#### CHURCHILL FARMS, INC. v. LOUISIANA TAX COMMISSION et al.

No. 4292.

Court of Appeal of Louisiana, Fourth Circuit.

April 5, 1971.

Rehearing Denied May 13, 1971.

Writ Refused June 21, 1971.

*595Cecil M. Burglass, Jr., New Orleans, for plainti f f-appellant-appellee.

Russell J. Schonekas, New Orleans, for Alwynn J. Cronvich, Ex-Officio Tax Collector and Sheriff of Jefferson Parish, for defendant-appellee.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Second Asst. Atty. Gen., John E. Jackson, Jr., Dorothy D. Wol-brette, Asst. Attys. Gen., for defendants-appellees-appellants.

Before SAMUEL, REDMANN and TAYLOR, JJ.

SAMUEL, Judge.

Plaintiff, a Louisiana corporation, is the owner of approximately 4,000 acres of land located in Ward 5 of the Parish of Jefferson. For 1969 tax purposes the Jefferson Parish Assessor estimated the value of the land at $8,800 and listed the same accordingly. Thereafter, the rolls, including that assessment, were accepted by the Louisiana Tax Commission. The Jefferson Parish Council, acting as a Board of Review, made no recommendation relative to the assessment and accepted the rolls which were filed with the Parish Clerk of Court. Later, by written order dated December 8, 1969, “To adjust value to that of neighboring property” as stated in the order, the Tax Commission directed and authorized the Sheriff of the Parish of Jefferson to change the assessment from $8,800 to $263,388 and collect taxes in accord therewith.

Plaintiff then filed this suit against the Louisiana Tax Commission, the Sheriff and Ex-Officio Collector of Taxes for the Parish of Jefferson, and the Assessor for the Parish of Jefferson seeking judgment by *rule nisi:*(1) against the Tax Commission declaring null and void its action which increased the assessment and reinstating the original assessment of $8,800 as a fair and reasonable evaluation of the property; (2) against the Assessor directing and ordering him to change the rolls accordingly; and (3) against the Sheriff directing and ordering him to accept payment of taxes based on the $8,800 assessment. The original and supplemental petitions also pray for a preliminary, and thereafter a permanent, injunction restraining the Sheriff from taking any further action relative to the collection of taxes based on the $263,388 assessment.

To plaintiff’s petitions the Tax Commission and the Sheriff filed exceptions of improper venue and unauthorized use of summary proceedings. Subsequently, those two defendants also filed exceptions of no right or cause of action. At the conclusion of a hearing on the exceptions of venue and no right of action, at which evidence was received, the trial court orally stated from the bench he was going to overrule the exceptions of improper venue and maintain the exceptions of no right of action. He requested counsel to prepare judgments in conformity therewith.

Apparently no judgment was signed relative to the exceptions of improper venue; the record does not contain such a judgment. The sole judgment in the record does not refer to venue; it only sustains the exceptions of no right of action filed by the Tax Commission and the Sheriff, dismisses the suit at plaintiff’s cost, and reserves to the attorney for the Sheriff his rights to compensation under LSA-R.S. 47:1998.

*596Plaintiff has appealed. The Tax Commission has answered the appeal praying: (1) the judgment on its exception of no right of action be affirmed; (2) alternatively, and only in the event that judgment is reversed, the commission’s exceptions of no right or cause of action (on grounds other than the basis of the judgment appealed from) and unauthorized use of summary process be maintained; and (3) also in the alternative and only in the event the judgment on the exception of no right of action is reversed and the other two exceptions are overruled, the “oral ruling of the lower court” denying its exception of improper venue be reversed and the suit dismissed on that ground.

Ordinarily we would feel compelled to consider the venue question first for the reason that without venue in the trial court it would have had no authority, and consequently we now would have no authority, to decide the other exceptions. However, venue can be waived by the Tax Commission.1 And here in its answer, as well as in argument and in brief, the Tax Commission has prayed that we first consider its exceptions of no right of action, no cause of action and unauthorized use of summary process and that we consider venue only in the event our conclusions on those other exceptions are adverse to the position of the Commission. While we do not hold the Tax Commission thus has waived its venue exception (we consider it unnecessary to decide that question), under these circumstances, especially in view of no objection being made thereto and of our conclusion that the judgment sustaining the exception of no right of action is correct and alone requires dismissal of the suit, we deem it proper to consider and decide the issue raised by the latter exception without first considering and deciding the question of venue.

