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cific amount paid for each sale or drink, by [2] The accused then moved that the state whom paid and the name of the person receiv: be required to elect upon which one of the ing payment in each specific instance, whether each of the alleged sales were made as princi- three counts contained in the indictment it pal, agent, or employé, and whether drunk on would prosecute. the premises or carried away, if not drunk in the house or on the premises, and still in pos The motion was overruled for the entirely session of the purchaser or purchasers, that the same be produced in court," that those present good and sufficient reason that several misand the names of the witnesses against your demeanors may be charged in one indictment mover be given, in order that your mover may in separate counts. State v. Gilkie, 35 La. have an opportunity to properly meet the issues raised, to summon witnesses and Ann. 53, and cases there cited. tomers who may have been present when said alleged unlawful sales and transactions were

Judgment affirmed. made.

“That each of the above facts, and the data demanded are important, material, and indispensable, necessary to enable your mover to intelligently and properly plead and prepare his

(55 South. 737.) defense in said cause, and to be informed reasonably of the charge or charges he is called

No. 18,620. upon to defend against, and without which he will be prejudiced and denied his legal rights under the Constitution and law of Louisiana, NEW ORLEANS GREAT NORTHERN R. that the district attorney has such facts and

CO. v. THOMAS, Assessor, et al. data demanded in his possession, or is in a position to easily obtain same, whereas your mover (annot do so."

(June 15, 1911.) The judge overruled the motion, assign

(Syllabus by the Court.) ing as his reasons the following:

TAXATION (8 500*)—"ASSESSMENT"'-ACTION

TO ANNUL. “The bill of information shows the date when each sale was made, not only as to the sales

While an action against the State Board upon which the

state relies as part of the evi- of Appraisers to reduce an assessment must be dence to show the grog and tippling shop alleged brought at Baton Rouge, the domicile of that in the first count, but also the date of the par- made by it declared a nullity may be brought

body, still an action to have an "assessment" ticular sale upon which the state relies to show the unlawful retailing alleged in the second and in the parish where the property sought to be third counts. It likewise gives the exact place exempted is situated. where the alleged grog shop was kept and con (Ed. Note.-For other cases, see Taxation, ducted, and where the alleged sale relied on in | Dec, Dig. $ 500.* the second and third counts was made. It al

For other definitions, see Words and Phrases, so gives the quantity and kind sold. The bill also states who made manual delivery of the vol. 1, pp. 549–555; vol. 8, pp. 7583, 7354.) liquors. Certainly the information given is ample to place defendants on their guard. This is the sole purpose of a bill of particulars. I re

Appeal from Twenty-Sixth Judicial Disfuse to order the state to give the name of the trict Court, Parish of St. Tammany; Thompurchaser on the authority of State v. Selsor, 53 South. 737,1 recently decided and reported as M. Burns, Judge. in the advance sheets of January. As relates Action by the New Orleans Great Northto the rest asked and refused, it is likewise immaterial.

Railroad Company against Warren "In overruling the motion for particulars I Thomas, Assessor, and the State Board of ruled and gave notice at the time that the particulars given in the information would be given Appraisers and others. Judgment for de the same effect as a bill of particulars given in fendants, and plaintiff appeals. Reversed reference to an application therefor."

and remanded. These reasons of the learned trial judge

Miller & Morphy, for appellant. Walter appear to us to have been entirely sufficient Guion, Atty. Gen., R. G. Pleasant, Asst. Atty. and conclusive.

Gen., and Lewis L. Morgan, Dist. Atty., for 1 127 La. 513.

appellees.

ern

BREAUX, C. J. Plaintiff sued Warren specified. The latter, as it goes to the enThomas, assessor of St. Tammany parish and tire invalidity of the tax, the time to have T. E. Brewster, sheriff, and the State Board it declared null is not limited, as it is in of Assessors, through Paul Capdevielle, State regard to a suit to reduce the assessment. Auditor, and Walter Guion, Attorney Gener- It is a distinction to be made between an al, and the town of Mandeville, through its action in reduction and an action in nullity. proper officers, and the town of Abita, The former must be brought at the domithrough its proper officers, to have a judg-cile of the board. It is because, doubtless, ment decreeing null the action of the State the matter of assessment and appraisement Board of Appraisers in deciding that in the is within the control of the board and reyear 1910 defendant's railroad is subject to mains within its control. taxation for that year.

