FOR IMMEDIATE NEWS RELEASE
NEWS RELEASE # 64
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 16th day of October, 2007, are as follows:
BY KIMBALL, J.:
2007-C -0290
INTERNATIONAL PAPER COMPANY, INC. v. SHERIFF WILLIAM EARL HILTON, ET
AL. (Parish of Rapides)
Accordingly, we hold that the court of appeal correctly found that in
this instance, the inclusion of International Paper's industrial area
and subsequent taxation of International Paper by Ward 9 Recreation
District is proper.
AFFIRMED.
Retired Judge Moon Landrieu, assigned as Associate Justice Ad Hoc.,
sitting for Associate Justice Jeanette T. Knoll, recused.
Page 1 of
1
10/16/07
SUPREME COURT OF LOUISIANA
No. 2007-C-0290
INTERNATIONAL PAPER COMPANY, INC.
versus
SHERIFF WILLIAM EARL HILTON, ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
THIRD CIRCUIT, PARISH OF RAPIDES
KIMBALL, Justice*
We granted certiorari in this matter to determine whether a pre-existing
industrial area created under Article VI, § 18 of the Louisiana Constitution of 1974
and La. R.S. 33:130.11 et seq. can be subject to inclusion and taxation by a newly
created special service district providing services not enumerated in former La. R.S.
33:130.15 (repealed 1995 and re-enacted in La. R.S. 51:1202).1 We also granted
certiorari to determine whether the court of appeal correctly ruled that La. R.S.
33:130.16 has been “tacitly repealed” by La. R.S. 51:1203. For the following
reasons, we find that the court of appeal correctly determined that industrial areas are
to be excluded only from inclusion and taxation of special service districts when such
special districts provide those services enumerated in former La. R.S. 33:130.15
*Retired Judge Moon Landrieu, assigned as Associate Justice Ad Hoc., sitting for Associate
Justice Jeannette T. Knoll, recused.
1
La. R.S. 33:130.15, enacted by Acts 1964, No. 406, §1, was repealed by Acts 1995, and
re-enacted in La. R.S. 51:1202.
(repealed 1995), now set forth in La. R.S. 51:1202. Accordingly, the court of
appeal’s decision upholding summary judgment in favor of the defendants is
affirmed. However, we also find that La. R.S. 33:130.16 has not been tacitly
repealed, and in that respect, the court of appeal erred.
FACTS AND PROCEDURAL HISTORY
International Paper Company, Inc. (formerly Pineville Kraft Corporation and
hereinafter “plaintiff” or “International Paper”) owns a parcel of land in Rapides
Parish located within an industrial area that was created by Resolution of the Rapides
Area Planning Commission and the Rapides Parish Police Jury on November 13,
1973. Ward 9 Recreation District was created on October 12, 1976, by Ordinance of
Division Five (5), which provided, in pertinent part:
A Recreation District is hereby created within the Parish of Rapides,
State of Louisiana, which recreation district shall comprise and embrace
all of Ward 9 of Rapides Parish, Louisiana, as said ward is presently
constituted. Said recreation district hereby created shall be and is
hereby designated as “Ward 9 Recreation District, Rapides Parish,
Louisiana” and, as thus created, shall constitute a corporate body and
political subdivision of the State of Louisiana, and as such, shall have
the rights, powers and privileges granted and conferred by the
Constitution and statutes of the State of Louisiana, including the
authority to incur debt, issue bonds and levy taxes.
A special election was held in the Ward 9 Recreation District in the Parish of
Rapides on Saturday, November 17, 2001, regarding the following millage
proposition:
2
Summary: 10 year 6 mills property tax for acquiring, constructing,
improving, maintaining, and/or operating the recreational facilities of
the district, including necessary equipment in connection therewith.
Shall Ward 9 Recreation District, Rapides Parish, Louisiana (the
“District”), levy and collect a special tax of six (6) mills on all property
subject to taxation in said District, for a period of ten (10) years,
beginning with the year 2002 and ending with the year 2011, for the
purpose of acquiring, constructing, improving, maintaining and/or
operating the recreational facilities of the District, including necessary
equipment in connection therewith?
In conjunction with the millage proposition, a general bond obligation was proposed
as well. That proposition read as follows:
Summary: Authority to issue $7,000,000 of 20 year general obligation
bonds of the district for constructing, purchasing and acquiring lands,
buildings, equipment and other facilities to be used in providing
recreational facilities for the district, title to which shall be in the public,
said bonds to be payable from ad valorem taxes.
Shall Ward 9 Recreation District, Rapides Parish, Louisiana (the
“District”), incur debt and issue bonds to the amount of Seven Million
Dollars ($7,000,000), to run twenty (20) years from the date thereof,
with interest at a rate not exceeding eight percent (8%) per annum, for
the purpose of constructing, purchasing and acquiring lands, buildings,
equipment and other facilities to be sued in providing recreational
facilities for the District, title to which shall be in the public, which
bonds will be general obligations of the District and will be payable
from ad valorem taxes to be levied and collected in the manner provided
by Article VI, Section 33 of the Constitution of the State of Louisiana
of 1974, and statutory authority supplemental thereto?
The election resulted in a vote in favor of the Millage Proposition and a vote in favor
of the General Obligation Bond Proposition. The Procès Verbal declaring the results
of the special election was filed and recorded with the Secretary of State on December
17, 2001.
