Howcott v. Smart

Statement of the Case. MONROE, J. In January, 1909, plaintiff brought this suit to restrain the tax collector- of the parish of Livingston from proceeding to enforce the payment of the taxes of 1908, said to have been assessed against lands owned by her in that parish, on the grounds that the assessment was illegal because not made in her name, and because it included, in a lump valuation, the lands of other persons, and that the tax was illegal, to the extent of three mills, because it had not been included in the budget adopted by the police jury. She obtained a preliminary injunction, which was shortly afterwards dissolved, on the motion of the tax collector, by a judgment which condemned her to pay the statutory penalties of 10 per cent, and 2 per cent, a month, etc., provided in such cases, from which judgment she appealed to this court, where the judgment was affirmed. Howcott v. Smart, 125 La. 50, 51 South. 64. She then, in January, 1910, filed a supplemental petition, renewing her prayer for an injunction, to which the tax collector interposed an exception of “no cause of action,” and there was judgment maintaining the exception, and dismissing her suit, from which she took two appeals, the one, to the Court of Appeals, to preserve her rights with regard to the question of the legality of the assessment, and the other, to this court, on the question of the legality of the tax, and' it was here decided that the petition disclosed a cause of action — in the allegation that the three-mill school tax, which defendant proposed to collect, was illegal because not included in the budget — and the judgment appealed from was accordingly reversed, and the case remanded to be heard on its merits. Howcott v. Smart, 128 La. 130, 54 South. 586. The case was then tried in the district court on its merits, and there was judgment rejecting plaintiff’s demands, and again condemning her to pay the statutory penalties, from which she took two appeals, as on the previous occasion. Upon the hearing in this court, it was held that the three-mill school tax — not having been included in the budget — was unauthorized by law; wherefore the judgment appealed from was reversed on that point, and it was further held that: “As plaintiff has succeeded in obtaining judgment for part of her demand, she is entitled to her costs.” And it was so decreed. Howcott v. Smart, 130 La. 699, 58 South. 515. In the mean [685] while, the appeal, on the question of the legality of the assessment — which affects not only -the three-mill school tax, but all the taxes, state and parish — had been pending in the Court of Appeals, and, a month or two after the decision (last above referred to) by this court, the Court of Appeals handed down its opinion and decree, holding that the assessment complained of was illegal, because it included the land of others besides those of plaintiff and her author, and upon which the taxes had been paid. In the course of its opinion, the court refers at some length to the opinion of this court in the case entitled Morgan’s L. & T. R. & S. S. Co. v. Pecot, 50 La. Ann. 739, 23 South. 948, and then proceeds as follows: “Testing the ease at bar by this decision, we find that plaintiff’s property was assessed, m the name of the Quaker Realty Company, with property belonging to it and other tracts belonging to other parties. The assessment of property, under the law, must be completed by the assessor on or before June 1st of each year — in this case before the last [first?] day of June, 1908. The title of the plaintiff from the Quaker Realty Company was dated June 1, 1908, and the same was not recorded m Livingston parish until June 3, 1908. We do not see how the assessor could have assessed the property other than in the name of the record owner, which was done. The property described on the assessment roll, and belonging to both plaintiff and the Quaker Realty Company, was properly assessed in the name of said Quaker Realty Company, and, as to its description and valuation, the suit to test the same must have been instituted before the 1st day of November, 1908'. As it was not instituted until January 28, 1909, the time limit must apply. As to the property not belonging to plaintiff or the Quaker Realty Company included in the assessment, the time limit must not apply, and the assessment of these properties is illegal. These include the lands of A, W. Harelson, the Erost-Johnson Lumber Company, Mrs. Callihan, Mrs. M. M. Dickerson, which were separately assessed to them, and on which the taxes have been paid, and also the dual assessment to Mrs. Hogsett