Petition — Walgreen Louisiana Co. v. City of New Orleans

— Bupreme Court, U.S

& FIL E Dj gi

JAN 13 3977

WACHAEL RODAK, JR, CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1976

NO. @6-1017

WALGREEN LOUISIANA COMPANY, INC.; KRAUSS COMPANY,

LTD.; SUCCESSION OF FRANK J. MONTELEONE; WILLIAM A.

MONTELEONE, Individually; MAE ATTAWAY, now wife of Oliver

Miller; MRS. MAY FELLMAN PARKER; MRS. MAY HEYMANN

WOLF; JIMMY HEYMANN, Individually and as Trustee of the

JERRY HEYMANN SEPARATE PROPERTY TRUST; and

JERRY HEYMANN

Petitioners

VERSUS

CITY OF NEW ORLEANS, HENRY G. SIMMONS, Director of

Finance; CITY OF NEW ORLEANS, CLAUDE J. MAUBERRET,

JR. , Assessor; LCUISIANA TAX COMMISSION; C. GORDON

JOHNSON; ROBERT C. BRAODHURST; and MRS. BLANCHE R.

LONG; STATE OF LOUISIANA and ORLEANS LEVEE BOARD,

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

Law Offices of:

ARTHUR L. BALLIN

By: FRANK C. DUDENHEFER

1121 Carondelet Building

New Orleans, Louisiana 70130

Telephone No. (504) 523-2155

A B Letter Service, Inc., 327 Chartres St., New Orleans, Le. (504) 581-5555

INDEX

SI. 0 aK dccuadeneccccccauenes

Jurisdiction . Se cae a (weketewbuns

EEE LR Se ee Eee

Seasemmant OF the Cass... sc cccccssccccsess

I. System of Assessment in Louisiana .....

Il. The Discriminatory Conduct..........

Ill. Constitutional Infirmity .............

eo PPVTETTTETTTT EET ETT

SE 5 64d ee aeew sO és nese erewese

Vi. Reasons for Granting Writs ............

CN iia a a er ND a

i a ig ek a

Appendix A - Resolution of the Board of

Reviewers, dated September 21, 1972... .

Appendix B - Resolution of the Board of

Reviewers, dated September 21, 1973.....

PAGE NO.

Te 16

ee 17

os 21

IN DE X (Continued)

Appendix C - Resolution of the Board of

Reviewers, undated.............005:

Appendix D - Article appearing in Times-

Picayune, January 1,1975 ...........

Appendix E - Affidavit of Publication........

Appendix F - Judgment of District Court .....

Appendix G - Reasons for Judgment.........

Appendix H - Opinion of Court of Appeal,

IEEE PP EET OE TEEPE EEE

Appendix I - Companion Opinions, Fourth

a oe ae ee ee ee Cake Oa-e os

Appendix J - Opinion of Supreme Court,

8 cccakesseets

Appendix K - Notice of Denial of Application

for Rehearing .......ccccccccsccces

PAGE NO.

A-11

A-13

A-15

A-28

A-40

alta ateieeeamaatiieht Baader

eee

TABLE OF AUTHORITIES

CASES:

Baker v. Ducesidow, 263 U.S. 137, 68 L.Ed.

MTT TTT TTT eee

Bussie v. Long, 286 So. 2d 689, writ refused

TEES 4hcekKddnscecesecden’

Concordia Ins Co. v. Illinois, 292 U.S.

535, 98 L. Ed 1411,5 S. Ct. 830 .......

Green v. Louisville I. R. Co., 244 U.S. 499,

FS S) 8 Fe rrr

Hillsborough Twn. v. Cromwell, 326 U.S.

260, 90 L. Ed. 358, 66 S. Ct. 445.......

Louisville Gas and Electric Co. v. Coleman,

277 U.S. 32,72 L. Ed. 770, 48 S.Ct. 423..

Perkins v. County of Albemarle, 214 Va. 240,

198 S-E. 626, affirmed on re-hearing,

214 V. A. 416 200 S.E. 566, 568.......

Sioux City Bridge Company v. Dakota

County, Nebraska, 260 U.S. 441, 43 S.Ct.

es ie ee eed ccens'e

Sparks v. McCluskey, 84 Ariz. 283, 327

P. BB BS Gras BR. ov cc cccsvovcepnvs

PAGE NO.

14

3,10,19

14

10

14

14

15

10,13,19

15

TABLE OF AUTHORITIES (Continued)

iv

Wessinger v. Boswell, 330 F. Supp. 615........-.

STATUTES:

L.S.A. - R.S. 47:1889 .. 0... cece eee eee eees

L.S.A. - R.S. 47:1901 . 0... cee cece eee ees

L.S.A. - R.S. 4731909 . 0... ccc cee cecevvees

L.S.A. - R.S. 47:19BD . wc ccc ccc cccccvceves

L.S.A. - R.S. 47:1995 0. ccc cc ccc vecvcvvcees

L.S.A. - R.S. 47:2101 .. 0... cc ccc cere ee eenee

CONSTITUTIONS:

United States Constitution, Fourteenth

Amendment ....

Louisiana Constitution of 1921, Art. X,

§ eae

ARTICLES:

71 Am. Jur. 2d, Sec. 152

“REMEBRBBRERERR SR RES AR SE FE .

PAGE NO.

12

22

2,19

14

RE Oe

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

WALGREEN LOUISIANA COMPANY, ET AL.

Petitioners

VERSUS

CITY OF NEW ORLEANS, ET AL.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT FOR THE STATE OF LOUISIANA

Petitioners, Walgreen Louisiana Company, et al respect-

fully pray that a writ of certiorari issue to review the judg-

ment of the Supreme Court of the State of Louisiana entered

September 13, 1976, rehearing denied October 15, 1976.

OPINIONS BELOW

The opinion of the Court of Appeal, Fourth Circuit,

State of Louisiana is reported at 325, So. 2d 673. The opin-

ion of the Supreme Court of the State of Louisiana is report-

ed at 337 So. 2d 1081.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. Section

1257(3).

QUESTION PRESENTED

Whether Petitioners’ constitutional rights under the Four-

teenth Amendment of the United States Constitution, have

7

2

been violated by the singling out of their properties, con-

stituting but a very minor portion of the Second Municipal

District of the City of New Orleans by the Louisiana Tax

Commission, applying to them a discriminatory method of

establishing land values and the application of a higher per-

centage of value in the assessment of both land and improve-

ments, while applying to a much larger portion of said dis-

trict, the established and customary method of valuation and

a lower percentage of value, without any statutory authority

and without even adopting a cyclical plan of revaluation, and

whether, such intentional and unlawful discrimination, with-

out any reasonable classification, violates the equal protec-

tion and due process clauses of the Fourteenth Amendment

to the United States Constitution.

STATEMENT OF THE CASE

I. SYSTEM OF ASSESSMENTS IN LOUISIANA

Real estate ad valorem taxes are levied by local governing

bodies to finance various governmental services. The City of

New Orleans which encompasses and is coextensive with the

Parish of Orleans, is divided into seven (7) assessorial (Muni-

cipal) districts with an elected assessor for each. (L.S.A.

R.S. 47:1901) Pursuant to L.S.A. R.S. 47:1909, each as-

sessor must “independentiy exercise his functions in the

assessing and listing of property in and for his respective

district. . .”. It is the function of the assessor to list real and

personal property and to establish its valuation (assessment)

for the purposes of levying ad valorem taxes. L.S.A. R.S.

47:1889 provides that assessments may be based on a per-

centage of fair market value, bur that “for local purposes the

percentage shall operate equally and uniformly on all taxable

property within the parish .. .”. (L.S.A. R.S. 47:1889,

Louisiana Constitution of 1921 Art. X, Sec. 1.)

3

Subsequent to the completion of listing and assessing proper-

ty, the assessment rolls for the year are closed. The Board of

Reviewers, which consists of the Mayor of the City of New

Orleans, members of the City Council and representatives of

other governmental agencies which veceive a portion of the

ad valorem taxes collected by the City, are statutorily em-

powered to meet and review taxpayers’ complaints as to the

value of their property as established by the assessor and/or

review all or a portion of the assessment rolls of the seven

municipal districts located within the City of New Orleans.

Then the Board “‘shall recommend to the Tax Commission

increases or decreases in any assessment in real or personal

property made by the various assessors of the Parish of

Orleans... ..”. (L.S.A. R.S. 47:1995).

The rolls of the assessors and the recommendations of the

Board, if any, are then forwarded to the Louisiana Tax,Com-

mission who then review the assessors’ rolls and the recom-

mendations of the Board, who fixes the value of all taxable

property within the various parishes and upon which assess-

ment, ad valorem taxes, will be levied (L.S.A. R.S. 47:1989).

The Tax Commission is required to establish assessments

and rates in conformity with the principle of equality and

uniformity throughout the State, and each tax district. In

Bussie v. Long, 286 So. 2d 781, writ refused, 288 So. 2d 354,

the First Circuit, Court of Appeals, said:

“If both standard of true value and the uniformity

and equality required by law with respect to ad

valorem taxation cannot be achieved, equality and

uniformity are preferred.”

4

il. THE DISCRIMINATORY CONDUCT

Petitioners are the owners of or the lessees of certain im-

movable prperty located in the Second Municipal District

of the City of New Orleans, in that part of the district boun-

ded by the Mississippi River, Iberville St., Claiborne Avenue

and Canal Street, an area of approximately 17 square blocks.

The Assessor for the Second Municipal District assessed

petitioners’ properties for the year 1974 in the customary

manner and at the customary percentage. The Board of Re-

viewers, however, on its own initiative, singled out petition-

ers’ properties and other properties in said seventeen square

blocks, had the same appraised, as to land only by apprais-

ers selected by the Real Estate Board of New Orleans, adopt-

ed their valuations and 2 33 1/3% ratio as a basis for the

assessment, leaving unchanged the assessorial assessments and

ratio of 25% for the remaining, much larger portion of said

Second Municipal District, including residential and com-

mercial properties. The Tax Commission without any fur-

ther investigation then assessed taxes on petitioners’ pro-

perties in accord with such methods and at the higher per-

centage, again retaining the assessorial valuations and per-

centages for the remainder of said district.

The same procedure was applied for th 1975 taxes.

During the month of January 1974, and again in January,

1975, Petitioners paid City of New Orleans and Orleans

Levee Board ad valorem taxes thus levied against their

property, under protest, pursuant to L.S.A. R.S. 47:2101,

and filed suit to recover the difference between 1973-1974

and 1973-1975 real estate ad valorem taxes, (difference re-

sulting from increases in assessments and ratio) paid by Pe-

titioners, (approximately $23,400.00).

Pe RE | eR ere or

5

The basic thrust of Petitioners’ suit and the instant applica-

tion is that the method of establishing their 1974 and 1975

land assessments and the assessment percentage ratio of

33-1/3% is violative of the Federal and State Constitutions

and the statutes of Louisiana, in that same is unconstitution-

ally discriminatory as it creates a dual assessment system in

the Second Municipal District which is unequal and lacks

uniformity.

The Assessor of the Second Municipal District, Claude j.

