, to assess property within the state, including that within cities, towns, and villages, for taxation. Therein is contained a complete system, involving the auditor, who is charged with furnishing tax lists to be filled out by taxpayers, and for their return by April 1st. Section 3, Act No. 182 of 1906,' p. 333. The rolls must be completed by the assessors by May 1st. - Boards of reviewers, composed of the police juries in the parishes, and of the city council in the city of New Orleans, must meet and review the assessment rolls on the first Monday in June (section 1, act No. 194, 1906, p. 348); and, “if the said list be approved by the reviewers then said assessment rolls or lists shall be final;” if the reviewers do not approve and the assessor does not concur with them, “the valuation (as fixed by the board of reviewers) shall remain as final, unless otherwise ordered and adjudged by the courts as provided by this act” (section 24, p. 359, Acts 1898). In Act No. 182 of 1906, p. 331, a state board of equalization is provided for to pass upon assessments. That board must meet on the third Tuesday in July, and may remain in session for 60 days; but the completed tax rolls must be filed in the mortgage office before September 1st in the parishes, and before June 1st in New Orleans. Sections 30 and 31, p. 364, Acts 1898. The filing of the rolls operates as a lien on the property for the taxes which are due (section 33, p. 365); and “said taxes are due and collectible” as soon as the rolls are filed in the recorder’s office (section 24, p. 365). Suits for reduction of assessments must be filed before November. Section 26, p. 361.

Section 35, being a section of the general act (No. 136 of 1898) is, if not directly, then indirectly, repealed by the later act (No. 170) of the same section; for it is rendered impracticable for the council of any municipality to meet in “September or October of each year” for the purposes of increasing and diminishing the valuation of property as assessed for taxation, which assessments are final before that date,, and the provisions of the .state revenue act are made to “apply to the assessment and tax sales of all property for parish and municipal taxes.”

Section 35, as was stated in the original ■opinion of the court, is inconsistent with article 225 of the Constitution, which says that:

“The valuations. put upon property for the purposes of state taxation shall be taken -as the proper valuation for purposes of local taxation, in every subdivision of the state.”

The amount involved in this case is below the jurisdictional limit of the court, being a contest over a reduction of several assessments, aggregating the sum of $151,000, upon which the municipal tax of ten mills is in contest; and the jurisdiction of the Supreme Court extends only to the constitutional question presented. Plaintiff nowhere complains of assessments for state and parish taxes. Her complaint is that some of the defendants attempted to increase her assessment, and decrease the assessments of the other defendants, which had been made for state purposes, and to collect municipal taxes on said increased and decreased assessments. She alleges clearly:

“That the said resolution or ordinance of the said council of the city of Gretna aforesaid, which increases and decreases the assessments aforesaid, and instructs the said tax collector to collect the municipal tax based upon the said changed assessments aforesaid, is null, void, and of no effect.”

Our former decree is amended, so as to read: Judgment affirmed on the question of •constitutionality; and the case is transferred to the Court of Appeal for the parish of Orleans, to be there disposed of on matters not covered in this opinion. As thus amended, our former decree is reinstated and made the judgment of the court.  