14 La. Ann. 318 | La. | 1859
Section 102 of the charter of the city of New Orleans, approved March 20th, 1850, provides, that the city of New Orleans shall have power to levy taxes, commonly known as licenses, upon trades, professions, callings, and other business carried on, and upon carriages, hacks, drays, carts, aud other vehicles used in said city; and said taxes, commonly known as licenses, laid as aforesaid, shall not be construed to be a tax on property, within the meaning of sections 36, 38 and 42 of this Act. Sess. Acts 1856, p. 158.
In pursuance of this section, the Common Council of the city of New Orleans passed an ordinance, approved December the 5th, 1856, and numbered 3671, to establish a uniform rate of taxes and licenses on professions, callings and other business, and on carriages, hacks, drays, and other vehicles; and by the 34th section thereof levied a license tax upon the keepers of billiard tables, in these words : “ Every keeper of a billiard table, the whole tax being levied on each and every billiard table, sixty dollars.”
Under this ordinance, the plaintiff paid the license tax on eight billiard tables on the 31st of January, 1857, and on the 1st of March, 1858, paid the same tax on sixteen billiard tables, amounting to the sum of $1473 60. These payments were made under protest, and this-suit is brought to recover back the taxes thus paid, ou the ground, that the tax was illegal, unequal and unconstitutional.
The plaintiff contends that the tax is upon his property, to-wit, his billiard tables, and that the ordinance levying the tax is illegal and void — for the reason that it contravenes section 42 of the charter of the city of New Orleans, which is in those words : that the Common Council of the city of New Orleans shall, for the purposes of this Act, once, and not oftener, in each and every year, lay an equal and uniform tax upon all property, real and personal, in said city ; but said tax, added to the Consolidated Loan Tax, and to the the special tax for payment of the annual iutcrest on the bonds issued by the city for subscriptions to the stocks of the New Orleans, Opelousas and Great Western Railroad Company, the New Orleans, Jackson and Great Northern Railroad Company, and the Pontchartrain Railroad Company, shall not, in the aggregate, be more than one dollar and fifty cents on one hundred dollars of valuation, except in case of invasion or insurrection ; provided it be sufficient to pay the interest on the consolidated debts and railroad bonds issued by the city of New Orleans.
The plaintiff further contends, that if the tax be a license tax, in the sense of section 102 of the charter, that the ordinance levying it is likewise illegal and void — for the reason that it violates the constitutional, principle of uniformity
In the construction of ordinances, as in the interpretation of statutes, the court will ascertain and give effect to the intent and meaning of the ordinance, provided that the same be not contrary to law, although the language may be ambiguous and susceptible of two different significations, one of which is against law. Notwithstanding the language of the 34th section of the ordinance in question declares, that a tax of sixty dollars shall be assessed and collected from every keeper of a billiard table, the whole tax being levied on each and every billiard table, we have no doubt that the intention of the Common Council was to impose a license tax upon the particular calling or business of keeping a billiard table, and not a property tax upon the table itself.
Second. The remaining question is, whether the license tax imposed upon keepers of billiard tables by the ordinance is equal and uniform.
The power conferred upon the Common Council by Article 102 of the charter to levy license taxes upon trades, professions, callings and other business carried on, is without exception or limitation ; and in the exercise of this power it is necessary to determine what is a trade, profession, calling or other business carried on, and the determination of these matters, previous to the assessment of the tax, has been left by the charter to the wisdom and discretion of the Common Council.
In the ordinance in question, the Common Council have determined that every person having more than one shop, or store, or other establishment, or who shall exercise or follow more than one profession, trade, calling or business, shall pay the tax upon each separately. Sec. 73 of the ordinance. And have also determined that the keeping of each and every billiard table constitutes a separate and distinct business subject to a license tax. Hence it follows, that as the keeping of each billiard table, in the sense of the ordinance, is a separate business, subject to a tax of sixty dollars, and no more, that the tax is equal and uniform upon all persons engaged in that kind of business, as much so as the license tax upon merchants having separate stores or establishments.
It is, therefore, ordered adjudged and decreed, that the judgment be avoided and reversed, and that there be judgment in favor of the defendant, with costs in both courts.
Re-hearing overruled.