The sole basis for maintaining the exception of no right of action was that plaintiff failed to file a sworn list or return of the property for taxation as required by LSA-R.S. 47:1998. *Inter alia,*the second paragraph of that statute provides :

> “Any taxpayer in the state, the parish of Orleans excepted, who has filed a sworn list or return of his property for taxation on or before the first day of April of any year, shall have the right to institute suit in the court having jurisdiction of the cause of action, for the purpose of contesting the *correctness or legality*of any assessment made against the property listed on such return. Any such suit or legal proceeding shall not be instituted before the assessment rolls are filed in the office of the clerk of court of the parish in which the property is situated as now provided by law, nor later than thirty days following the date of filing of the rolls, *except suits to test the correctness of changes in assessments made under written instructions of the tax commission, pursuant to RS. 47:1990, which suits must he instituted within thirty days after the date of the written instructions of the tax commission ordering the change.*No other condition precedent than those specified herein shall be required of the taxpayer in order to permit him to exercise the right of action hereby granted.” (emphasis ours) LSA-R.S. 47:1998.

The quoted provisions require that two conditions be met in order to give a taxpayer the right to institute suit “to test the correctness of changes in assessments made under written instructions of the tax commission”: (1) he must file a sworn list of his property on or before the first day of April of the tax year; and (2) the suit cannot be instituted before the assessment rolls are filed in the office of the Clerk of Court and must be instituted within thirty days after the date of the Tax Commission instructions ordering the change.

Dixon v. Flournoy, 247 La. 1067, 176 So.2d 138, handed down by the Supreme Court of Louisiana in 1965, holds2 that a *597taxpayer who fails to file the sworn list of his property as required by the second paragraph of LSA-R.S. 47:1998 is without right to seek judicial relief for the purpose of contesting the correctness or legality of any assessment. Our added emphasis in the second paragraph herein quoted clearly shows the present action is one within the contemplation of the statute.

In this court plaintiff admits it did not file the required sworn list of the property and concedes Dixon v. Flournoy squarely holds the necessity for the two prerequisites, the filing of the sworn list and the timeliness thereof, in order to give a taxpayer the right to the kind of judicial review the statute contemplates. But it contends Dixon v. Flournoy is inapplicable to the facts of this case. It argues:

Under LSA-R.S. 47:1956 the Tax Commission has the mandatory duty to prepare, print and furnish the sworn list forms to the Assessor. As the statute also requires that the taxpayer “return” the completed list to the Assessor, the use of the word “return” indicates the taxpayer must first have received the list form from the Assessor. Here, as the evidence shows, by arrangement between the Tax Commission and the Assessor the sworn list forms were withheld from the plaintiff and other Jefferson Parish taxpayers. And, as a matter of law, the taxpayer has no obligation to file a sworn list where the list form has not been provided by the Tax Commission and the Assessor.

The record does not substantiate plaintiff’s conclusions as to the facts established by the evidence, which consists of various exhibits and the testimony of three witnesses, the Jefferson Parish Assessor, one of his deputies, and the executive secretary of the Tax Commission.

As we understand the record it does show that in the Parish of Jefferson, with the exception of a very few corporations, no sworn lists were filed by any taxpayer over a long period of years. At the request of a prior assessor, made primarily because of the lack of need therefor, the state authorities had stopped sending the list forms to the Jefferson Assessor and no such forms were sent by him to the taxpayers. This also occurred in many other parishes. However, the Assessor’s office did have a supply of the list forms which were available to any taxpayer requesting them. And the plaintiff in this case had neither requested one of these forms nor had it filed the sworn list.

Under these circumstances LSA-R.S. 47:1956, upon which plaintiff bases its argument, affords plaintiff no relief. In pertinent part that statute provides:

> “Each taxpayer, the parish of Orleans excepted, shall fill out a list of his property and make oath to its correctness, in the manner and form prescribed by law and *return such list to the assessor*on or before the first day of April of each year. In the parish of Orleans, each taxpayer shall return a list of his property, duly sworn to, within twenty days after the form for such purpose shall have been left at his domicile or place of business.” (emphasis ours) LSA-R.S. 47:1956.

