City of New Orleans v. New Orleans & Carrollton Railroad

The opinion of the Court was delivered by Bermudez, C. J. The City sues to recover from the defendant Company $8,328.75, with ten per cent, interest for the taxes of 1878 assessed on its capital or capital stock according to the supplemental roll of 1877. The defense is a denial of the legality of the assessment and of the existence of any capital in said year. From a judgment for the defendant, the City has appealed. It appears that the assessors having failed to place the capital of the Company with its other property on the roll of 1877, and the omission having been discovered, the City adopted, in Oct., 1878, an ordinance directing the assessment and placing of the capital on that roll, which was accordingly done. As her authority for thus acting, the City points to several Acts, among which that of 1878, p. 234, the 18th and 19th Sections of which clearly authorize the course pursued. In justification of the validity of such proceeding, the City relies upon several decisions of this Court, reported iu 10 An. 745; 13 An. — 681 — 268; 14 An. 853, 854; 15 An. 89; 21 An. 79; and also upon the ruling of the U. S. Supreme Court, affirming the decision in the Locke case, 4 Wall. 173. - The applicability of those authorities, which are not in themselves, questioned, to the present case, is denied on the. ground that they merely recognize the legality of a tax imposed according to a previous assessment. It is further urged, that the Sections invoked of the Act of 1878 are unconstitutional and void, as violative of Article 110 of the Constitution of 1868, which was in force, at their adoption. . It is claimed that the instant case is differentiated .from those to, which reference is' made by the circumstance that the assessment, of the capital of the defendant was not made in 1877, but in 1878, after, the law and the ordinance had been adopted. It is difficult to conceive why a tax can be legally levied and collected on property placed on a roll of assessment prepared and approved before the tax had any existence, and why a tax legally levied] generally on a species of taxable property in existence at the time, but] not then listed, should not be likewise collected, where such omitted property is subsequently placed on an assessment roll made, nunc pro 1 time, to cure the deficiency under the express sanction of special legislation. - y Article 110 invoked is in the words following : “ No ex post facto, or retroactive law, nor any law impairing the obligation of contracts shall be passed, nor vested rights be divested, unless for purposes of public utility and for adequate compensation made.” This Article, totidem verbis, is to be found in the Constitutions of 1852 and 1845 as Articles 104 of the former and 109 of the latter, with the only difference, that the words “ or retroactive law ” were inserted after the words “ ex post facto." ... The injection has added to the provision no inhibition which, did not previously exist, for it is well settled by reason and weighty authorities that no law is retroactive, unless it impairs the obligation of antecedent contracts, or divests pre-existing vested rights. The insertion of those words was not and could not be intended to prove an absolute inhibition of all legislation loolcing or acting backwards, for itis apparent that if such were the case, the law-making power would, consequently be impotent to repeal anterior legislation, inasmuch as a repealing law is essentially retrospective, and necessarily operates upon an object previously in existence. A survey of the authorities conclusively establishes that those laws only can be considered as retroactive, and therefore unconstitutional,, — 682 — which impair the obligation of contracts or affect vested rights, or are in the nature of ex post facto laws. 36 Barb. N. Y. 447; 10 N. Y. 374; 26 Cal. 46; 63 Barb. N. Y. 85; 37 Md. 180; 26 Iowa, 340; 6 Conn. 197; 21 Conn. 71; 36 Penn. St. 857; 61 Penn. St. 320; 79 Penn. St. 407; 67 Penn. St. 479; 16 Mass. 290; 22 Ind. 204; 20 Miss. 347; 24 How. 287, 295; 4 Wall. 173; 17 How. 456; 3 Dallas, 386, 391; 13 Wall. 68; 10 How. 395; 11 Pet. 539; 2 Pet. 413; 8 Pet. 110; 1 How. Miss. R. 183. In addition, see Louisiana authorities already cited. Such a construction has been placed upon them by the highest courts of States, the Constitution of which prohibited the passage of retroactive laws. 32 N. H. 305; 39 N. H. 505; 3 N. H. 481; 10 N. H. 386; 2 Ohio St. 152; 2 Gall. 105, 139; 5 Yerg. Tenn. 320; 1 Yerg. Tenn. 360; 56 N. H. 466; 22 Ohio, 152; 4 Texas, 470; 11 Ohio, N. S. 641; 6 Yerg. Tenn. 119; 20 Ohio, N. S. 369; 7 Johnson, 477; 2 Pet. 413; 8 Pet. 110; 11 Pet. 539. Hence, writers of recognized eminence on constitutional limitations agree, that a retroactive statute is that which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, or gives some different legal effect to some previous transaction to that which it had under the law'when it took place. Sedgwick, p. 160, Ed. 1874; Cooley, 461; Wade on Retroactive Laws, 55 1, 194, 253; Also: Bouvier and Abbott, L. D., Yo. Retroactive; Story Com. Const., 266. It will be remarked, that the prohibitive language in the Constitutions of this State for the years.named, particularly that of 1868, is not merely. “No ex post facto or retroactive law * * shall