of plaintiff’s land in T. 5 S., R. 6 E., being the N. E. % of S. W. % of Sec. 2, and the S. E. % of N. E. (4 of Sec. 3, on which taxes have been paid. The amount of taxes paid on these lands is not shown by the evidence, and, for the purpose of establishing said amounts, the case will have to be remanded.” The court then states that plaintiff and the Quaker Realty Company were to blame for the failure of the assessor to assess their lands otherwise than he did, for the reason that plaintiff’s agent was the president of the company, and, in the latter capacity, made the sale to plaintiff on June 1st, when he knew that the time allowed for completing the assessment had expired, but that he does not appear to have furnished the assessor with the information needed for a correct assessment, and that it does not appear that, either as president or agent, he appeared before the board of review. The decree reads, in part, as follows: “Eor the foregoing reasons, the assessment of plaintiff’s property in the name of the Quaker Realty Company, together with the property of said company, is declared and adjudged to be legal, * * * and the judgment sustaining said assessment to that extent is affirmed, and the judgment decreeing the assessment of the lands of the Erost-Johnson Lumber Company, Mrs. Callihan, and Mrs. M. M. Dickerson, and also the lands of plaintiff assessed to Mrs. Hogsett, and all contained in said assessment, is reversed, and the injunction as to said lands and taxes is reinstated and made perpetual. * * * It is further ordered that the case be remanded * * * for the purpose of ascertaining the amount of taxes paid on the properties hereinabove decreed to be illegally assessed, and, when same is ascertained, said amount is to be deducted from the total tax assessed to the Quaker Realty Company, and on which the 10 per cent, and 2 per cent, allowed by the judgment will be calculated. In all other respects the judgment of the' district court is affirmed. Defendant to pay costs of appeal. All other costs to be paid by plaintiff.” Plaintiff has now applied to this court for a review of the judgment so rendered, and she complains of it, and alleges error in the following particulars, viz.: That it condemns her to pay all the costs of the district court, though she was partially successful in her suit; that it also condemns her to pay the statutory penalties imposed for invoking the writ of injunction to restrain the collection of taxes, though the writ so invoked has been sustained; that the judgment does not finally declare the nullity of [687] the assessment in question and order its cancellation. Opinion — On Suggestion that Application be Dismissed. [1] Counsel representing defendant suggest that the writ issued improvidently in this case, for the reason that— “there were not filed with the application copies of the petition, answer, or other pleading in the case.” On the day on which the application was filed, however, the applicant presented a motion, to the effect that the transcripts, Nos. 18,143 and 19,309, which are in this court, and contain all the pleadings in question, be referred to for the purposes of said application, and that she be dispensed from attaching others thereto, and it was so ordered. On the Merits. The ruling of this court (in considering the appeal from the same judgment with which the respondent court has dealt), to the effect that, “as plaintiff has succeeded in obtaining a judgment for part of her demands, she is entitled to costs,” was based upon the textual provisions of the Code of Practice and a well-settled jurisprudence, and, we think, should have been applied in this case. C. P. 155; Manning v. Ayraud, 15 La. Ann. 126; McCarthy v. Baze, 26 La. Ann. 382; Lamotte v. Martin, 52 La. Ann. 864, 27 South. 291. [2] It is conceded, in the opinion here made the subject of review, that it was illegal to include in a lump assessment the lands of plaintiff and her author with those of Harelson, Callihan, Dickerson, Frost-Johnson Lumber Company, and Hogsett, and, in view of that concession, which. was inevitable, we are unable to concur with our learned Brethren that there has been, in contemplation of law, any assessment of plaintiff’s lands which can be disentangled or validated in the manner directed by the judgment complained of, nor do we see in what way plaintiff or her author is to blame, because lands, standing in the name of the Quaker Realty Company long prior to the date upon which the assessments for 1908 should have been completed, were assessed confusedly with lands belonging to the parties above named, though the facts that they were conveyed by the Quaker Realty Company to plaintiff only on June 1st, and that the conveyance was recorded only on June 3d, may be a sufficient reason for the attempt to assess them to the company rather than to plaintiff. That a single lump assessment, that includes the holdings of different owners, is void, and, in effect, no assessment is a generally accepted doctrine which has been recognized and applied by this court in a number of instances. Person v. O’Neal, 32 La. Ann. 228; McWilliams v. Michel, 43 La. Ann.. 984, 10 South. 