Opinion
No. 96 CA 0008.
September 27, 1996. Rehearing Denied December 23, 1996.
APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, NO. 402,619, STATE OF LOUISIANA, HONORABLE BOB D. DOWNING, J.
Toni Higginbotham and William Doran, Jr., Baton Rouge, for Plaintiff-Appellee Police Jury Assoc. of LA.
Marion A. French, Alexandria, for Amicus Curiae/LA Forestry Assoc.
James Ross, Baton Rouge, for Defendant-Appellee Attorney General Office.
David Cassidy and David Kelly, Baton Rouge, for Intervenor-2nd Appellant Boise Cascade, Inc., International Paper Co., Inc., Stone Container Corp., and Georgia Pacific Corp.
C. James Gelpi, New Orleans, for Defendant-1st Appellant LA Forestry Commission.
Vyrona Wiltz, Krtoz Springs, for Defendant-1st Appellant LA Tax Commission.
David Cliburn, Baton Rouge, for Sabine Parish.
Before LOTTINGER, C.J., and FOIL and FOGG, JJ.
At issue in this severance tax case is whether a timber product known as "chip and saw" should be classified as "trees and timber" or "pulpwood" for purposes of assessing the proper Louisiana severance tax.
LSA-Const. Art. 7, § 4 (B) provides that taxes may be levied on natural resources severed from the soil. The power to tax is vested in the Louisiana legislature. LSA-Const. Art. 7, § 1. Pursuant to this authority, the legislature enacted LSA-R.S. 47:631 et seq., the General Severance Tax Legislation, which provides, in part, for tax on timber severed from the soil in Louisiana. LSA-R.S. 47:633 establishes the rate of tax for "trees and timber" at two and one-quarter percent of the then current average stumpage market value of such timber and the rate of tax for "pulpwood" at five percent of the then current average stumpage market value of such pulpwood. That statute also provides that the then current average stumpage market value of the products will be determined annually on the second Monday of December by the Louisiana Forestry Commission and the Louisiana Tax Commission, meeting jointly.
During 1993 questions arose regarding the proper classification of a product called "chip and saw." This product came into existence in the mid-1960's when technological advances enabled the timber industry to use relatively small trees, in part, for the production of lumber; prior to that time these trees were used solely for the production of pulpwood. The process by which chip and saw is produced has been continually refined thereby increasing the yield of lumber and decreasing the yield of pulpwood. By 1993, chip and saw consisted of approximately equal parts of lumber and pulpwood. Since its inception chip and saw has been classified as pulpwood for severance tax purposes.
After considering the matter, the Forestry and Tax Commissions changed the classification of chip and saw from pulpwood to trees and timber, effective January 1, 1994. Raymond Palmer, a taxpayer domiciled in Vernon Parish, the Grant Parish Police Jury, the Ouachita Parish Police Jury, the Sabine Parish Police Jury, the Vernon Parish Police Jury, and the Police Jury Association of Louisiana sought to have this reclassification overturned by filing a Petition for a Writ of Mandamus and Rule to Show Cause in the Nineteenth Judicial District Court.
After hearing the matter, the trial court rendered judgment in favor of plaintiffs, finding the reclassification unconstitutional and vacating the action of the Forestry and Tax Commissions. In its written reasons for judgment, the trial court found that this was a reduction of a tax on timber historically considered pulpwood, further stating that LSA-R.S. 47:633, et seq. do not appear to grant the Forestry and Tax Commissions the power to reclassify trees from pulpwood to trees and timber.
The Louisiana Forestry Commission, the Louisiana Tax Commission, Boise Cascade, Inc., International Paper Company, Inc., Stone Container Corporation and Georgia-Pacific Corporation appeal that judgment contending the trial court erred in determining the action of the Forestry and Tax Commissions exceeded their authority and was, therefore, unconstitutional.