3
International Paper paid the aforementioned millage for the 2002 year “under
protest,” and subsequently filed a “Petition for Refund of Ad Valorem Taxes Paid
Under Protest” on January 30, 2003, and an “Amended Petition For Refund of Ad
Valorem Taxes Paid Under Protest” on April 17, 2003, in the Ninth Judicial District
Court for the Parish of Rapides. In its lawsuit, Plaintiff named as defendants Sheriff
William Earl Hilton, in his capacity as ex-officio tax collector in and for Rapides
Parish, Louisiana; Ralph Gill, in his capacity as assessor of Rapides Parish,
Louisiana; the Ward 9 Recreation District in Rapides Parish, Louisiana; and Richard
Ieyoub, in his capacity as Attorney General in and for the State of Louisiana.
Defendants thereafter filed an Exception of Prescription and Peremption on
June 17, 2004, arguing that under Article VI, § 35 (A) of the Louisiana Constitution
of 1974 and La. R.S. 18:1294, Plaintiff’s petition was untimely as it was filed beyond
the sixty (60) day period following an election within which one may challenge the
legality of the election, the bond issue provided for, or the tax authorized. According
to Defendants, since the favorable results of the special election held on November
17, 2001, were promulgated by publication on Friday, December 14, 2001, and
Plaintiff’s petition was not filed until January 30, 2003, more than sixty (60) days
following the promulgation of the results of the election, Plaintiff’s action is
untimely.
Because International Paper paid the tax at issue under protest, it opposed the
defendants’ Exception of Prescription and Peremption, asserting that the
4
aforementioned sixty (60) day prescriptive period is inapplicable to the instant matter,
as International Paper’s primary claim is not an election contest, rather “it is that the
Ward 9 Recreation District tax is improperly applied to it.” Therefore, Plaintiff
argued that its Petition for Refund of Ad Valorem Taxes Paid Under Protest, as
amended, was timely.
Following a hearing on August 16, 2004, and in a written judgment signed to
the same effect, the trial court granted the defendants’ Exception of Prescription and
Peremption on a limited basis. Specifically, the trial court found that the Exception
should be sustained as to the “validity of the election and the bond issue.” The issues
regarding whether plaintiff should be exempt from the property tax levied by the
Ward 9 Recreation District were reserved unto the parties.
On April 21, 2005, Defendants Sheriff William Earl Hilton, Ralph Gill, and the
Ward 9 Recreation District filed a Motion for Summary Judgment, asserting that La.
R.S. 33:130.15 (repealed 1995), La. R.S. 33:130.16, and La. R.S. 51:1202 evidence
the legislature’s intent to exclude industrial areas only from any new special service
district where such special district would duplicate services the industrial area
provides itself. Defendants argued that there is no genuine issue of material fact that
the Recreation District was legally formed, and the inclusion of plaintiff’s industrial
property into the recreational district, and the subsequent taxation by the recreation
district of plaintiff’s property, is proper.
International Paper filed a cross Motion for Summary Judgment on June 27,
5
2005, asserting that it is located in an industrial area not susceptible to inclusion by
a municipality or district created after the industrial area. Moreover, International
Paper argued in its motion that the Resolution of the Rapides Parish Police Jury
creating the industrial area contractually prohibits the Recreation District, as a
political subdivision of the parish, from imposing the new tax on the Paper Mill
located within it. Plaintiff noted in its motion for summary judgment that the First
Circuit decided a similar issue in Allied Signal, Inc. v. Jackson, 96-0138 (La. App. 1
Cir. 2/14/97); 691 So. 2d 150, wherein the court found that a pre-existing industrial
area could not be included in the proposed town of Geismer, which the defendants
were attempting to have incorporated. For these reasons, International Paper argued
it was entitled to a refund of its payment of the taxes it paid under protest and
summary judgment in its favor.
The trial court held a hearing on January 30, 2006, and granted the Motion for
Summary Judgment in favor of defendant, Ward 9 Recreation District. The trial court
also ordered the tax revenues being held in escrow by the Sheriff of Rapides Parish
be released to the Ward 9 Recreation District according to law. The judgment was
made final pursuant to Code of Civil Procedure Articles 1841, 1911, and 1918, and
a written judgment was signed to this effect on March 14, 2006.
The Plaintiff suspensively appealed to the Court of Appeal, Third Circuit. The
Third Circuit affirmed the trial court’s ruling that the assessment of the ad valorem
taxes against International Paper and in favor of the defendants, Sheriff William Earl
6
Hilton, Ralph Gill, and Richard Ieyoub, was proper. Moreover, the court of appeal
reasoned that under Louisiana Civil Code article 13 (pertaining to the rules of
statutory interpretation) and this Court’s discussion of statutory construction in
Pumphrey v. City of New Orleans, 05-979 (La. 4/4/06); 925 So. 2d 1202, La. R.S.
33:130.16 has been tacitly repealed.
Not only did the court of appeal find that La. R.S. 33:130.16 was tacitly
repealed, the court of appeal also narrowed the issue to whether the existence of an
industrial area provides a blanket tax exemption due to exclusion from any newly
created municipality or whether it is the nature of the services provided by the district
that determines exclusion. The court found that the basis of the exclusion relates to
the nature of the services, as it was the legislature’s intent to exclude industrial areas
from being taxed for services they already provide for themselves. Furthermore, the
court reasoned that the legislature did not intend to provide a blanket tax exemption
for businesses in industrial areas, and therefore, found that the trial court correctly
granted summary judgment in favor of the defendants.
Plaintiff International Paper thereafter timely filed the instant application,
asserting that not only did the court of appeal err in its interpretation of La. R.S.
