#### JANES BROS., INC., Plaintiff-Appellant, v. Hughie PERRY, Sheriff and Tax Collector of Morehouse Parish, Defendant-Appellant.

No. 11294.

Court of Appeal of Louisiana. Second Circuit.

Nov. 18, 1969.

Rehearing Denied Jan. 6, 1970.

Hamilton & Carroll, by Donald K. Carroll, Oak Grove, for plaintiff-appellant.

Joe Rolfe White, Bastrop, for defendant-appellant.

Before AYRES, DIXON and WILLIAMS, JJ.

DIXON, Judge.

Plaintiff seeks to recover, pursuant to R.S. 47:2110, ad valorem taxes paid under protest for 1967 and 1968. Plaintiff appeals from the judgment rendered denying the return of the 1967 taxes, and defendant appeals from the judgment ordering the return of the 1968 taxes.

*148Plaintiff is a corporation domiciled in West Carroll Parish, engaged, according to the record, exclusively in agriculture and in clearing land for agricultural purposes. In April of 1967 plaintiff moved earth moving and land clearing equipment into Morehouse Parish, cleared a 10,000 acre tract of land, prepared it for agricultural use and removed the equipment to West Carroll Parish before November, 1967. This land was not owned by the plaintiff; plaintiff was paid for the work by the owner. The land was subsequently used for the production of soy beans and rice. The equipment used was described as being “some ten tractors” and “blades.”

In 1968 plaintiff leased two sections from the Morehouse Parish School Board for a term ending December 31, 1974. The consideration for the lease was the obligation of plaintiff to “clear the land of brush, trees and debris and have it ready for cultivation for the crop year 1970.” Plaintiff did clear the land and planned to farm it for the balance of the lease term.

Plaintiff’s machinery was assessed in Morehouse Parish in 1967 and 1968, and plaintiff paid, under protest, taxes of $496.30 and $925.00 for the respective years. The district court ordered the return of the 1968 taxes of $925.00, but held that the 1967 taxes were properly assessed.

In a written opinion, the district judge held that the use of the equipment for profit in clearing the land of another removed it from exempt status in 1967, but the use on plaintiff’s own (leased) farm land in 1968 in preparing it for agricultural use brought it within the provisions of the Constitution exempting agricultural machinery.

The Constitutional provision involved is Article 10, Section 4(3) of the Constitution of 1921- as amended by Act 623 of 1960, a part of which is:

> “The following property, and no other, shall be exempt from taxation: “ * * * agricultural products while owned by the producer; agricultural implements used in the cultivation, production, and harvest of crops, as well as other machinery and equipment used exclusively for agricultural purposes, consistent with present day mechanized farm operations, * *

Prior to the adoption of the 1960 amendment the exemption was for:

> “ * * * agricultural implements and farm improvements to the value of five hundred dollars; one wagon or cart; all cattle, livestock, * *

The evidence in the record establishes that the machinery here involved was used exclusively in agriculture or in the clearing and preparation of land for agricultural purposes. The only roads and ditches built were private, not public, not constructed under separate contract, and were for access to and drainage of fields prepared by the plaintiff for agriculture. Whether the machinery is used on the owner’s land or on the land of another is not made a test in the Constitutional provision. A plow is an “agricultural implement,” even if it is used to plow the field of another on shares, for wages or under some other contractual arrangement. If machinery is “used exclusively for agricultural purposes, consistent with present day mechanized farm operations,” the Constitution makes it exempt from taxation.

It is not necessary to pass on plaintiff’s other contention (that movable property can be taxed only at the domicile of the owner, or where it is located.on January 1 of each year).

The judgment of the district court is affirmed in part and reversed in part, and there is now judgment in favor of plaintiff-appellant, Janes Bros., Inc., and against defendant-appellant, Hughie Perry, Sheriff and Tax Collector of Morehouse Parish, in the full sum of $496.30 with *2%*interest from May 15, 1968 until paid, and for the additional sum of $925.00 with *2%*
      *149interest from October 25, 1968 until paid, and for all costs.

WILLIAMS, J. dissents, with written reasons.

WILLIAMS, Judge

(dissenting):

I am unable to agree with the decision reached by the majority and therefore respectfully dissent.

This is a suit by plaintiff to recover taxes paid by plaintiff under protest to the defendant, Sheriff and Tax Collector of Morehouse Parish, for the years 1967 and 1968. Plaintiff is a corporation domiciled in West Carroll Parish. In 1967 plaintiff did .land clearing in Morehouse for a third party. The equipment used was in More-house Parish in April 1967 for approximately six weeks. It was then moved back to West Carroll. Later in 1967 plaintiff returned the heavy land clearing equipment and completed the work for the third party in November, 1967. The land being cleared was to be used for agricultural purposes.

