State v. Moore , 19 La. App. 364 ( 1932 )

WESTERFIELD, J.

Appellee moves to dismiss this appeal on the ground that this court is without jurisdiction, for the reason that the issue presented involves the legality of a tax which, under section 10, art. 7, of the Constitution of 1921, the Supreme Court alone has jurisdiction regardless of the amount involved.

The issue presented here is the right of the state of Louisiana to collect a license tax from the defendant, a practicing dentist in the city of New Orleans, based upon his gross annual receipts without deduction of expenses incurted by him for laboratory, work and X-ray examinations, the defendant contending that these expenses should be deducted because not essential to the practice of dentistry and more appropriate to the calling of a mechanic. It is not denied that some tax is due, but the amount of the tax is in dispute.

In the case of Downs v. Dunn, 162 La. 747, 111 So. 82, it was held that, where the applicability of a taxing statute to an entire class is in dispute, its legality is in contest, though it is otherwise in a case where the application to an individual defendant is challenged. Here all dentists are affected by the construction to be placed on the law, since the testimony shows that it is customary in the profession to undertake laboratory work and X-ray examinations in connection with dental work proper usually regarded as confined to the oral cavity.

In view of the provisions of Act No. 19 of 1912, it is ordered, adjudged, and decreed that this appeal be and it is transferred to the Supreme Court of Louisiana to be disposed of according to law; the transfer to be made within sixty days after this judgment becomes final, and, if not so made, then the appeal to be deemed dismissed; defendant and appellant to pay the costs of appeal in this court, the remaining costs to await final determination of the matter.

Appeal transferred to the Supreme Court.