Morgan's Louisiana & Texas Railroad & Steamship Co. v. Pecot

On Motion to Dismiss Appeal. The opinion of the court was delivered by Blanchard, J. Plaintiff corporation owns and operates a railway extending through the parish of St. Mary, Louisiana. Trouble arose over the assessment of its property in said parish for taxation for the year 1897, and this suit is the sequel. The parties litigant are as wide apart as to the nature and character of the action as they are in respect of the judgment that should be rendered. The plaintiff insists that the complaint is not of an over-assessment, but of a void assessment; that it is not a suit to reduce an assessment, nor to correct an assessment for misdescription or other738 irregularity, but one to have the assessment of certain property declared void for radical defects, and to enjoin the collection of taxes predicated on the illegal and void assessment on the ground that, being based on an illegal assessment, the taxes themselves are illegal. Defendants, on the other hand, insist that the action is one instituted against them (to-wit: the tax collector, the assessor and the police jury of the parish of St. Mary) for the purpose of correcting or reducing the assessment made of plaintiff’s property for the year 1897. Pursuant to the provisions of Act No. 92 of 1888, the Board of Commissioners for tne equalization of assessments of railroad, telegraph and telephone lines convened at the town of Lafayette in May, 1897, and proceeded to puta uniform valuation on the roadbed of railroads and on the telegraph and telephone lines running through the parishes the board was authorized to represent. Having done this, the secretary of the board proceeded to apprise the assessors of the several parishes through which these lines of communication ran, of the action of the board. The letter addressed by him to the assessor of the parish of St. Mary informed the latter that the assessment fixed upon plaintiff’s line of railway was $6500 per mile, with a rate of $3500 per mile upon the branch lines thereof. Having received this communication the assessor proceeded to place the assessment upon his roll. In doing this he first ascertained the number of miles of the main line of plaintiff’s railway in the parish, and the number of miles of its branch lines. The result of •of his labors as to the assessment of the railway mileage proper appears listed as follows, which we will call List No. 1: 5 miles main line east of Morgan City.........................................................$32,000 34 miles main line west of Morgan City...................................................... 221,000 12 miles of mainline double track................................................................. 78,000 1,784 feet spur track, Barnett’s plantation.......................................................... 1,180 3,036 feet spur track, Sorrell plantation.............................................................. 2,010 3,341 feet spur track, Adeline plantation......................................................... 2,210 1,812 feet spur track, Franklin Refinery.............................................................. 1,200 1.615 feet spur track, Alice 0. plantation................................................................. 1,070 10,918 feet spur track, Barnett’s plantation..................................................... 7,230 1,923 feet spur track, Clark’s plantation............................................................... 1,270 3,276 feet spur track, Berwick Lumber Company.................................................. 2,170 1,800 feet spur track, Bonvillain plantation, Cypremort Branch....................... 1,190 15 miles Cypremort Branch.......................................................................................... 52,500 1 mile main line track, Morgan City........................,..................................... 6,500 2,976 feet spur track, Morgan City............................................................................... 1,790 Total assessment.......................................................................................................$411,500 He, then, independently of the Board of Equalization, and acting [739] in his capacity as local assessor for the parish, predicating his action npon Sec. 29 of Act No. 106 of 1890, proceeded to assess the depot buildings, station and section houses and the lots of ground upon which the same are located, belonging to plaintiff company and situated in the parish, together with the Morgan City bridge, and listed the same as follows, which we will call List No. 2: Section house and lot and depot and lot at Sorrell station $509 Depot and lot at Adeline plantation.................................. 500 •Section house, depot and lot at Baldwin station ............ 1,000 Section house, depot and lot at Patout plantation.............. BOO Depot and lot at Glencoe.................................................... 200 Section house and lot at Burguieres plantation.............. 200 Section house and lot at Franklin........................................ 500 Depot and lot at Bayou Sale station............................... 500 Section house, depot and lot at Calumet station................... 300 Section house, depot and lot at Patterson............................. 500 Section house, depot ond lot at Berwick........................... 500 TheMorgan City bridge.?...............................:........................ 250,000 Depot and lot, town of Franklin......................................... 2,000 Total assessment. $257,000 The assessor then assessed against plaintiff, on the non-resident list, the following property, which we will call List No. 3: Lots 11,12,13 and lá, square 21, Morgan City...................................................... $‘¿00 Lots 1 to 7, square 13, Morgan City.................................................................. ‘¿ 000 Lots 1 to 7, square 23, Morgan City........................................................................ 150 Depot, wharves, etc., Morgan City.......................................................................... 6,000 Aggregating........................................................................................................ $8,350 Plaintiff makes no complaint of the action of the Board of Equali-’ zation, but does of the subsequent action of the assessor. Shortly after the adjournment, of theformer, plaintiff company filed with the assessor the following list, as showing its mileage in the parish of St. Mary and the proper assessment thereon, according to the rate fixed by the board, to-wit: Five miles main-line track and all appurtenances, East Morgan City, per mile..