The assessor for Morehouse Parish learned of plaintiff’s having equipment in Morehouse. He discovered there was no assessment of such movable equipment in West Carroll and then assessed plaintiff’s “land clearing equipment” on the More-house tax rolls for 1967. Plaintiff paid the 1967 taxes on May 18, 1968 to the sheriff under protest. The taxes totaled $477.50 plus penalties and cost. On June, 1968 plaintiff and the Morehouse Parish School Board entered into a lease agreement for certain lands in Morehouse, the term of the lease being from June, 1968 through December 31, 1974. The consideration for this lease was that plaintiff clear the land of brush, trees and debris ready for cultivation for the crop year 1970. In July 1968 plaintiff moved land clearing equipment from West Carroll to More-house and began to clear the lands plaintiff leased from the School Board. Plaintiff’s equipment remained only a short time in Morehouse in 1968. Weather conditions did not permit much clearing of the lands leased. The District Court distinguishes plaintiff’s category in the year 1968 from that of 1967. In 1967 plaintiff worked only for third persons in Morehouse; in 1968 the District Court viewed plaintiff’s actions as working only for plaintiff. This reason does not have a sound basis. Actually plaintiff was working for the More-house School Board. Plaintiff was being compensated for its work by the use of the “cleared” land for the years 1971, 1972, 1973 and 1974. There should be no difference in the treatment of plaintiff’s work involvement of 1968 from the year 1967.

The Assessor for Morehouse learned plaintiff’s equipment was being used in his parish and assessed plaintiff with “land clearing equipment” for the year 1968. Plaintiff paid the 1968 taxes amounting to $925 on October 25, 1968 to the Sheriff under protest. This suit was filed first to recover the 1967 taxes paid and by amended petition plaintiff sought to recover the 1968 taxes paid. The judgment of the District Court rejected plaintiff’s demands for the 1967 taxes but allowed plaintiff to recover the 1968 taxes. From this judgment plaintiff and defendant have appealed from the portions thereof adverse to their respective positions.

Plaintiff assigns the following errors to the District Court’s ruling:

(1) In holding plaintiff’s “land clearing equipment” was not exempt under Act 10 Section 4(3) of the Louisiana Constitution from taxes for the year 1967;

(2) In holding that such movable equipment may be placed on the tax rolls of the Parish other than plaintiff’s domicile and where such movable equipment was in the assessing parish after January 1 of the taxable year and then only part of such tax year.

Defendant’s position is:

(1) The property in question is not exempt from taxation under Louisiana’s Constitution. The equipment is and was used *150for *land clearing*and is *not*“Agricultural implements used in cultivation, production, and harvest of crops”.

(2) Movable property may be assessed in a parish where it is located and if not assessed at the domicile of the owner, even though said property was not in said parish on January 1 of the tax year.

I strongly suggest that land clearing equipment as that involved herein and used by plaintiff is not exempt under the terms of our Louisiana Constitution. There is a material difference between the type of equipment primarily used for land clearing and that for “cultivation, production and harvesting of crops.” Plaintiff’s machinery or equipment is used to make capital improvements for owners of land. I do not see how the plaintiff can qualify under the exemption. Our Constitution contemplates the use of the machinery in the *annual*production of agricultural activities not a “one shot” clearing of large or small tracts prior to the raising of crops or other agricultural pursuits.

I agree with defendant that in both 1967 and 1968 the “land clearing equipment” of plaintiff should be assessed and taxes paid.

There is proof that plaintiff was not assessed in the parish of its domicile on this equipment. Under the holding of the case of Hammond Lumber Company v. Smart, 129 La. 945, 57 So. 277, 38 L.R.A.,N.S., 856 (1912) an assessment may be made on property not then in the parish on January 1, but later in the year brought into said parish.

Finally in the case of Griggsby Construction Company v. Freeman, 108 La. 435, 32 So. 399, 58 L.R.A. 349 (1902) the parish in which the movable property was located may assess same, if the property is not assessed at the domicile of the owner.

The holding of the District Court rejecting the refund of taxes for 1967 appears correct. The allowing of refund for 1968 is not a valid conclusion.

For the foregoing reasons, I respectfully dissent from the reversal of the trial court’s refusal to order refund of the taxes paid by plaintiff for the year 1967 and the affirming of the trial court’s granting a refund of taxes paid by plaintiff for the year 1968.

Rehearing denied.

Williams, J., dissents from refusal.