33:130.11 et seq. to find that International Paper could be subject to inclusion and
taxation by a newly created special service district, but also that it also erred in
finding that La. R.S. 33:130.16 had been tacitly repealed. Furthermore, International
Paper asserted that the court of appeal’s opinion, if allowed to stand, will upset the
7
long-standing “quid pro quo” incentives for industrial companies to provide their
own services as enumerated in La. R.S. 51:1202, and thereby not be subject to
inclusion or taxation by newly created special service districts. International Paper
also asserts that the court of appeal disregarded their “contractual rights” argument,
wherein Plaintiff alleged that the Resolution creating the industrial area resulted in
a contract between it and the Police Jury. By virtue of that contract, International
Paper argues that it assumed the responsibility to provide the basic utility services for
which it received the aforementioned exclusion from subsequent “political entities,”
including new special service districts under La. R.S. 33:130.16.
Therefore,
International Paper suggests that the court of appeal’s finding that the resolution
merely conferred the status of the “industrial area” in question, and did not
necessarily create a contract, has unconstitutionally violated its contractual rights in
derogation of Article I, § 23 of the Louisiana Constitution.
In opposition, Defendants argued that the subject recreation district was validly
created pursuant to La. R.S. 33:4562 et seq., and therefore may not now be attacked.
Defendants assert that, except for the regulation regarding municipalities and those
services already enumerated in La. R.S. 33:130.15 (repealed 1995) and La. R.S.
51:1202, there is no prohibition, statutory or otherwise, that precludes a parish police
jury’s power to create a recreation district within its borders, including the existence
of industrial areas within the parish. Because the statutes at issue are clear and
unambiguous, Defendants argue that the legislature has clearly expressed its will
8
regarding the exclusion of industrial areas from certain special service districts.
According to Defendants, the court of appeal correctly noted that the purpose of
industrial areas is to prevent the duplication of services, and the basis of the exclusion
is to prevent double taxation for services that a business in an industrial area already
provides for itself. As such, the enumerated services in La. R.S. 33:130.15 (repealed
1995) are those which an industry would normally provide for itself. Because those
services are local in nature, other types of services (such as school, law enforcement
and recreation) are for the general good and are less likely to be provided by private
industry. Thus, those services provided by special districts, such as the instant
recreation district, are omitted from the list found in La. R.S. 33:130.15 (repealed
1995).
Defendants also aver that because Plaintiff’s property is not of a type listed in
Article VII, § 21 of the Louisiana Constitution as being exempt from ad valorem
taxation, it is subject to all ad valorem taxes levied by political subdivisions in which
the plaintiff’s property lies.
Finally, Defendants assert that the court of appeal correctly found that the
resolution creating the industrial area is not a contract. Defendants also allege that
a resolution of this kind is not interpreted under Louisiana law as customary contract
because it conveys the will of only one party (the Rapides Parish Police Jury), and
there is no required consideration. Even if the resolution were to qualify as a contract
(which it cannot, as a police jury does not have the power to enter into contracts to
9
exempt property from taxation) the resolution does not promise to refrain from
creating recreation districts.
DISCUSSION
This Court has recognized the paramount duty of the judicial branch of
government to interpret the construction of statutes and their appropriate application.
Theriot v. Midland Risk Ins. Co., et al., 95-2895, p. 3 (La. 5/20/97); 694 So. 2d 184,
186. As such, we have extensively reviewed the relevant statutes and their history in
Louisiana law as they relate to the present matter. Based upon our review of the
statutes and the legislative intent behind them, not only do we find that La. R.S.
33:130.16 has not been tacitly repealed, we also find that the legislature specifically
and clearly enumerated those service districts from which industrial areas were to be
excluded, as found in La. R.S. 33:130.15 (repealed 1995) and in R.S. 51:1202.
Because recreational services are not mentioned in either statute, the subject
recreation district, which provides services not enumerated in La. R.S. 33:130.15
(repealed 1995) or La. R.S. 51:1202, is not a district from which International Paper
can be excluded or exempt from imposition of taxation by the recreation district.
History and Creation of Industrial Areas in Louisiana Law
The Louisiana Constitution of 1921 contained Article XIV, § 29.1, entitled
“Parish industrial areas,” which was added by Acts 1964, No. 557 and adopted
November 3, 1964. The text of the original article was as follows:
Section 29.1. The Legislature is authorized to permit all parishes to
10
create industrial areas within their boundaries in accordance with such
procedure and subject to such regulations as the Legislature shall decide
upon. Parish industrial areas shall not be subdivisions of the state. All
industrial areas so created hereafter shall include provisions for access
by public road to any and all entrances to the premises of each and every
plan in such area which entrances are provided for use by employees of
such company, or for use by employees of independent contractors
working on such premises, or for delivery of materials or supplies, other
than by rail or water transportation to such premises. Where individual
plants provide police protection this protection shall be confined to the
premises of each individual plant located in the area.2
A substantial portion of the foregoing language was carried forward to the Louisiana
Constitution of 1974, and thereafter provided for in Article VI, § 18. The text of that
article is as follows:
Section 18. (A) Authorization. The legislature by law may authorize
parishes to create and define industrial areas within their boundaries in
accordance with procedures and subject to regulations which it
determines. An industrial area shall not be a political subdivision of the
state.
(B) Access by Public Road; Police Protection. When an industrial
area is so created, provision shall be made for access by public road to
each entrance to the premises of every plant in the area, which is
provided for use by employees of the company, or for use by employees
of independent contractors working on the premises, or for delivery of
materials or supplies, other than by rail or water transportation, to the
premises. Police protection provided by any plant in an industrial area
shall be confined to the premises of that plant.
In conjunction with the referenced constitutional article, Acts 1964 (enacted
2
The purpose of Senate Bill No. 219 (introduced by Messrs. Clemons and Knowles),
which proposed Constitutional Article XIV, § 29.1, was to add “a new Section thereto to be
designated as Section 29.1 thereof, to authorize the Legislature to permit all parishes to create
industrial areas within their boundaries; to provide a procedure therefor; and to pass legislation in
connection therewith.” Official Journal of the Proceedings of the Senate of the State of
Louisiana, Eighth Day’s Proceedings 82, Reg. Sess. 1964, May 26, 1964.