While it is different as to the latter. Also to compel these defendants to cancel The tax may be attacked as null and void all taxes on the railroad within the parish either because of exemption or for any of St. Tammany appearing on the assess. cause long after it has passed out of the ment roll.

control of the board. Plaintiff claimed that its railroad was com- The assessment of the Board of Appraispleted within the limits of St. Tammany ers is final unless reduced by suit for reparish and within the town named above duction to be brought against the board at during the years 1907 and 1908.

the capital. Plaintiff claims that the property is ex- Under article 226 of the Constitution, it empt for the reason that the road was com- is made the duty of the Board of Assessors pleted in time to be within the constitution to assess the property belonging to corporaal provision of the amendment adopted in tions, associations, individuals employed in the year 1904.

railway, telegraph, telephone, sleeping car The Attorney General, representing the and express business. State Board of Appraisers, the assessor, The law adopted to carry out this article through his counsel, the sheriff, and the of the Constitution directs that the board town of Mandeville filed exceptions to plain- shall assess the property, owned as before tiff's suit, averring as the ground of excep- indicated, for taxation, and it is given power tion that the suit to reduce, change, and set to obtain information in order to ascertain aside an assessment on railroad property values of property. ought to be brought against the State Board

Throughout, reference is made to the asof Appraisers at Baton Rouge.

sessment of property and nothing regarding The exception of the Board of Assessors exemption. The whole duty is confined to was heard.

the assessment of property. The court held that it was well founded

To assess property is to place a value upand dismissed the suit.

on it, while to exempt property presents From the judgment dismissing its demand, other issues. plaintiff prosecutes this suit.

If the present action can be classed as an The action is not brought to reduce an action in reduction, suit should have been assessment, but to set aside the tax as null brought against the board. because of the alleged exemption of the We have not found it possible to agree property from taxation.

with the view that an action to reduce the The former must be brought within the time l assessment is an action in nullity.

129 LA.-5

The Board of Appraisers is not authoriz- | When the board has assessed the property ed by any special provision of law to pass and it has passed out of its hands, as it has upon the right of exemption. It has not the been referred to the sheriff to collect the exclusive right to pass upon the question taxes, it then would present inconvenience whether or not the property is exempt. to sue the board in matter of exemption.

As the language of the statute does not If, after the return has been made, the indicate that it was the intention of the taxpayer whose assessment has been made Legislature to compel the taxpayer to sue by this board discovers that his property is the board exclusively at its domicile, to the to be sold for taxes although exempt from taxpayer the right remains to bring suit at taxation, as this board meets annually once the situs of the property.

a year, the property might be sold before it We infer from the law upon the subject would be possible for him to have a hearing that it is the intention that the authori. before the board. ties in charge of the tax collecting depart. It does look more regular to let the taxment shall to some extent act together and payer proceed against the local authorities come to a common understanding in regard and make the Board of Appraisers a party to property which is exempt from taxation. to the suit.

This can best be accomplished by making In this way the authority of the state is the Board of Appraisers a party to the suit recognized, its interest protected, and the in the parish or at the locality where the taxpayer is not placed to great inconvensuit is brought.

ience in order to obtain a hearing. In this instance, it is important that the We mention this to add that it is not Board of Assessors be made a party, for it probable that the legislator sought to inhas acted upon the question at issue and de- clude the action of nullity as an action to cided that the property is not exempt. be brought against the board in Baton

In a suit to test the question whether it Rouge. is exempt or not, the board is a necessary The ruling should not be toward restrictparty.

ing and contracting the methods whereby We are of opinion that there is no good parties may reach the courts unless it is reason why in every case it should not be evidently the intention of the lawmaking made a party when it was proposed to have authority to thus contract and limit the juproperty exempted from taxation which is risdiction and confine it to one court at a subject to assessment and valuation by the distance. Board of Appraisers.

That is not the tendency of modern law. In a number of decisions, the question of It is the duty of the board, we have seen, the absolute nullity of the tax has been de- to see to the proper appraisement of propcided contradictorily with the officer who erty. had it in charge to collect the tax.

We have not found that it is the duty That is a direct and practical remedy. of the Board of Appraisers to compel the

The other is not as direct, and, besides, taxpayer in actions of nullity to resort for we do not understand that it is the law. the assertion of his rights to the place at To illustrate:

which the Board of Appraisers has its domWhen the Board of Appraisers have made icile. their assessment, they return it to the as. Although it has its domicile at the capital, sessor and other local authorities to collect its jurisdiction extends over all the state, the taxes.

and when that jurisdiction is questioned,

or it is deemed that the board is in error For reasons stated, the judgment of the wherever the collection of a tax that is null district court is annulled, avoided, and reand void is attempted, the court at the dom- versed. It is ordered, adjudged, and decreed icile of the taxpayer has, under our con- that the case be remanded to the district struction, the jurisdiction to act, provided court; that it be reinstated and tried in acthe board is made a party.

cordance with the views above expressed. The board makes returns to the different parochial and municipal authorities of the property assessed and its valuations to the

(55 South. 739.) respective jurisdiction. See section 6 of Act

No. 18,526. No. 106 of 1898.

WINDISCH-MUIILIIAL'SER BREWING It having made return to the local au

CO. V. SIMMS. thorities, the action to annul may be brought in the parish in which the property is as

(June 15, 1911.) sessed, and, as it is returnable to the lo

(Syllabus by the Court.) cality where assessed, if there be illegality BANKRUPTCY (8 431*) — ATTACHMENT—FORTH

COMING BOND--RELEASE OF SURETY. in the proceedings, it may be brought to

Where the property of the debtor was atthe attention of the court at the place where tached and released on bond less than four the property was assessed.

months before he was adjudged a bankrupt, and

the debtor was subsequently discharged, held, When an officer is proceeding to collect a that the surety on the bond was released from state tax illegally on account of an assess

all liability. ment that is null and void, or for other sim- Dec. Dig. & 431.*]

[Ed. Note.-For other cases, see Bankruptcy, ilar reasons, or for some illegality in the method followed in collecting, the proceed

Appeal from Tenth Judicial District Court, ing may be arrested by injunction. Budd v.

