[Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. 7.]

4. STATUTES 64-LICENSE STATUTE-RIGHT TO ATTACK-EFFECT OF PARTIAL INVALIDITY.

That a company sued by the state for license taxes owed by it did not come within any defective paragraph of the License Act (Acts No. 171, of 1898, § 11) did not preclude it from defending on the ground that such section was unconstitutional, since the section as a whole, not merely the defective paragraphs, is void.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. 64.]

The motion to dismiss the appeal is therefore overruled.

On the Merits.

PROVOSTY, J. The state alleges that the defendant company paid less than it owed for its licenses of 1911, 1912, 1913, and 1914, and sues for the deficiency. The defendant company says that the law under which said license is demanded (section 11 of Act No. 171, p. 387, of 1898) is unconstitutional, for the reasons that it is discriminatory in that

Action by the State against the Southern States Alcohol Manufacturing Company. From judgment for defendant, plaintiff appeals. Affirmed.

Wm. W. Westerfield, of New Orleans (A. W. Cooper, of New Orleans, of counsel), for appellant. Edgar M. Cahn and U. Marinoni, Jr., both of New Orleans, for appellee.

On Motion to Dismiss Appeal. MONROE, C. J. The state prosecutes this appeal from a judgment rejecting its demand against defendant for the payment of certain license taxes. Defendant moves to dismiss the appeal on the ground that the state has furnished no appeal bond and has not paid the cost of preparing or filing the transcript.

[1] The state owes no cost in her own courts. State v. Succession of Richard Taylor, 33 La. Ann. 1272, 1273; State v. Miles Taylor, 34 La. Ann. 978; Succession of Kate Townsend, 40 La. Ann. 66, 3 South. 488; State ex rel. Swords, Sheriff, v. Estorge, 110

persons belonging to the classes upon which the license is imposed, and that the license it imposes is not graded, as is required by article 229 of the Constitution.

The said section 11 begins:

or

"Be it enacted, etc., that for carrying on each business of gaslight, electric light, waterworks, shoot the chutes, miniature railroads, sawmills employing ten more hands, telegraphing, ** telephoning, express company, cotton compress or ginnery, cotton picking, slaughterhouse, distillery and rectifying alcoholic or malt liquors, brewing, ale, beer, porter or other malt liquors, manufacturing tobacco, cigars or cigarettes, refining sugar and molasses, or either of them, manufacturing cotton seed oil, oil cake or cotton seed meal, the license shall be based on the gross annual receipts of each person, association of persons, business firm or corporation engaged in said business, as follows:"

Then follow 20 paragraphs purporting to establish as many classes based upon gross annual receipts, and fixing the amount of license to be paid by each class. All these paragraphs are expressed alike, amounts alone being changed, except the thirteenth, eighteenth, and nineteenth. Their formula is:

Thus:

"Twelfth Class. When the said gross annual receipts are $150,000 or more, and less than $200,000, the license shall be $375.00.

"Thirteenth Class. When the said gross annual receipts are $100,000, the license shall be $250.00.

"Fourteenth Class. When the said gross annual receipts are $75,000 or more, and less then $100,000, the license shall be $187.50."

Here it will be noted that no provision is made for cases where the receipts are more than $100,000 and less than $150,000.

And again:

"Eighteenth Class. When the said gross annual receipts are over $20,000 and less than $25,000, the license shall be $50.00.

"Nineteenth Class. When the gross annual receipts are over $15,000 and less than $20,000, the license shall be $37.50."

Here it will be noted that no provision is made for those cases where the receipts are exactly $20,000.

Paragraph 13 should have been made to provide for the cases where the receipts are $100,000 or more, and less than $150,000; paragraph 18, where they are $20,000 or more, and less than $25,000; and paragraph 19, where they are $15,000 or more, and less than $20,000. Their failure so to provide was due manifestly to accident; and the Legislature at its last session amended them so as to make them so provide.

The learned counsel for the state does not contend that a license law, which discriminates between persons of the same class, is valid, nor that a law which imposes an ungraded license is valid, but he contends that it is manifest that it was through mere accident that paragraphs 13, 18, and 19 were formulated as we find them, and that we must not accept them as they are, but according to what was the manifest intention of the Legislature that they should be; that the well-recognized principles governing the interpretation of statutes will allow of this being done; and that a statute must not be held to be unconstitutional, unless such conclusion is absolutely unavoidable.

[2] Interpretation can go a long ways towards upholding a statute, but it must, unfortunately for the state's case, accept the legislative enactment as it is written, and not as it should have been written (in other words, it cannot rewrite it); and that is what would have to be done in order to make the said paragraphs conform in meaning to what they should have expressed, and have by amendment been made to express; what

the learned counsel would have them interpreted as expressing.

The said section 11 imposes no license tax upon those persons, firms, or corporations whose receipts are exactly $20,000, or between $100,000 and $150,000, while it imposes a license tax upon the persons, firms, or corporations in the same line of business whose receipts fall either below or above these figures; hence, it is discriminatory and, as a consequence, null.