11
the same year Article IVX, § 29.1 was added to the Louisiana Constitution of 1921)
also added the provisions in Title 33 of the Louisiana Revised Statutes, pertaining to
“Industrial Areas.”3 The relevant subpart of Title 33 begins with La. R.S. 33:130.11,
entitled “Designation of industrial areas; feasibility; assistance by state agencies,”
which provides as follows:
Subject to the written approval of fifty-one percent in interest of the
landowners of the proposed industrial area, parish governing authorities
may establish industrial areas composed of territory wholly within the
parish boundaries and without the boundaries of any municipality. Such
areas may be designated only after the feasibility therefor has been
established by land use studies conducted by parish planning
commissions, parish development boards or other similar recognized
authorities. Cooperation and assistance in the preparation and
evaluation of such studies may be rendered by state agencies equipped
to conduct such studies when requested to do so by any parish governing
authority provided that where municipal boundaries are co-extensive
with parish boundaries, the municipal governing authorities may
establish industrial areas within the municipal boundaries.
La. R.S. 33:130.11.
A review of the original Senate Bill 220, which introduced La. R.S. 33:130.11
et seq., identifies Senate Bill 220 as an act:
To amend Part IV of Chapter 1 of Title 33 of the Louisiana Revised
Statutes of 1950 by adding thereto a new sub-part to be designated as
sub-part B-1 to provide for the designation and regulation of industrial
areas by parish governing authorities and to exempt those industries
contained within the area from certain forms of parish taxation.
Official Journal of the Proceedings of the Senate of the State of Louisiana, Eighth
3
The provisions are located within Title 33, “Municipalities and Parishes,” Chapter 1,
Part IV, “Physical Development of Parishes and Municipalities,” Subpart B-1, “Industrial Areas,”
sections 130.11 through 130.19.
12
Day’s Proceedings 82, Reg. Sess. 1964, May 11, 1964 (emphasis added).
In furthering the purposes of the Act, those “certain” forms of taxation were
originally set forth in La. R.S. 33:130.15 (repealed 1995), which, as will be shown
below, enumerates those services from which industry would be exempt from
inclusion and taxation: construction and cleaning of streets, street lighting, sewers
and sewerage works, water service, fire protection, and garbage and refuse collection
and disposal. (See, La. R.S. 33:130.15, repealed 1995). Significantly, the statutory
language does not include recreational services.
In La. R.S. 33:130.12, the legislature set forth that which may be included in
an industrial area when it is created, subject to the limitation set forth in La. R.S.
33:130.11, which prohibits including the industrial area in the boundary of any
municipality.4
La. R.S. 33:130.13 pertains to the procedure for designating an industrial area,
which requires holding not less than one public hearing regarding the designation.
As occurred in the instant matter, and discussed below, “the designation of an
industrial area or any change of the boundaries of an existing one shall be by
resolution of the parish governing authority.” (Emphasis added). The following
section, La. R.S. 33:130.14, sets forth the “legal status of industrial areas”:
Whenever a parish governing authority has designated an industrial area
4
The text of La. R.S. 33:130.12 provides: “[s]ubject to the limitation contained in R.S.
33:130.11, an industrial area may include any compact body of land which is used exclusively for
industrial purposes or which is primarily suited for industrial development.”
13
or has made a change of the boundaries of an existing one and has filed
certified copies thereof as provided in R.S. 33:130.13, no facilities shall
be thereafter located therein that are not industrial in character or
reasonably related thereto; provided, however, no construction or
installation permits shall be required but the parish governing authority
may resort to judicial process to enforce such industrial requirements.
La. R.S. 33:130.14.
Most importantly for purposes of the instant matter are La. R.S. 33:130.15
(repealed 1995), La. R.S. 33:130.16, and those provisions contained within Chapter
8 (“Industrial Development Generally”) of Title 51 (“Trade and Commerce”) of the
Louisiana Revised Statutes.5 As mentioned previously, La. R.S. 33:130.15 was
repealed by Acts 1995, No. 194, § 2, and its subject matter replaced in La. R.S.
51:1202 (discussed infra). Because La. R.S. 33:130.15 (repealed 1995) was in effect
at the time this particular industrial area was created, it is important to note the text
of the original statute:
Those industries located within the boundaries of any industrial area
shall furnish and maintain individually or as a group the following
services usually provided by parish or local governments: the
construction and cleaning of streets, street lighting, sewers and sewerage
works, water service, fire protection, and garbage and refuse collection
and disposal. Any industrial area which furnishes and maintains all of
the above enumerated services shall not be subject to annexation. Any
industrial area heretofore designated which complies with the provisions
hereof shall be considered validly designated hereunder and any
agreement or resolution with respect thereto shall be considered to
5
Chapter 8, Title 51 includes the more recent provisions regarding industrial
development, although the first section (La. R.S. 51:1201) which sets forth an allowance for
parishes, municipalities and port authorities to “promote the development of industry, trade, and
commerce within and for their respective jurisdictions . . .” was added by Acts 1963, No. 118,
§1, amended by Acts 1989, No. 828, § 1, and amended by Acts 1995, No. 347, § 1.
14
include all services herein enumerated though not specifically included
therein. Agreements between the industries located within the
boundaries of an industrial area and the governing authority of the
parish and/or municipality or municipalities situated therein may be
made for mutual fire protection in grave emergencies.