Mauberret, Jr., during the year 1973, prepared the 1974

assessment rolls for his district. For 1974, the Assessor

adopted for the entire Second District uniformly, the same

assessment levels as those used in 1973. The assessor estab-

lished land assessments for the Second Municipal District

based on a front footage valuation and applied to percen-

age of 25% of the “fair market value” of land and improve-

ments. The Assessor testified:

“Q. And in your capacity as the Assessor from

1960 to this day, you were charged with the

duty to value the properties in the Second

Municipal District and to submit such valu-

ations to the Tax Commission for final

determination?

A. Every year. Yes, sir.” (T. p. 56)

*eeHKK EK

“Q. That is what I am directing my questions to.

Did you use the same percentage whatever

the value, whether it was a thousand or ten

thousand? Did you use the same percentage

of said value throughout the Second Munici-

pal District?

A. Yes, sir.” (T. p. 57)

eee eKES

6

“Q. Now, “throughout the Second Municipal

District in 1973, did you use a uniform,

what I call ratio or percentage throughout

the district?

A. Yes, sir, about twenty-five percent.”

(T. p. 61)

During the year 1973, the City of New Orleans retained

the services of three real estate appraisers to review the land

assessments only in the 17 square block portion of the

Second Municipal District, described above. The appraisers

reviewed only land values, ignored the value of improve-

ments, and established a per square foot land value. The

City transmitted this “‘valuation’’ to the Board, who, after

the assessor’s rolls had closed, notified Petitioners as to re-

viscd land assessment levels, based on the appraisers’ square

foot valuation, (designated by the Board as “‘Recommended

Asssessment”’). Further, the Board advised that the recom-

mended assessment was based on a ratio of 33-1/3% of the

land value as established by the appraisers and the value of

the improvements. The Board, upon the application of the

City, held public hearings and, with nominal changes in origi-

nal recommended increased assessments, (figures not set by

the Board but established by the City and the Mayor’s staff),

established ‘Final Recommended Assessments’’ and trans-

mitied same to the Louisiana Tax Commission.

The Commission adopted, in toto, the Board’s ‘Final

Recommended Assessment”. The Commission, in so doing,

completely disregarded and discounted the Assessor’s recom-

mendations and methodology, utilized by him for the pre-

vious ten (10) years.

Thus, by such unconstitutionally discriminatory pro-

cedures the Board established Petitioners’ 1974 real estate

[a ee team =

7

tax liability. Taxes levied in 1975 on Petitioners’ property

were based upon the assessment levels established by the Tax

Commission in the fall of 1973.

Ill. CONSTITUTIONAL INFIRMITY

Thus, Petititioners, as taxpayers, and owners of property

situated in the Second Municipal District of the City of New

Orleans, were subjected to an increased tax burden as to their

1974 and 1975 real estate taxes, as a result of assessment

procedures lacking uniformity and equality. Specifically as

2 result of:

1. A methodology applied to a small area of the Second

District in which their properties are located, adopted by the

Board and based on appraisals made by independent apprais-

ers establishing a square foot land valuation, whereas in the

remainder of the Second Municipal District, almost thirteen

times larger than the area affected, valuations were establish-

ed by the method used by the Assessor since 1960, and

followed by the Tax Commission;

2. The properties in the areaaffected were assessed at a

ratio of 33-1/3%, whereas, in the reminder of the Second

Municipal District, properties were assessed at 25%.

Each of the foregoing constitutes a deliberate destruction

of the uniformity of assessments which previously existed in

the Second Municipal District with the result that there is

neither uniformity nor equality as to the tax burden imposed

on taxpayers within that District. The chairman of the

Louisiana Tax Commission testified:

“Q And where were these assessments?

A Along Canal Street. I think seventeen blocks

8

from the River on Canal Street back one

block east.

Is that the only recommendation with re-

gard to the Second Municipal District that

was made by the Board of Reviewers?

Yes, sir.

With regard to a small area bounded by Canal

Street, Iberville Street, the River and North

Claiborne, is that correct, sir?

I believe that is the boundaries. Yes, sir.

So, with regard to the remainder of the

Second Municipal District, all you had for

your purposes were the valuations or recom-

mendations made by the Assessor of the

Second Municipal District.

That is correct.

That is correct, now, what did the Tax Com-

mission do first with regard to that portion

of the Second Municipal District which is

Iberville, River and North Claiborne?

The Commission didn’t make any changes

than what the Assessor had on the tax roll.

The Assessor made the tax assessment on the

rest of the District.

The Tax Commission approved and adopted

the recommendations made by Dr. Mauberret,

the Assessor for the Second Municipal Dis-

trict?

That portion that is outside of this that is in

quest, yes, sir.”

(C. Gordon Johnson, Chairman, Louisiana

Tax Commission, T. p. 21)

9

The principle that real estate ad valorem taxes must be

assessed equally and with uniformity in a taxing district is

firmly imbedded in the United States Constitution, the

Louisiana Constitution and the laws of the State of Louisi-

ana, and decisions of Federal and State Courts. The Four-

teenth Amendment to the U.S. Constitution protects tax-

payers against any attempt by taxing authorities to violate

such principles and a claim by taxing authorities that they

are justified in violating the principles of equality and uni-

fermity for achieving equalization of assessments, must be

rejected. Throughout the history of Constitutional Law, this

Court has consistantly rejected the theory that “the end

justifies the means’’. When the ‘‘means” are violative of con-

stitutional safe guards of the rights of citizens.

Involved in this case is the basic issue whether the singling

out of a small portion of a Municipal District, by applying to

it a different method of establishing land values and the ap-

plication of a different percentage in the assessment of both

land and improvements, while applying to a much larger

portion of said District, the customary and established

method of valuation and percentage, without any specific

legislative authority and in direct violation of the Constitu-

tion of Louisiana of 1927, violates the constitutionally pro-

tected rights of the taxpayers singled out for such discrimina-

tory practices. The law and jurisprudence clearly unequivo-

cably, and unmistakable proscribes such practices.

“It is settled that the taxpayer is entitled to have

his properties taxed at that vercentage of value

applicable to others equally and :imilarly situated

even though statutory law may provide otherwise.

The rule is based on the principle that if both the

standard of true value and the uniformity and

equality required by law cannot be achieved,

10

equality and uniformity is preferred under the

law.” Sioux City Bridge Co. v. Dakota County,

260, U.S. 441, 43 S. Ct. 190, 67 L.Ed. 340.

“L.S.A. R.S. 47:1901-2000, inclusive, is obviously

designed to provide a system of uniform assess-

ment and taxation throughout the State as a whole

and each local taxing district, including parishes

or part of parishes and special taxing districts com-

prised of two or more parishes or part of parishes.

Victor A. Bussie, et ux v. Blanche Revere Long,

Louisiana Tax Commission, et al., 286 So. 2d 689,

writs refused” (Emphasis Supplied)

“A state may establish reasonable classifications

for the taxing of property at different rates. How-

ever, if state law requires that all property be

taxed at a uniform rate and has enacted laws to

insure such result, any substantial disparity or

difference in taxes arising from failure of state

officers to properly administer the laws will be

held in violation of the due process and equal pro-

tection clauses of the United States Constitution.

Weissinger, above. to the same effect, see Louis-

ville & Nashville R. Co. V. Public Ser. Comm. of

Tenn. D.C., 249 F. Supp. 894”. Bussie v. Long,

286 So. 2d, 689.

A fortiori, taxing of properties within the same district

at different and discriminatory rates and in a different mann-

er is repugnant to the Constitution and the laws of the

United States. Provisions as to equality and uniformity re-

quire uniformity not only in the rate of taxation, but also in

the mode of assessment upon the taxable valuation. Green

v. Louisville & I.R. Co., 244 U.S. 499, 61 L.Ed. 1280, 37

11

S. Ct. 673.

In singling out Petitioners’ properties and applying to the

same a methodology and ratio, different from that applied

to other properties in the Second Municipal District, the

Board of Reviewers and the Tax Commission not only vio-

lated the principle of equality and uniformity, but under the

guise of an “Equalization Plan”, acted in a manner distruc-

tive of “equalization”.

“Q. That thirty-three and one-third was applied

only to that small area and not to the re-

mainder of the Second Municipal District?

A. That is correct”’. (Johnson, T.p. 33)

*xeeRK KK *

“Q. Twenty-five percent. I’m sorry. You used

twenty-five percent of the value that you

established in that particular, Canal, Iber-

ville, River, North Claiborne, area, and the

Board of Reviewers adopted a different

P percentage, to-wit, thirty-three and one-

third, is that correct?

A. Yes, sir.

Q. And was that also adopted by the Tax Com-

mission?

A. Yes,sir, but, like I am trying to tell you,

not all of it, you know.

Q. Not all of it. Certain exceptions?

A. Yes, sir.

Q. In that area?

A. Yes, sir.

12

Q. In which they left your values stand?

A. Yes, sir.”

(Mauberret, T. p. 61)

The equal protection and due process clauses of the Four-

teenth Amendment to the Constitution of the United States,

require equality in assessment, imposition, and collection of

taxes.

In Weissinger v. Boswell, 330 F. Supp. 615, at page 621,

the Court noted:

“It is well established that the states have wide

discretion in the levying and collecting of their

taxes. The law is equally clear, however, that such

discretion cannot be exercised so as to arbitrarily

deprive persons of their constitutional rights. So,

while the Fourteenth Amendment does not require

precise equality or uniformity in taxation, or pro-

hibit inequality in taxation which results from

mere mistake or error in judgment of tax officials,

it does ‘secure’ every person within the State’s

jurisdiction against intentional and arbitrary dis-

crimination, whether occasioned by express terms

of a statute or by its proper execution through

duly constituted agents. Stated differently, the

Fourteenth Amendment protects only against

taxation which is palpably arbitrary or gossly un-

equal in its clear application to the persons con-

cerned.”

The systematic irregularities of the assessment of property

of the same class is an unconstitutional discrimination against

one who is compelled by such a system to pay more than his

13

fair share of the aggregate tax.

There is no dispute but that the Tax Commission raised

both the assessments and tax percentage with regard to Pe-

titioners’ properties and other properties in a small area of

the Second Municipal District, and in doing so, relied on a

methodology of fixing value of said properties different from

that applied to the vast majority of properties in the Second

Municipal District.

Thus, the issue is not whether an alleged plan of equali-

zation, pursuant to which the Tax Commission acted, is

good, bad or indifferent, but rather, whether such plan and

actions are in violation of the federal constitution.

In Sioux City Bridge Co., v. Dakota County, Neb., 260

U.S. 441, 43 S. Ct. 190, 67 L.Ed. 340 (cited in Bussie v.

Long, p. 700), the United States Supreme Court held that:

“It is settled that a taxpayer is entitled to have his

property taxed at that percentage of value appli-

cable to others equally and similarly situated, even

though statutory law provides otherwise.”’

The Trial Court below, in dismissing Petitioners’ suit,

stated:

“The Cour: has no right to invalidate action by tax

assessing authorities on the ground merely that the

equalization plan is not the best which could have

been pursued.”

The Court thus assumed, that “‘tax assessing authorities”

may adopt an “equalization plan” which imposes increased

taxes upon certain property owners in one (1) small segment

14

of the Second Municipal District. We most earnestly urge

that an equalization plan must apply with uniformity upon

the same class of properties in the same district and that any

plan employing piecemeal “equalization” and which is appli-

ed to an arbitrarily selected portion of a district, resulting in

increasing the taxes of some, but not all properties in that

district violates the mandate of the United States Constitu-

tion, Louisiana Constitution of 1925 and the laws of the .

