Weixel & Janssen, Inc. v. City of New Orleans , 184 La. 651 ( 1936 )

As I understand, the decree rendered in this case does not declare that Ordinance No. 14,241, C.C.S., is unconstitutional, but merely interprets the ordinance as levying the tax upon such kerosene only as is actually "used for the generation of motive power." The ruling is that the city of New Orleans is not authorized, by paragraph (b) of section 24.1 of article 14 of the Constitution, as amended pursuant to Act No. 180 of 1924, to levy the kerosene tax upon "all kerosene" sold in New Orleans, but is authorized to levy the tax upon only such kerosene as is to be "used for the generation of motive power." Under that interpretation the authority to levy the tax on kerosene sold in New Orleans amounts to nothing, for two reasons, viz.: First, because, according to the statement of facts on which this case was submitted, so little of the kerosene that is sold in New Orleans is used for the generation of motive power that a tax on only that portion of the kerosene sold in New Orleans would not be worth while levying or collecting; and, second, because it is impossible for the seller of kerosene to know what it is going to be used for.

The constitutional amendment authorizing the city to levy the tax on kerosene is in these words:

"(b) On all kerosene, or other explosives used for the generation of motive power, the City of New Orleans may from and after January 1st, 1925, impose a tax to be collected as provided by law for the collection of the State tax on gasoline or other motor fuel sold in the State of Louisiana for domestic consumption or as the Legislature may hereafter prescribe."

The phraseology, and the punctuation, thus: "On all kerosene, or other explosives used for the generation of motive power," etc., means simply this, that kerosene being one of the explosives used for the generation of motive power, should be taxed, along with "other explosives used for the generation of motive power," to contribute to the special paving fund, provided for in section 24.1 of article 14 of the Constitution. In other words, the expression "or other explosives used for the generation of motive power" merely describes kerosene as being one of the explosives used for the generation of motive power. And the expression "used for the generation of motive power" means "usable" or "which can be used." It does not mean "actually used." As I have said, it would be impossible to collect the tax if it were levied upon only such kerosene or other explosive as has been, or is to be, actually used for the generation of motive power.

I respectfully submit that, if the court adheres to the declaration made in the case of Alice Lee Grosjean, Supervisor of Public Accounts, v. Standard Oil Co. (La.Sup.) 165 So. 325, 326,¹ to the effect that the kerosene tax authorized by the Constitution, and dedicated to the highway fund, can be levied only upon kerosene that is actually used for the generation of motive power, and that the kerosene tax levied by Act No. 15 of the First Extra Session of 1934, for the stamping out of tuberculosis, is levied only upon kerosene that is "used, or intended, for domestic consumption," it will be difficult, if not impossible, to collect or segregate these taxes on kerosene. My impression is that the expression in the statute "for domestic consumption" does not mean for household consumption, but means that no attempt shall be made to levy or collect the tax on interstate or foreign shipments. What was said on that subject in the case of Alice Lee Grosjean, Supervisor of Public Accounts, v. Standard Oil Company is not controlling in this case, and should not prevail.

With great respect I submit that, in this case, the court has misconstrued the language, "On all kerosene, or other explosives used for the generation of motive power." The language does not mean "on all kerosene * * * used for the generation of motive power, or other explosives used for the generation of motive power." It means "on all kerosene," or on any other explosive that may be used for the generation of motive power. The punctuation leaves no doubt about that, in my mind, and leaves no reason for treating the expression "or other explosives" as a parenthetical expression, so as to make the clause read: "On all kerosene * * * used for the generation of motive power."

¹ 184 La. 45.