The words “return such list to the assessor” as used in the first quoted sentence simply contemplate that the taxpayer in any parish other than Orleans will obtain from his assessor the list form prescribed by the Tax Commission and then “return” the sworn list to the assessor. The statute only requires that the list form be left at the domicile or place of business of the taxpayer, i. e., be delivered or sent to the taxpayer, in the Parish of Orleans; it makes no such requirement in any of the other parishes where such delivery or sending is npt one of the duties imposed on the assessor. In the instant case the Jefferson Parish Assessor had a supply of the list forms which were available to plaintiff upon request, sufficient compliance with the statutory requirement.

We conclude Dixon v. Flournoy is applicable and therefore must be followed by *598this court. Plaintiff has no right of action because it failed to file the required sworn list.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

1

. LSA-C.C.P. Arts. 7 and 925.

2

. See also Bussie v. Long, La., 243 So.2d 776.

REDMANN, Judge

(dissenting).

Perhaps the most basic procedural essential of due process of law is the requirement of notice and opportunity for hearing.

The majority opinion refuses *all*opportunity for a hearing to plaintiff, and deprives plaintiff of its property without due process of law in violation of La.Const. Art. 1, § 2, and closes the courts and administers justice with denial, in violation of La.Const. Art. 1, § 6.

In doing so, the majority suspends a sword of financial ruin over virtually every property owner in the state (“the parish of Orleans excepted”).

If the commission can change assessments after all administrative review time has passed, and never be subject to having its action questioned, then it can take away every citizen’s property by merely multiplying his assessment 30 times (as here), or 300 or 30,000 times. The majority of this panel of this court would not even *hear*the citizen who complained that the increase was incorrect.

La.Const. Art. 10, § 1, provides “ * * * all tax-payers shall have the right of testing the correctness of their assessments before the courts at the domicile of the assessing authority, or as may be directed by law. * * * ” Constitutionally, plaintiff *must*have his right, either before the courts or “as may be directed by law.”

The majority does not point to any law which provides an *alternative*for court testing of commission-changed assessments. Nor does the tax commission suggest any such law.

I believe that neither the statute (R.S. 47:1998, 2d para.) nor the Supreme Court decision (Dixon v. Flournoy, infra) relied on by the majority supports the majority’s unconstitutional holding.

But before discussing that case and statute, I would express my views on the question of venue, which I believe we cannot avoid deciding.

*V enue*

It appears to me that the declinatory exception to the venue is waived by urging this court to first decide the peremptory exception of no right (or cause) of action.

It also appears to me that the judgment appealed from, although silent as to venue, necessarily overruled the venue exception since the judgment did purport to adjudicate the case.

In any event, venue was proper in Jefferson Parish, the “domicile of the assessing authority”, Const. Art. 10, § 1. Regardless of what the statutes may provide concerning the assessment system, the *Constitution*provides for an “Assessor” in each parish, Art. 14, § 9, and for all real estate to be “valued at actual cash value, listed on the assessment rolls and *submitted to the Louisiana Tax Commission”,*Art. 10, § 12 (emphasis added). Obviously the Constitution views assessment of real estate as occurring *prior*to submission to the tax commission. The Constitution docs let the tax commission “exercise such authority *in respect to*assessment” as the Legislature might provide, Art. 10, § 2 (emphasis added). But the only actual *assessment*the Constitution made the duty of the tax commission was that of rolling stock of nondomiciliaries, Art. 10, § 16. Thus the *Constitution*provides two “assessing authorities”: usually the Assessor, but for some property the tax commission.

Accordingly, when Art. 10, § 1, authorizes assessment-testing in the courts “at the domicile of the assessing authority”, it is speaking of the domicile of the parish As*599sessor unless the property is of a kind not assessed by the Assessor but only by the commission.

*Dixon v. Flournoy*

Dixon v. Flournoy, 247 La. 1067, 176 So.2d 138 (1965), was not a case of a last-minute change in assessment under R.S. 47:1990. There taxpayers complained in court of their *original assessments*(as approved by the tax commission), without first exhausting their available administrative remedies.

