On Application for Rehearing.
By the WHOLE COURT. PER CURIAM.The defendants, appellants, have asked for a rehearing on the main issue in this case and on the question of liability of the taxpayer for the tax collector’s attorney’s fee.
On the question of liability for the tax collector’s attorney’s fee, it is argued again, and with unusual ability, that section 16 of Act 140 of 1916, which deals only with suits *907for reduction of assessments, did not repeal the provisions in the second paragraph of section 56 of Act 170 of 1S98, referring to suits for cancellation of assessments.
If the lawmaker, in writing the second paragraph of section 56 of Act 170 of 1898, did not intend that a suit for cancellation of an assessment should be dealt with as if it were a suit for a reduction of the assessment, the lawmaker did not make any provision for a suit for cancellation of an assessment with regard to the tax debtor’s liability for the tax collector’s attorney’s fee. The paragraph referred to declares that a tax debtor shall pay, as a penalty, the tax collector’s attorney’s fee of 10 per cent, if the tax debtor be unsuccessful (1) in a proceeding for a reduction of an assessment, (2) in a proceeding for the collection of taxes, or (3) in an injunction suit to prevent the tax collector from collecting taxes. The statute does not, in terms, mention a suit for cancellation of an assessment. A suit for cancellation of an assessment is not a proceeding for the collection of taxes. Therefore, if such a suit be not accompanied by a preliminary injunction, it would not carry a liability for the penalty of having to pay the tax collector’s attorney’s fee, unless such a suit should be treated as if it were a suit for a reduction of the assessment. In so far as it has been so treated, with regard to the liability for the tax collector’s attorney’s fee, before the statute of 1916 was enacted, it must now be governed by the statute of 1916, which deals only with suits for reduction of assessments. When we say that a suit for cancellation of an assessment has been dealt -with heretofore as if it were a suit for a reduction of the assessment, we mean, of course, that it has been so treated only with regard to the tax debtor’s liability for the tax collector’s attorney’s fee. The cause of action, and the issues that arise, in a suit for a reduction of an alleged excessive assessment, are usually very simple, and are quite different from the cause of action and the issues that may arise in a suit to cancel an alleged illegal assessment. A demand for cancellation of an alleged illegal assessment does not essentially include a demand for reduction of an excessive assessment. Liverpool & London & Globe Insurance Co. v. Board of Assessors, 122 La. 98, 47 South. 415; Standard Marine Insurance Co. v. Board of Assessors, 123 La. 717, 49 South. 483, 29 L. R. A. (N. S.) 59. But an alternative demand for a reduction of an assessment may be urged in a suit for cancellation of the assessment. New England Mutual Life Insurance Co. v. Board of Assessors, 121 La. 1068, 47 South. 27, 26 L. R. A. (N. S.) 1120. In such case, if the tax debtor’s liability for the tax collector’s attorney’s fee be not governed by the law relating to suits for reduction of assessments, there is no law imposing upon the tax debtor the penalty or liability for the tax collector’s attorney’s fee in the suit for cancellation of the assessment.
On the main issue in this case, it is true, we did not, in our original opinion, refer to the decision in Marston v. Elliott, Tax Collector, et al., 138 La. 574, 70 South. 519. We did not, and do not yet, consider the decision appropriate, because it does not affect the question presented in this case; that is, whether the value of mineral rights that have been disposed of by the landowner should be included in the valuation or assessment of his land for taxes.
The application for a rehearing is denied.
PROYOSTX, C. J., and ST. PAUL, J„ dissent from the refusal to grant a rehearing.