State of Louisiana.

This Court has repeatedly held that states and taxing

authorities of municipalities are subject to the requirements

of the due process and equal protection clauses of the 14th

Amendment. Hillsborough Twn. v. Cromwell, 326, U.S.

260, 90 L. Ed. 358, 66 S. Ct. 445; Louisville Gas and Flec-

tric Co. v. Coleman, 277 U.S. 32, 72 L.Ed. 770, 48 S. Ct.

423. Concordia Ins. Co. v. Mlinois, 292 U.S. 535, 78 L.Ed.

1411, 5 S.Ct. 830, Baker v. Ducesidow, 263 U.S. 137, 68

L.Ed. 212, 44 S.Ct. 40.

The rule of law is thus stated in 71 Am. Jur. 2d., State and

Local Taxation, Section 152, page 473:

“. . .that a tax having State purpose must be uni-

form and equal throughout the State, a tax having

a County purpose must be uniform and equal

throughout the County, and a tax having a City,

Village or Township purpose must be uniform and

equal throughout the City, Village, or Township.”

On the same page, second paragraph, it is stated:

“. . Jit has been held that it is not competent for

the legislature under constitutional requirements of

equality and uniformity to divide a taxing district

15

into parts and levy a tax for district purposes at a

higher rate in one part than in another. (emphasis

added)

The Supreme Court of Virginia, in the case of William A.

Perkins, Jr., et al v. County of Albemarle, in its original

decision, 198 S.E. 2d. 626, and on rehearing, 200 S.E. 2d.,

566, ruled in favor of Appellants in a case on all fours with

the case at bar, the Court said:

“As our proscription of the methodology employ-

ed by Albemarle County makes plain, such tools

cannot be applied ARBITRARILY to all tax par-

cels within one geographic segment of the tax juris-

diction to the exclusion of all tax parcels in other

geographic segments.’ (200 S.E. 2d, page 569).

In Sparks v. McCluskey, 84 Ariz. 283, 327 P. 2d 295, the

Supreme Court of Arizona reached the same conclusion, for

this to-wit:

‘Application of discriminatory formula to selected

pieces of property was not justified on theory that

such assessments were part of long-term program

to bring to date all valuations in county.”

Mr. Gagliano, Executive Assistant to the Mayor of the City

of New Orleans, was assigned, in 1972, to the staff of the

Board of Review for the Parish of Orleans. He testified:

“Q What is your understanding of equalization

in taxation?

A My personal understanding of the word is

where property that is similarly situated

16

and similarly constructed should be of equal

value for assessment and taxation purposes

and are not equal value and not equally

assessed. That way they should be made the

same and equal.” (T. p. 98)

It is impossible for Defendants to reconcile their under-

standing of the meaning of equalization, the clear and precise

constitutional mandate of equality and uniformity, with the

methodology utilized. Such rank discrimination cannot and

must not be permitted to stand.

IV. THE PLAN

As their only defense, the City of New Orleans, et al., con-

tend that a plan did and does exist and that such a plan was

systematic and therefore did not deprive Petitioners of their

constitutionally guaranteed right of equality and uniformity

in taxation.

At the trial below, the Defendants introduced a resolution

adopted by the Board on September 21, 1972 (Exhibit No. 3

City of New Orleans, Appendix, page A-1), a resolution dated

September 21, 1973 (Exhibit No. 4, City of New Orleans,

Appendix, page A-3) and a resolution undated, concerning

assessments for 1975 (Exhibit No. 5, City of New Orleans,

Appendix, page A-5). In addition, the City of New Orleans

introduced an affidavit of publication (Exhibit No. 2, City of

New Orleans, Appendix, page A-8 ) and an article which ap-

peared in the Times-Picayune on January 1, 1975 and

marked Exhibit No. 6, City of New Orleans (Appendix, page

A-7 ).

All of these exhibits conclusively show that no general,

systematic plan had been adopted by the Board so as to pre-

17

sent to the Louisiana Tax Commission a methodology by

which it was to accomplish a revaluation of all similarly situ-

ated property located within the Second Municipal District

or the City of New Orleans as a whole.

The fact is undeniable that commercial property in the

City of New Orleans, other than that in the Central Business

District will never be revalued in accordance with the “‘plan”’.

It is a fallacy to say that Plaintiffs will “bear a larger portion

of the tax burden for a reasonable time until all property is

revalued.” They will bear that burden until 1978 when all

properties will be revalued in accordance with the 1974

Constitution by a self reporting system. Plaintiffs’ constitu-

tionally guaranteed right to be taxed “equally and uniforni-

ly’’ has been violated for the years 1974 and 1975 and will

continue to be violated for the years 1976 and 1977. This is

the crux of the case sub judice.

V. DECISION OF THE LOUISIANA STATE SUPREME

COURT

The majority opinion in reversing the judgment of the

Court of Appeal, Fourth Circuit, concluded that the Board of

Reviewers for the Parish of Orleans had adopted a valid

‘‘plan’’ to equalize ad valorem taxes, and that:

“In summary, there has been substantial compli-

ance with relevant statutory requirements, and no

violation of due process or equal protection clauses

of the United States Constitution.”

The Court, on page 6 (Second Paragraph) of its opinion,

States:

18

“By the end of 1974 the Board of Reviewers had

adopted a program for revaluation of all lands in

the City of New Orleans. All assessments on va-

cant property in Orleans Parish were to be equaliz-

ed in 1975. In 1976 assessments for land zoned

for various industrial uses were to be equalized to

be followed in 1977 for land zoned for commercial

uses, for shopping centers, neighborhood business-

19

The following analysis of said statement will show that it

is contrary to the evidence and the law:

1. For a period of 2 years, the three agencies consistently

and deliberately applied a higher percentage to the value of

Central Business District property, disregarding all protests

and appeals of the injured taxpayers. Thus, the intention is

clear and patent.

es, medical services and general office districts.

Revaluation and equalization were to be completed

in 1978, including land and improvements, resi-

dential areas and specially zoned historic districts.”

The Louisiana Supreme Court reaches such conclusion

by accepting Defendants’ argument, even though undeniably

Petitioners were subjected to a higher tax basis and tax ratio

in 1974 and 1975, saying, on page 10:

“We do not find support in the record for Plain-

tiffs’ contention that their property had been

singled out for the application of a higher tax ratio

than other similarly situated properties.”

This statement is, as a matter of fact, incorrect. In 1974 and

1975, (and thereafter), the “Iberville strip” has been singled

out for a higher tax valuation and ratio (33 1/3%)! In the

next sentence, the opinion proceeds to explain that:

“We find no evidence that it was the intention of

the Board of Reviewers or the City Council or the

Louisiana Tax Commission to apply a higher per-

centage to the value of Central Business District

property than to similar commercial property out-

side the Central Business District when the revalu-

ation was completed.”

2. Such action in itself is an obvious violation of the very

statutes cited in the opinion: Louisiana Constitution 1921,

Article X, Section 1; R.S. 47:1989; Bussie v. Long, 286 So.

2d 689.

(a)

(c)

These authorities (and others) mandate that:

. ... .and all taxes shall be uniform up-

on the same class of subject throughout the

territorial limits of the authority levying the

tax.” Louisiana Constitution 1921, Article

X, Section 1.

-eseeenan , that for local purposes the per-

centage shall operate equally and uniformly

on all taxable prope-ty within the parish....”’.

R. S. 47:1989.

», . .if both standard of true value and

the untieoniay and equality required by law

cannot be achieved, equality and uniformity

is preferred under the law.” Bussie v. Long

supra, citing Sioux City Bridge Co. v. Dakota

County, Neb. 260 U.S. 441.

20

Thus, any action by the State, Tax Commission, or munic-

ipal agency which results in a disparity or difference in taxes

is absolutely proscribed in Louisiana, and violates the due

process and equal protection clauses of the United States

Constitution. Weissinger v. Boswell, D.C. 330 F. Supp. 615.

It is undoubtedly true that the Tax Commission and local

authorities have the power to collect taxes on “less than

actual cash valuation” and have the right to classify different

kinds of property but this does not detract from the prohi-

bition of discriminating within a class. This does not confer

upon either the Board of Reviewers or the Tax Commission

the right to impose higher taxes on commercial properties in

one geographical area and retain lower taxes on the same

kind of properties in another geographical area of the same

district.

The majority’s opinion admits (page 11):

“it is true that the authorities proceeded in a step-

by-step manner,without the formal adoption of a

city-wide plan until the end of 1974. That plan

contemplated the equalization of assessments on

all business and commercial property in the City

in 1977.”

Thus, the majority opinion admits that when Petitioners’

properties were singled out for a different method of assess-

ment and a higher percentage of assessment in 1973 and

1974, for collection of their taxes for 1974 and 1975, there

was no formal or city-wide plan in existence, which renders

such selection arbitrary, discriminatory and violative of the

United States Constitution, the Louisiana Constitution, and

the Louisiana law.

21

VI. REASONS FOR GRANTING WRITS

By selecting a small area of the Second Municipal District

in which Plaintiffs’ properties are located under a “‘plan’”’,

for the adoption of which there is no legal authority, the

Board of Reviewers and the Louisiana Tax Commission ap-

plied arbitrarily to all tax parcels within one geographical

segment of the tax jurisdiction to the exclusion of all other

tax parcels in other geographic segments of the same tax

district, a methodology forbidden by the Constitution be-

cause the application of such tools does not promote the uni-

formity the Constitution commands, but, on the contrary,

discriminates against the tax parcels of Petitioners. In order

to achieve uniformity in the tax jurisdiction at large, such

tools must be applied in the jurisdiction at large whereever

value changes are disproportionate. Thus, the singling out of

Petitioners’ properties constitutes a flagrant, intentional

deliberate, unreasonable and discriminatory type of piece-

meal system of assessment of real estate for tax purposes,

in violation of the Constitu.. »nal mandate that all taxes shall

be uniform upon same class of subjects.

VII. CONCLUSION

The system proposed by the City of New Orleans, approv-

ed by the Board of Review, and adopted by the Louisiana

Tax Commission, no matter how well intended, is in the

teeth of the Federal and State Constitutions, the law and

Louisiana jurisprudence, for it sacrifices equality and uni-

formity on the altar of an abortive equalization plan and

arbitrarily singles out a small number of taxpayers to be

burdened with higher assessment values and higher percent-

ages of the tax. Our complaint is not that “the first such

step . . . is not large enough or that it has not yet been

followed by a sufficient number of additional steps’; our

22

complaint is that Petitioners have been singled out and sub-

jected to an intentionally discriminatory valuation process

and ratio of value resulting in a larger tax burden than other

owners of similarly situated property in the same assessment

district. Our complaint is that such method, though called

“equalization plan”, is but an arbitrary and discriminatory

act, violative of the Fourteenth Amendment to the United

States Constitution, of Article X, Section I of the Louisiana

Constitution of 1925, R. S. 47:1989, and the established

jurisprudence. Under our constitutional system, it is the

province of the Court to protect individual taxpayers against

such plans and to strike them down as unconstitutional

and illegal when they violate the United States Constitu-

tional, the Louisiana Constitution, and Louisiana law.