R.S. 47:1992 provides for the testing of the correctness of the ordinary assessment before the parish governing authority (except Orleans) sitting as a parish hoard of reviewers, where *“any*taxpayer may object” to his assessment (emphasis added). If the parish board refuses to recommend the taxpayer’s position to the commission, or if the commission refuses to comply with the board’s recommendation, then *"Any*taxpayer in *any*instance [of either such refusal] * * * may resort to the district court for review of such action. * * * ” R.S. 47:1998, first para. (Emphasis added).

Accordingly, as Dixon v. Flournoy points out, 176 So.2d at 140-1, the list-filing requirement of R.S. 47:1998, 2d para., is not applicable where the court action seeks review of such a refusal by parish board or commission. The Supreme Court in Flournoy declares the purpose of the source statute of the second paragraph of R.S. 47:1998, quoting its own earlier language in Bowman-Hicks Lbr. Co. v. Reid, 169 La. 905, 126 So. 232,235 (1930):

> “ * * * It would seem to be too plain for dispute that the object of the Legislature in enacting the statute in question was to *simplify the procedure*whereby a taxpayer might judicially contest the correctness or legality of his assessment by requiring only the filing of a sworn return, dispensing with all subsequent proceedings involved in the objections and complaints of the taxpayer before the assessing authorities as a condition precedent for his right of action in the courts.” (Emphasis added.)

Thus understood, as a simplified *alternative*route to the courts, § 1998, 2d para., is unobjectionable. Filing a list under § 1956 (see also § 1953) brings an advantage: the list-filer can skip the parish board of reviewers and tax commission and go directly to court.

Here, the majority mistakenly concludes that failure to file a list subjects the taxpayer to whatever outrage might please the assessing authorities. This is a gross misconception, even more revolting in light of the commonly known (and thus judicially cognizable) fact that virtually *nobody*files a list of his property for assessment.

If non-filers were required to be treated as law-breakers there would be grave additional constitutional problems because of the near-universal noncompliance with the filing law, R.S. 47:1956.

But it ought to be clear that non-filers are only required to be treated as reward-refusers. Filing brings the reward of direct court testing of assessment. All that happens to a non-filer, and the only “penalty”, is that he must first exhaust administrative remedies before the parish board of reviewers and then the tax commission, and only if there unable to obtain satisfaction may he resort to the courts.

Accordingly, all that Dixon v. Flournoy holds is that, *where he had available but did not seek administrative remedy,*a taxpayer who did not file a list under § 1956 may not contest the correctness or legality of his assessment in the court.

That situation is not ours. Here, *after*the time for review by the parish board of reviewers had passed, and *after*the time for determination of appeals to the tax commission (§ 1992), i. e, *at a time when administrative review was no longer available,*the tax commission changed plaintiff’s assessment.

*600There is no way to equate Dixon’s position to our plaintiff’s. Dixon plainly had an opportunity for an administrative hearing and judicial review, but simply did not exercise his right. Our plaintiff has never had an opportunity for a hearing. Dixon v. Flournoy does not dictate that we should refuse him one.

*Construing R.S. 47:1998*

R.S. 47:1998, and all of the Revised Statutes of 1950, “shall be construed as continuations of and as substitutes for the laws or parts of laws which are revised and consolidated herein.” R.S. 1:16.

R.S. 47:1998 is therefore now set forth in a footnote1 in a single text with the Acts of which it was constructed.

*601The most important fact in construing § 1998 as to a last-minute commission-ordered change in assessment is that the controlling source statute, Acts 1934, 2d Ex. Sess., No. 18, § 8, first sentence, provided *"Any taxpayer shall have the right to test the correctness of any change in his assessment*as provided by existing laws, provided he institutes suit within thirty days after the date of the written instructions of the Louisiana Tax Commission ordering the *change.”**2***(Emphasis added.) So § 1998 must be construed under R.S. 1:16 as a continuation of and substitute for an act which expressly authorized *any*taxpayer to sue to test the correctness of a change in his assessment.

