# Petition — Walgreen Louisiana Co. v. City of New Orleans > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1191%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 916 ## Text — 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 | =] se i { ' ' ! 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-