We respectfully suggest that under the Fourteenth Amend-

ment, the right of Petitioners to be treated uniformly and

equally with other taxpayers in the Second Municipal Dis-

trict of New Orleans has been infringed by the decision of the

Supreme Court of Louisiana.

For the reasons more fully discussed above, the Petition

for a Writ of Certiorari should be granted.

Respectfully submitted,

LAW OFFICES OF ARTHUR L. BALLIN

BY:

FRANK C. DUDENHEFER

1121 Carondelet Bldg.

New Orleans, La.

Telephone: 523-2155

ATTORNEY FOR PETITIONERS

23

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Petition for

Writ of Certiorari have been served on:

Lee R. Miller, Esq.

Room 2W23, City Hall

New Orleans, Louisiana 70112

Robert L. Danner, Jr., Esq.

Attorney General's Office

2-3-4 Loyola Avenue

New Orleans, Louisiana 70112

Gaspar J. Schiro, Esq.

1123 First N.B.C. Building

New Orleans, Louisiana 70112

Richard J. McGinity, Esq.

1649 First N.B.C. Building

New Orleans, Louisiana 70112

Nathaniel Gisclair, Jr., Esq.

806 First N.B.C. Building

New Orleans, Louisiana 70112

this 12th day of January, 1977.

FRANK C. DUDENHEFER

APPENDIX

A-1

APPENDIX A

RESOLUTION OF CITY OF NEW ORLEANS #3

Filed: May 15, 1975

RESOLUTION

CITY HALL

SEPTEMBER 21, 1972

WHEREAS, the rates of assessment on the land of various

properties in the Central Business District are not uniform

and equal; and

WHEREAS, the under valuation of land creates negative

effects on land use by discouraging the betterment and

development of CBD property and by encouraging harmful

speculation and the holding of land out of commerce; and

WHEREAS, the implementation of a site value taxation

formula would create greater equity and would discourage

harmful speculation and encourage better land use; now,

therefore

BE IT RESOLVED BY THE BOARD OF REVIEW OF

THE CITY OF NEW ORLEANS that the BOARD endorses

the recommendation of the Committee of the Board of

Review to assess land values in that portion of the CBD

bounded by by Canal Street, the Mississippi River, Gaienne

Street, the Pontchartrain Expressway, South Claiborne

Avenue and back to Canal Street, at 33-1/3 per cent of

market land value.

A-2

THE FOREGOING RESOLUTION WAS READ IN

FULL, THE ROLL WAS CALLED ON ADOPTION OF

SAME AND RESULTED AS FOLLOWS:

YEAS: Landrieu, Beer, Ciaccio, Di Rosa, Dupuy, Lambert,

Moreau, Reith, Spears, Brehm (10)

NAYS: 0

AND THE RESOLUTION WAS ADOPTED.

S/ RICHARD J. KERNION

Richard J. Kernion, Secretary

to the Board of Review

A-3

APPENDIX B

RESOLUTION OF CITY OF NEW ORLEANS#4

Filed: May 15, 1975

RESOLUTION

City Hall

September 21, 1973

WHEREAS, the rates of assessment on the land of various

properties in the Central Business District are not uniform

and equal; and

WHEREAS, the under valuation of land creates negative

effects on land use by discouraging the betterment and

development of CBD property and by encouraging harmful

speculation and the holding of land out of commerce; and

WHEREAS, the implementation of a site value taxation

formula would create greater equity and would discourage

harmful speculation and encourage better land use; now,

therefore

BE IT RESOLVED BY THE BOARD OF REVIEW OF

THE CITY OF NEW ORLEANS that the BOARD endorses

the recommendation of the staff of the Board of Review to

assess land values in that portion of the CBD bounded by

Canal Street, the Mississippi River, Iberville Street and

North Claiborne Avenue, at 33 1/3 per cent of market land

value.

THE FOREGOING RESOLUTION WAS READ IN

FULL, THE ROLL WAS CALLED ON ADOPTION OF

SAME AND RESULTED AS FOLLOWS:

A-4

YEAS: Landrieu, Moreau, Ciaccio, Rittiner, Porte,

Alexander (6)

NAYS: 0

AND THE RESOLUTION WAS ADOPTED.

s/ RICHARD KERNION

Richard Kernion, Secretary to the

Board of Review

A-5

APPENDIX C

RESOLUTION OF CITY OF NEW ORLEANS 5

Filed: May 15, 1975

ORLEANS PARISH

BOARD OF REVIEW

RESOLUTION

WHEREAS, the Orleans Parish Board of Review has

undertaken a program of review and equalization of land

assessments in Orleans Parish; and

WHEREAS, the staff of the Board of Review has attempt-

ed to review and equalize land assessments in the eastern

New Orleans area of the Third Municipal District in 1972 and

1973; and

WHEREAS, a study of land assessments made in 1974 by

independent appraisers has shown that land assessments in

this area are presently at 8.9 per cent of market value; and

WHEREAS, this Board has not previously formally adopt-

ed a pian to review and equalize land assessments in the

Third Municipal District or in the remaining vacant proper-

ties in the City of New Orleans, exclusive of the Central

Business District and Lower Coast Algiers;

THEREFORE, BE IT RESOLVED, that the Orleans

Parish Board of Review recommends to the Louisiana Tax

Commission the equalization of 1975 land assessments at

10% of market value as determined in the appraisal report

herein submitted in the area delineated below:

A-6

1. Read Road regional shopping area and other proper-

ties from that area bounded by Haynes Boulevard

to the Chef Menteur Highway and Paris Road, except-

ing residential subdivisions.

2. All lands east of Paris Road from Lake Pontchartrain

south to the St. Bernard parish line and east to St.

Tammany parish line, excepting residential sub-

divisions.

BE IT FURTHER RESOLVED, that those vacant lands

located in the above described area and all other vacant land

located in the City of New Orleans, exclusive of the Central

Business District and Lower Coast Algiers, be appraised in

cooperation with the respective assessors for the year 1976

and that all vacant properties including the ones considered

in this resolution, but excluding the Central Business Dis-

trict, be placed on the 1976 tax rolls at 20 per cent of mar-

ket value.

BE IT FURTHER RESOLVED, that the 1975 land as-

sessments in the above mentioned area of the Third Munici-

pal District recommended by the Orleans Parish Board of

Review be not less than the land assessments shown on

Assessor Hickey’s 1974 tax rolls.

YEAS: Councilmen Ciaccio, Dupuy, Friedler, Lambert,

and Sapir; Mr. Brehm, Sewerage & Water Board -

6

NAYS: Councilman DiRosa; Mr. Rittiner, Orleans Parish

School Board; Mr. LaBreche, Orleans Levee Board;

and Mr. Rieth, Board of Liquidation - 4

ABSENT: Mayor Landrieu, Councilman Moreau - 2

A-7

APPENDIX D

Tirnas - Prediguot 04 * 1. bb

Assessment Equalizing “Plan Released|

EA tour your sesnammest ro ed w tore tne boone insta (1) and special ir pi tart eutaanan sad Ost

Beard of Review. wl Orleans eonsd tanned funds.

Oe Dra wane Go ened and on land ee 4. + | 4 —,-

land assesmmects w easiern New Orieaes portion S* Yrorr at ple

Tr Conret Dunsem Dinrict of (he Third Mumcipal ul sitet) on@ SC ier meats vo»

Brucict and on vacast proper- * The assesment review and dustriet), M3 (matical See inciade vacat properties

thes tj the Fie Mamcel equalization plaes for Me ascnct. and RO (general O- ready revelued under

Dianet, the equaeszsthern PT> pect tour years a3 follows hee dustrier). board's program

gram has bees endereey —In 1S equause land 3% 1958 equalize land on@ == The beard will commission

The Capes yee. the sessmems on a!| vacant one scmeemente io on aggeuiedl of a

rard qaueed land aaeeee witbio Orieans Sen Gund according t@ vacant properties ia the par-

meets in the COD mavees Sf Pome: _ constitutional limits and 4 4 —F-

2 Second Meamscspad a equaiue statutory guideumes, cluding secs prepararion

, ad = speo a 1978 tan relia, be sad.

t

a |

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se

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'

'

!

a7/

A-8

APPENDIX E

Crbyo Fk New Orleans * a

he Times-Picayune Publishing Corporation

The Times-Picayune

FILECO

State of Lowisiana

Parish of Orleans

City of New Orleans

THE STATES-ITEM

EvVenuna

Personally appeared before me, a Notary in

and for the Parish of

who deposes and says

Credit Manager of the

Orleans, M. L. La Nove,

that she is Treasurer-

Times-Picayune Pub-

lishing Corporation, a Louisiana Corporation,

Publishers of The Times-Picayune week-—day

Morning, New Orleans States-item, weekday

Evening, and Times-Picayune Sunday, of gen-

eral circulation; doing business in the

City of New Orleans a

and that the attached

nd State of Lowisiana,

I Be cnccdeccnscetesdvestioceccese

TN RE: BORD OF REVIEW ll...

Advertisement of 80erd, of .Seview............

secoesonosesedod City. Held. Mayor Office. ...

eccceonciuassniel ee

sence ces ceeeee es Mey. Ordoone, ber. .70112....

Was published in.Stet

ee ee ee

es Itea_& Tiges Picay;ne

ee ee)

My commission expires at my death.

woe

A-9

APPENDIX F

JUDGMENT

CIVIL DISTRICT COURT FOR THE PARISH OF

ORLEANS

STATE OF LOUISIANA

NO. 568 - 139 DIVISION B DOCKET NO.

WALGREEN LOUISIANA CO. INC., ET AL.

VERSUS

CITY OF NEW ORLEANS, ET AL.

JUDGMENT

This cause came for trial May 15, 1975.

Present: Arthur Ballin, and Frank C. Dudenhefer

Attorneys for Plaintiffs

Beuker Amann and Lee Miller,

Attorneys for City of New Orleans and Henry

G. Simmons, Director of Finance

Gasper J. Schiro, Attorney for Defendant,

Dr. Claude J. Mauberret, Jr., Assessor

Robert L. Danner, Jr., Attorney for Defen-

dant, La. Tax Commission and The Members

Thereof and State of Louisiana

A-10

Richard J. McGinity, Attorney for Defendant,

Orleans Levee Board

For the written reasons previously assigned by the Court

in the case of Cliff Probst et al vs City of New Orleans,

et al., No. 552-723 and 552-724,

IT IS ORDERED ADJUDGED AND DECREED that

Plaintiffs’ suit be and it is hereby dismissed at their cost.

JUDGMENT READ RENDERED AND SIGNED IN OPEN

COURT, MAY 15, 1975.

s/ A. J. Duplantier

JUDGE

A-11

APPENDIX G

REASONS FOR JUDGMENT

Filed: Feb 10,1975

CIVIL DISTRICT COURT FOR THE PARISH OF

ORLEANS

STATE OF LOUISIANA

NO. 522 723 CONS. WITH

522 724 DIVISION B- DOCKET NO.

CLIFF PROBST

VS.

CITY OF NEW ORLEANS, ET AL

REASONS FOR JUDGMENT

Louisiana's ad valorem tax system has probably been the

subject of more attention, judicial, legislative and executive,

than any other governmental issue during the past half

century. Most of the many lawsuits which preceded this

one involved attempts to compel equalization of assess-

ments or to nullify taxes as being imposed unequally.