be passed.” Those words are followed by these : “ nor any law impairing the obligation of contracts shall be passed; nor vested rights be divested, unless for purposes of public utility and for adequate compensation made.” It cannot therefore be inferred, that the inhibition is peremptory or mandatory, and that no law whatever whicli looks to the past, or acts in the past, can be adopted without violating the limitation. More than half a century ago the Supreme Court of Tennessee was called upon to expound the meaning of such words and emphatically said: “We have viewed with earnest attention the bill of rights, Sec. 20, and have considered the inconveniences which any one interpretation will produce, and finally settled down in this opinion, that the word retrospective, as in the North Carolina and-Maryland Constitutions, is followed by explanatory words, so here it is explained by the words — 683 — which immediately follow: ‘or law impairing the obligation of contracts,’ and that the whole clause and both sentences taken together mean, that no retrospective law which impairs their obligation shall be made; the latter words relating equally to both the preceding substantives, and, therefore, that the term retrospective alone, without the explanatory words, can have no influence in this discussion.” In the course of our investigation we have found no criticism or reflection whatever on this opinion, and have seen it referred to with approbation. We think it is a correct rule of interpretation. It is an admitted rule that Constitutions like statutes are subject to the same canons of interpretation. It is thus correct to say, that in construing any portions of the same, the whole clause or sentence should be considered together. It is no doubt true, that some object was intended to be accomplished by the insertion in the Constitution of 1868 of the words prohibitory of retroactive legislation, which are not to be found in the Constitutions of 1845 and 1852. It is assuredly the duty of courts, when that object is known, to place such construction on the law as will carry out the purpose of the amendment. We have labored in vain, in the present base, to ascertain what the object could have been, and have not discovered it. Whatever it was, it cannot be said that by the insertion the words were given a meaning different or more extensive than they possessed previously. They were not designed to forbid all retroactive legislation, for if they did, the words which follow them would merely repeat the prohibition with restrictions, or be meaningless. Tautology or absurdity. They are technical terms, which have .often received a judicial interpretation, to which it is wise to adhere. It is significant that those words were left out from the Constitution now in force, and that Article 155 thereof reads as it did in the Constitutions of 1845 and 1852. Hence, wé say, that the words “ no retroactive law,” found in the Constitution of 1868, should be taken and construed in connection with the words which follow them. They would then mean, that no retroactive law which impairs the obligation of contracts, or which divests vested rights, unless for purposes of public utility and for adequate compensation made, shall be passed. Meaning thus, it is logically inferrable that the legislative power remains unshackled, as to the adoption of laws which do not impair the obligations of contracts, or divest vested rights. It may be interesting to state here, that the Supreme Court of New Hampshire, in ,1859, while considering and determining the meaning of the word “ retrospective,'1'1 found in the Constitution of that State, — 684 — -Part 1, 5 23, took Occasion to notice and commeut upón Article 105 of our Constitution of 1852. They there said : ‘ “In Louisiana, the Constitution, after prohibiting ex post facto laws •and such as impair the obligation of contracts, adds : nor shall vested fights be divested, unless for purposes of public utility and for an adequate compensation previously made, which is merely substituting for the technical term, retrospective laws, the well established and common definition and interpretation of that word.” See Rich vs. Flanders, 32 N. H. p. 384 (334-5). f The opinion in that case is elaborate and exhaustive. It refers to a large number of authorities which-support the meaning and purport which we attach to the word retroactive, found in the Constitution of 1868, in force when the Act of 1868 under consideration was adopted. Applying those principles -to the matter before us, let us inquire whether the Sections invoked of that Act are retroactive within the 'meaning of that Constitution. ■ Do they impair the obligation of any antecedent contract; do they divest any pre-existing vested right? 