As originally set forth in the Revised Statutes of 1950, LSA-R.S. 47:633 established the rate of severance tax for pulpwood as follows: "On pulpwood, fifteen (15) cents per standard cord of four (4) feet, by four (4) feet, by eight (8) feet;" and the rate for timber was established by the type of tree per thousand feet, log scale. LSA-R.S. 47:633 as amended establishes only two categories for the severance tax on timber — (1) trees and timber and (2) pulpwood. The appellees argue, and we agree, that the language in the original statute recognizing the distinction between pulpwood and timber by the measurements used, by the cord for pulpwood and by the thousand feet log scale for trees and timber, is applicable to the current statute. The general rule of interpretation is that provisions of an original act which are repeated in the body of an amendatory act, either in the same or equivalent words, are considered to be a continuation without change of the original law. Billiot v. B.P. Oil Co., 93-1118 (La. 9/29/94) 645 So.2d 604.
The appellants argue that the method used to initially measure the separate forest products becomes inconsequential because all such measurements are eventually converted to the same measurement, that is, tons, to determine its market value. LSA-R.S. 47:633.3. This argument is not persuasive. The standard scale for the measurement of saw logs is the Doyle Log Rule. LSA-R.S. 3:4641. Further, LSA-R.S. 3:4641 provides that no person shall compute the measurement of saw logs for severance tax purposes by any other rule or scale than the Doyle Log Rule. The fact that board feet is eventually converted to tons does not negate the requirement of the legislature that the initial standard scale for the measurement of saw logs is the Doyle Log Rule.
The legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of the statutory provision is to be determined by a consideration of the statute in its entirety and all other laws on the same subject matter and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the legislature in enacting it. It is reasonable to conclude that the legislature, in passing a statute, did not intend to abrogate any prior law relating to the same subject matter. Lieber v. Caddo Levee Dist. Bd. of Com'rs, 27-267 (La.App. 2 Cir. 8/23/95); 660 So.2d 188, writ denied, 95-2355 (La. 12/8/95); 664 So.2d 427; LSA-C.C. art. 13. Accordingly, we must presume that when the legislature enacted the current version of LSA-R.S. 47:633.3 it had knowledge of LSA-R.S. 3:4641 and 4642 and recognized that the initial measurement required for saw logs did not affect the final measurement of all forest products in terms of tons.
The record reflects that chip and saw cannot be measured using the Doyle Log Rule. Chip and saw is measured in cords — four feet by four feet by eight feet — the same measuring scale utilized to measure pulpwood. Therefore, according to the statute, chip and saw cannot be consider a saw log. Pulpwood is also converted to tons for the purpose of assessing the severance tax on those natural resources, that fact alone does not change its character to trees and timber. Further, the record established that when the conversion factor for a cord of chip and saw was applied to tons it was the same as the conversion factor for a cord of pine pulpwood — both weighed 5,400 pounds or 2.7 tons. Whereas a thousand board feet of pine saw timber converted to 16,000 pounds or eight tons and a thousand board feet of hardwood saw timber converted to 19,000 pounds or nine and half tons.
Appellants' arguments rely on the fact that the technology related to the chip and saw process has advanced to the point that it can provide an almost equal amount of lumber as pulpwood, thereby increasing its value. Irrespective of the technological advances in the process, the statutory requirements are clear. Chip and saw cannot initially be measured in the same manner as trees and timber which is a requirement for a forest product to be a saw log under LSA-R.S. 3:4641. Further, LSA-R.S. 47:633 only provides for two categories of forest products: (1) trees and timber and (2) pulpwood; it does not provide for a third category that is a mixture of both. For that reason, chip and saw has been classified as pulpwood and must remain there until it is reclassified by the legislature. The Forest and Tax Commissions' reclassification of chip and saw to trees and timber, thereby lowering it severance tax rate from five percent to two and one-quarter percent was the levy of a new tax and therefore unconstitutional. That decision does not rest with them, it rests solely with the Louisiana legislature. Considering the disposition of the above issue, we pretermit discussion of the remaining issues raised by the appellants.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against appellants.
AFFIRMED.
LOTTINGER, C.J., dissents and assigns written reasons.
For the reasons which follow, I respectfully dissent.
Citing Billiot v. B.P. Oil Co., 93-1118 (La. 9/2994); 645 So.2d 604, the majority concludes that "the language in the original statute recognizing the distinction between pulpwood and timber by the measurements used, by the cord for pulpwood and by the thousand feet log scale for trees and timber, is applicable to the current statute." This conclusion, however, is not supported by Billiot or the cases cited therein.
