State v. American Ry. Express Co. , 159 La. 1001 ( 1924 )

This case is remarkable for the number of times appellee has shifted its defense. In the court a qua, the defense was that it had paid its license on the same basis as domestic corporations, that Act 127 of 1898 was repealed by the Constitution of 1921, and that the statute was violative of section 1 of article 10 of said Constitution, requiring taxes to be equal and uniform. In this court, defendant contended by brief, and without plea, that the statute was unconstitutional because it attempted to license foreign corporations differently from domestic corporations. Another defense, urged in argument and without plea, was that the defendant company consolidated unto, and merged with, itself all the other express companies that were in the state prior to the adoption of Act 127 of 1898, and that defendant, accordingly, was the successor to all the license tax exemptions of the consolidated companies. After argument before, and submission to, one of the divisions of this court, and when the cause had been returned, without decision, to the calendar for argument before the whole court, defendant filed an exception of no right or cause of action, based on the ground that the statute in question violated the Fourteenth Amendment of the federal Constitution. Subsequent to the granting of the rehearing, defendant filed another exception of no cause of action in which Act 127 of 1898 was attacked as being in violation of the interstate commerce clause of the Constitution of the United States. And, finally, defendant, for the first time, in its argument and brief on rehearing and without plea, set up as a further defense that Act 127 of 1898 was repealed by section 23 of Act 267 of 1914. This last-mentioned defense is the one which is sustained by the majority opinion, and from which I respectfully dissent, for the reasons, among others, I am setting forth herein.

In the first place, I do not think the defense which has prevailed in this court should have been considered, because it was not presented in the court below nor in the manner prescribed by law. Pleas and issues not raised in the lower court cannot be raised on appeal (Succession of Turgeau, 130 La. 650, 58 So. 497; Timberlake v. Sorrell, 125 La. 554, 51 So. 586; Ruddock Orleans Cypress Co. v. Deluppe, 123 La. 831, 49 So. 588; Griffin v. Waters, 1 Rob. 149); and a brief of counsel forms no part of the pleadings in any case (Dejol v. Johnson, 12 La. Ann. 853; Yorke Co. v. Scott Co., 23 La. Ann. 54). As I view it, it will not do to say a special plea was not required to properly present the issue. If the defendant claimed any rights under the provisions of Act 267 of 1914, it was its duty to make this claim in the orderly manner provided by law, setting up the essential facts in its answer or in some other adequate pleading. This was the only way in which the issue could have been raised as to the effect of Act 267 of 1914 upon Act 127 of 1898. Non constat, but under the tender of such an issue, conceding that the later act, by its terms or in its effect, repealed the earlier act, that plaintiff would not have contended and been able to demonstrate that the act of 1914 was unconstitutional and void, and that the act of 1898 therefore remained in full force and operation. In my humble judgment, the effect of the majority opinion will be to encourage a loose method of pleading and practice, under a system which perhaps already goes too far in that direction, which will cause much uncertainty to courts, lawyers, and litigants.

In the second place, considering the contention of defendant as if it was properly before the court, I am not willing to concede that Act 127 of 1898 has been repealed by Act 267 of 1914. In this connection, it is to be observed that section 33 of Act 267 of 1914 expressly repeals many sections of the Revised Statutes and legislative acts. Act 127 of 1898 is not among those mentioned. It is true, the same section of the statute of 1914 declares that its provisions shall supersede such sections of the Revised Statutes, acts of the Legislature, and articles of the Revised Civil Code and Code of Practice as shall be in conflict therewith. But this adds nothing to the force of the repealing clause, because the same result would follow if that portion of the section had been omitted.

It is certain that the act of 1898 is not directly repealed by the act of 1914, nor do I believe that the former statute is even indirectly superseded by the latter statute. A general statute does not have the effect of repealing a special statute unless the intention to do so is clear. Act 127 of 1898 is a statute enacted for the specific purpose of authorizing the levying of an annual license tax upon foreign corporations doing business in this state. Act 267 of 1914 is a general law prescribing the manner in which corporations, except those specially excepted, may be created, and setting forth the method of carrying on their operations. As to taxes, it must be presumed that the Legislature did not intend to deprive the state of any prerogative, right, or property, unless in terms expressive or inference irresistible. Augusti v. Bank, 46 La. Ann. 529, 15 So. 74. See, also, to the same effect, Benedict v. City, 44 La. Ann. 793, 11 So. 41. Now there is nothing in the title nor in the body of Act 267 of 1914 which even remotely suggests, much less directly declares, that under its provisions a foreign corporation, even though it may have an agent within the state for the service of process, is given the right to be classified with domestic corporations in establishing and fixing the amount of its license tax. Then how can it be said that it was the intention of the Legislature, in enacting the uniform corporation law, to repeal the special license statute adopted in 1898? The presumption is that such was not its intention, and that it did not consider that it had done so is demonstrated by the fact that as late as 1924, in the enactment of the general license law of that year (Act No. 205), the Legislature, in effect, recognized the foreign corporation license act by specifically and in terms bringing within the provisions of the act of 1924 foreign life and accident insurance companies and foreign fire and marine insurance companies, guaranty and surety companies. These provisions manifestly would have been unnecessary if Act 127 of 1898, by reason of its repeal by Act 267 of 1914, was nonexistent in the year 1924. Furthermore, this court in City of Shreveport v. Pierce Oil Corp., 141 La. 372, 75 So. 84, enforced the provisions of Act 127 of 1898. This decision was rendered in 1917, three years subsequent to the adoption of the uniform corporation statute.

It is stated in some of the many briefs filed on behalf of the appellant that the law officers of the state have not regarded Act 127 of 1898 as having been repealed by Act 267 of 1914, nor by any other statute, and that the appellee itself had recognized that the former act was in force by paying licenses thereunder for the years up to and including the year 1920. These facts if true, and I have no reason to dispute their verity, might have been established if the present issue had been set up by a special plea in the court below and not merely by the argument and brief of the appellee on the rehearing of the cause. The importance of this feature of the case is derived from the principle of the law of statutory construction, which accords great and almost controlling weight to the contemporaneous construction of a statute by those charged with its execution and by those who are subject to the obligations and penalties which it imposes.

The attack on Act 127 of 1898, on the ground that it violates the interstate commerce clause of the Constitution of the United States, was not timely presented, and therefore cannot be considered. The other issues raised by the defendant were disposed of by our former opinion, and I adhere to the views which we therein expressed. For those reasons, and for the reasons herein assigned, I believe that our former decree is correct, and that it should be reinstated and made the judgment of this court.