
    No. 10,540.
    Robert E. Rivers vs. City of New Orleans.
    Tlie individual members of a partnership are distinct from Hie partnership. Where .a partnership, which is a particular one, owes taxes, and the partnership is dissolved, each of the partners owes one-lialf the tax. Property acquired by one of the partners of an ordinary partnership after the dissolution of the partnership can not be seized and sold to pay the taxes owed and assessed to the partnership.
    The property assessed is the only property that can bo seized to satisfy the tax on it, unless the tax debtor does some act to bring- the property within the exception provided in Hoot ion 54, Act 83 of 1SSK, or tlie property Is of such a character that it can not be seized directly.
    A reconventional demand made for taxes, praying for a personal judgment agains the tax debtor for the amount of taxes due, is a suit for taxes prohibited by Article 210 of the Constitution.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.
    
    
      
      Gibson & Hall for Plaintiff and Appellant:
    A ■firm engaged in carrying on a hotel is not*a commercial partnership, or a partnership by which each partner is bound in solido for the firm liabilities. 3 31'. 084, Sloeomb vs. Sibley; O. C. 2823.
    City taxes assessed against a partnership for keeping a hotel, and not assumed by either partner at or after its dissolution, do not render all the property of either partner responsible therefor after the dissolution of the firm, or allow its seizure and sale by the City Treasurer of New Orleans or Tax Collector to pay them.
    A notice served on a property holder by the City Treasurer of New Orleans that city taxes assessed against him on movable property in a certain square are unpaid and delinquent, with interest, and that after three days he will seize and take into his possession or place a keeper thereon preparatory to advertising it for sale for payment of said taxes and interest and cost, under Act 85 of 1888, followed by notice three weeks later claiming seizure of a portion of said property in only one, and that he will proceed to advertise that for sale on the fourth day following to pay said taxes, is not a notice or demand in accordance with law authorizing such seizure, advertisement and sale to pay such taxes, and an injunction will lie to restrain such proceedings for sale where no rule to produce properly therefor has been made. Act 83 of 1S8S, See. 34; 41 An. 487 and 441, V. <& A. Meyer A Co. vs. Parker, Tax Collector; ¡L Oteri vs. Parker (recently decided).
    A seizure of specific property on which the tax is due must be made to affect a sale for payment of such taxes. The lien created by law on property assessed is completed by the assessment and filing of the Assessor's rolls by the Recorder of Mortgages in his oflice. It does not extend to property that did not exist until subsequent years, or to all property subsequently acquired, and Act S3 of 1888, especially Section 34, is unconstitutional, violating Article 40 of the Constitution of this State, in so far as it attempts to authorize seizure of other property than that on which the taxes wore assessed and are due. 41 An. 442.
    The lien and privilege and right of pledge for taxes of 1880, 1S82, 1883,1884 and 1885 are prescribed. Act 77 of 1880, and Act 90 of 1877; 40 An. 181, Sue. of Stewart.
    A claim against one for taxes on jewelry, machinery or property not on the assessment roll, but on the tax bill, and not owned by the person named in the tax bill at the time, can not be recovered.
    The provision of law in Section 54 of Act 85 of 188S, and previous years, is relative to concealing, parting with and disposing of property, and not to its being worn out in use. 41 An. 442, Meyer vs. Parker, Tax Collector.
    Taxes due under an assessment on stock in trade, bar, horses and vehicles and furniture of the Hotel Royal can not bo enforced by seizure and sale of the furniture of the St. Clnu-les Hotel when all of the property assessed at the Hotel Royal is there at the time, as it has been continuously since the assessment.
    The property on which the taxes are due is alone liable to seizure under all of the acts of the legislature under the Constitution of this State. Art. 210.
    Where plaintiff alleges that the assessments are illegal on the ground that he owned but a portion of the property — assessed after proof of that fact — he can show by evidence that the small portion of the property assessed is not worth as much as the entire amount assessed, the proceeding being one to cancel assessments that can bo filed after November 1 of the year in which the assessment is made that carries with it proportionate reduction as a consequence.
    
      Tlic roconvontional demand made for taxes due, and piaying for judgment for same with lien, is a suit for taxes prohibited by the Constitution of the State. Art. 210; 41 An. 439, 449, Meyer vs. Parker, Tax Collector, and authorities cited.
    