All industrial areas so created shall include provision for access by
public road to any and all entrances to the premises of each and every
plant in such area which entrances are provided for use by employees of
such company, or for use by employees of independent contractors
working on such premises, or for delivery of materials or supplies, other
than by rail or water transportation, to such premises.
La. R.S. 33:130.15 (repealed 1995).
La. R.S. 33:130.16, which the court of appeal in the instant matter found
“tacitly repealed,” is entitled “Inclusion of industrial area within certain newly created
special service districts prohibited.” It was also added by Acts 1964, No. 406. The
text of La. R.S. 33:130.16, addressed below, provides that “[n]o portion of an
industrial area may be included within any newly created special service district
furnishing any of the services enumerated in R.S. 33:130.15.”
Lastly, La. R.S. 33:130.17 sets forth the requirements and procedures for
abolishment of an industrial area or a portion thereof, which require a resolution
similar to that required for the creation of an industrial area in La. R.S. 33:130.13.
The final sections of R.S. 33:130 are La. R.S. 33:130.18 and La. R.S. 33:130.19,
which pertain to prohibitions and exceptions against increases in taxation and
industrial areas specifically in Calcasieu Parish, respectively. These sections are not
applicable to the instant matter.
15
La. R.S. 51:1202, added by Acts 1995, No. 194, § 1, is the re-enactment of La.
R.S. 33:130.15 (repealed 1995), supra, which sets forth language virtually identical
to that of La. R.S. 33:130.15, except for the addition of “or incorporation” following
the word “annexation.”6 La. R.S. 51:1203 dictates that “[n]o portion of an industrial
area that provides any of the services enumerated in R.S. 51:1202 shall be included
within any newly created municipality.”
La. R.S. 33:130.16: “Inclusion of industrial area within certain newly created
special service districts prohibited”
The court of appeal, relying on Pumphrey v. City of New Orleans, 05-979 (La.
4/4/06); 925 So. 2d 1202, found that La. R.S. 33:130.16 was tacitly repealed by La.
R.S. 51:1203.7 In Pumphrey, this Court stated that “[u]nder general rules of statutory
construction, the latest expression of the legislative will is considered controlling and
6
The text of La. R.S. 51:1202 is as follows, in pertinent part:
A. Those industries located within the boundaries of any industrial area established
pursuant to Subpart B-1 of Part IV of Chapter 1 of Title 33 of the Louisiana Revised
Statutes of 1950 shall furnish and maintain individually or as a group the following
services usually provided by parish or local governments: the construction and
cleaning of streets, street lighting, sewers and sewerage works, water service, fire
protection, and garbage and refuse collection and disposal. Any industrial area which
furnishes and maintains all of the above enumerated services shall not be subject to
annexation or incorporation. Any industrial area heretofore designated which
complies with the provisions hereof shall be considered validly designated hereunder
and any agreement or resolution with respect thereto shall be considered to include
all services herein enumerated though not specifically included therein. Agreements
between the industries located within the boundaries of an industrial area and the
governing authority of the parish and/or any municipality or municipalities situated
therein may be made for mutual fire protection in grave emergencies.
7
On page 5 of the court of appeal’s opinion, the court incorrectly states that “La. R.S.
33:130.15 has been tacitly repealed and replaced by La. R.S. 51:1203.” In fact, La. R.S.
33:130.15 has been expressly repealed (see note 1 of this opinion). The court of appeal later
correctly refers to La. R.S. 33:130.16 as the statute which it found tacitly repealed.
16
prior enactments in conflict are considered as tacitly repealed in the absence of an
express repealing clause.” Id. at 13; 925 So. 2d at 1211 (citing La. Civ.Code art. 8
(2004); State v. Bd. of Comm'rs of Caddo Levee Dist., 175 So. 678, 681 (La.1937)).
However, the court of appeal’s reliance upon Pumphrey is misplaced. Louisiana law
and jurisprudence demonstrate that a newly passed legislative act that is repugnant
to or in conflict with an earlier passed act will supersede and implicitly repeal the
earlier act, even in the absence of a repealing clause. However, not all conflicts lead
to tacit repeal; only those conflicts which are irreconcilable may lead to tacit repeal.
Fakier v. Picou, 166 So. 2d 257, 258 (La. 1964) (emphasis added) (quoting State v.
Standard Oil Company of Louisiana, 178 So. 601, 626 (La. 1937) (“[N]othing short
of irreconcilable conflict between two statutes works a repeal by implication”)); State
ex rel. Grosch v. Echezabal, 58 So. 2d 398 (La. 1952).
It is well settled that repeals by implication are not favored and will only be
permitted where two acts are irreconcilably inconsistent or repugnant. Liter v. City
of Baton Rouge, 245 So. 2d 398, 402 (La. 1971) (emphasis added); State v. Standard
Oil, 178 So. at 626. Thus, the repeal of a statute by implication “will not be indulged
if there is any other reasonable construction.” Id. (citations omitted).
In the instant matter, La. R.S. 33:130.16 and La. R.S. 51:1203 are not in
conflict such that they are irreconcilable. To the contrary, by utilizing the plain
17
meaning of the statute, as required by Louisiana Civil Code article 9,8 La. R.S.
33:130.16 provides that if a newly created special service district provides those
services enumerated in La. R.S. 33:130.15 (repealed 1995), it is prohibited from
including a pre-existing industrial area (that also statutorily provides those services).
As the statute is written, the legislature has set forth which districts are prohibited
from including an industrial area by virtue of the statutory language which qualifies
the newly created special service district as any district that furnishes “any of the
services enumerated in R.S. 33:130.15.” La. R.S. 33:130.16.