Apparently, this is the first case involving a constitutional

attack by taxpayers whose taxes are increased as a result

of action taken by the taxing authorities in attempting to

equalize assessments, albeit in only a small part of the city,

the taxing authority involved, and with respect to land only,

not improvements.

The Court has no right to invalidate action by tax assess-

ing authorities on the ground merely that the equalization

A-12

plan is not the best which could have been pursued. It

would certainly have been preferable for the city to have

confected a definite plan and timetable for equalization of

assessments throughout the city before imposing increased

taxes upon certain property owners in the one segment

designated as the Central Business District. Nevertheless,

considering the complexity of the problem involved, and

the fact that nothing whatsoever had actually been accom-

plihed toward the goal for so long, I am unable to conclude

that the action taken here is unconstitutional.

For many years, the problems involved in equalization

of assessments have been studied, analyzed, referred to

committees, debated, cursed and ignored. The issue has

elected certain candidates and defeated certain officials. It

has frightened far more. In fact, equalization of assessments

has been the subject of every conceivable type of human

endeavor except for a real step, no matter how small, in

attempting its achievement. In this respect, Louisiana may

be unique among the states. I cannot nullify as unconstitu-

tional the fist such step on the ground that it is not a large

enough one or that it has not yet been followed by a suffic-

ent number of additional steps.

s/ A. J. Duplantier

J UDGE

New Orleans, Louisiana

February 10, 1975

A-13

APPENDIX H

OPINION OF COURT OF APPEAL OF LOUISIANA

FOURTH CIRCUIT

WALGREEN LOUISIANA COMPANY, INC.., et al.,

v.

CITY OF NEW ORLEANS, et al.

No. 7139

Court of Appeal of Louisiana, Fourth Circuit

Jan. 2, 1976

Rehearing Denied Jan. 28, 1976

Writs Granted March 19, 1976

Before SAMUEL, STOULIG and BOUTALL, JJ.

STOULIG, Judge.

Appellants are owners or lessees of immovable property

who challenge the validity and constitutionality of the 1974

and the 1975 assessments of tax against their properties

within the Central Business District (CBD) of the City of

New Orleans. Plaintiffs’ properties are located in that part

of the Second Municipal Assessment District bounded by

the Mississippi River, Iberville Street, North Claiborne

Avenue and Canal Street. Under a plan of revaluation of

property primarily within the CBD of which the delineated

strip constitutes a part, plaintiffs’ taxes were increased sub-

stantially. After paying the 1974 taxes under protest,

petitioners availed themselves of the provisions of LSA-

R.S. 47:1999 and 47:2110 by filing suit for a refund of the

amount of the increase after the revaluation and to have the

assessment as increased declared invalid and unconstitution-

al. While this matter was pending, 1975 taxes accrued and

were paid under protest and plaintiffs amended their plead-

ings to claim refund for the difference between the 1973

A-14

and the 1975 taxes. The trial court dismissed their suit.

[1,2] We reverse the decision of the trial court. In

Probst v. The City of New Orleans, La. App., 325 So.2d 665

we declared the plan under which the increased assessments

were levied against CBD property owners invalid and uncon-

stitutional. The same reasoning applies in this case. Plain-

tiffs in this suit made the Director of Finance of the City of

New Orleans a party defendant as required by LSA-R.S.

47:2110 (in this respect it procedurally differs from Probst ).

Therefore, they are entitled to a refund of that portion of the

taxes paid under protest which represents the increase attrib-

utable to the revaluation of their property in the CBD.

For the reasons assigned the judgment appealed from is re-

versed and it is now ordered that there be judgment against

Henry G. Simmons in his capacity as Director of Finance of

the City of New Orleans in favor of the following plaintiffs:

1. May Heymann Wolf, Jimmy Heymann, individually and

as trustee of the Jerry Heymann Separate Property

Trust and Jerry Heymann, jointly, in the sum of

$14,281.68;

2. Krauss Company, Ltd., and May Fellman Parker joint-

ly in the sum of $5,638.48; and

3. Succession of Frank J. Monteleone, Mrs. Mae Attaway,

wife of Oliver Miller, William A. Monteleone and Wal-

green Louisiana Company, Inc., jointly, in the sum of

$3,472.04.

The above awards of refunds shall bear interest at the rate

of 2 percent per annum from date of payment of taxes until

date of review in accordance with LSA-R.S. 47:2110.

It is further decreed that the increased amounts of the

1974 and the 1975 Central Business District tax assessments

are null and void.

Reversed and rendered.

A-15

APPENDIX I

COMPANION OPINIONS OF FOURTH CIRCUIT

Cliff PROBST

V.

The CITY OF NEW ORLEANS et al.

No. 7097

Court of Appeal of Louisiana, Fourth Circuit

Jan. 2, 1976.

Rehearing Denied Jan. 28, 1976.

Writs Granted March 19, 1976.

Before SAMUEL, STOULIG and BOUTALL, JJ.

STOULIG, Judge.

This appeal concerns the validity and constitutionality of

a 1973 ad valorem tax on realty within the Central Business

District (CBD) of the City of New Orleans. In 1972, Cliff

Probst paid a $608 city property tax on his lot at Poydras

Street and Loyola Avenue in the CBD. In 1973 he was billed

almost seven times that amount, or $4,202, on the same lot.

The increase came about because the taxing authority began

to revalue certain properties in the CBD. Plaintiff paid the

1973 tax under protest and then filed suit to have the 1973

assessment declared null and void and to recover the excess

between the 1972 and 1973 tax. If successful the effect of

plaintiff's action would be to reinstate the 1972 assessment.

From a judgment dismissing his suit, plaintiff has appealed.

Appellant advances two arguments for reversal:

a

A-16

1. The assessment is unconstitutional in that a program of

revaluation of property was instituted on a selective,

rather than a uniform basis, resulting in a disparity of

taxation between individuals and businesses similarly

situated. It is argued this violates the equal protection

and due process clauses of the federal and state con-

stitutions. '

2. The tax rate attacked is the highest levied within the

City of New Orleans and has been made to apply to a

geographic district designated by City officials. Plain-

tiff contends the State reserves unto itself the right to

designate special classifications for taxation purposes

and any attempt by a local government to do so with-

out legislative or constitutional authority is null and

void.

By way of background, the City of New Orleans (constitu-

ting the entire Parish of Orleans) is divided into multiple

assessment districts with one assessor elected for each dis-

trict. It is the assessor’s function to appraise properties with-

in his district and list the assigned values on the tax rolls.

This list is reviewed by the Board of Review (Board), which

has the authority to propose changes in the tax rolls by way

1. U.S. Const. art. XIV; LSA-Const. Art. 1,42 (1921).

2. All other Parishes each has one assessor.

3. The Board consists of the Mayor, as chairman, together with the

members of the City Council, a member of the Board of Liquidation,

a member of the Sewerage and Water Board, the president of the Board

of Commissioners of the New Orleans Levee District and the president

of the Orleans Parish School Board. The assessor of the municipal

district shall act in a nonvoting advisory capacity to the Board. LSA-

R.S. 47:1931.

ee ee eee eee

A-17

resolution to the Louisiana Tax Commission. This commis-

sion is required to review assessments and approve tax rolls

of all assessors throughout the State and may or may not

adopt the resolutions proposed by the Board.

In the case before us, plaintiff's tax increase was the direct

result of action by the Board. At a 1971 meeting the Board

““* * * passed a resolution to create an advisory committee

to the board to operate during the year to try to develop

methods of creating greater equality in assessments through-

out the city * * *.”

To implement this resolution the Board’s staff worked

through the following year to reappraise numerous proper-

ties, but the reappraisal was not on a citywide basis. The re-

valuation was limited to the metro business area, which com-

prises a portion of the First Municipal Assessment District

(First District) and a portion of the Second Municipal Assess-

ment District (Second District). Five appraisers were em-

ployed by the City to revalue property in that part of the

First District bounded by Canal Street, the Mississippi River,

the Expressway and South Claiborne Avenue; and in that

part of the Second District bounded by Esplanade Avenue,

North Rampart Street, Iberville Street, North Claiborne

Avenue, Canal Street and the Mississippi River.

Because of the enormity of the undertaking, individual

appraisals were not made. Instead property was valued so

much per square foot, the value being set primarily by the

street location on which the property fronted. For the pur-

poses of this opinion we need not set forth valuation

methods with more particularity. Once the square-foot value

was assigned by the appraisers, the assessor was expected by

the Board to fix the assessment at 33 1/3 percent of the

appraised land value.

In 1972 the assessor for the First District cooperated with

the Board and thus the assessments were adjusted in accor-

A-18

dance with its plan only in that part of the First District de-

lineated above. The Second District assessor refused to ad-

just the assessments as recommended by the Board and the

valuation did not become effective in his district for 1973 be-

cause of insufficient time for the Board to secure the approv-

al of the Tax Commission. However in 1974, the Board by

resolution to the Commission changed his tax rolls to re-

flect the increased assessments on the re) slued property. In

two other municipal districts (Third and Fifth Districts) there

have been piecemeal revaluation programs.

The evidence establishes the Board devised a revaluation

program designed within a specified time period to effect

only those properties within the First and Second Districts

comprising the CBD. It was the declared objective of the

City taxing authority to ultimately revalue and equalize prop-

erty tax throughout the entire City, but no timetable had

been set for the accomplishment of equalization citywide nor

was any plan formulated at the time the CBD was revalued.

While the record indicates the Board staff has abandoned

any hope of proceeding on a district by district revaluation

(if such an idea was ever proposed), it reflects the tax offici-

als are tentatively planning to proceed on a revaluation based

on property classification. For example, vacant property in

all districts would be revalued the first year; in the second

year, industrial; and so on. It is apparent this idea has not

been developed into a comprehensive plan with a definite

projected completion schedule. Therefore, plaintiff and

other property owners within the CBD must pay, for an in-

definite time, higher property taxes than persons similarly

situated without the C&D but within the same municipal

district or in other sections of the City.

The testimony of the First District assessor establishes this

range of ratios of percentages of actual value used for assess-

ment purposes throu s,out his district:

A-19

CBD commercial properties 33 1/3%

Light and heavy industrial (outside the CBD) 25%

Commercial properties (outside the CBD) 25% to 30%

In addition to this disparity, those properties outside the

CBD in the First District are not scheduled for a systematic

reappraisal to adjust their tax base to current market value.

CONSTITUTIONALITY

[1,2] All citizens are guaranteed equal protection of law

by U.S. Const. art. XIV and LSA-Const. Art. 1, §2 (1921).

The equal protection principle, as it applies to taxation, is

reiterated as a constitutional right by that part of LSA-Const.

Art. 10, §1 in these words: “* * * all taxes shall be uniform

upon the same class of subjects throughout the territorial

limits of the authority levying the tax * * *.” The right to

uniformity of taxation is synonymous with the right to equal

protection under the law in the area of taxation.