1 There is but one possible way to answer those questions correctly, 'and that is in the negative, without the possibility of the shadow of A doubt. : Far from impairing the obligation of a contract, or divesting a vested right, they enforce the obligations of a tacit contract and of an indisputably vested right. Far from being retroactive, they are prospective! They are retrospective without being retroactive, and from the most unfavorable standpoint, would only be remedial or curative legislation, which has, at all times and everywhere, been considered as perfectly legitimate, particularly in order to safeguard and subserve the publio interest. Such legislation, says Kent, “ may be of a retrospective nature, provided it do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, etc.” Vol. I, p. 493, ($ 455) and authorities in note. Sedgwick defines remedial statutes to be those made from time to time to supply defects in the existing law, whether arising from the inevitable imperfection of human legislation, from change of circumstances, from mistake, or any. other causé. P. 32. Dwarris says, that there can be no question that the words of a remedial statute are to be construed largely and beneficially, so as to suppress — 685 — tlie mischief and advance the remedy; p. 632; Sedgwick, pp. 308 et 'seq., 312. " Wade says, that laws may operate retrospectively upon existing remedies by changing or abolishing them, or by creating new remedies, without contravening constitutional provisions, where such legislation does not substantially impair the right which the remedy is intended to enforce. $$ 198, 253. Since the insertion of the words, “ no retroactive law," in tlie Constitution of 1868 has imposed no new restriction upon the legislative power, it clearly results that, as Article 109 and Article 105 of the Constitutions of 1845 and 1852 are identical with it in form and sub'stauce, the rulings in the Wheeler and subsequent cases,' from the 10th to the 15th Annual, above cited, were made under Constitutions in that respect similar to that of 1868, like it reprobating and prohibiting retroactive legislation. Hence, as those precedents justified as constitutional a legislation which levied a tax on previous assessments, they can be invoked and applied to sanction legal provisions authorizing the assessment nunc pro tunc of taxable property accidentally omitted from the proper roll, with a view to subject it to the payment of the tax regularly levied on all the listed property. It is to be noted that the able jurist who was the organ of the'Court in the Wheeler case, 10 An. 745, was the counsel who represented the plaintiff in the Frellsen ease, reported in 21 An. 79. ' The object of that suit was to have declared unconstitutional, as violating Article 110 of the Constitution of 1868, Act No. 114 of 1868, passed after that Constitution had gone into operation, and which levied a tax on all taxable property-in the State, according to the rolls of 1867. Every argument which could be made, and every authority which could be invoked, were urged to accomplish the contemplated object, as appears from the brief presented on the occasion, and which precedes the reported opinion, but the Court organized and acting under that Constitution (1868) held the law not retroactive. It tersely said: “ It has no retrospective effect; it does not operate upon any contract or right or subject in the past, but it provides simply that a tax for the payment of existing debts shall be levied upon the cash assessed value of the immovable and movable property of the State, according to the rolls of the year 1867, the last assessment which at that time had been made.” The Court then proceeded to consider the rulings from the Í0th to the 15th Annual, and affirmed them as containing a sound doctrine applicable to the ease before it, citing 4 Wall. 173, and other authorities. — 686 — The Act of 1878,'under the provisions of which the capital of the defendant was assessed on a roll made to supplement that of 1877, to pay the tax levied, did not create any right which the City did not possess, or any obligation which the defendant had not incurred previously. Its object was to heal an otherwise fatal omission, by providing for a remedy to carry out an anterior right, by the enforcement of a pre-existing obligation. It is what is known as healing, curative legislation which is sometimes-a .matter of necessity,i and which has uniformly been recognized as just and' proper, and such as courts should countenance and put into operation. The control of remedies exercised by the enactment of laws to cure defects, or to supply omissions and legalize past acts, is one of the most essential of legislative powers. Wade, §§ 250, 198. Very many are the cases in which the validity of such laws was formally recognized, particularly when the object in view was one one of public concern. • On the subject of taxation, assessment of property and levy of taxes» it has often been judicially declared that statutes passed to remedy the omission of property from the rolls, are not obnoxious on the ground that they divest vested rights or impair the obligation of contracts. The courts have expressly declared that the State has the same power to authorize the assessment of property for a former as for a current' year. 19 Wis. 535; 17 Wis. 71; 17 How. 456. They have even gone to the length of saying that where property was not taxable for a particular year, the legislature in a subsequent year might authorize its assessment for the year in which it was not assessed. 