Similarly, La. R.S. 51:1203 prohibits inclusion of an industrial area, but
prohibits that inclusion into any newly created municipality.9 This Court has held that
“municipal corporations are subordinate branches of state government established by
the legislature for the purpose of administering local affairs of government, and as
such, possess only such powers as are conferred upon or delegated to them by the
state.” Louisiana Associated Gen. Contractors, Inc., et al., v. The Calcasieu Parish
Sch. Bd., 586 So. 2d 1354, 1367 (La. 1991), reh’g denied, 9/5/91 ( citing Bradford
v. City of Shreveport, 305 So. 2d 487 (La. 1974), abrogated on other grounds by
8
Louisiana Civil Code article 9 provides: “[w]hen a law is clear and unambiguous and its
application does not lead to absurd consequences, the law shall be applied as written and no
further interpretation may be made in search of the intent of the legislature.”
9
La. R.S. 33:341 provides that “municipal corporations shall be divided into three classes:
cities, towns, and villages. Those having five thousand inhabitants or more are cities; those
having less than five thousand but more than one thousand inhabitants are towns; and those
having one thousand or fewer inhabitants are villages.” The powers conferred upon
municipalities are set forth in La. R.S. 33:361.
18
Fishbein v. State ex. rel. Louisiana Univ. Health Scis. Center, 04-2482 (La. 4/12/05);
898 So. 2d 1260); Simmons v. City of Shreveport, 60 So. 2d 867 (1952); State v.
Jordon, 20 So. 2d 543 (1944).
Conversely, special service districts, created under Louisiana Constitution
Article VI, § 19, may be granted certain powers by the legislature,10 and those powers
occasionally may overlap with the functions and borders of counties, cities, and
occasionally, states,11 but no such grant of extended powers that could be considered
“municipal” in nature was given to the instant recreation district. In fact, this Court
has held that Louisiana Constitution Article VI, § 19, “is in keeping with the national
trend recognizing that a special district is a public agency created or authorized by the
legislature to aid the state in, or to take charge of, some public or state work, other
than community government, for the general welfare.” Bd. of Dirs. of the Louisiana
Recovery Dist. v. All Taxpayers, Prop. Owners, & Citizens of the State of Louisiana,
529 So. 2d 384, 389 (La. 1988), reh’g denied, 6/27/88 (citing E. McQuillan,
Municipal Corporations, § 2.13, at 170 (3d Ed. 1987); 1 C. Sands & M. Libonati,
10
Article VI, § 19 provides as follows:
Section 19. Subject to and not inconsistent with this constitution, the legislature by
general law or by local or special law may create or authorize the creation of special
districts, boards, agencies, commissions, and authorities of every type, define their
powers, and grant to the special districts, boards, agencies, commissions, and
authorities so created such rights, powers, and authorities as it deems proper,
including, but not limited to, the power of taxation and the power to incur debt and
issue bonds.
11
Bd. of Dirs. of the Louisiana Recovery Dist. v. All Taxpayers, Prop. Owners, & Citizens
of the State of Louisiana, 529 So. 2d 384 (La. 1988), reh’g denied, 6/27/88.
19
Local Government Law § 2.18, at 2-44 (1981)).
Because La. R.S. 33:130.16 and La. R.S. 51:1203 address the same subject
matter directed at preserving an industrial area’s right to be excluded from certain
areas, but in fact dictate exclusions from two distinct areas, under the well-established
rules of statutory construction, the statutes can be harmonized and are not in conflict
with each other. Thus, in the absence of an express intent by the legislature to repeal
La. R.S. 33:130.16, it is not tacitly repealed.
Statutory Interpretation of Louisiana Revised Statutes, Titles 33 and 51
As it relates to Title 33 and Title 51, plaintiff International Paper asserts that
the services to be provided by industries located in industrial areas which were
originally enumerated in La. R.S. 33:130.15 (repealed 1995) and then re-located to
La. R.S. 51:1202 specifically refer to services provided by industrial areas in La. R.S.
51:1202 (“those industries . . . shall provide . . . the following services”). Thus,
Plaintiff avers that, by analogy and a reading of the statutes in pari materia, the
“services” referred to in La. R.S. 33:130.16 should be read to modify “industrial
areas” and not “special service districts.” Utilizing that interpretation, Plaintiff avers
that La. R.S. 33:130.16 provides that no industrial district providing the services
enumerated in La. R.S. 33:130.15 (repealed, and now located in La. R.S. 51:1202)
can be included in any newly created special service district. Moreover, International
Paper asserts that the legislature, through the 1995 Acts that created La. R.S. 51:1202
and 1203, “confirmed that the legislature’s primary purpose in authorizing industrial
20
areas was the continued provision of exclusivity as protection from targeted
taxation.” Finally, based upon the court of appeal’s affirmation of “targeted taxation”
such as this, plaintiff avers that Louisiana’s economic development “credibility” will
be destroyed.12
Conversely, Defendants assert that the recreation district was legally created
and may not now be attacked.13 Moreover, defendants assert that La. R.S. 33:130.15
(repealed 1995) made no mention of recreation or other types of special service
districts, and the legislature clearly intended that recreation and other types of special
12
International Paper heavily relies upon International Paper Company v. Sheriff William
Earl Hilton, et al., 96-212 (La. App. 3rd Cir.12/11/96); 685 So. 2d 567 (“IP One”), wherein the
Third Circuit reversed summary judgment in favor of International Paper, finding that material
issues of fact remained regarding whether the Police Jury intended to create a new district
providing new services or reorganize an existing fire protection district with existing services.
