Opinion Number ( 2004 )

Dear Senator McPherson:

Reference is made to your request for an Attorney General's opinion regarding an issue posed to you by the Louisiana Union of Police Associations. Specifically, your request pertains to the use of a portion of the proceeds of a 1976 one per cent (1%) sales tax dedicated by the voters of the City of Alexandria pursuant to a proposition that pertinently provides:

". . .for the purpose of constructing, acquiring, extending and/or improving capital improvements for the City (including, but not limited to, major thoroughfares and arterial streets with related improvements, major drainage systems, civic-convention center complex, parks and parking facilities) " (Emphasis supplied).

With regard to the above-quoted proposition, you have presented two questions for our review.

1. "Can police vehicles and equipment such as computers and firearms be bought with the funds that are currently dedicated and used "for the purpose of constructing, acquiring, extending (in the existing language)?"

LSA-R.S. 39:704 indicates that the proceeds of any special tax shall constitute a trust fund to be used exclusively for the objects and purposes for which the tax was levied. Additionally, the jurisprudence of this state provides that special tax authorizations must be strictly construed. Police Jury of theParish of Acadia v. All Taxpayers, et al. (La.App. 3rd Cir. 3/29/95), 653 So.2d 94, rehearing denied; Hemler v. RichlandParish School Board, 76 So. 585 (La. 1917); Watkins v. OuachitaParish School Board, 136 So. 591 (La. 1931); Hodnett v. MonroeCity School Board, 277 So.2d 598 (La.App. 2nd Cir. 1972) andBrock V. St. James Parish Council, 407 So.2d 1265 (La.App. 4th Cir. 1981), writ denied.

LSA-R.S. 33:2714 provides:

"The ordinance imposing said tax and any amendments thereto, shall specify the purpose or purposes for which said tax is imposed. The revenues derived from said tax shall be dedicated and used solely for said purposes."

Also pertinent is LSA-R.S. 33:2723 which pertinently provides:

"Also, the purpose or purposes for which each allocation shall be appropriated and expended shall be stated in the question or proposition submitted to the qualified electors. The question or proposition approved at said election shall constitute a full and complete dedication of the avails or proceeds of said tax and its provisions shall control the allocation and expenditure thereof."

Pursuant to the above referenced provisions of law, this office has consistently opined that the use of the proceeds of a sales and use tax adopted at an election in the State of Louisiana must be used in accordance with the will of the electorate, as set forth in the proposition approved by the voters. R.S. 33:2723; R.S. 33:2714; R.S. 39:704. In accord: Attorney General's Opinion Nos. 03-0157, 01-269, 98-421, 98-287, 96-246, 95-145, 94-540, 94-346, 93-424, 93-47 and 92- 50.

The language of the above-quoted proposition clearly limits use of the tax proceeds which are the subject of your request to "capital improvements". In our opinion, the acquisition of vehicles and equipment does not constitute the acquisition of "capital improvements", capital improvements being in the nature of more permanent investments such as streets, lands and buildings. In accord: Attorney General's Opinions Nos. 99:62; 98-316 and 77-341. See also: Attorney General's Opinions Nos. 02-0167. We note further that our opinion in this regard is consistent with the descriptive parenthetical language contained within the proposition.

In accordance with the foregoing, it is the opinion of this office that police vehicles and equipment such as computers and firearms cannot be purchased with the tax proceeds dedicated in accordance with the above-quoted proposition.

2. "If a proposition was brought to a vote of the people to change the current dedication in the tax and the propositionfailed, would the tax itself then be void or (as is our opinion) would the current tax remain in its current posture?"

Please be advised that we are not aware of, nor did our research reveal, any provision of law which would void an existing tax merely because a properly worded proposition presented to the electorate in accordance with law fails to gain the approval of the voters. Accordingly, it is the opinion of this office that if a proposition seeking rededication of the portion of the tax proceeds dedicated above fails, the current tax would remain in its current posture and could continue to be collected for the purpose of "capital improvements".

We trust the foregoing to be of assistance. Please do not hesitate to contact this office if we can be of assistance in other areas of the law.

Yours very truly, CHARLES C. FOTI, JR. ATTORNEY GENERAL

By: ______________________ Jeanne-Marie Zeringue Barham Assistant Attorney General

CCF, Jr./JMZB