TEXAS & P. RY. CO. v. FLOURNOY, Sheriff, et al., 128 La. 71

PRO YO STY, X The State Board of Appraisers, by which the property of railroads is assessed and appraised for taxation (Act No. 106 of 1898, p. 153; No. 122 of 1900, p. 189), fixed the mileage of the branch lines of the plaintiff railroad company in the parish of Caddo, for the year 1908, as follows: Natchitoches Branch.....32.82 miles @ $7,200 per mile Side tracks................ 4.82 “ @ $1,800 “ “ Texarkana Branch.......37.91 “ @ $8,000 “ “ Side tracks................ 6.28 *• @ $2,000 “ “ And in transmitting this assessment to the assessor of the parish of Caddo it accompanied it with the following directions: “Please note ca'refully “The evidence submitted to the State Board of Appraisers shows that the railroad assessed above is exempt from regular state, parish and municipal taxes, as well as from every other kind of ordinary taxation. “You will, therefore, place the assessment on your assessment rolls and charge it only with such. ‘Special Taxes and Forced Contributions,’ other than ordinary taxes, as may be due in the locality through which the road runs.” The assessor obeyed these directions; that is to say, he did not extend on the roll, or charge to the plaintiff company, the 10-mill ad valorem tax imposed by the Caddo levee district for levee purposes.

This assessment was thus made in the latter part of June or early in July. In December the board of commissioners of the Caddo levee district directed the assessor to extend on the tax roll, or charge plaintiff with, the 10-mill ad valorem tax imposed by the Caddo levee district for levee purposes. The assessor thereupon charged the plaintiff with a 10-mill ad valorem tax upon said entire mileage.

The plaintiff company paid its taxes, except this 10-mill levee tax; and, when the tax collector proceeded to advertise its property for sale to satisfy said tax, it brought the present suit against the tax collector and the board of commissioners of the Caddo levee district, enjoining the collection of said tax. The grounds are: First, that said branch roads were constructed after the adoption of the Constitution of 1898 and prior to January 1, 1904, and are therefore exempt from taxation under

article 230 of said Constitution ; second, that the mileage of said branch roads within the Caddo levee district is less than as stated in said assessment. In reply to this, the defendants contend: First, that the said 10-mill tax is not an ordinary tax, but a local contribution, and therefore does not come within the operation of

article 236 of the Constitution; second, that, in any event, plaintiff cannot claim exemption on the Texarkana Branch because it was not constructed by plaintiff but by another corporation from which plaintiff purchased it; and that any exemption from taxation which the builders of the road may have enjoyed was personal to them and did not pass to plaintiff. Disposing of this last contention first, we will say that the question seems to be no longer open that an immunity from taxation such as the builders of said Texarkana Branch enjoyed does not pass to a purchaser, or other transferee, of a railroad, unless the statute granting the exemption has expressly so provided; and that while

article 230, as amended by Act No. 16 of 1904, p. 19, does so provide, the same provision was not contained in the original article; and that as the amendment applies only to railroads constructed subsequently to January 1, 1905, and said Texarkana Branch was constructed before said date, it is not exempted. St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 15 Sup. Ct. 484, 39 L. Ed. 567; Mercantile Bank v. Tennessee, 161 U. S. 173, 16 Sup. Ct. 461, 40. L. Ed. 657; 12 A. & E. E. 298; Louisiana v. Morgan, 28 La. Ann. 482.

That the said 10-mill tax is an ordinary tax, and not a local assessment, is no longer an open question. La. R. & N. Co. v. Madere, Sheriff, 124 La. 635, 50 South. 609. Passing to the question of the correctness of the mileage, we find that the Texarkana Branch has but 21.09 miles in the Caddo levee district.

Defendants contend, however, that the assessment as made cannot be reduced in the present suit for three reasons: First, that a suit to reduce an assessment of railroad property can be brought only against the State Board of Appraisers by which such assessment was made; second, that, by express statute, such suit can be brought only before the 1st of November of the year for which the assessment has been made, and the present suit, which enjoins the assessment of 1908, was brought in June, 1909; third, that the reduction of an assessment cannot be decreed in a suit which, like the present one, is distinctly in nullity and not in reduction of the assessment.

The first' of these reasons loses sight of the fact that, while the assessment in question as made by the State Board of Appraisers fixed the mileage of plaintiff’s road within the parish of Caddo, it did not undertake to determine what portion of said mileage is within the limits of the Caddo levee district; but left the latter mileage to be ascertained by the parish assessor, its instructions to the parish assessor being: “You will therefore place the assessment on your assessment rolls and charge it only with such special taxes and forced contributions, other than ordinary taxes, as may be due in the locality through which the road runs.” By placing within the limits of the levee district the entire mileage of the plaintiff road, instead of only that part really within the limits of said district, the parish assess- or disobeyed the said instructions of the State Board of Appraisers.

Such being the ease, the bringing of the State Board of Appraisers into the present suit could only have been to compel it to do something it had already directed the parish assessor to do, and was perfectly willing to do without suit. Under these circumstances, we think the present suit, in so far as it seeks to correct the assessment so as to make it conform with the instructions of the State Board of Appraisers, was properly brought. The officer seeking to enforce the payment of the tax and the board of commissioners of the Caddo levee district, the real party in interest, were the proper persons to implead.

The second of the reasons is equally untenable. In view of the fact that the act of the parish assessor, in extending this tax upon the assessment roll in the manner complained of, did not take place until some time in December, the suit to rectify that act could not possibly have been brought before the 1st of November.

On the question of whether the suit can be considered to be one in reduction of the assessment, we find that the averment is distinctly' made in the petition that the assessment in question is null for two reasons: First, that only a part of the mileage is within the limits of the Caddo levee district; and, second, that the road is exempt from taxation. True, there is no prayer specifically for reduction, but the prayer for the annulment of the entire assessment includes, we think, the prayer for the annulment of that part of it which is in fact null.

The judgment appealed from is therefore affirmed in so far as it rejects plaintiff’s suit as to the 21.09 miles of the Texarkana Branch road’ within the limits of the Caddo levee district, and that it is in all other respects set aside, and it is now ordered, adjudged, and decreed that the injunction herein be reinstated and perpetuated in so far as the tax claimed on the Natchitoches Branch is concerned, and also in so far as said tax on the Texarkana Branch has been assessed upon a greater mileage than 21.09 miles; and that defendants pay the costs of this suit.