Le Breton v. Morgan

| La. | Jan 15, 1826

Porter, J.

delivered the opinion of the court. This suit commenced by an application ... . . r for an injunction to prohibit the defendant, sheriff of the parish of New-Orleans, from eel-ling a slave of the plaintiffs, which he had seized for the payment of taxes, alleged to he doe to the state.

As the petition not only states the facts on which this application was made, but contains, in a condensed form, the strongest grounds by which it was supported on the argument, we deem it proper to set it out as written.

“Your petitioner represents, that part of the taxes: viz. The additional tax imposed by the treasurer of the state, on the inhabitants of the parish of Orleans, by virtue of and in compliance with an act, entitled 44 An act to grant relief to Lucy B. Holland, widow of Francis Holland, deceased,” passed on the 18th March, 1820, has been imposed on the said parish to procure the reimbursement of certain expenses, incurred by the governor of the state for certain works, which, without any authority to that effect, he had ordered to be done, to stop a crevasse which had broken in, on the plantation of Barthelemy Macarty, in the said parish, in the spring of the year, 1816 ; which work, independant of being ordered by a person who was not invested by law with any power to that purpose, was ill judged, extravagant and tamed .. _ ... . , , , . , , to be of no utility to the parish; that the law tbug awarding the payment of such expenses, jjg ma¿e Oy a particular portion of the community is an expost facto law, and an in* croachment upon the rights of another branch of the government; viz, the judiciary whose province it was to decide if the individual who had, without any authorization, incurred these expenses was entitled to a reimbursement of them, and if so, by whom that reimbursement was to be made: that consequently, the said law is unconstitutional, and not obligatory upon the citizens.”

The counsel for the plaintiff! on the argument of the cause, went at some length into the question, whether this court had the power to pronounce an act of the legislature, unconstitutional. Were the question doubtful, the authorities he read might well be considered as settling it; but any reference to them, .to support the position assumed, was unnecessary in this court. It is a subject on which we never had a doubt, nor have none at this moment. We have, already, more than once found it our duty, to express our convictions on this point. The right, nay, the necessity of the judiciary exercising this power, is so inevitably the consequence of our living under a government of laws: of the constitution or form of that government being the supreme law of the land, and of that constitution containing an express provision, that all laws made by the legislature, contrary to it, are null and void ; that the mere statement of the premises, carries the mind at once, to the conclusion; and we feel that it is one of those self evident propositions, which requires no aid from argument, and can receive none from authority, 3 Mart. 12, 352. Vol. 3, 472,

Conceiving it therefore clear, that an act which the constitution declares to be mil and void, cannot have force and effect given to it by the judiciary, we proceed to examine, whether the enactment of which the plaintiff* complains, be of that nature.

The prohibition in the constitution, against the passage of ex post facto laws, applies exclusively to penal, or criminal cases. Such is the construction of these .words, in the constitution of the United States, antecedent to the formation of the government of Louisiana, and we have uo reason to doubt they were used, in their then ascertained and technical . . „ » meaning, by the convention ot this state. 3 Dallas, 386. 4 ibid. 14. 7 Johnson, 488. 1 Blackstone’s com. 46.

The constitution of this state having affixed no limits to the exercise of the power of taxation by the legislature, it is difficult to suppose even a case, in which the exercise of that power could be considered unconstitutional, or properly become the subject of judicial interference. The only objections that can be made to acts raising revenue is their inexpediency, or injustice, and both these are exclusively for the consideration of those with whom the constitution has deposited this power. We are unable, notwithstanding the argument at the bar, to discover any strength in the position; that in the passage of this law, the legislature trenched on, and invaded the functions of the judiciary. Had, indeed, the legislature declared that according to the laws in force, A. B. or C. should pay the individual by whom these services were rendered, another question would have been presented for óur consideration. But this is what they have not done. They have passed a law in the exercise of a power which is exclusively theirs, to raise a revenue out of which he shall ... „ . be paúl, and the circumstance ol there not being any previous law -which would- au-thorise this payment, can furnish 00 ground to declare it unconstitutional. If it did, the same objection would apply to every act of the general assembly to raise money for the discharge of any just claim on the government. The legislature had as much right to direct that the money to be paid this individual, should be raised by a new tax, as they had to order the payment out of any monies unappropriated in the treasury; and they had the same right to order it to be paid, by a tax on the parish of New-Orleans, as they had to levy it off the whole state; for there is nothing in the constitution which declares that taxation must be uniform. If the motives, which induced the legislature to pass laws of this kind, were sufficient to render them unconstitutional. there is scarcely one of their acts to raise money, that would not be void. These motives are not always avowed, but we know, in point of fact, that taxation is as often resorted to, to pay those to whom the state is indebted. or whom it may desire to remunerate for services rendered, as to create a fund out of which future obligations are to be discharged. In all. these cases it might be said, with tjje same truth and force as in the present: go to the judiciary if there be any law to pay you ; and if there is not, the legislature cannot come to your relief, because in doing so, they decide that the whole, or a part of the state must pay. The legislature certainly exercise their judgment, in deciding what faxes shall be levied, by whom they shall be paid, and how they shall be applied, but they touch not the authority of the judiciary in doing so. All these powers are by the constitution exclusively, and wisely, confided to the representatives of the people.

Derbigny for the plaintiff, Preston for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.