22 Ind. 204; 33 Wis. 93; 29 Wis. 400. It has also been held that a statute authorizing the reassessment of property for street improvements, where the original assessment had been judicially declared void, though limited by construction to cases of irregularity for non-feasance, was, when applied to cases falling within its legitimate scope, regarded as a valid act. 27 Wis. 522; 42 Barb. 288. Hays Burroughs on Taxation, p. 198 : “ In levying a tax, the legislature sometimes imposes it on the basis of a past assessment or evaluation. Such laws have been questioned, on the ground that they are retroactive in their operations, but this view has not been sustained, the courts regarding such law as authorizing the future imposition and collection of a tax regulated according to a past assessment and as being prospective in their character and not retrospective. And this is true whether the tax is imposed by ths legisla — 687 — ture for State purposes, or by local authorities to whom the authority has been- delegated. “ Property is often omitted from the roll by the assessors for one or a number of years, and most of the States have statutes authorizing the assessors, when they ascertain omissions, to place the property on the roll with the tax extended not only for the current year, but for' the past years. The legislative authority to tax the property for the omitted years is not exhausted by the failure of the party or the assessor to place it on the roll, and such assessments are valid.” 15 Ind. 109; 43 N. Y. 290, 294. Says the Supreme Court of Wisconsin in an analagous case, subsequently affirmed: “ This power of correcting defective assessment rolls, on the part of the public authorities, is a salutary and highly beneficial feature of our system of taxation. It is not to be abandoned because, in some instances, it produces individual hardship. Every taxpayer is interested in having the property list as perfect as possible, and, therefore, power to correct omissions and inequalities in the rolls is entrusted to some of the taxing officers. * * The expediency of passing such laws must be left to the taxing power of the government. The courts can only interfere when the assessment falls within some prohibition of the Constitution.” 17 Wis. 77, 78; 19 Wis. 543; 23 Wis. 93; 24 Mich. 322; 4 N. Y. 579, 590; 34 N. J. 236; 56 N. Y. 261; Cooley on Taxation, p. 232 (6), Reassessments ; also, p. 225 (3) Special Curative Acts. There can be no doubt that the capital or capital stock of the defendant Company was taxable, (32 An. 19; 34 An. 618; 23 An. 18) and that the legislature had the power to authorize the City to have it assessed and subjected to the tax levied, as was done. It would be gross injustice to the tax paying community to permit taxable property to escape taxation, simply because intentionally or ^inadvertently omitted from the assessment roll, when there .exists a remedy preventive of the injury. The legislature could have validly passed the law it did, prior to the occurrence of the facts of this case, to provide for the amendment of property thus omitted; The law, besides, covers similar cases in futuro. What the legislature eould have done before, it could do and has done validly afterwards. Cooley Const. Lim. 371; Wade on Retr. Laws $§ 251, 266, and authorities in notes. The assessment was made in 1878, after the passage of the law and of the ordinance for the tax of 1878, at the same rate as the property was listed in 1877. No costs, no penalties were inflicted, which the law did not previ — 688 — oualy impose. The very interest claimed is not to attach until after, the assessment made. The Sections invoked, 18 and 19 of Act 9 of 1878, we conclude, do not all under the constitutional ban. The next objection is, that the Company did not own the capital, or capital stock assessed, and if it did, that it has changed hands. All the presumptions are against the denial of ownership. It was-incumbent, therefore, on the defendant to have rebutted them • and. established clearly its special defense. There is not a particle of.evidence that the property has changed hands ; but even if there were, it would not relieve the Company, for it is the corporation which was taxed and not its stockholders. The property intended to be reached, whoever now owns it, is represented by the Company, and can no more escape taxation, because of a' change of hands, than could real-estate or other tangible property susceptible of identification and reach. We have considered Sec. 28 of the Acts of 1882, No. 96, p. 128, to which our attention has been called. It provides, that thereafter “ actual shares shall be assessed to■ the shareholders who appear as; as such ou the books,” and that “all property owned by the bank,, company, etc., shall be assessed directly ” to the corporation. It is evident that this law wa.s not designed to apply to assessments made previous to its passage. It is not curative, and cannot affect the, right of the City to recover from the Company in this case.. It is, on its face, intended to operate prospectively. . We fail to discover any force in what other defenses may exist,,if any. There was error in the finding of the lower court for the defendant. It is, therefore, ordered and decreed that the judgment appealed, from be reversed. It is now ordered, adjudged and decreed that the City of. New Orleans recover of the defendant, the New Orleans and Carrollton Railroad Company, the sum of eight thousand three hundred and, twenty eight 75-100 dollars, with ten per cent, interest per annum, from December 1st, 1878, till paid, with the lien and privilege claimed, and: costs of suit in both Courts.' Manning, J., dissents.