We do not find Plaintiff’s reliance upon this case persuasive because IP One is factually
distinguishable. IP One addressed the plaintiff’s prohibited inclusion into a fire and water
district (the trial court in IP One had denied International Paper’s Motion for Summary Judgment
on its claim for taxes paid under protest which were levied by the Kolin-Ruby Wise Waterworks
District, but that issue was not before the court of appeal in IP One), and as noted above, fire and
water are both enumerated services in La. R.S. 33:130.15 (repealed 1995) and La R.S. 51:1202.
13
La. R.S. 33:4562 provides for the creation of recreation districts by parishes by the
police jury of any parish in the state, and such recreation district shall have the several powers
granted to it through statutes. La. R.S. 33:4566 provides as follows:
The recreation districts created under the provisions of R.S. 33:4562 are declared to
be political subdivisions of the state, and for the purpose of purchasing and acquiring
lands, buildings, equipment, and other facilities, and for the construction and
maintenance thereof are authorized to vote and levy special maintenance taxes and
issue bonds when authorized to do so by a vote of the qualified electors of the district
and as authorized by the Constitution and laws of the state of Louisiana. Any
election authorized under this Section shall be called by the board of commissioners
of the district, and in the same election to issue bonds the board may also submit to
the qualified electors of the district a proposition to levy a special tax not to exceed
fifteen mills on the dollar for a period not to exceed ten years for the purpose of
maintaining and operating said district.
21
services were to be omitted from the industrial area exclusion. Defendants argue that
industrial areas were designed to preclude duplication of services, and therefore,
avoid double taxation for services a business in an industrial area already provides
for itself. Furthermore, defendants aver that the services set out in La. R.S. 33:130.15
(repealed 1995) are local in nature, and pertain more directly to the property served,
while other types of services are for the general good and are generally not provided
by private industry. Services not enumerated in the statute, such as recreation
services provided by Defendant, are omitted from the list found in La. R.S. 33:130.15
(repealed 1995) and, therefore, are not services of districts required to be excluded
by La. R.S. 33:130.16.
First and foremost, this Court adheres to the established principles of statutory
construction, which begin with the language of the statute itself. Theriot v. Midland
Risk Ins. Co., et al., 95-2895, p. 3 (La. 5/20/97); 694 So. 2d 184, 186 (citing
Touchard v. Williams, 617 So. 2d 885, 888 (La. 1993), superseded on other grounds
by statute in Dumas v. State ex rel. Dep’t of Culture, Recreation & Tourism, 02-0563
(La. 10/15/02); 828 So. 2d 530). Moreover, this Court “has long held that the
paramount consideration in interpreting a statute is ascertaining the legislature’s
intent and the reasons that prompted the legislature to enact the law.” Id. at 4; 694
So. 2d at 186 (citing Garrett v. Seventh Ward Gen. Hosp., 95-0017, p. 9 (La.
9/22/05); 660 So. 2d 841, 846, overruled on other grounds by Al Johnson Const. Co.
v. Pitre, 98-2564 (La. 5/18/99); 734 So. 2d 623, reh’g denied, 6/25/99; Touchard, 617
22
So. 2d at 888). “Laws are presumed to be passed with deliberation and with full
knowledge of all existing ones on the same subject.” Id. (citing City of New Orleans
v. Bd. of Supervisors, 43 So. 2d 237 (1949)).
In accordance with the rules of proper statutory construction, including
ascertaining the legislature’s intent, we note the previously cited introduction to Acts
1964, No. 406 (Senate Bill 220, which enacted Title 33): to “exempt” the industrial
areas from “certain forms of parish taxation.” (Emphasis added). More importantly,
because Acts 1964, No. 406 specifically enacted the sections concerning the creation
of and privileges afforded to industrial areas contained within La. R.S. 33:130.11 et
seq., those “certain” forms of parish taxation are for those specified services that were
enumerated in La. R.S. 33:130.15 (repealed 1995) and later re-enacted in R.S.
51:1202. Recreational services are not enumerated. In this instance, the legislature
was not willing to preclude any other form of subsequent inclusion and taxation by
special districts against an industrial area, other than those listed in the statute. Had
the legislature meant to include special districts providing other services, it certainly
could have done so.
Regarding the legislature’s exclusion of special districts other than those
enumerated in the statute, this Court also must apply the settled doctrine of statutory
construction, Expressio Unius est Exclusio Alterius, which dictates that “when the
legislature specifically enumerates a series of things, the legislature’s omission of
other items, which could have easily been included in the statute, is deemed
23
intentional.” Filson v. Windsor Court Hotel, 04-2893, p. 6 (La. 6/29/05); 907 So. 2d
723, 728 (citing State Through Dep’t of Public Safety & Corrs., Office of State
Police, Riverboat Gaming Div. v. Louisiana Riverboat Gaming Comm’n & Horseshoe
Entm’t, 94-1872, p.17 (La. 5/22/95); 655 So. 2d 292, 302 (citing State ex rel.
Fitzpatrick v. Grace, 175 So. 656 (1936); Burgin v. Forbes, 293 Ky 456, 169 S.W.2d
321, 325 (1935); Sutherland, Statutory Construction, § 47.23 (5th Ed. 1992); Earl T.
Crawford, The Construction of Statutes, § 195, at 334 (1940))). Simply stated, the
legislature’s omission of special service districts other than those enumerated in La.
R.S. 33:130.15 (repealed 1995) and La. R.S. 51:1202 is significant in light of this
analysis. Recreational districts are not considered the type of district from which
industrial areas are to be excluded, as they do not provide the services that industrial
areas statutorily provide for themselves.
Because the original intention of the relevant statutes was to prevent
duplication of such local services by both the parish and the industry and exemption
from certain inclusion and taxation, the rules of interpretation require this Court to
apply the plain meaning of the statutes (in particular, La. R.S. 33:130.16): if a newly
created special service district provides any of the services enumerated in La. R.S.