$6,500 Thirty-five miles main-line track and all appurtenances, West Morgan City, per mile...................................................................................................... 6,500 Twelve miles new double track and all appurtenances, per mile................... 8,500 Fifteen miles Cypremorfc branch track and all appurtenances, per mile........ 8,500 One mile main-line track and all appurtenances, corporation Morgau City, per mile................................................................................................................. 6,500 Whereupon the assessor notified the company that he did not regard the list as a correct one of the property owned by it in the parish, and served upon its agent duplicates of the lists made out by himself, showing values thereto attached. Plaintiff thereupon filed with the assessors a protest against his listing of its property and valuation thereof, and requested a revision and correction, which application the assessor rejected. Early in July tshe police jury of the parish met as a board of review, and plaintiff, through counsel, appeared and filed with that [740] body a “protest against the legality and correctness of the assessment of its property in St. Mary parish for the year 1897, with a view of securing its correction.” This protest, in substance, recites that the company had theretofore made to the parish assessor full and detailed returns of its property for assessment, etc., which returns it averred to be correct; that the assessment made by the assessor was erroneous; that he had disregarded the valuation adopted by the board of equalization, and in some instances increased such valuation; that he had so assessed some of its property that it. amounted to double assessment, and explained how this resulted, etc..; that whereas the board of equalization, in valuing the main line of the company’s road at six thou-, sand five hundred dollars per mile and the branch lines at three thousand five hnndred dollars per mile, had arrived at the same by including the value of the spur tracks as well as the value of the superstructures, stations,' section houses, etc., the assessor had taken the board’s figures for the mileage only, and then had proceeded separately to assess the spur tracks, section houses, depots, stations, superstructures, etc., and listed and returned the same for additional and independent taxation against the company; and that he had so separately and independently assessed the bridge crossing Berwick’s Bay, notwithstanding the samé is used for no other purpose than to support the rails of the road, and is, therefore, only a part of the roadbed and included in its mileage by the board of equalization in arriving at a uniform rate of valuation for the entire length of the track. The protest concluded by asking the police jury, sitting as a board of review, to correct .the assessment of its property in the parish so as to conform to the valuation certified to the assessor by the board of equalization, thus reducing the assessment on its main line from seventy-eight thonsand dollars to forty-two thousand dollars, deducting and canceling entirely the separate assessment of the spur tracks, as well as of its section houses, stations, depots and super-, structures, including the bridge at Berwick’s Bay. To this protest and prayer for correction and reduction the assessor made answer in the form of a written objection filed with the police jury against its consideration for the reason that the formalities of law had not been complied with by the agents of the company, they having failed to file a duplicate list of property, sworn to, as required by act 106 of 1890, within the time prescribed by law. [741] The jury proceeded to hear counsel representing the respective parties and then adopted a resolution sustaining the assessor’s objection to consideration of the company’s demand for correction, on the ground of failure to seasonably comply with the law. This was on the seventh of July, 1897. Nothing further was. done by the company until about six months later when one of its agents appeared in the office of the tax collector of the parish, stating he desired to pay the taxes of the company, announcing that the same amounted to a certain sum (naming the figure, something a little over one-half of the sum the tax collector claimed to be due), being the exact amount levied against the company the preceding year. The tax collector replied that the sum named would not cover the amount due by the company, and that he would accept it only as a partial payment of the taxes owing. Saying that he desired to make-a legal tender of the amount claimed by the company to be due, the agent proceeded to count out the • money in the presence of two witnesses and offered the same to che collector, who refused it, except as a partial payment. Defendants filed a peremptory exception in bar of plaintiff’s demand, setting up two grounds: (1) That the company failed to make out a proper list of its property for assessment for the year 1897, failed to make oath to the list that was presented, as the law requires, and that because of such default whatever right the law gave for contesting the correctness or legality of the assessment was forfeited; (2) that the suit comes too late, the same not having been filed and service thereof made within the time prescribed by law for such suits, to-wit: the first day of November of the year in which the assessment is made. With the prayer for dismissal of the suit and dissolution of the injunction, is one for ten per cent, on the aggregate amount of the taxes and penalties due as attorney’s fees, and two per cent, interest per month from January 1, 1898, upon the amount of taxes due. This exception was called for trial at chambers, whereupon counsel for plaintiff objected to proceedings at chambers, and upon the objection being overruled, excepted and reserved a bill. We find no error in this ruling. Sec. 56 of Act No. 106 of 1890 authorizes such causes as the present one to be tried at chambers. The exception was sustained, the action dismissed and the injunction dissolved, with judgment against plaintiff for the special costs provided by law, as stated above. [742] Plaintiff appeals suspensively and devolutively, and is met here by a motion to dismiss the suspensive appeal on the ground of the insufficiency of the amount of the bond. The order of appeal fixes the amount of the devolutive appeal bond at one hundred dollars, that of the suspensive appeal “ according to law.” The amount of the bond is ten thousand eight hundred dollars. Whether it be insufficient in amount for a suspensive appeal depends on the amount of taxes due, and that is the very issue this suit is brought to determine. The judgment of the court on the exception fixes no amount of taxes as owing — the percentage allowed as counsel fees being predicated in general terms “on the amount of taxes due by plaintiff.” The latter, figuring by one process, arrived at an amount of taxes it thinks due, and gave a suspensive appeal bond accordingly. The defendants, figuring by another process, arrive at a different and larger amount, and finding the bond not given according,to its arithmetic, moves to dismiss. It would seem to have been a proper case for the court to have fixed the amount of both bonds, since no moneyed judgment was rendered, nor exact amount of taxes due stated. However, we do not find it necessary to enter into a calculation to determine what is the precise amount the suspensive appeal bond should have been given for. Where there is doubt the appeal will not be dismissed. Besides, if the bond be not sufficient' for a suspensive appeal, it yet remains good for the devolutive appeal. Ohaffe vs. -Oarroll, 3á La. An. 122. The motion to dismiss is denied.