Kock v. Triche

The opinion of the court was delivered by Blanchard, J. On rehearing, by Monroe, J. Buanchard, J. On November 6, 1897, the Sheriff and Tax Collector of Assumption Parish began the advertisement of property for sale, upon which taxes, State and Parish, were delinquent. The publication announced that, beginning with December 11, 1897, he would sell all the immovable property on which taxes remained unpaid for the year 1895. The names of delinquent taxpayers, the amount of taxes due by each, and the description of the property upon which the taxes were due, were given. Among others appeared the following: “E. & J. Kock — 2876 93-100 acres — Belle Alliance Plantation, bounded by Mrs. A. D. Hernandez and Mrs. Truxillo, assessed at $122,870.00. Balance taxes due $378.75.” On November 22, 1897, E. & J. Kock filed suit in the District Court of Assumption Parish, alleging that the Sheriff and Tax Collector had, without warrant of law, advertised their “Belle Alliance” plantation for sale, claiming that a balance of taxes was due thereon for 1895. They averred payment of their State and Parish taxes for 1895 on all of their property, and especially on the Belle Alliance plantation, and annexed as part of their petition two receipts for taxes for 1895. They ask the court’s writ of injunction to restrain the tax collector in the premises. The preliminary writ issued, which, on trial of the cause, was perpetuated. From this judgment the Tax Collector appeals. The defense is a general denial. — 827 — On the trial the tax receipts referred to were offered in evidence by plaintiffs. Defendant objected on the ground that there is nothing in the receipts to show for what taxes, and on what property, payment had been made, no description of property and no i,mount of assessment being specified. This objection was overruled and a bill reserved. One of the plaintiffs, as a witness, testified that the taxes set forth in 'the receipts were paid on all the property of E. & J. Kock in the Parish of Assumption assessed for the year 1895. On cross-examination he was asked whether, when the receipts were given by the sheriff, he (the sheriff) did not claim a further and additional amount of taxes from him than what was specified in the receipts, and, if yea, to' state why it was the additional sum claimed by the sheriff was not paid. This was objected to by plaintiffs on the ground of inadmissibility under the pleadings. It was claimed there was nothing in the answer attacking the receipts, and the same could not be assailed under the general issue which alone had been pleaded. This objection being sustained, a bill was reserved. Evidence for the plaintiff closing with this, defendant offered the assessment roll of the year 1895, and the assessment thereon of plaintiffs’ property, with all entries relating thereto, for the purpose of showing, as explained, that the whole of the taxes due by plaintiffs for 1895 had not been paid, but only a certain percentage thereof. He next offered an indemnity bond which plaintiffs had executed in favor of the sheriff-tax collector, dated the same day the tax receipts were, to protect the sheriff as against the difference between the amount of taxes plaintiffs were willing to pay and did pay that day, and the true amount called for by the assessment against them for 1895. Plaintiffs objected to both of these offerings, and urged the exclusion of the evidence on the same ground previously urged and sustained. The court ruled as it had done on the previous objection and defendant excepted. The tax receipts offered by plaintiffs were properly admitted, being evidence of what they showed on their face, but nothing more. — 828 — They each showed certain items of State, Parish and Levee District taxes and an item of special taxes, aggregating, in the one receipt, $2572.00, and, in the other receipt, $481.35. One receipt expressed that the tax collector had “received of E. & J, Rock two thousand, five hundred and seventy-two dollars, amount of taxes as itemized for the year 1895the other .that he had received of them “four hundred and eighty-one dollars and thirty-five cents, amount of taxes as itemized for the year 1895.” They do not show that plaintiffs have paid all, or in full, the taxes levied on their property for 1895. They exhibit only that he has paid such taxes for 1895 as appear itemized in the receipts. A receipt for the payment of money is, anyhow, but prima facie evidence of what it recites. Even if the tax collector had receipted plaintiffs in full against the taxes of 1895, when, in point of fact, they had not paid all, such action of the collector would not, of course, prejudice the State and Parish. When plaintiffs paid less than the whole amount which the books showed they owed for taxes, the sheriff should have received only on account what was paid, and the receipt given should have so read, describing, or itemizing, if the tax payer desired it, the particular items which were acknowledged and paid. There appears to have been error in the receipts given in not stating that the amounts received were “on account” of taxes assessed against plaintiffs for 1895. The only witness placed upon the stand by plaintiffs does not eke out the receipts by testifying plaintiffs had paid all the taxes asserted against them for 1895, or that the receirits embraced the full amount of taxes claimed from them for 1895, or that the particular $378.75 of taxes, to satisfy which their property was. advertised for sale, is included in the amounts for which the receipts were given. The ruling of the judge a quo, excluding the testimony sought to be elicited by the question propounded to the witness on cross-examination, was erroneous. So, 'too, were his later rulings excluding the evidence offered by defendant heretofore referred to. ' If the witness, Rock, had been permitted to answer the cross-interrogatory, we are justified in assuming he would have replied that the sheriff did claim payment of other taxes than what the receipts embraced, at the time he issued the receipts, and his further reply — 829 — would have elicited the ground upon which