      W. B. Sommervilley Assistant Oity Attorney, and Carleton Hunt, Oity Attorney, for Defendant and Appellee:
    1. Alleged over-assessments and irregularities in the manner and mode of making assessments must bo sought to bo corrected in the manner and mode, and within the time specified by law. Shattuck & Hoffman vs. New Orleans, 39 An. 206; 1 So. R. 413; (Jay vs. Board of Assessors, 34 An. 370; New Orleans vs. St. Lou is & (\ R. R. Co., 37 An. 45; Otcri vs. Parker, 41 An. —; New Orleans vs. Canal and Banking Co., 32 An. 160; State vs. Meyer, 41 An. 437; Gaither vs. Green, 40 An. 364; Red River and Coast Line vs. Parker, 41 An. —.
    2. Property assessed is liable to be-taken possession of by the Treasurer of the city, and sold to enforce the payment of taxes due thereon. Cons., Art. 211; Sec. 46, Act 85 of 1888; Alexandria vs. Ileyuuin, 33 An. 801; Alexandria vs. Williams, 35 An. 329; State vs. Meyer, 41 An. 437; Holden vs. Baton, 7 Pick. 15; Act 119 of 18S2.
    8. Taxes due the City of New Orleans are imprescriptible. See. 20, Act 7 of 1870, p. 39; Davidson vs. Lindop, 36 An. 765; Sue. Stewart, 41 An. 127.
    4. And the liens and privileges securing the taxes on movables are also imprescriptible, and need not be recorded. Cons., Art. 177; Mu lian vs. Creditors, 39 An. 397; 2 So. R. 46.
    5. Stock in trade, money, furniture in hotels, and other similar movable proper ly which is necessarily undergoing change all the time, in the nature of the business in which it is employed, continues tobe the same property assessed for all intents and purposes of taxation. Mullan vs. Creditors, 39 An. B97; 2So.lt. 46.
    />. The clause in Article 211 of the Constitution, providing that taxes 021movables shall be collected in the year in which the assessments are made, is directory* and not mandatory. Oity vs. Wood & Bro., 34 An. 733; Secs. 43 and 46, Act 85 of 1888; Mullan vs. Creditors, 39 An. 397; 2 So. R. 46.
    7. Where it is evident that the plaintiff in injunction owes some of the taxes involved, the injunction sued out by him will be dissolved. He must first pay that which he owes before he can be heard in a court of justice to complain of an alleged injustice about to be done to him by the government in enforcing 7>ay22ient of that which is 2‘oally due. State K. R. Tax Cases, 9217. S. 575, 618-615; National Bank vs. Kimball, 103 V. S. 733, 734; Desty on Taxation, p. 650, e.l seq.; First National Bank of Hannibal vs. Meredith, 44 Mo. 503; High on Injunctions, Yol. 1, pp. 312-3IS; Cooley on Taxafci‘021, pp. 536-541.
    S. When the Constitution says that the Tax Collector sliallsoize and sell property v'itlwui suit for taxes due thereon, it is not attempting to define or limit the jurisdiction of the courts of justice of this State.
    <). “ The objects in view were the prohibition of the forfeiture of the property for non-payment of taxes, and the substitution thereof of summary expropriation without suit, to enforce such payment.” City vs. Wood & Bro., 34 An. 734.
    
      10. When tlie tax delinquent, enjoins the Treasurer from seizing and selling tlie property upon which taxes are due; or when there is any other cause which renders it impossible for the Collector to comply with the law, then are the courts open to the government for the enforcement of the collection of taxes. Particularly is this the case when the tax delinquent summons the city into court. Constitution State of Louisiana, Art. 11; New Orleans vs. Day, 29 An. 418; Oakland vs. Wliipplo, 89 Cal. 113; Sue. of Dupuj-, .33 An. 260; Reed vs. Creditors, 39 An. 120; Askew vs. S. S. Co., 13 An. 497; State vs. Moyer, 41 An. 438; Sue. of Stewart, 41 An. 131; Brent vs. City, 41 An. —.
    11. It is too late to argue in the appellate court that the city had no right to reconvene and ask for a money judgment for taxes. Objection should have been . made at the time that evidence was offered in support of the reconventional demand. Jonau vs. Serranil, 3 Rob. 365; Kean vs. Brandon, 17 An. 37; Ames vs. People’s Tel. Co., 3 An. 184; Oayarré vs. Tunnard, 9 An. 235.
    12. When a plea of prescription is the only answer filed to a money demand, it admits the correctness of the claim. McCarty vs. Bureau, 7 Rob. 459.
   The opinion of the court was delivered by

McEnery, J.

The Treasurer of the City of New Orleans served ■on R. E. Rivers, for taxes alleged to be due the Oity of New Orleans, .the following notice:

“ New Orleans, La., January 24, 1889.

“To Mr. Robert E. Rivers: You are hereby notified that city taxes ■assessed to you on the following movable property, viz; Square No. '224, Assessment District 5, St. Charles, Common, Gravier and ■Oarondelet streets:

Copy of rolls for the year 1879. Amounting to Assessed value. Description of property.