33:130.15 (repealed 1995, now R.S. 51:1202), it cannot include an industrial area
providing those same services. In the instant case, Ward 9 Recreation District does
not provide construction and cleaning of streets, street lighting, sewers and sewerage
works, water service, fire protection, or garbage and refuse collection and disposal.
24
Thus, because Ward 9 Recreation District does not provide any of the services
enumerated, International Paper may be included in and taxed by Ward 9 Recreation
District.
Similarly, La. R.S. 51:1203 prohibits inclusion of an industrial area within
newly created municipalities (emphasis added). Neither La. R.S. 33:130.15 (repealed
1995, now La. R.S. 51:1202) nor La. R.S. 51:1203 identifies recreation districts (or
recreational services) as an enumerated, and therefore excluded, service district.
The Resolution Creating the Industrial Area
Lastly, because we find that the statutory interpretation of the relevant statutes
does not prohibit the inclusion and subsequent taxation of International Paper in
Ward 9 Recreation District, we must now address International Paper’s assertion that
the Resolution dated September 27, 1973, which created International Paper as an
industrial area, is a contract. Specifically, International Paper argues in its brief that
“the industrial area was not only a creature of the parish ordinance but of its own
contribution of services” and that “the agreement from which it resulted constituted
a contract between it and the Police Jury.” Thus, according to International Paper,
the subsequent imposition of any tax on the industrial area by a special service district
would result in an unconstitutional impairment of this contract in violation of Article
I, § 23 of the Louisiana Constitution. Article I, § 23 provides that: “[n]o bill of
attainder, ex post facto law, or law impairing the obligation of contracts shall be
enacted.”
25
Defendants, on the other hand, assert that this type of resolution is not
interpreted as a contract under Louisiana law or customary practice because it
conveys the will of only one party (the Rapides Parish Police Jury), and contains no
required consideration. Defendants also argue that while a police jury does have the
power to enter into employment contracts and award franchises, it does not have the
power to enter into contracts exempting certain property from taxation. Thus, the
reference in the Resolution that the industrial area “is hereby designated and
established as an Industrial Area under the terms and conditions of and with all the
privileges, immunities, and responsibilities granted by Act. No. 406 of the 1964
Regular Session of the Louisiana Legislature (now R.S. 33:130.11, et seq.)” conveys
no more rights than if the citation had not appeared; it merely directs the reader to the
statutes.
We find plaintiff’s argument without merit. The Resolution provides that the
Rapides Police Jury complied with the requirement to hold at least one public hearing
under La. R.S. 33:130.13, noted the accurate legal description of the land owned by
the joint petitioners seeking to have the land designated as an industrial area, and
therefore established it “as an Industrial Area under the terms and conditions of and
with all the privileges, immunities and responsibilities granted by Act. No. 406 of the
1964 Regular Session of the Louisiana Legislature (now R.S. 33:130.11, et seq.).”
The language of the Resolution evidences the Rapides Area Planning Commission
and the Rapides Parish Police Jury’s compliance with the requirements of the statutes
26
for creation and designation of an industrial area, and directs the reader to those
statutes. Whether the subject Resolution is a contract is of no moment for purposes
of the present analysis, as we have found that the statutes to which the Resolution
refers dictate that industrial areas are to be excluded only from those service districts
that provide the services enumerated in La. R.S. 33:130.15 (repealed 1995) and La.
R.S. 51:1202. Finally, we note that although Plaintiff cites in its brief several cases
which it argues support the notion that this particular Resolution should be
interpreted as a contract, each case is highly distinguishable on its face and is
therefore unpersuasive.
We are mindful of International Paper’s “quid pro quo” argument that it has
historically been excluded from new special districts by virtue of its providing the
enumerated services in La. R.S. 33:130.15 (repealed 1995) and La. R.S. 51:1202. It
it is important, however, to emphasize that industrial areas shall maintain their
exclusion from special service districts which provide those services enumerated in
La. R.S. 51:1202 (formerly La. R.S. 33:130.15), as well as exclusion from any newly
created municipality, as set forth in La. R.S. 51:1203. This decision does not deprive
industrial areas of that very specific exclusivity they have long been statutorily
provided. However, if International Paper is of the opinion that allowing the instant
inclusion of it into a newly created recreation district will create disincentives for
industry in Louisiana and contribute to “targeted taxation,” the power to correct such
an alleged injustice does not lie with this Court. Any remedy that could be afforded
27
in this instance must come from the legislature.
DECREE
For all of the above reasons, we find that the proper statutory interpretation
stemming from an examination of the history and purpose of Article VI, § 18 of the
Louisiana Constitution and Titles 33 and 51 of the Louisiana Revised Statutes
establishes that La. R.S. 33:130.16 has not been tacitly repealed. Accordingly, that
portion of the court of appeal’s decision is in error. However, we also find that, based
upon the well-founded rules of statutory interpretation as applied to La. R.S.
33:130.11 et seq., and La. R.S. 51:1202 and 51:1203, industrial areas are to be
excluded from inclusion and taxation only from those special districts providing
services specifically enumerated in La. R.S. 51:1202 (formerly La. R.S. 33:130.15,
repealed 1995). Because recreational services are not listed in the statutes, we find
that Ward 9 Recreation District is not prohibited from including International Paper
in its recreation district, nor is it precluded from levying the instant tax against
Industrial Paper. Accordingly, we hold that the court of appeal correctly found that
in this instance, the inclusion of International Paper’s industrial area and subsequent
taxation of International Paper by Ward 9 Recreation District is proper.
AFFIRMED
28
