On Application por Behearing.
Plaintiff and appellee complains of our opinion on several grounds.
First — That it holds parol evidence to be inadmissible in a collateral proceeding to which the levee commissioners were not made parties— a ground of objection not taken in the lower court by defendant’s counsel. ¡
Possibly this precise objection was not urged in the court a qua; but plaintiff’s counsel evidently considered that it was, as his brief on the hearing of the case will attest. Indeed, we selected therefrom some of the most pertinent authorities that are cited in the opinion.
*369Second- That the following enunciation of the opinion, viz: “But once (the tax) m esse, and the tax roll placed in the possession of the collector, the levying and assessing officers cease to have any relation to the tax and are fimcti officii. At this stage the legality of neither the levy nor the assessment can be tested by either injunction or mandamus directed against the collector alone,” is opposed to the settled jurisprudence of this Court; and, in proof of this assertion, he cites the following cases, viz: 36 Ann. 801, Cobb vs. McGuire, tax collector; 36 Ann. 804, Enault vs. McGuire, tax collector; 36 Ann. 960, Budd vs. Houston, tax collector; 35 Ann. 996, Jones vs. Rains, tax collector; 33 Ann. 833, Surgett vs. Chase, tax collector; 33 Ann. 843, Brown vs. Houston, tax collector; 30 Ann. 1086, Gonzales vs. Lindsey, tax collector.
A simple glance at the opinions referred to will demonstrate the error counsel has fallen into. The legality vel non of the levy of the tax under consideration in this case, is dehors the proceedings of the Board of Levee Commissioners, exclusively. If there is any, the illegality is inirinsical. On the contrary, the illegality of the tax under discussion in the quoted cases was, either fundamental or extrmsical. It was apparent upon the face of the tax record, or raised on the law.
In 30 Ann. 1085, Gonzales vs. Lindsey, the objection urged to the tax was that the levy was in excess of the rate of taxation permitted by law.
In 33 Ann. 833, Surgett vs. Chase, the question was the constitutionality vel non of a twenty mill levee tax, it being in excess of the ten mill limitation.
In Brown vs. Houston, 33 Ann. 843, the question was whether a tax on a lot of Pennsylvania coal, on sale in New Orleans, was in contravention of the United States Constitution.
In Jones vs. Raines, 35 Ann. 996, the plaintiff claimed the nullity of a tax levied on a saw-mill, on the ground that it was exempt under Article 207 of the Constitution" as property employed in the manufacture of wood.
In Enault vs. McGuire, 36 Ann. 804. a similar question was raised as to the exemption of a certain alleged place of public worship.
Cobb vs. McGuire, 36 Ann. 800, was dismissed, because this Court was without jurisdiction.
In Budd vs. Houston, 36 Ann. 959, the tax collector and recorder were enjoined from placing a tax title on record, on the ground that there existed, in the proceedings leading up to the sale, ceitain “rad*370ical defects” which were not enumerated in the opinion. But enough can be gleaned from it to show that the acts of the tax collector were directly assailed.
The mooted question was the authority of the tax collector to stand in judgment for the State.
The plaintiff was appellant from a judgment dismissing the suit, on the ground that her petition disclosed no cause of action.
The Court held that “ it is well settled that when an officer is proceeding to collect a State tax illegally, either on account of a void assessment or irregularity in the mode of collecting, * * * the proceedings may be arrested by injunction in a suit against the officer alone.”
There is no question, in our minds, of the correctness of the views expressed in those cases; and there is nothing in the opinion we have quoted from that militates against our opinion in the instant case. Its object and purpose were to decide that a collateral enquiry into the legality of a tax levy, apparently legal, and valid on its face, could not be gone into, in an injunction suit, against the tax collector alone. It was not the object or purpose of the opinion to hold that a levy, or an assessment void on its face, or in plain violation of the Constitution or the law, could not be tested in such a suit, and with the tax collector alone. The fact that, notwithstanding the views we entertained on this branch of the case, we entertained and decided the controversy in relation to the legality of the tax, is conclusively against plaintiff’s hypothesis.
Third — That it erroneously holds that this is a collateral attack on the proceedings of the levee board.
In support of this contention her attorney cites the following cases as defining what is a collateral attack, viz: 36 Ann. 844, Gerac vs. Guilbeau; 35 Ann. 893, Ludeling vs. McGuire; 29 Ann. 112, Launes vs. Workingmen’s Bank; 30 Ann. 871, Workingmen’s Bank vs. Lannes.
The first three of these eases were injunction suits restraining sheriffs’ sales, at the instance of creditors of tax delinquents, of property in the possession of purchasers at tax sales, under recorded tax titles; and the same were perpetuated on the ground that the validity of tax titles could not be tested in such collateral way.
The last of the four was a direct action. The views expressed in each of those cases meet our unqualified approbation. They are only illustrations of what are collateral proceedings, and do not conflict with the views expressed in our opinion herein.
Fourth — That the opinion was in error in assuming that the plain*371tiff’s property was under seizure. This may be true; but there is an allegation in her petition to the effect that demand had been made on her by the sheriff for the payment of the tax complained of, and she was advised that if she did not pay the same her property would he seized and sold in satisfaction thereof.
In view of this averment, we must confess our surprise at the statement in counsel’s brief that ££no property had been seized.”
There is no practical difference between an aetual seizure and one that is apprehended.
But, if his intimation were correct, this”would be an hypothetical case; and it is hardly to be believed that he would insist upon that view being entertained by us.
Fifth — 'That if the five mill tax, levied by the Commissioners of the Fifth Levee District for the year 1886, is maintained, plaintiff’s property will be subjected to a double tax, inasmuch as, under Act 44 of 1886, creating the Fifth Louisiana Levee District, the General Assembly levied a five mill tax for the same year.
Hence, it is argued that our opinion is in error in holding the former valid, as the latter necessarily excludes it; or, if the former be maintained the latter must be invalidated.
As we understood plaintiff’s petition, it was aimed at the five mill tax that was levied by the commissioners oh the 22d of January, 1886; and the constitutional power of the Legislature to levy the tax indicated in Act 44 of 1886, was drawn in question, only in the alternative that we should hold the former was not enforceable. It was manifestly the intention of the plaintiff to resist the collection of but one tax, and our opinion was properly limited to its consideration:
Rehearing refused.