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BROWN and another v. HOUSTON

May 4, 1885


The opinion of the court was delivered by: Bradley, J.

J. P. Hornor and C. W. Hornor, for plaintiffs in error.

No appearance for defendants in error.

This suit was brought by the plaintiffs in error in the civil district court for the parish of Orleans, state of Louisiana, on the thirtieth of December, 1880, to enjoin the defendant Houston from seizing and selling a certain lot of coal belonging to the plaintiffs, situated in New Orleans. They alleged in their petition that they were residents and did business in Pittsburgh, state of Pennsylvania; that Houston, state tax collector of the upper district of the parish of Orleans, had officially notified Brown & Jones, the agents of the plaintiffs in New Orleans, that they (Brown & Jones) were indebted to the state of Louisiana in the sum of $352.80, state tax for the year 1880 upon a certain lot of Pittsburgh coal, assessed as their property, and valued at $58,800; that they (Brown & Jones) were delinquents for said tax; and that he, said tax collector, was about to seize, advertise, and sell said coal to pay said tax, as would appear by a copy of the notice annexed to the petition. The plaintiffs alleged that they were not indebted to the state of Louisiana for said tax; that they were the sole owners of the coal, and were not liable for any tax hereon, having paid all taxes legally due for the year 1880 on said coal in Pennsylvania; and that the said coal was simply under the care of Brown & Jones as the agents of the plaintiffs in New Orleans, for sale. They further alleged that said coal was mined in Pennsylvania, and was exported from said state and imported into the state of Louisiana as their property, and was then, (at the time of the petition,) and had always remained, in its original condition, and never had been or become mixed or incorporated with other property in the state of Louisiana; that when said assessment was made, the said coal was afloat in the Mississippi river, in the parish of Orleans, in the original condition in which it was exported from Pennsylvania, and the agents, Brown & Jones, notified the board of assessors of the parish that the coal did not belong to them, but to the plaintiffs, and was held as before stated, and was not subject to taxation, and protested against the assessment for that purpose. The plaintiffs averred that the assessment of the tax and any attempt to collect the same were illegal and oppressive, and contrary to the constitution of the United States, article 1, § 8, pars. 1 and 3, and section 10, par. 2. They therefore prayed an injunction to prevent the seizure and sale of the coal, which, upon giving the requisite bond, was granted.

The notice of assessment referred to in the petition, and annexed thereto, was as follows:



'NEW ORLEANS, December 20, 1880.

'To Brown & Jones, Gravier and Charles street–SIR: You are hereby officially notified, in conformity with the provisions of act No. 77 of 1880, that the state taxes assessed to you on movable property in this parish, which amount to the sum of $352.80 (the aggregate assessed value of such property being $58,800.00) fell due and should have been paid in full on or before the first day of the current month; that you became a delinquent for said taxes on such first day of December; that after the expiration of twenty days from the date of this notice, I, as tax collector of the upper district of the parish of Orleans, will advertise for sale the movable property on which the said taxes are due in the manner provided by law for judicial sales; that at the principal front door of the court-house, where the civil district court of said parish is held, I will sell, within the legal hours for judicial sales, for cash, and without appraisement, such portion of the said movable property as you shall point out and deliver to me; and in case you shall not point out sufficient property, that I will at once, and without further delay, sell for cash, without appraisement, the least quantity of said movable property which any bidder will buy for the amount of taxes assessed upon movable property, with interest and costs.

Respectfully, yours,


'State Tax Collector, Upper District, Parish of Orleans.'

The defendant answered with a general denial, but admitting the assessment of the tax and the intention to sell the property for payment thereof.

The plaintiffs, to sustain the allegations of their petition, produced two witnesses. George F. Rootes testified that he was the general agent and manager of the business of Brown & Jones in New Orleans; that when the assessment complained of was made, the firm had paid the state taxes due upon their capital stock, and had paid state and city licenses to do business for that year; that, at the time of the assessment of the tax in question, the coal upon which it was levied was in the hands of Brown & Jones, as agents for the plaintiffs, for sale, having just arrived from Pittsburgh, Pennsylvania, by flatboats, and was on said boats in which it arrived, and afloat in the Mississippi river; that it was held by Brown & Jones to be sold for account of the plaintiffs by the boat-load, and that since then more than half of it had been exported from this country on foreign steam-ships, and the balance sold into the interior of the state for plantation use by the flat-boat load. Samuel S. Brown, one of the plaintiffs, testified that the plaintiffs were the owners of the coal in question; that it was mined in plaintiffs' mine, in Allegheny county, Pennsylvania; that a tax of two or more mills was paid on it in Pennsylvania as state tax thereon, in the year 1880, being the ...

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