The second most important fact in construing R.S. 47:1998 on our facts is that its language of its second paragraph authorizing a list-filer to sue to contest “the correctness or legality of any assessment” of listed property is the identical language of its source, Acts 1924, No. 97, § 1. *Presumably no change in law was intended in repeating the exact words of prior law.*Yet plainly the 1924 Act had no application to last-minute commission-ordered *changes*in assessment, which were not authorized in 1924 nor until Acts 1934, 2d Ex.Sess., No. 18. Thus it would be erroneous construction of the 1924 Act’s words in R.S. 47:1998 to say that “assessment” includes “change in assessment”.3

A third fact is that § 1998 itself still stipulates (like the 1924 source) that “No other condition precedent than those *specified*herein” is required for suit (emphasis added). But the only reference to suits to test commission *changes*in assessments under R.S. 47:1990 is the statement they must be instituted within 30 days of the change order. That is the only “specified” condition precedent to such a suit.

Finally I note the general principle that a statute ought to be construed so as to have a constitutional rather than an unconstitutional effect.

From these principles and observations I construe R.S. 47:1998 as providing that a taxpayer may obtain judicial review (1) if unsatisfied after exhausting administrative review of an assessment; or (2) if a list-filer, then without going through the administrative procedure; or (3) if seeking review of a change in his assessment ordered by the tax commission under R.S. 47:1990 and suit is filed within 30 days of the change order.

The judgment appealed from should be reversed and this matter remanded, so as to allow plaintiff its day in court.

1

. Words neither italicized nor bracketed are common to both R.S. 47:1998 and the source provision. Italicized words were added in the revised statute; bracketed words were found in the source but omitted in the revision. Sources are set forth, also in brackets. Differences in capitalization and use of commas are generally ignored, as is the mere name change of “State Board” to “tax commission.”

> “[That the action of the State Board, after considering the recommendation of the Parish Board of Reviewers, shall be final; always provided that the] *Any*taxpayer [may,] in any instance where he shall be dissatisfied with the action of the parish board of reviewers in refusing to make a recommendation *with respect to an actual cash valuation*to the tax commission or with the tax commission upon its refusal to comply with such recommendation, *or*in regard to the actual cash [valuable (sic)] *valuation*fixed by the tax commission [or where he may be dissatisfied with his local assessment], may resort to the district court [within the time and according to the law fixing the same] *for review of such action.*[So also may any taxpayer in any class] Where the parish board of reviewers have opposed and appealed the valuation fixed by the tax commission upon [such] *any*class of *property*[, resort to the courts for remedy in the event] *and*the tax commission [shall not alter] *has not altered*the valuation [as appealed for by the parish Board of Reviewers] *in accordance with such appeal, any taxpayer of sueh class,*[and this without any initial complaint by such taxpayer] *whether or not he has filed an initial complaint with the parish board of reviewers or with the tax commission, may resort to the district court for review of sttch action.*[Source: Acts 1916, No. 140, § 16, first two sentences.] [* * * all appeals to the State Board shall be determined on or before August 1st, and] Complaining [interests] *taxpayers*shall have [to November 1st] *until the first day of November following the determination appealed from*to resort to the *district*court[s] for [remedy] *review*after which they shall not have such right. [Source: Ibid., § 15, last sentence.]

> “[That] Any taxpayer in [this] *the*State, the parish of Orleans excepted, who has filed a sworn list or return of his property for taxation on or before [April 1st] *the first day of April*of any year, shall have the right to institute suit in the court having jurisdiction of the cause of action, for the purpose of contesting the correctness or legality of any assessment made against the property listed on [the said] *such*return. [Source: Acts 1924, No. 97, § 1.] [No suit or legal proceeding provided for in Section 1 above] *Any such suit or legal proceeding*shall *not*be instituted before the assessment rolls are filed in the office of the clerk of court of the parish in which the property is situated as now provided by law, nor later than thirty [(30)] days following the date of filing of the [said] rolls, [.] [Source: Ibid, § 2] *except suits*[Any taxpayer shall have the right] to test the correctness of [any] changes in [his] assessments *made under written instructions of the tax commission, pursuant to R.S. Jft :1990,*[provided he institutes suit] *which suits must be instituted*within thirty days after the date of the written instructions of the [Louisiana] tax commission ordering the change. [Source: Acts 1934, 2d Ex.Sess., No. 18, § 8, first sentence.] No other condition precedent than those specified herein shall be required of the taxpayer in order to permit him to exercise the right of action hereby granted. [Source: Acts 1924, No. 97, § 3.]”