[3] Also it does not grade the license it imposes, for by the grading of a thing is meant to dispose of all of its parts in a gradation ; and this license is not thus disposed in all of its parts, since it does not bear at all upon the persons, firms, or corporations whose receipts correspond with the figures just named. Of course, when we speak of grading a license, we really mean grading the persons, firms, or corporations upon whom it is imposed. We mean to classify these persons, firms, or corporations, precisely as the said section 11 as originally enacted attempted to do, and, as amended, has done. If a part of the thing to be graded is left out, if some of the persons, firms, or corporations to be classified are left out, there is not a complete gradation or classification, but only a partial one (in other words, there is not a gradation or classification, but only the commencement, or attempt at one); and, needless to say, this last is not what article 229 of the Constitution contemplates when it requires a gradation or classification; but

what it contemplates and requires is a gradation or classification that is complete, that embraces all the persons, firms, or corporations subjected to the license, or, which is the same thing, who must be subjected to it if discrimination and consequent unconstitutionality is to be avoided.

[4] Because of its being discriminatory and lacking gradation, the said section 11 is null as a whole. And this disposes of the other contention of the learned counsel of the state that, inasmuch as the defendant company, in view of the amount of its receipts, does not come under any one of the said defective paragraphs, but under another and faultless paragraph, it is not affected in its interests by the defects in said paragraphs, and therefore has no standing for seeking to take advantage of them. The answer is that these defects render the section 11 null as a whole; and that the defendant company has an interest in attacking that section, since the present suit is founded upon it. If the defective paragraphs alone were invalid, and did not render the entire section invalid, the principle invoked by the state's learned counsel would have application.

An illustration of the application of that principle is offered by the case of Union Oil Co. v. Marrero, 52 La. Ann. 357, 26 South. 766, which arose out of this very section 11. The court there said of this section that in so far "as [it] undertakes to require the payment of a license for the business of manufacturing cotton seed oil cake, and cotton seed meal, [it] is repugnant to the provisions of article 229 of the Constitution, and is therefore void." The unconstitutionality here does not address itself to the section as a whole, but only to its application to a

particular business. It leaves the section perfectly valid as to all other kinds of business. Here, manifestly, only those persons, firms, or corporations engaged in that particular kind of business, as to which the section is unconstitutional, could invoke the invalidity.

In like manner, in the case of City v. Insurance Co., 106 La. 32, 30 South. 254, cited by learned counsel, the statute was null in so far as it was designed to operate extraterritorially, but was none the less valid in so far as operating intraterritorially. And in Hatch v. Reardon, 204 U. S. 160, 27 Sup. Ct. 188, 51 L. Ed. 415, 9 Ann. Cas. 736, also cited, it was null in so far as it might affect interstate commerce, but not otherwise. And in these two cases only the persons affected by the extraterritorial operation of the statute or by its regulation of interstate commerce would have a standing for questioning its validity, and only in so far as thus operating.

The conclusion of the nullity of said statute we have reached most reluctantly, and only under the strongest compulsion, as was the case with the learned trial judge, who, with his usual elegance of diction, expressed our thoughts in that regard better than we ourselves could do. He said:

"Of course, the courts are averse to declaring the unconstitutionality of legislative enactattacked has been enforced for many years and ments. Their aversion increases when the law relates to the fisc. I am conscious that my decision will affect not only distilleries, but the many other kinds of business taxed by section 11. But constitutional rights must be respected, and, if defendant's contention regarding the failure to properly graduate the tax is well founded, my duty to uphold it, regardless of consequences, is plain."

Judgment affirmed.

(68 South. 220)

No. 21154.

THOMPSON v. MILLER et al.

(April 12, 1915.)

(Syllabus by the Court.)

1. DESCENT AND DISTRIBUTION 71-SUCCESSION-DETERMINATION OF HEIRSHIP-EFFECT OF JUDGMENT-LIABILITY FOR COMMUNITY DEBTS.

A decree, recognizing certain persons as heirs of the deceased wife and ordering them to be put in possession of their undivided half interest in the community property conjointly with the surviving husband, is absolutely null as to heirs who never authorized any such proceeding, but binds the heir participating therein, and makes him liable for his virile share of onehalf of the community debts.

[Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 229-236; Dec. Dig. mm 71.]

2. DESCENT AND DISTRIBUTION

72-SucCESSION-INTEREST IN COMMUNITY PROPERTY -SHAM SALE-RENUNCIATION.

A sham sale by all the heirs of the wife to their father of their half interest in the community property held, under the facts and circumstances of the case, to have constituted a renunciation as to the heirs who had not previously accepted the succession of their mother. [Ed. Note. For other cases, see Descent and Distribution, Cent. Dig. §§ 221, 222; Dec. Dig. 72.]

Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge.

Action by John F. B. Thompson against Dennis Miller and others. Judgment for plaintiff against the defendant named, and against plaintiff as to other defendants, and plaintiff appeals. Judgment reversed so far as against plaintiff, and rendered.

