Carre v. City of New Orleans

'Phe (>x)inion of the Court was delivered by Bermudez, C. J. The purpose of this suit is to have it judicially declared, that certain property — a, wood factory — of the plaintiff, advertised for sale by the city for the taxes of 1882, said to.be due thereon, is exempt from taxation, under the provisions of Article 207 of the Constitution. The x>retensious of the plaintiff form the basis of an application" for an injunction. The grounds substantially set forth, are : 1st. That the property assessed and advertised for sale, was used ¡is a manufactory of articles of wood, wherein more than five hands are and were employed in 1382, and which was therefore exempt from taxation under the article cited.' (207) '2d. That the city had entered suits for the same taxes, which had never hoc» decided. [997] 3d. That the property in question has already been adjudged to he exempt from taxation. The prayer is, that the assessment, the tax, etc.., be annulled and can-celled, and'that the injunction be perpetuated. The answer was a general denial. From an adverse judgment the city has appealed. In our investigation we shall invert the grounds on which the suit rests. I. The plaintiff pleads that suits were brought by the city, for the same taxes, and that the same are undetermined. No doubt, the record shows this to be the fact: but th^t circumstance cannot deprive the city from proceeding to the advertisement and sale of the property, as she has attempted to do, under the. authority of Act No. 119 of 1882, -“ The suits were brought after the passage and promulgation of this act,,') the object of which was, to carry out the provisions of Articles 210 and 218 of the Constitution, prohibiting judicial proceedings for the oollec.-/ tion of taxes. In the absence of such legislation, the city would have had the right of suing for the taxes, for the constitutional articles were not self operative, as has been decided. City vs. Wood, 34 Ann. 732. To those suits, the defendant pleaded expressly this act of 1882, in bar. The exceptor had the right to have the exception fixed and determined. By not availing herself of that right, and by bringing an action in which the validity of the defence is averred, the defendant (plaintiff here) has waived the same. Had the exception been tried, it would have been sustained; but the defendant would have found herself thereby in no better predicament than she is in to-day. The city had a right to acknowledge by a formal act the validity of the defence, and to relinquish the proceedings objected to. Advertising under the provisions of the act of 1882, was a virtual recognition of the irregular and improper institution of the suits, and a formal abandonment of them. The proceedings of the city, under the act, is not a judicial proceeding. It is essentially non-judicial. If such be the case, how can the pendency of the suits be set up as [998] Ms pendens, which is a jilea to a suit, a judicial proceeding, by reason of previously instituted similar one •? Besides, the existence of such undetermined suits can form no basis for an injunction to arrest the sale of the property, the moment that the costs of the proceedings are not claimed along with the taxes. z. It is, therefore, clear that the plea of lis pendens is devoid of merit, and is no foundation for the relief sought. II. The next plea is that of re.<s judienta, as resulting from two definitive judgments. An examination of one of the cases in which it- is claimed that the property was declared to be exempt, shows: That the citj was not a party to it; that the, suit was brought against a State tax collector only; that the exemption asserted was from the State taxes of 1883, not the city taxes of 1882 now at issue, and that the judgment was one confirming a default, no defence whatever having been set up. The proceedings in the remaining case establish that the legality of the city taxes for 1882 was not involved, but only that of those of 1883 and 1884, and that the judgment was one reducing an assessment. If the judgment declared the property exempt from the taxes for those years, it did not go to the extent of including those for 1882, and does not constitute, any more than the first, res judioala. III. The vital question in the litigation, that of exemption vel non for 1882, now arises. The article of the Constitution on which the claim for exemption rests, reads: (207) “ There shall also be exempt from taxation and license, for a period of ten years * * * the capital, machinery and other property employed in the manufacture of * * * * furniture and other articles of wood * * * The contention here is, that, whereas the property of jdaint.iff was employed in 1882 in the manufacture of articles of wood, it is exempt, and the taxes claimed for that year are not due. It is established beyond all possible perad venture that exemptions are strieti juris. Indeed, in order to be entitled to the immunity, the claimant must establish his pretension quite clearly. In sncli cases, doubt is fatal. When the sovereign exempts, he does so munificently and unequivocally. Dennis vs. R. R. Co., 34 Ann. 955. It must be observed that the article relied on, specifies “property employed in the manufacture of * * furniture and other articles of wood. ” [999] In the case of Jones vs. Raines, 35 Ann. 998, in which an exemption was claimed, under the same constitutional provision, in favor of saw mills, but not recognized, this court critically analyzed the text and took occasion to say: “The enumeration following the copulative conjunction ‘and,’ indicating the conclusion .of an enumeration of distinct subjects and the use of the word ‘other' qualifying the articles of wood contemplated, both contribute to give, a restrictive sense to the words ‘ articles of wood,' etc., and satisfy our minds that the articles of wood, contemplated, were such as furniture and other like articles. ” In the subsequent case of Martin vs. New Orleans, 38 Ann. 398, in which a similar exemption was asserted, after referring to the rulings in City vs. LeBlanc & Beck, 34 Ann. 596, defining the manufacturers exempt under Article 206, we said : “* * It is manifest that the property, of whatever nature, which is used in the saw mill business proper, that is, in the manufacture of raw materials, namely of lumber not ready for use, asare ‘furniture and other articles of wood’ is not exempt from taxation. The case is different, however, as to property which is used for the manufacture of articles of wood ready for the use of the consumer. ” Accordingly, the court considered that sashes, doors and blinds were articles of wood within constitutional intendment, and exempted the property employed in manufacturing the same. The articles of wood mentioned in the article-of the Constitution are, therefore, those which like furniture, were intended for separate use and are ready for use by the purchaser without further manipulation or labor on them, namely, which are complete in themselves. It is evident that the cabins and planks manufactured by the plaintiff in 1882 are not articles of wood within legal intendment. Had the framers of the Constitution designed all property employed in the manufacture of all and any article of wood to be exempt, they would not have used the word “other, ” but would have replaced it by either the word all or any, or would have left it out entirely. In the case of Martin vs. City, 38 Ann. 397, this court has considered that sashes, doors and blinds, were articles of wood, and that property employed in manufacturing- them came within the compass of article 207 of the constitution, and was exempt. The evidence does not establish to our satisfaction, what is the capital, machinery and property employed by the plaintiff in the manufacture of such articles of wood, and in default of sufficient information on the subject we cannot finally adjudicate upon this controversy. [1000] The city had just cause to complain of the exemption of property employed in the manufacture of cabins and planks by the plaintiff. We feel therefore bound to remand the case. It is' therefore ordered and decreed that the judgment of fchelower court he reversed, so far as it perpetuates the injunction Issued to prevent the sale of such of plaintiff’s property as is employed in the manufacture of cabins and planks, and that it he contingently affirmed in other respects, the case being remanded to the lower court to ascertain the amount of capital and the value of machinery and property of plaintiff, as was employed in 1882 in the manufacture of sashes, doors and blinds, with instruction to exempt the same from the taxes of 1882. It is further ordered that the plaintiff and appellee pay costs of appeal.