11; Norres v. Hays, 44 La. Ann. 907, 11 South, 462; Howcott v. Board of Com’rs of Fifth Louisiana Levee Dist., 46 La. Ann. 322, 14 South. 848; George v. Cole, 109 La. 816, 33 South. 784; Wag-goner v. Maumus, 112 La. 229, 36 South. 332; Head v. Howcott Land Co., 119 La. 331, 44 South. 117. And we are clearly of opinion that, where, in such ease, the holdings of a number of persons have been included, confusedly, in a single assessment, though in all instances save one such holdings have also been separately assessed, no assessment, within the meaning and intent of the law, can be made of the one holding by merely deducting from the total lump valuation the aggregate of the amounts for which the other holdings were separately assessed, and calling the remainder the assessed value of the excepted holding which was not separately assessed. The law provides no such method for the assessment of property, but makes it the duty [689] of the assessor to inspect the particular property to be assessed, and to value it upon its merits, and not as part of, and connected with, property to which it bears no relation, save, possibly, that of juxtaposition, and to which, in some instances in this case, it does not even bear that relation. A single instance (of several which present themselves) may serve to show that the proposed method of arriving at the value of plaintiff’s land, even if it could be said to resemble an assessment, is wholly impracticable. The W. Yz of section 15 and N. E. % of section 16, containing together 477 acres, were assessed separately to 1-Iarelson at $1,800, or, say, $4 ($33 0o/477) an aere. The W. Yz of section 15 (317 acres) was also included with plaintiff’s land in the lump assessment of 4,325 acres at $76,000, or, say, $17.-50 ($17 9 9/17 3) per acre. Deducting the 477 acres from the 4,325, we have 3,848 acres; deducting the $1,800 from the $76,000, we have $74,200; dividing the $74,200 by the 3,848, we have, say, $19.50 ($198i/89), so that the effect of the assessment by the process of deduction (if the whole of Harelson’s 477 acres were taken into 'consideration) would be to increase plaintiff’s assessment from, say, $17.50 to $19.50, or $2 an acre. But it was only the W. % of section 15, containing 317 acres, that was assessed confusedly with plaintiff’s land, and, when we come to deduct the value of that tract, on the basis of its supposed separate assessment, from the lump assessment in which it is included with plaintiff’s land, we find that there was no separate assessment, but that it was assessed with the N. E. % of section 16, containing 160 acres, belonging to Harelson, and that we can arrive at its value only by assuming that its every acre and every acre of the N. E. % of section 16 were of the same value. [3] There is, therefore, no way in which the attempted assessment here in question can be cured of its defects or validated, and this court can do nothing but declare its invalidity and order it canceled, which will necessarily relieve plaintiff of the penalties imposed by the district court and Court of Appeals, since the law imposes no penalty for appealing to the courts for the righting of a wrong, when the courts find that there is a wrong to be righted, and the appeal is sustained. It is therefore ordered, adjudged, and decreed that the judgment of the Court of Appeals here complained of, as also the judgment of the district court in this case, be set aside, and that there now be judgment in favor of plaintiff, as prayed for in her original petition and supplemental petition, decreeing null, void, and of no effect the attempted assessment, for the taxes of 1908, ‘of her land in Livingston parish, as set forth in said petition, and perpetually enjoining the defendants, tax collector and police jury, from attempting to enforce the collection of any taxes based thereon. It is further decreed that said defendants pay all costs, save those for which- plaintiff was condemned by the judgment of this court handed down on December 13, 1909. The CHIEF JUSTICE and SOMMERVILLE, J., dissent.