I concur in the opinion that the City of New Orleans has authority to levy a sales tax. By Act No. 338 of 1936, the Legislature conferred upon the city the right to levy any kind of tax that any municipal corporation could levy. The wording of the statute is as comprehensive in that respect as it is possible for a statute to be. That paragraph in the statute reads thus:
"The City of New Orleans shall have the right to levy, impose and collect any and all kinds and classes of taxes or licenses or fees that may be imposed that are necessary for the proper operation and maintenance *Page 574 of the municipality, provided same is not expressly prohibited by the Constitution of the State of Louisiana, and any ordinance adopted under this paragraph may provide for the collection of such taxes by the State tax collecting authorities, and such provisions shall be mandatory on the State tax collecting authorities. Provided that the cost of collecting any such tax shall be first deducted by the State tax collecting authority collecting the same."
It is argued for the plaintiffs that this grant of authority, "to levy, impose and collect any and all kinds and classes of taxes or licenses", did not include the authority to levy and collect a sales tax. And in support of the argument it is pointed out that when the Legislature levied the sales tax of one per cent for the State, by Act No. 2 of 1938, the Legislature declared, in section 15 of the act, that any city having more than 400,000 inhabitants might levy a similar tax, not to exceed the rate of the State tax levied by the statute. That declaration had reference, of course, to the City of New Orleans only, because New Orleans was then and perhaps will be for a long time the only city in Louisiana having more than 400,000 inhabitants. Hence it is argued for the plaintiffs that the Legislature, by declaring, in the act of 1938, that the City of New Orleans might levy a sales tax not in excess of the rate of one per cent, virtually declared that the City of New Orleans did not already have the authority to levy a sales tax under the provisions of Act No. 338 of 1936. And from this it is argued that, when the Legislature, by Act No. 82 of 1940, repealed the sales tax act of *Page 575 1938, and in the repealing act declared that "all ordinances of any municipalities passed under authority of said Act No. 2 of the Legislature of 1938, are hereby repealed", the Legislature revoked the authority of the City of New Orleans to levy a sales tax. On the contrary, the only effect which the act of 1938 had upon the right of the City of New Orleans to levy a sales tax was to limit the rate of such a tax to one per cent. And the only effect which the repealing act of 1940 had upon the right of the City of New Orleans to levy a sales tax was to remove the limitation of one per cent, and to repeal or rescind the ordinance by which the city had levied the sales tax of one per cent. The authority which was conferred upon the City of New Orleans by the act of 1936 to levy a sales tax was not revoked by the act of 1938, but was thereby merely restricted to the rate of one per cent. Perhaps the reason why the Legislature referred only to the City of New Orleans, in the act of 1938, was that New Orleans was the only city in Louisiana that had such unrestricted taxing power as that which was conferred by the act of 1936.
It was conceded by the Mayor and Councilmen of New Orleans that the original ordinance of the city levying a sales tax of one per cent, under the restriction imposed by the act of 1938, was repealed or rescinded by the repealing clause in the act of 1940. The reason for that concession was that, in a subsequent ordinance, amending the original sales tax ordinance, it was declared that the original ordinance was adopted under the provisions of Section 15 of Act No. 2 of 1938. It is argued for the *Page 576 plaintiffs that that declaration in the amending ordinance of the city was an admission on the part of the municipal council that the right of the city to levy a sales tax was conferred not by the act of 1936 but by Section 15 of the act of 1938. Such an admission on the part of the members of the municipal council could not have the effect of depriving the city of the authority that was conferred upon it by the act of 1936. But in fact the declaration in the repealing ordinance, that the original sales tax ordinance of the city was adopted under the provisions of Section 15 of Act No. 2 of 1938, was not equivalent to a denial that the ordinance might have been adopted as well under the provisions of the act of 1936 — subject, of course, to the restriction of one per cent, which was imposed by the act of 1938.
When the sales tax act of 1938 was repealed by the act of 1940 the right of the City of New Orleans to levy a sales tax under the provisions of the act of 1936 remained the same as if neither the sales tax act of 1938 nor the repealing act of 1940 had been adopted. The city then had the authority under the act of 1936 to levy the sales tax of two per cent, which is in contest in this suit.
It is argued for the plaintiffs that, if the act of 1936 should be construed as conferring upon the City of New Orleans the unrestricted authority to levy a sales tax, the act would be violative of the declaration in Section 1 of Article 10 of the Constitution, that the power of taxation shall be vested in the Legislature and "shall never be surrendered, suspended or contracted *Page 577 away". A sufficient answer to that argument is that the conferring of the power of taxation upon a municipal corporation by an act of the Legislature is not a surrender or suspension or contracting away of the taxing power of the Legislature. The Legislature did not, by the act of 1936, surrender, suspend or contract away its power to restrict or even to revoke at any time the authority of the City of New Orleans to levy a sales tax. In fact, when the Legislature itself levied a sales tax for the State, by the act of 1938, the Legislature imposed a limit of one per cent upon the rate of any sales tax which the city might levy. And, hereafter, if the Legislature considers that the unrestricted authority of the City of New Orleans to levy a sales tax is an interference with the power of the Legislature to levy and collect such a tax for the State, the Legislature may again restrict or may even revoke the authority of the City of New Orleans to levy a sales tax.
It is contended for the plaintiffs that, if the act of 1936 should be construed as conferring upon the City of New Orleans the unrestricted authority to levy a sales tax, the statute would violate the provision in Section 8 of Article 10 of the Constitution, that no political subdivision shall impose a greater license tax than is imposed for State purposes. A sufficient answer to that contention is that a sales tax is not such a license tax as is referred to in Section 8 of Article 10 of the Constitution. The license taxes referred to there are declared to be such license taxes as may be levied upon persons, associations of persons or corporations for the privilege of pursuing a trade, *Page 578 business, occupation, vocation or profession. It is too obvious to admit of argument that a sales tax, or use tax, as it is called, is not a license tax imposed for the privilege of carrying on a trade, business, occupation, vocation or profession. The license taxes referred to in Section 8 of Article 10 of the Constitution are called occupation taxes. The sales tax is certainly not an occupation tax. Hence it is not subject to the restriction imposed by Section 8 of Article 10 of the Constitution.
There is no good reason why we should say that the Legislature, in 1936, in granting to the City of New Orleans the right to levy and collect "any and all kinds and classes of taxes or licenses", intended to exclude the right to levy and collect a sales tax. And there is no constitutional inhibition against the Legislature's granting to the City of New Orleans the right to levy and collect a sales tax.
If a majority of the inhabitants of New Orleans are averse to paying a sales tax their recourse is to elect a municipal council pledged to rid the city of the sales tax. The remedy available to the State administration in that respect is to ask the Legislature to make this one exception to the right which was conferred upon the City of New Orleans by Act No. 338 of 1936, to levy and collect any and all kinds or classes of taxes and licenses. The courts of justice, of course, whose duty is merely to interpret and apply the law, have nothing whatever to do with the question whether the sales tax is a good thing or a bad thing for the majority of the inhabitants of New Orleans or for the State at large. *Page 579