1880 $110 91 $34,550 Horses $300, furniture $34,250

Bal. 1882 491 03 35.300 Horses $300, furniture $35,000

1883 603 00 30,150 Furniture

1884 16 00 800 Machinery

1885 922 0-2 36.300 Horses $1300,furniture $32,500, Mdse. $1000, jewelry $1500

1886 652,46 32.300 Horses $1300, furniture $30,000, Merchandise $1000

1887 1.258 46 62.300 Horses $1300,furniture $60,000, Merchandise $1000

1888 1.258 46 62.300 Horses $1300,furniture $60,000, Merchandise $1000

'Total, $5,312 34 $294,000

are unpaid and delinquent, and that they bear interest from the date-of delinquency at the rate of 10 per cent, per annum until paid. That after the expiration of three days from the service of this notice-if said taxes, interest and costs are not paid to the City Treasurer, I will-seize and take into my possession or place a keeper on said1 property preparatory to advertising for sale, in accordance with law, the same or so much thereof as may be necessary for the payment of taxes, interest and costs due as set forth above, all in conformity with Act 85 of 1888.

(Signed) J. N. Hardy, City Treasurer.”

Subsequently the following notice was served on Rivers:

“New Orleans, La., February 15, 1889.

“ R. E. Rivers, St. Charles Hotel:

Dear Sir — When my chief deputy in the back tax department,. Mr. Desposito, called on you in regard to the seizure of the furniture of the St. Charles Hotel in my name for the city taxes, you and he had some conversation about further proceedings in the case.

“ I now beg to inform you it becomes my official duty to advertise the property seized and to sell the same for city taxes due thereon., I will, therefore, proceed to advertise said property for sale Tuesday morning next, February 19, in accordance with law.

Respectfully,

(Signed) “ J. N. Hardy, City Treaurer.”

The plaintiff in injunction, for various reasons alleged by him, enjoined the advertisement and sale of the property, situated in the St. Charles Hotel, seized in pursuance of said notice.

It is admitted by the counsel for the city that all of- the furniture in the St. Charles Hotel was seized to enforce the collection of the above taxes. No other property was seized in pursuance of said notice.

There was judgment for the city for taxes assessed in 1880 and1 1882 against Rivers & Bartels, with interest at 10 per cent, from March 31, 1880, and for taxes of 1883, with the same interest from August 22, 1883, and for the taxes of 1885, with like interest from October 7, 1885, and for taxes of 1886, with like interest from October 1, 1886, and for taxes of 1887 and 1888, with like interest from-August 5 of each year.

The liens and privileges claimed by the city were recognized to exist on all the property under seizure for the taxes assessed on the property contained in the notices served on the tax debtor.

There was judgment for the plaintiff perpetuating the injunction for the tax on machinery for 1883 and 1884, and the taxes on stock in trade and jewelry for 1885 and for tax on stock in trade in 1886, and 1888.

The taxes for 1880 and 1882 are assessed against Rivers & Bartels, a particular partnership then engaged in the hotel business at the St. Charles Hotel building. The partnership was dissolved in 1883.

The liens and privileges for these years are prescribed. Sue. of Stewart, 41 An. 131.

The amount due for taxes by this firm is an ordinary debt.

The partnership was a distinct personality from the individuals composing it. Rivers owed on the dissolution of the partnership . one-half of the tax debt.

The assessed property is presumed to continue in the possession of j;he person to whom it is assessed. Tt was assessed to Rivers & Bartels, and the presumption is that it is in the possession of the firm, or its liquidator or the person who has assumed its liabilities. There is no evidence to show that Rivers is the liquidator of said partnership, or that he assumed its liabilities, or has in his possession the property assessed to Rivers & Bartels.

Property owned individually by Rivers, and acquired since the dissolution of the partnership, can not be seized to pay said taxes. No personal judgment can be rendered against him. The identical property assessed must be seized, unless there is some act of the tax debtor committed, or the situation of the property is such that it' can not be reached. Section 54 of Act No. 85 of 1888.

The property assessed to Rivers & Bartels is no longer in existence, as the furniture and carpets have been worn out by use and no longer possess any value.

The assessments of jewelry; merchandise or stock in trade and machinery was of property that never had an existence so far as the plaintiff is concerned, and the injunction as to these was perpetuated.