plaintiffs resisted payment of the additional taxes claimed. All this was directly responsive to the issue raised in the injunction suit, which was payment of taxes due for 1895, vel non, and it did not require, though it would have been better, for the answer to elaborate this issue in order for defendant to show that at the time receipts were given other taxes were claimed for that year and denied by plaintiffs. These other taxes may well have been those for which the property was being advertised for sale, and if not included in the receipts plaintiffs’ plea of payment would fall. So the testimony sought by the question put to the witness Kock, tending as it did to show that the taxes now claimed are not embraced in the tax receipts which plaintiffs hold, was admissible under the pleadings. It was contradictory of the allegation of payment made in the petition and which was put at issue by the general denial of defendant’s answer. The assessment roll of 1895, and the assessment thereon of plaintiffs’ property, should have been received in evidence, xt was offered to show that plaintiffs had not paid the .whole of their taxes for 1895. If it showed this, it was directly contradictory of the allegations of plaintiffs upon which the writ of injunction had issued, and was admissible in evidence under defendant’s plea of the general issue. The bond of indemnity given by plaintiffs to the sheriff, when he issued to them the tax receipts, was clearly admissible as testimony showing plaintiffs’ admission at the time that more taxes were asked of them for 1895 than what was embraced in the receipts. The tax collector evidently yielded to their demand that he should receive a less sum for taxes than his books showed they owed, and in order to hold him harmless on this account, they gave the bond of indemnity. These other taxes, against which the indemnity was given, may well have been the $378.15 for which the plantation was offered for sale; and, if so, it was contradictory of plaintiffs allegation of payment of the taxes of 1895. The testimony was, therefore, admissible under pleadings which affirmed and denied payment. — 830 — Plea to the JURISDICTION. A motion to dismiss the appeal is filed on the ground of want of jurisdiction ratione maleriae, thó amount of taxes claimed being less than two thousand dollars. The contention of plaintiffs is that the only question which tifié suit presents is one of payment of their taxes for 1895. This denies that there is raised in the ease any issue of the legality of the taxes against which the writ of injunction is levelled. If, of "course, the real issue of the case is the legality or constitutionality of any tax, or part of taxes, asserted on one side and denied on the other, this court has jurisdiction without regard to the amount involved. We have purposely left the consideration of this question to the last because the statement and argument of the case on its merits in the opinion greatly assists in its elucidation. The appeal was properly brought here. Whether or not, directly or indirectly, immediately or remotely, the legality of a tax in any form or manner is at issue, is the province of this court to determine. ■ * That is as much an issue to be "passed upon here as is-that of the legality or constitutionality of the tax itself. The language of the Constitution is intentionally broad and comprehensive in investing this court with jurisdiction in all matters relating to taxes and charges, their legality or constitutionality, levied upon the citizen or his property. In State ex rel. Hill vs. Judges, 46 La. Ann. 1293, it was declared that: “As cases arise under differing circumstances and under differing pleading's, we will determine whether the particular case falls within our exclusive appellate jurisdiction for decision or not.” We affirm anew that declaration. "The real issue, we think, in dispute in this cause is whether or not plaintiffs have paid all the taxes they legally owed for 1895. From under the cover of technical pleadings, this sufficiently appears. They do not pretend to have paid all taxes assessed against them. But judging for themselves what they owed, they paid it. That which they judged they did not owe, they declined to pay, though there was an assessment for it. In other words, what they concluded was legally assessed against them they paid; what illegally assessed they did not pay- — 831 — The evidence which defendant offered, and which we have held was erroneously excluded, would have shown that plaintiffs declined to pay part of the taxes levied against them for 1895. There could have been no sufficient reason for declining- to pay the part excluded, except that it was not a legal tax, or was illegally assessed against them. If both, or either, we have jurisdiction. If the testimony of the defense had been admitted, we must, for the purpose of the trial of the motion to dismiss the appeal, hold it would have further shown that the tax receipts plaintiffs have do not include that part of the taxes for 1895 they declined to pay, and that the part they so declined to pay was-the very $378.75 referred to hefein, and against the collection of which they sued out this injunction. If they have not paid it, they owe it unless it be, as to them, an illegal tax. They have not set up that they have paid this particular tax of $318.15 — only that they have paid their State and Parish taxes for 1895 as shown by the receipts they make part of their petition. It sufficiently appears, we think, that down at the bottom of this controversy is the question of the legality of this particular tax of $378.75 — of this part of the taxes of .1895 assessed against plaintiffs-— and this court is not to be deprived of its jurisdiction by the — it may be — skilfully obscure way in which this, as an issue, is presented in plaintiffs’ petition. The motion to dismiss is denied, and it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and the case remanded to the court a qua to be proceeded with according to the views herein set forth, and the law, costs of both courts in this behalf to he borne by plaintiffs and appellees.