Modisette & Adams, of Jennings, for appellant. Smith & Carmouche, of Crowley, for appellees.

LAND, J. In 1907 plaintiff sold to Dennis Miller, a married man, 320 acres of land for $9,600, of which $1,600 was paid in cash, and the remainder was represented by five notes, each for $1,600. Mrs. Celeste Miller, the wife, died in February, 1911, leaving nine children

of the marriage. On May 28, 1913, the succession of Mrs. Celeste Miller was opened and closed by proceedings as follows:

Petition of Dennis Miller and of the heirs of his wife to have the community property decreed exempt from inheritance taxation, and to have the plaintiffs recognized as joint owners of the same in the proportion of one half to Dennis Miller and the other half to the heirs of his deceased wife. The tax collector made no opposition, and judgment was rendered as prayed for by the petitioners. The petition was signed by Heinen & Modisette, attorneys, and was verified by the affidavit of Philip Miller, one of the heirs of Mrs. Celeste Miller.

On July 10, 1913, the heirs of the wife signed an instrument, purporting to be a cash sale, for $18,812.50, conveying their undivid ed half interest in all the community property, real and personal, to their father, Dennis Miller.

On April 15, 1914, Dennis Miller mortgaged unto the Calcasieu Trust & Savings Bank most all of the said real property to secure a loan of $6,328.68, represented by his note.

On August 14, 1914, plaintiff sued out executory process on the notes and mortgage of date June 14, 1907, under which the lands sold to Dennis Miller on said date were seized, sold, and adjudicated to said plaintiff, the vendor, for the price of $8,300, leaving an unsatisfied balance of $3,673.66.

On November 2, 1914, the present suit was instituted to recover said balance of the defendants, Dennis Miller and the heirs of his wife. The petition alleged that said heirs had accepted the succession of their mother "purely, simply, and unconditionally."

Dennis Miller made no defense. The heirs denied that they had accepted the succession of their mother as alleged, and averred that the petition in their names for recognition of heirship, etc., was filed in said succession without authorization on the part of the re

ents further averred that they have always renounced, and intended to renounce, said succession, have never intermeddled in its affairs or management, and have never received anything of value therefrom, but have left the entire management of the succession to their father.

As to the deed from them to their father, referred to supra, the respondents averred that the same was absolutely without consideration, and was signed by them through error and misrepresentation, believing that it was a renunciation of their rights in said succession in favor of their father, Dennis Miller.

The case was tried, and there was judgment in favor of the plaintiff against Dennis Miller, but plaintiff's demands against the other defendants were rejected. Plaintiff has appealed.

[1, 2] All the heirs of Mrs. Celeste Miller, except Philip Miller, testified that they never employed, or authorized the employment of, Mr. Heinen as attorney for their mother's succession. Mr. Heinen was consulted by Dennis Miller and his son, Philip, and understood that the latter represented the other heirs. The petition for recognition of heirship, etc., was signed by Mr. Heinen in his firm's name, and was verified by the affidavit of Philip Miller, who is certainly estopped by his oath to deny the authority of Mr. Heinen to file the petition and conduct the proceedings to final judgment. The other heirs had nothing to do with the employment of counsel. Most of them lived in another parish, and all were induced by the representations of Philip Miller to believe that the deed to their father was a mere giving up or renunciation of their rights in the succession of their mother. The deed itself was without consideration, and as a conveyance of property was a mere sham. Plaintiffs' rights

It appears from the evidence that Mr. Heinen was also attorney for the plaintiff, and in opening and closing the succession of Mrs. Celeste Miller acted in the interest of Dennis Miller and the creditors of the community. The rights of the plaintiff were in no wise affected or prejudiced by the execution of the sham deed in question.

Plaintiffs' contention that defendants cannot collaterally attack the judgment recognizing them as heirs of their mother is without merit, since all of them, except Philip, were strangers to the proceedings and decree.

In the recent case of State ex rel. Futch v. Rockett & Futch, 68 South. 189 1 (No. 20,983), this court held that a judgment rendered on a waiver of citation by an unauthorized attorney was an absolute nullity and could be assailed collaterally. The same principle applies to a decree rendered on a petition signed by an unauthorized attorney.

Plaintiff contends that, the other heirs having renounced, Philip Miller, as sole heir of his mother, is bound for one-half of the debt sued for, with costs. Philip was recognized as heir for one-eighteenth of the community property, and thereby became liable for the same proportion of the community debts. Philip's coheirs did not renounce in his favor, but all the heirs renounced in favor of their father. Philip's liability as heir was not increased by the transaction.

It is therefore ordered that the judgment appealed from be reversed, in so far as it rejects the demands of the plaintiff against Philip Miller, and it is now ordered that the plaintiff do have and recover of the said Phillip Miller the sum of $204.69, with 8 per cent. per annum interest thereon from October 24, 1914, until paid, with costs, and that as thus reversed and in part amended,

1 136 La. 1091.