Parish of Concordia; John S. Boatner, Judge. Houston, 36 La. Ann. 959, approvingly re

Action by the Windisch-Muhlhauser Brewferring to Blackwell on Tax Titles, p. 583.

Ing Company against A. P. Simms. Judg. In a number of cases the suit was brought ment for defendant, and plaintiff appeals. against the sheriff alone to enjoin him.

Affirmed. For instance, in the case of Hollingsworth John Dale and Ratcliff & Truly, for appelv. Tax Collector, 45 La. Ann. 222, 12 South. lant. Ernest E. Brown and John S. Boat1, and in the case of L. & A. Ry. Co. v. Tax ner, Jr., for appellee. Collector, 121 La. 997, 46 South. 994, the police jury, the assessor and the tax col LAND, J. On June 18, 1909, the plaintiff lector were made parties.

instituted this suit on an open account for See, also, the late case of the Board of $3,013.64 against the defendant, a resident Trustees of Seminary College v. Sheriff, 128 of the state of Mississippi, and attached his La. 258, 54 South. 790.

property on the ground of his nonresidence. The tax collector alone stood in judgment on the next day the property seized was reto put an end to the exemption of the prop- leased on bond for $5,000, with the United erty.

States Fidelity & Guaranty Company as While it is true that the question was surety. On November 2, 1909, further pronot directly presented in these cases, it ceedings were stayed on the ground that the shows the impression created on a number defendant had been duly adjudged a bankof minds after having read the law upon the rupt on September 3, 1909, in the United subject.

States District Court for the Southern Dis

trict of the State of Mississippi. The de The court said, inter alia, that the surety fendant was duly discharged as a bankrupt bound himself to satisfy such judgment as on May 14, 1910.

the plaintiffs might obtain against the deOn June 6, 1910, the defendant pleaded his fendants in the suit between them, and that discharge in bar of further proceedings in the event on which the surety undertook and this suit. On October 3, 1910, the plaintiff bound himself to pay never happened. filed an answer to the application for dis The doctrine of this case has never been charge asserting its right to proceed with the overruled or modified. In Serra é Hijo v. cause to judgment against defendant, with a Hoffman & Co., 30 La. Ann. 67, it was held perpetual stay of execution as against him, that the defendant's discharge in bankrupt. reserving its rights against the surety com-cy pendente lite did not release the surety pany on the release bond.

on their appeal bond. In that case a money Judgment was rendered in favor of the judgment had been rendered against the dedefendant, sustaining his plea in bar, and fendants, who thereupon appealed to the Sudismissing plaintiff's suit, with costs. Plain-preme Court, which affirmed the judgment. tiff has appealed.

That case was decided on the well-recognizSection 67f of the United States bankrupt- ed rule that the liability of a surety is not cy act of July 1, 1898 (chapter 541, 30 Stat. affected by the discharge in bankruptcy of 565 [U. S. Comp. St. 1901, p. 3450]), reads as the principal debtor. Section 16 of the bankfollows:

rupt act of 1898 merely recognizes this gen“That all levies, judgments, attachments or eral rule of law. Section 67f of the same other liens, obtained through legal proceedings against a person who is insolvent, at any time statute, however, strikes with nullity all within four months prior to the filing of a petileries, attachments, or liens obtained through tion in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, legal proceedings against an insolvent at any and the property affected by the levy, judgment, time within four months prior to the filing attachment, or other lien, shall be deemed wholly discharged and released from the same, and of a petition in bankruptcy in case he is adshall pass to the trustee as part of the estate judged a bankrupt. It is difficult to conceive of the bankrupt.”

how attachment proceedings thus pronouncSection 16 of the same act provides:

ed null and void can produce any legiil ef“The liability of a person who is a codebtor fect. The attachment being dissolved by opwith, or guarantor, or in any manner a surety for, a bankrupt, shall not be altered by the dis- eration of the statute, nothing is left but a charge of such bankrupt."

suit in personam which is stayed by the

In In Keyes v. Shannon, 8 Rob. 172, 41 Am. pendency of the bankrupt proceedings. Dec. 299, predecessors decided that such a case, the subsequent discharge of the where property attached was released on the debtor extinguishes the obligation on which execution of bond with surety, and the debt. the suit was based, and renders it legally or, before judgment, made a surrender of impossible for the creditor to recover juds, his property under the state insolvent laws, ment against his former debtor. the surety will be discharged. The court Where an attachment is released on bond, held that the bond represented the property the condition is that the defendant will satso far as the attaching creditors were con- isfy such judgment, to the value of the propcerned, that the cession of property dissolv- erty attached, as may be rendered against ed the attachment, and that plaintiff, having him in the pending suit. C. P. art. 259. No no privilege on the property, could have no proceeding can be had against the surety on right of action on the bond.

such a bond until after the judgment has

our

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