The United States Supreme Court in a landmark, decision,

Sunday Lake Iron Co. v. Township of Wakefield,* pointed

out the equal protection clause of the Fourteenth Amend-

ment is designed to protect each taxpayer against bearing a

disproportionate share of the tax burden as a result of dis-

crimination, either in the statute itself or the manner in

which it is administered. Specifically the Court held “* * *

an intentional systematic undervaluation by state officials of

other taxable property in the same class contravenes the con-

stitutional right of one taxed upon the full value of proper-

ty * * Pad

The City argues it has undertaken a program of piecemeal

revaluation in response to the “State Supreme Court’s man-

date in Bussie v. Long’® to revalue property in the Varish at

4. 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154 (1918).

5. 286 So.2d 689 (La. App. 1st Cir. 1973). Writs refused, 28 So. 2d

354.

A-20

actual cash value. The Board decided to begin the process

in the geographical area known as the CBD. We note at this

point the Bussie decision was rendered in 1973 and the re-

valuation program of which plaintiff complains was initiated

in 1971; therefore we are somewhat confused by the state-

ment the City is attempting to comply with a court decree.)

In any event, the City argues state and federal courts,

recognizing the limited resources often available to taxing

authorities in undertaking revaluation programs, have ap-

proved piecemeal reassessment plans as constitutional. The

City has cited numerous cases in which cyclical plans of re-

valuation have been held constitutional; however, these are

inapposite to the instant case. In the cited cases a legislative

body has formulated an equalization plan requiring revalua-

tion of property throughout the jurisdiction of the taxing

authority within a specified period of time. For a cyclical

revaluation program to meet the equal protection and uni-

formity requirements it must be systematic and nondiscrim-

inatory. In Carkonen v. Williams® the Supreme Court of

Washington observed:

“In keeping with the import of the Sunday Lake

decision * * * state courts which have considered cycli-

cal revaluation programs have generally found them to

be compatible with constitutional equal protection and

unitormity provisions, provided they be carried out sys-

tematically and without intentional discrimination.”

This same Washington court declared unconstitutional

a tax revaluation of 6 percent of the property within a

county when the assessor, under a four-year cyclical revalua-

tion law of the state legislature, was required to reassess 25

percent of the land in his county within one year. Even

though he testified he could revalue the remaining 94 per-

cent within the next three years of the program, the court

6. 76 Wash. 2d 617, 458 P.2d 280 (1969).

ee a

A-21

held in Dore v. Kinnear:?

“Thus, where a cyclical program of revaluation is

undertaken, a systematic and consistent program of re-

valuation must be maintained during each year of the

cyclical period in a county. This would require that sub-

stantially an equal amount of taxable property in a county

be revalued in each year of the cyclical program in order

that all taxpayers receive the same treatment within the

cyclical period to avoid derogation of the equal protec-

tion clauses of our federal and state constitutions and the

uniformity of taxation clauses of our state constitution.”

We subscribed to the quoted views, and if we apply that

criteria to the plaintiff's situation, we can only conclude the

tax levy on his CBD property violates his state and federal

constitutional guarantees of equal protection of law and his

state constitutional right to uniformity of taxation.

What renders the action of the Board unconstitutional in”

revaluing the property in the CBD is that i proceeded with-

out a systematic plan to completely equalize taxes by revalu-

ing properties throughout the Cicy. Nicholas Gagliano, ex-

executive assistant to the Mayor of New Orleans, conceded

complete equalization should have been attempted but it

was anticipated the plan for geographic equalization would

be opposed by certain assessors. He confirmed the attempt

at geographic revaluation (such as it was) was abandoned and

the reassessment by classification of property was substituted

in its place. No plan of revaluation by this latter method was

ever formally adopted by the Board.

We therefore hold the 1973 assessment unconstitutional.

INVALIDITY

[3,4] Because we conclude the 1973 assessment is a

7. 79 Wash. 2d 755, 489 P.2d 898 (1971).

A-22

nullity in that it violates the constitutional guarantees of

equal protection and uniformity, we need not discuss at

length the arguments on its validity under our state statutes

and constitution. We do hold however there is no basis in

law for the City of New Orleans to create a geographic dis-

trict and subject it to a special ad valorem tax. The power to

create special classes for taxation purposes is reserved to the

State and the requirement of uniform taxation can only be

superceded by action of the state legislature. In Bussie v.

Long, 286 So.2d 689 (La.App. 1st Cir. 1973), the court

noted:

“A state may establish reasonable classifications for

the taxing of property at different rates. However, if state

law requires that all property be taxed at a uniform rate

and has enacted laws to insure such result, any substantial

disparity or difference in taxes arising from failure of state

officers to properly administer the laws will be held in

violation of the due process and equal protection clauses

of the United States Constitution. Weissinger, above. To

the same effect, see Louisville & Nashville R. Co. v. Public

Serv. Comm. of Tenn., D.C., 249 F.Supp. 894.”

In 1972 a proposed constitutional amendment was reject-

ed by the people of the State of Louisiana that would have

set up the CBD as a separately assessed and taxed public im-

provement district. Thus in revaluing CBD properties the

Board had no legal basis for treating this area as a separate

and distinct class for tax purposes.

[5,6] We cannot grant plaintiff's claim for reimbursement

of the taxes paid under protest with interest because he

failed to join the tax collector of the City of New Orleans,

who is an indispensable party defendant® insofar as the claim

for repayment is concerned. It is only to him that an order

could be directed to reimburse the payments made under

8. An appellate court may note the nonjoinder of an indispensable

party on its own motion. C.C.P. art 927.

A-23

protest. LSA-R.S. 47:2110, the statute under which plain-

tiff brings his claim, directs in part:

“The right to sue for recovery of a tax paid under pro-

test as provided herein shall afford a legal remedy and

right of action in any state or federal court having jurisdic-

tion of the parties and subject-matter, for a full and com-

plete adjudication of any and all questions arising in the

enforcement of such right respecting the legality of any

tax accrued or accruing or the method of enforcement

thereof. In any such suit, service of process upon the of-

oftcer designated by law for the collection of the tax shall

be sufficient service, and he shall be the sole necessary and

proper party defendant in any such suit.”’ (Emphasis add-

ed.)

[7] There are two aspects to this suit, namely, a request

for a ruling on constitutionality and a claim for reimburse-

ment of tax paid under protest should plaintiff prevail. With

respect to the issue of constitutionality, the tax collector is

not an indispensable party and the proper defendants were

cited to admit of its adjudication. However, under the quot-

ed statute, the collector had to be joined in the claim for

reimbursement. LSA-C.C.P. art 641 defines an indispensable

party as one whose interest in the subject matter is “* * * so

interrelated, and would be so directly affected by the judg-

ment, that a complete and equitable adjudication of the con-

troversy cannot be made unless [he is] * * * joined in the

action.” The express verbiage of the statute makes the tax

collector the proper party defendant in any suit to recover a

tax paid under protest. Since the Director of Finance (the

tax collector for the City of New Orleans) has not been cited

and made a party defendant, the court is powerless to con-

demn him ir: judgment to return the tax paid.

- However commendable and laudable may have been the

efforts of the Mayor and Council of the City of New Orleans

to eliminate tax inequities existing in the CBD by the realistic

A-24

adjustments of assessments, such an objective must be accom-

plished within the framework of the constitutional, statutory

and jurisprudential guidelines of uniformity and equality.

For the reasons assigned, the judgment appealed from is

annulled and set aside insofar as it decrees the 1973 Central

Business District assessment constitutional and it is now or-

dered that said assessment be decreed to be unconstitutional.

The increased amount of the 1973 assessment stated herein

is declared to be null and void. Insofar as it dismisses plain-

tiff’s suit for the return of the taxes paid under protest, the

judgment appealed from is affirmed.

Annulled in part; affirmed in part; and rendered.

ON APPLICATIONS FOR REHEARING

PER CURIAM.

[8] We recall that part of our original decree dismissing

plaintiffs’ suit for a refund of taxes paid under protest for

failure to join “the officer designated by law for the collec-

tion of tax.” Under C.C.P. art. 646 we remand this matter to

permit plaintiffs to join the tax collector, who, we hold, is

an indispensable party defendant. Accordingly the decree

is amended as follows:

For the reasons assigned, the judgment appealed from is

annulled and set aside insofar as it decrees the 1973 Central

Business District assessment constitutional and it is now

ordered that said assessment be decreed to be unconstituon-

al. The increased amount of the 1973 assessment stated here-

in is declared to be null and void. Insofar as it dismisses

plaintiffs’ suit for the return of the taxes paid under protest,

the judgment appealed from is set aside and this matter is

remanded for the limited purpose of joining the tax collec-

tor as a party defendant and cite him to present whatever

defense, if any, he has, so that an appropriate judgment may

A-25

be rendered. Assessment of costs are to await the final

determination of this matter.

Except as amended herein, we adhere to our original

opinion. The applications for rehearing are refused.

Original decree recalled and, as amended, reinstated; re-

hearings refused.

*_*eKK KK

Harry B. SCHMIDT, Jr.

Vv.

The CITY OF NEW ORLEANS et al.

No. 7098.

Court of Appeal of Louisiana, Fourth Circuit

Jan. 2, 1976

Rehearing Denied Jan. 28, 1976

Writs Granted March 19, 1976.

STOULKG, Judge.

This appeal concerns the validity and constitutionality of a

1973 ad valorem tax on realty within the Central Business

District (CBD) of the City of New Orleans. In 1972, Harry

B. Schmidt, Jr., paid a $3,686 city property tax on a parcel

of ground fronting on Tulane Avenue between Loyola

Avenue and South Rampart Street. In 1973 he was billed

$6,455.80 for taxes on the same property. The increase re-

sulted from the taxing authority’s revaluation of property in

the geographic district designated by city officials as the

CBD.

Plaintiff paid the 1973 tax under protest and then filed

A-26

suit to (1) recover the excess between the 1972 and the 1973

taxes; (2) to have the 1973 assessment declared unconstitu-

tional; and (3) to have the 1972 value reinstated. From a

judgment dismissing his suit, plaintiff has appealed.

This case was consolidated for trial with a suit entitled

Probst v. The City of New Orleans, et als., La.App., 325 So.

2d 665, and has been appealed as part of a consolidated case.

The Probst matter bears number 7097 of our docket.

[1] For the reasons assigned in the Probst case, the judg-

ment appealed from is annulled and set aside insofar as it

decrees the 1973 Central Business District assessment consti-

tutional and it is now ordered that said assessment be decreed

to be unconstitutional. The increased amount of the 1973

assessment stated herein is declared to be null and void. In-

sofar as it dismisses plaintiff's suit for the return of the taxes

paid under protest, the judgment appealed from is affirmed.

Annulled in part; affirmed in part; and rendered.

ON APPLICATIONS FOR REHEARING

PER CURIAM.

[2] We recall that part of our original decree dismissing

plaintiff’s suit for a refund of taxes paid under protest for

failure to join “the officer designated by law for the collec-

tion of tax.” Under C.C.P. art. 646 we remand this matter

to permit plaintiff to join the tax collector, who, we hold, is

an indispensable party defendant. Accordingly, the decree

is amended as follows:

For the reasons assigned in the Probst case, the judgment

appealed from is annulled and set aside insofar as it decrees

the 1973 Central Business District assessment constitutional

A-27

and it is now ordered that said assessment be decreed to be

unconstitutional. The increased amount of the 1973 assess-

ment stated herein is declared to be null and void. Insofar as

it dismisses plaintiff's suit for the return of the taxes paid

under protest, the judgment appealed from is set aside and

this matter is remanded for the limited purpose of joining the

tax collector as a party defendant and cite him to present

whatever defense, if any, he has, so that an appropriate judg-

ment may be rendered. Assessment of costs is to await the

final determination of this matter.