‘ ‘ Horses ’ are assessed against Rivers from 1885 to 1888 at a valuation of $1300. It is in proof he owned no horses at the period of assessments. He owned one horse and one market wagon for use of marketing for the hotel. This is different property from “ horses ” valued at $1800. Rivers made a written application to.the Board of Assessors for reduction of assessments and for cancellation of property assessed which he did not own. He visited the office of the board some eight times, and was informed on the last visit, by the president of the board, the proper corrections had been made. While not expressing the opinion that this was a compliance with the law in the mode pointed out for the correction of assessment, yet we consider it as a protest against being assessed for property of which he was not the owner. This was not a misdescription of the property, or a wrongful valuation, but an assessment of property that had no existence. The authorities referred to by the counsel of the city have no application to the facts in this case.

There was no seizure of horses and vehicles belonging to and assessed against the plaintiff. The seizure of other property not assessed was made to collect the tax due by Rivers, without a compliance with the provisions of Section 54 of Act 85 of 1888.

It is fatal to the city’s attempt to seize and sell the property situated in the St. Charles Hotel to collect the taxes alleged to be due that said property is seized for taxes due by other property, situated in a different locality, and distinctly and separately assessed. There was no seizure of the property assessed to the plaintiff except for taxes due on the specific property situated in the St. Charles Hotel.

Art. 210 of the Constitution provides that there shall be no forfeiture for taxes, either on movable or immovable property, for nonpayment of taxes, but that they shall be collected without suit, after giving due notice to the delinquent.

The property assessed is the only property that can be seized, unless the debtor does something to bring the property within the exception provided for in Section 54 of Act 85 of 1888, or the property is of such a character that it can not be seized directly. V. & A. Meyer & Co. vs. Tax Collector, 41 An. 441.

The taxes on all property situated within the St. Charles Hotel have been paid up to and including 1886.

All the property in this hotel was seized, and a lien and privilege recognized on it by the judgment appealed from to satisfy the tax due on the furniture and property situated in the Hotel Royal. Some furniture had been exchanged between the hotels Royal and St. Charles, but before the assessment and after the payment of taxes on the St. Charles Hotel property. There was no seizure made of any of the Hotel Royal property, although it was separately assessed.

The St. Charles Hotel furniture was seized to pay the taxes on property of every description assessed against the plaintiff Rivers. It was seized to pay the taxes due on the Hotel Royal furniture, and for stock in trade and bar of said hotel for taxes of 1887 and 1888. There has been no effort to conceal property assessed by the plaintiff. It is not of such a character that it can not be seized. The furniture assessed at Hotel Royal is there, and has been in said hotel since the day of its assessment.

When the property assessed is in existence and in the possession of the tax debtor, and is accessible for the purposes of seizure, the Tax Collector can not seize other property of the tax debtor to pay the tax due by the specific property assessed.

In the case of V. & A. Meyer, 41 An. 441, which was affirmed in Oteri vs. Parker, Tax Collector, not yet reported, this court said: “The revenue acts of 1888 and of prior years, since the date of the Constitution, fully recognize the constitutional mandate, and make it the duty of the collectors to enforce the payment of taxes on movable as well as on immovable property by seizing and selling the ‘property on which the taxes are due.’ They provide for its direct seizure when it lies open to such; and in case it is in the debtor’s possession and out of reach, they provide for a demand on the tax debtor to produce and deliver it, and in case he refuses, they authorize-a summary proceeding in the courts to compel him to do so. It is only when this property ‘ has been concealed, parted with or dis-' ■posed of by the tax debtor,’ that the seizure of- other property is in any manner authorized. Act 85 of 1888, Sec. 54.”

The City of New Orleans, in her efforts to collect the tax, has not brought herself within the exception provided by Act 85 of 1888. The seizure of the property was not made in conformity to law, and is therefore illegal.

After filing a general denial, the city reconvened and prayed for a personal judgment against the plaintiff for the amount of taxes claimed. The-eity prays that the judgment in her favor be amended and the amount obtained on the reconventional demand be increased.

As no suit can be instituted against the tax debtor and a personal judgment rendered against him, the reconventional demand should have been rejected. Art. 210, Constitution.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, reversed and amended, and it is now ordered and decreed that there be judgment in favor of the plaintiff perpetuating the injunction herein, except as to the furniture in the St. Charles Hotel for the taxes, without interest and penalties, assessed against the same for the years 1887 and 1888, reserving to defendant the right to recover any taxes, if any are due, on other property legally assessed against plaintiff, the appellee to pay costs of both courts.

On Application fob Rehearing.

The opinion of the court was delivered by

Bermudez, C. J.

On a carefal review of the opinion rendered in this case we find but one error in our decree, which may be corrected without granting a rehearing.

The law allows interest on taxes from the time they are due, and this should have been included in our decree.

It is therefore ordered that the words “ without interest and penalties ” be stricken from the decree, and that in lieu thereof be inserted ‘‘ with interest from the time the taxes became due,” and that in other respects our former decree remain undisturbed.

Rehearing refused.  