(We are not concerned with the balance of R.S. 47:1998, but it too is a hodgepodge. Paragraphs third and fourth of R.S. 47:1998 are near-verbatim the second and first sentences of the fifth paragraphs of Acts 1898, No. 170, § 24 as amended by Acts 1906, No. 63, § 1. Para*601graph fifth contains Acts 1914, No. 219. Paragraph sixth is near verbatim Acts 1898, No. 170, § 56, 2d para.; but see Acts 1916, No. 140, § 16, 2d to last sentence.)

2

. The same 1934 Act was the source of R.S. 47:1990, and was the first authorization of commission changes after rolls were final and up until the taxes were paid.

3

. On the other hand, if we could say that the 1924 word “assessment” now includes the 1934-authorized “change in assessment”, X would equally have to construe the 1916 words of § 1998’s first sentence to include later authorization to the commission. “Any taxpayer in any instance where he shall he dissatisfied * * * in regard to the actual cash valuation fixed by the tax commission, may resort to the district court for review of such action” is broad enough grammatically to include changes in assessment by the commission. But historically, these 1916 words could not include such changes because they were not part of our law until 1934.

ON APPLICATION FOR REHEARING

PER CURIAM.

Appellant has filed an application for rehearing in which it generally rear-gues factual questions and, in addition, relies on the dissenting opinion which would hold plaintiff has been deprived of its property without due process of law in violation of LSA-Const. Art. 1, §§ 2 and 6. This per curiam is written for the purpose of *602pointing out the constitutional question was not considered in the majority opinion because it was not an issue before this court.

The statute, specifically the second paragraph of LSA-R.S. 47:1998, clearly and unequivocally requires the taxpayer to timely file the sworn list in order that he may have the right to test the correctness of changes in assessments made under written instructions of the Commission. Thus, the constitutional question, if raised, would be whether the required necessity of filing the sworn list, or otherwise of being denied the right of judicial review, is constitutional.

Our long settled jurisprudence is that any contention not urged on appeal, in either oral argument or in brief, is deemed waived and abandoned and will not be considered by the appellant court. Texas Co. v. Cooper, 236 a. 380, 107 So.2d 676; Reimann v. New Orleans Public Service, 191 La. 1079, 187 So. 30; State v. Owin, 191 La. 617, 186 So. 46; Constantin Refining Co. v. Day, 147 La. 623, 85 So. 613; LeDay v. New York Fire and Marine Underwriters, Inc., La.App., 203 So.2d 562; Parish of Jefferson v. Bertucci Bros. Const. Co., La. App., 176 So.2d 688; Tingle v. Rogers, La. App., 134 So.2d 110; Boddie v. Morehouse Parish Police Jury, La.App., 91 So.2d 463; Dowden v. State, La.App., 81 So.2d 48; Pacific Finance Co. v. Granite State Fire Ins. Co., La.App., 45 So.2d 378; Ingram v. State Farm Mut. Automobile Ins. Co., La.App., 35 So.2d 781; Prejean v. Richard, La.App., 158 So. 693; National Materials Co. v. Guest, La.App., 147 So. 771. This rule is applicable to claims of unconstitutionality. Giamalva v. Cooper, 217 La. 979, 47 So.2d 790; State ex rel. Chehardy v. New Orleans Parkway Commission, 215 La. 779, 41 So.2d 678; State v. Banner Cleaners & Dyers, 170 La. 76, 127 So. 370.

In this case appellant’s original and supplemental petitions in the trial court do allege the Commission’s action was unconstitutional. But in this court it did not make such a contention. Both appellant’s oral argument and its brief were and are devoid of any argument relative to unconstitutionality or of any mention thereof. Thus, the issue was not before us and a discussion of unconstitutionality would have been, and would now be, academic.

Appellant’s application for rehearing is refused.

Application refused.

REDMANN, J., is of the opinion a rehearing should be granted.