Except as amended herein, we adhere to our original

opinion. The applications for rehearing are refused.

Original decree recalled and reinstated as amended; rehear-

ings refused.

A-28

APPENDIX J

OPINION OF SUPREME COURT, STATE OF LOUISIANA

Cliff PROBST

v.

The CITY OF NEW ORLEANS et al.

Harry B. SCHMIDT, Jr.

v.

The CITY OF NEW ORLEANS et al.

WALGREEN LOUISIANA COMPANY, INC., et al.

v.

The CITY OF NEW ORLEANS et al.

Nos. 57594, 57595, 57602, 57603 and 57618.

Supreme Court of Louisiana.

Sept. 13, 1976.

Rehearings Denied Oct. 13, 1976.*

DIXON, Justice.

Plaintiffs in these cases, having paid ad valorem taxes

under protest, brought these suits to contest the increased

assessments. There was judgment for defendants in the dis-

trict court. The Court of Appeal reversed, holding that the

revaluation of the property violated constitutional guarantees

of equal protection and uniformity, because the revaluation

was accomplished without a systematic plan to equalize

taxes by revaluing properties throughout New Orleans.

Probst v. The City of New Orleans et al., La. App. 325 So.

2d 665; Schmidt v. The City of New Orleans et al., La.App.

325 So.2d 671; Walgreen Louisiana Co., Inc. v. The City of

*Typographical error; Rehearing denied Oct. 15, 1976; see Appendix

K, p. A-

A-29

New Orleans et al., La. App., 325 So.2d 673 (1976). We

granted writs to consider the rulings in these cases.

All cases involve commercial property within the central

business district of New Orleans. The Probst and Schmidt

cases involve improved and unimproved parcels within the

First Municipal Assessment District, Parish of Orleans, and

were consolidated for trial. .In the Walgreen case several

plaintiff owners or lessees of parcels lying in the central busi-

ness district within the Second Municipal Assessment District

joined in one suit. Probst and Schmidt paid 1973 taxes un-

der protest; the Walgreen plaintiffs contest the 1974 and

1975 assessment. The cases were tried in 1975.

Plaintiffs contend that they and other property owners in

the central business district suffered from arbitrary and dis-

criminatory selection for increased evaluations, and that the

increased assessments were illegally adopted.

Unlike other parishes, Orleans is divided into seven assess-

orial districts with an elected assessor for each. R.S. 47:

1901. Each is required to “independently exercise his func-

tions in the assessing and listing of the property in and for

his respective district. . .”” R.S.47:1909. Assessments are

subject to review by a board consisting of the Mayor of New

Orleans as chairman, members of the City Council, a member

of the Board of Liquidation, a member of the Sewerage and

Water Board, the President of the Board of Levee Commis-

sioners and the President of the Orleans Parish School Board.

The Board of Reviewers “shall recommend to the tax com-

mission increases or decreases in any assessment of real or

personal property made by the various assessors of the parish

of Orleans in accordance with the true conditions found by

it.” R.S. 47:1995. Tax rolls are forwarded to the Louisiana

Tax Commission (see former Art. X, §12, La. Const. 1921,

repealed, Act 789 of 1972, approved Nov. 1972), whose

duty it is to fix the value of all taxable property. R.S. 47:

1989; Bussie v. Long, 257 La. 623, 243 So.2d 776 (1971);

A-30

Bussie v. Long, La. App. 286 So.2d 689 (1973), writ denied

La., 288 So.2d 354 (1974). The “lawful authorities of each

parish” are permitted to fix valuations at less than actual cash

valuations by using a percentage of the actual cash value fix-

ed by the Tax Commission, provided that “for local purposes

the percentage shall operate equally and uniformly on all

taxable property within the parish or other local subdivision

..” RS. 47:1989. (Art. X,§ 1, La. Const. 1921 provides

that “the taxing authorities of the local subdivision may

adopt a different percentage . . .”

In 1971 the Board of Reviewers formed an advisory com-

mittee to develop methods of equalizing assessments through-

out the city. No formal plan was adopted for revaluation of

all property in the city,but it was decided to do as much as

possible in 1972. Assessor Smith of the Fifth Municipal Dis-

trict agreed to revalue the vacant land in the Algiers “lower

coast.” A decision was reached co attempt revaluation on

land only, because of the difficulties in appraising buildings.

A well-defined geographical area (referred to as the Central

Business District or CBD throughout the records in both

cases) was selected as the first to be revalued by a team of

real estate appraisers to be appointed by the Real Estate

Board under a contract with the city. The boundaries of the

CBD were to be iberville Street, the Mississippi River, Gai-

ennie Street, the Pontchartrain Expressway and South Clai-

borne Avenue. All except a strip one block wide from the

river to Claiborne lying between Canal and Iberville Streets

lay within the First Municipal District, and from the River

to Rampart Street was bounded by the Vieux Carre. The

staff of the Board of Reviewers depended heavily on the

cooperation of the individual assessors, and when the assessor

of the Second District objected to the project, the revalua-

tion of the Iberville strip was postponed for a year.

The revaluation procedures adopted by the appraisers

varied slightly from an individual appraisal of each parcel of

land. Using available comparable sales, the appraisers estab-

A-31

lished a square foot value for each block on each street in

the CBD. An average sized, regular shaped parcel which

fronted on only one street was valued by multiplying its

area in square feet times the square foot value applicable to

that block. Others parcels - irregular in shape, unusual in

size, fronting on more than one stret and the like - were sub-

ject to adjustments by the appraisers beyond the simple

application of area to square foot value.

No complaint is made in either of these suits that any

assessment is based on an appraisal in excess of market value,

or that the appraisals lacked such a uniform relationship to

actual value that they were, for that reason, discriminatory.

In the First Municipal District approximately eight hundred

assessments were increased; about one hundred fifty were

reduced; some stayed the same. In the Second Municipal

District there were one hundred sixty-nine increases; eighty

decreases and ten were the same.

In September of 1972 six resolutions were unanimously

adopted by the Board of Reviewers concerning the revalua-

tion. One was a policy resolution, expressing the purpose of

the Board of Reviewers to equalize assessments in the CBD,

and to fix the percentage of value on which each parcel

would be assessed to be that which would produce approxi-

mately the same total amount of assessments as before equal-

ization (except for improvements and additions). If more

than a 3% increase in total assessments resulted from revalua-

tion, the board resolved to reduce the assessments the follow-

year, and the equalized assessments would not be increased

for five years. A separate resolution fixed the assessment in

the CBD at 33 1/3% of market land value. (Before 1972

commercial property in the CBD had been assessed as high as

40% of value in the First District; in the Second District the

assessor stated that he listed the property at 25% of its value

throughout the district). Other resolutions pertained to:

relief for taxpayers whose land was burdened with a lease not

reflecting present values; credit for “Historic and Green

A-32

Area”’ tracts; relief for hardship cases and funding the revalu-

ation.

In due course the Louisiana Tax Commission approved

the recommendations of the Board of Reviewers and re-

valued the land in the CBD lying in the First District for

1973 taxes, and for the Iberville strip of the CBD in the

Second District for 1974 taxes.

In 1974 the appraisers for the Board of Reviewers apprais-

ed land in the New Orleans East area in the Third Municipal

District. Land only was revalued, even though some property

had been improved. The percentage of actual value recom-

mended by the Board of Reviewers was not accepted by the

Louisiana Tax Commission, which raised the percentage from

ten to twenty, the same percentage applied to the lower coast

of Algiers in 1972 by the assessor in the Fifth District.

Public utilities property was slso reviewed and reassessed in

1974.

By the end of 1974 the Board of Reviewers had adopted a

program for revaluation of all lands in the City of New Or-

leans. All assessments on vacant property in Orleans Parish

were to be equalized in 1975. In 1976 assessments for land

zoned for various industrial uses were to be equalized, to be

followed in 1977 for land zoned for commercial uses, for

shopping centers, neighborhood businesses, medical services

and general office districts. Revaluation and equalization

were to be completed in 1978, including land and improve-

ments, residential areas and specially zoned historic districts.

The procedures and plans of the Board of Reviewers

were in sharp contrast to the practices of the assessors prior

to 1972 disclosed by the record. In the absence of com-

plaints, once property was assessed, its assessment went un-

changed except when property was sold, improved or de-

molished.

A-33

[1] Plaintiffs argue that their increased assessments re-

sulted from the violation of both constitutional principles

and statutory provisions. The only attack on the revalua-

tion itself seeras to be that it was not done on a parishwide

nor even a districtwide basis. Revaluation and reassessment

in a good faith effort to achieve uniformity and equality in

a given district need not be delayed until the entire district

can be revalued at the same time. Sunday Lake Iron Co. v.

Township of Wakefield, 247 U.S. 350, 38 S.Ct. 495, 62 L.

Ed. 1154 (1918); Annotation Tax - Incomplete Equaliza-

tion Program, 76 A.L.R. 2d 1077 (1961); May Department

Stores Co. v. State Tax Commission, 308 S.W. 2d 748 (Mo.

1955); Morrison v. Rutherford, 83 Wash.2d 153, 516 P.2d

1036 (1973). If only a part of a taxing district can be re-

valued in one taxing year, because of limitations of man-

power and funds on those charged with assessing, a program

of revaluation may start in a reasonably determined portion

of the district, even though property in that part might bear

a larger portion of the tax burden for a reasonable time until

all property is revalued.

[2] The central business district was the natural place to

start. It contained the Superdome and other dramatic devel-

opments on Poydras Street, where property values increased

greatly. If a developer contemplated buying land, he would

be faced with taxation based on the sale price, with the pros-

pect of competition from owners who were taxed on out-

dated land values. Although commercial, business and indus-

trial sites are located from place to place throughout the

city, there is no other area which is comparable to the size

and concentration of commercial properties in the CBD.

The district is surrounded by identifiable boundaries, natural,

man-made and legal - the Mississippi River, the Pontchartrain

Expressway elevated approach to the Mississippi River

Bridge, the elevated through-the-<city route of Interstate

Highway 10 above the right-of-way of Claiborne Avenue and

the Vieux Carre reaching from the river to Rampart and Iber-

ville. The Vieux Carre is a constitutionally protected preser-

A-34

vation area in which property may be exempted from taxa-

tion and in which building alteration and demolition are pro-

hibited without approval of the Vieux Carre Commission.

Art. XIV,§ 22A, La. Const. 1921.

The selection of the CBD as the area for beginning a re-

valuation and equalization program is supported by strong

reasons and cannot be characterized as arbitraru or unreason-

ably discriminatory.

The attack is concentrated on the percentage (33 1/3%) of

actual value which forms the assessment on which the tax

levied. The complaint is that other “commercial” property

in the same assessorial district is taxed at a smaller percentage

of the assessed value.