Relying on State v. Mathe, 219 La. 661, 53 So.2d 802 (1951) and Perkins v. Brothers of Christian Schools, 71 So.2d 400 (La.App. 1st Cir. 1954), the supreme court in Billiot, noted that, "[t]he general rule of interpretation is that provisions of an original act which are repeated in the body of an amendatory act, either in the same or equivalent words, are considered to be a continuation without change of the original law." Billiot, 93-1118 at p. 10; 645 So.2d at 610 (Emphasis added). The reenactments and/or amendments of the statutes at issue in Billiot, Mathe and Perkins made no substantive changes to the original statutes. In those cases, the language of the original statutes was either identical or virtually unchanged upon reenactment or amendment. Thus, the courts concluded that the new statutes were merely reaffirmances of the original laws.
In the present case, the amended statute does not repeat, either in the same or equivalent words, the original statute's references to measurements. The new statute omits all prior references to particular types of wood and measurements and establishes only two categories for the severance tax on forest products — (1) trees and timber and (2) pulpwood. La.R.S. 47:633 (1) and (2). Because the language referring to measurements was not repeated in the amendment, such measurements are not applicable to the current statute and should not control the present classification of forest products.
As amended, La.R.S. 47:633 requires that the Commissions classify a forest product as either "trees and timber" or "pulpwood" before setting the severance tax on that product. To make this classification, a distinction between the two categories is necessary.
The terms "trees and timber" or "timber" are generally used to describe only those trees and that timber capable of being made into lumber. Louisiana courts have held that the term "timber" refers to trees suitable for the manufacture of lumber. Cooley v. Meridian Lumber Co., 195 La. 631, 197 So. 255, 259 (1940); Bennett v. Bennett, 14 So.2d 272, 273 (La.App. 1st Cir. 1943). "Pulpwood" is wood which is not of a size or quality to convert into lumber. This distinction between timber and pulpwood has long been recognized by the courts. See Lampton Realty Co. v. Kerr, 154 La. 843, 98 So. 266 (1923). The legislature also recognized this distinction by establishing two categories of forest products for severance tax purposes.
As noted by the trial judge, chip and saw technology created the ability to use trees formerly converted into pulpwood to produce lumber. Because chip and saw is primarily converted into lumber, the Commissions properly classified it as "trees and timber."
Furthermore, the requirements found in Louisiana's Weights and Measures Law do not affect this classification. La.R.S. 3:4641 sets the standard of measurement for "saw logs" as the Doyle Log Rule. La.R.S. 3:4642 requires that no other scale or rule be used to compute the severance tax on saw logs. These statutes, which merely create a standard unit of measurement for saw logs, should not be read to limit the trees and timber category of La.R.S. 47:633 (1).
La.R.S. 3:4642 does not require that all "trees and timber" be measured by the Doyle Log Rule; it requires only that "saw logs" be measured in this manner. By definition the "trees and timber" category of La.R.S. 47:633 (1) encompasses all forest products used to produce lumber regardless of how those products are measured. The fact that chip and saw is measured by the cord rather than by the Doyle Log Rule does not change its classification from trees and timber to pulpwood.
Further, I do not find that the Commissions have exceeded their statutory authority or violated La.R.S. 3:4642 by classifying chip and saw as "trees and timber". La.R.S. 47:633 (1) and (2) require the Commissions to set the severance tax on all forest products based on the "current average stumpage market value of such timber." To accurately determine the average market value of varying forest products, the Commissions established sub-categories under the basic categories of trees and timber and pulpwood. In 1994, the trees and timber category contained three sub-categories: (1) pine; (2) hardwood; and (3) chip and saw. Pulpwood had two sub-categories: (1) pine; and (2) hardwood. Within these sub-categories the Commissions followed the mandate of La.R.S. 3:4642 by using the Doyle Log Rule to measure all saw logs.
Appellees' have not challenged the Commissions' authority to establish the other sub-categories.
To set the severance tax on forest products, the Commissions place each product into the appropriate sub-category, determine the current average stumpage market value of that product and then apply the statutorily mandated percentage. The result is a severance tax based on the "current average stumpage market value of such timber" as mandated by La.R.S. 47:633 (1) and (2).
Lastly, the Commissions acted on December 13, 1993. If the legislature disagreed with the result reached, or if the legislature concluded the Commissions has exceeded their authority, it could have easily enacted remedial legislation.