The record in the Probst and Schmidt case establishes that

commercial property in the First Municipal District in the

area covered by the CBD was assessed at 30% to 40% of the

supposed value before the revaluation in 1972. In that dis-

trict the assessor used four classifications to which he applied

a rather flexible percentage to obtain an assessment. The only

property discussed in the CBD was ‘“‘commercial.” Outside

the CBD residential property was assessed at from 15% to

17%. The only real commercial area in the district, accord-

ing to the assessor, was in the CBD, except for scattered spots

and nonconforming uses, which were assessed at 25% to 30%

of value. Light and heavy industrial were also assessed at

about 25% to 30%.

In the Second Municipal District (the Walgreen case),

property was assessed at 25% of value, except for the strip in

the CBD lying between Canal and Iberville from the river

to Claiborne.

Art. X, § 1, La.Const. 1921, in effect at the time of the

assessments complained of, provides:

A-35

“The power of taxation shall be vested in the Legis-

lature; shall never be surrendered, suspended or contrac-

ted away; and all taxes shall be uniform upon the same

class of subjects throughout the territorial limits of the

authority levying the tax, and shall be levied and collected

for public purposes only. No property shall be assessed

for more than its actual cash value, ascertained as directed

by law, and all tax-payers shall have the right of testing the

correctness of their assessments before the courts at the

domicile of the assessing authority, or as may be directed

by law. The valuation and classification fixed for State

purposes shall be the valuation and classification for local

purposes; but the taxing authorities of the local subdivi-

sion may adopt a different percentage of such valuation

for purposes of local taxation.”

Bussie v. Long, La. App. 286 So.2d 689 (1973), relied on

well established constitutional principles:

“It is settled that a taxpayer is entitled to have his

property taxed at that percentage of value applicable to

others equally and similarly situated, even though statu-

tory law may provide otherwise. The rule is based on the

principle that if both the standard of true value and the

uniformity and equality required by law cannot be achiev-

ed, equality and uniformity is preferred under the law.

Sioux City Bridge Co. v. Dakota County, Neb. 260 U.S.

441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L.R. 979.

“The equal protection clause of the Fourteenth Amend-

ment to the United States Constitution protects a taxpayer

from any state action which discriminates against him by

subjecting his property to taxes not imposed on others in

the same class. The right thus protected is the privilege

of receiving equal treatment under law.

“Although states have wide discretion in the area of taxa-

tion, such discretion may not be exercised so as to arbi-

A-36

tarily deprive taxpayers of constitutional rights. While the

Fourteenth Amendment does not require exact uniformity

and equality in matters of taxation, it does protect against

intentional and arbitrary discrimination whether resulting

from the express terms of a statute or its improper execu-

tion by those charged with its enforcement. Weissinger v.

Boswell, D.C., 330 F.Supp. 615.

“A state may establish reasonable classifications for the

taxing of property at different rates. However, if state law

requires that all property be taxed at a uniform rate and

has enacted laws to insure such result, any substantial dis-

parity or difference in taxes arising from failure of state

officers to properly administer the laws will be held in

violation of the due process and equal protection clauses

of the United States Constitution. Weissinger, above. To

the same effect, see Louisville & Nashville R. Co. v. Public

Serv. Comm. of Tenn., D.C. 249 F.Supp. 894.” 286 So.

2d 689, 700-701.

[3] Although at the time of the trial of these cases in

1975 no effort had been made to revalue and assess commer-

cial property in New Orleans outside the CBD, we do not

find support in the record for plaintiffs’ contention that their

property had been singled out for the application of a higher

tax ratio than other similarly situated properties. We find no

evidence that it was the intention of the Board of Reviewers

or the City Council or the Louisiana Tax Commission to

apply a higher percentage to the value of CBD property than

to similar commercial property outside the CBD when the

revaluation was completed.

As mentioned before the intention of the Board of Re-

viewers in 1971 was to develop methods of revaluation of

property in the whole city. That their intention was equali-

zation and not discrimination is evidenced by their resolu-

tions in September of 1972, expressing the policy to equalize

A-37

and not increase total assessments in the CBD. It is true that

the authorities proceeded in a step-by-step manner, without

the formal adoption of a citywide plan until the end of 1974.

That plan contemplated the ejualization of assessments on

all business and commercial property in the city in 1977.

There is no evidence that a percentage of value would be

used in 1977 for the assessment of commercial and business

property different from that used for the assessment of pro-

perty in the CBD.

[4] Plaintiffs argue that the taxing authorities could not

legally assess commercial property at a percentage of value

higher than other kinds of property in the city, relying on

the absence of specific statutory authority and certain action

of the legislature in 1972, as well as the failure of constitu-

tional amendment in 1972 which would have permitted the

creation of a Central Business District in New Orleans as a

separately assessed and taxed public improvement district.

We find it irrelevant that the constitutional amendment

was defeated; it had no relationship to equalization of assess-

ment in New Orleans. Nor does the repeal in 1972 of R.S.

47:1988 support the inference that classification of different

kinds of property for the purpose of assessment was illegal.

The repealing act (Act 13, §1 of Ex. Sess. of 1972) was part

of a legislative package designed to remove the State from ad

valorem property taxing activity (see Art. 10-A. La. Const.

1921). R.S. 47:1988, among other things, specifically per-

mitted the tax commission to classify and subdivide the

classifications of different kinds of property. The amend-

ment and reenactment of R.S. 47:1989 by Act 14 §1 of Ex.

Sess. of 1972 continued the statutory power of the “lawful

authorities” of parishes to fix percentages of valuations of

properties for assessment purposes. The language of the old

statute was retained, eliminating only «.:2 prohibition against

fixing valuations by parish authorities at less than 25% of

the actual cash valuation fixed by the Tax Commission. (R.S.

A-38

47:1997, not amended in 1972, but amended in respects not

relevant in 1974, continues to permit the City Council to

adopt a different percentage of value from that adopted by

the Tax Commission, in which case the percentage adopted

cannot be less than 25% of actual cash value fixed by the

Commission.

The 1972 legislation was a reaction to demands for equali-

zation of property taxes in Louisiana. Classifications of

kinds of property for taxation was so widespread (see Bussie

v. Long, supra) that we cannot assume the legislature was un-

aware of the practice. The unchanged continuation of the

power of the Tax Commission to “change or correct” assess-

ments (R.S. 47:1990), the continuation of the Board of Re-

viewers of Orleans Parish (R.S. 47:1931) and the continua-

tion of the powers of the “lawful authorities” to levy, assess

and collect taxes on “less than actual cash valuation” and fix

percentages (R.S. 47:1989), reinforce the view that the

failure to prohibit classification of different kinds of proper-

ty left the power of the “lawful authorities” to classify after

1972 as it had been before 1972 - limited only by the “‘es-

sential principle of practical uniformity.” Sunday Lake Iron

Co. v. Wakefield, supra.

Caddo Parish Police Jury v. Lancaster, La. App., 232 So.2d

781 (1970), does not support plaintiffs’ position. There, the

police jury desired to use one percentage of value for the levy

of a 3/10 mill and a 1/10 mill tax for the juvenile court, and

another percentage for the other taxes levied by the parish.

The court held that the same percentage must be applied for

all taxes levied. Whether different percentages could be used

for different classes of property was not an issue in the case.

In summary, there has been substantial compliance with

relevant statutory requirements, and no violation of due pro-

cess or equal protection clauses of the United States Con-

stitution. See Louisiana & Arkansas Ry. Co. v. Goslin, La.

300 So.2d 483 (1974).

A-39

For these reasons the judgment of the Court of Appeal is

reversed, and the judgment of the district court is reinstated,

at plaintiffs’ costs.

SANDERS, C.J., and SUMMERS, J., dissent, being of the

opinion that the judgment of the Court of Appeal is correct.

See La. App., 325 So.2d 665-673.

MARCUS, J., dissents.

A40

APPENDIX K

NEWS RELEASE FROM SUPREME COURT OF

LOUISIANA

SUPREME COURT OF LOUISIANA

NEW ORLEANS, 70112

FOR IMMEDIATE NEWS RELEASE

FROM: CLERK OF SUPREME COURT OF LOUISIANA

On the 15th day of October, 1976, the following action was

taken by the Supreme Court of Louisiana in the cases listed

below:

REHEARINGS REFUSED:

57 ,665

57,553

57 ,666

57,513

57,594

State v. Burnette

State v. Cole

DIXON, J., is of the opinion that a rehearing

should be granted.

State v. Unzueta

See Per Curiam

DIXON, CALOGERO AND DENNIS, J. J.

are of the opinion that a rehearing should

be granted.

State v. Crosby & Mamon

See Per Curiam

Probst v. City of New Orleans, et al

57,595

57 ,602

57,603

57,618

57 ,630

57,684

57,685

57 ,644

57,711

57,764

57,945

57,578

57,764

A4l1

Probst v. City of New Orleans, et al.

Schmidt v. City of New Orleans, et al.

“ “ “ “

Walgreen La. Co., Inc., et al v. City of N.O.

SANDERS, C. J., and SUMMERS and

MARCUS, J.J. are of the opinion that a re-

hearing should be granted.

State of Scott

State v. Alexander

State v. Alexander

State v. Turner & Turner

(2 Applications)

DENNIS, J., is of the opinion that a rehearing

should be granted.

State v. Sanders

NOT CONSIDERED

See Per Curiam

State v. Chatman

Hanks v. Dr. Ranson, Swan, et al.

(2 Applications)

SUMMERS and MARCUS, J. J., are of the

opinion that a rehearing should be granted.

State v. Nichols & Nichols

TATE, DIXON, and CALOGERO, J. J., are

of the opinion that a rehearing should be

granted.

State v. Chatman

57,945

57,578

57 ,687

57 ,688

57,695

57,710

57,791

57 ,867

57,877

57 ,940

58, 168

AA42

Hanks v. Dr. Ranson, Swan, et al

(2 Applications)

SUMMERS and MARCUS, j. J., are of the

opinion that a rehearing should be granted.

State v. Nichols & Nichols

TATE, DIXON, and CALOGERO, J. J., are

of the opinion that a rehearing should be

granted.

State v. Welch

See Concurrence

SANDERS, C. ]., SUMMERS AND MARCUS,

J. J. are of the opinion that a rehearing should

be granted.

State v. Cage

SANDERS, C. J., SUMMERS and MARCUS,

J. J., are of the opinion that a rehearing

should be granted.

State v. McCarroll and McCarroll

State v. Ledet

State v. Duhon

See Per Curiam

State v. McQueen

State v. Barnard

State v. Veal

State v. Rodney Jones

eel}

Alin Airtel es

A43

57 470 Anna Mae Lewis v. St. Charles Parish Hospital

Service District, etc., et al.

SANDERS, C. J., SUMMERS and MARCUS,

J. J., are of the opinion that a rehearing

should be granted.

WRIT GRANTED:

58,717 State of La. ex rel Wilfred Young v. Ross

Maggio, Jr., Warden Louisiana State Peniten-

tiary (Parish of Orleans)

WRIT DENIED:

58,645 State of La. v. Jackie Thacker (Parish of

Calcasieu)

SUMMERS, J., is of the opinion there is no

merit to the application.

CALOGERO, J., is of the opinion the writ

should be granted. The issue is a close one.

We should not in this case wait until defen-

dant has possibly been convicted, and then re-

verse the conviction.

DENNIS, J., is of the opinion the writ should

be granted.