Mestayer v. Corrige

38 La. Ann. 707 | La. | 1886

The opinion of the Court was delivered by

Watkins, J.

Defendant resists an ordinance of the town of Now Iberia, exacting certain rates, fees, charges and tariffs daily from each person selling the articles mentioned or keeping butcher or market stands, anywhere within the corporate Limits of that town, and whether within or without the market; and conferring the right to collect same as a franchise of the market-house upon the lessee of the same, who is given the right to bring’ suit before the mayor of the town or any jrrstice of the peace having jurisdiction for the collection of said daily rates and charges, and for the enforcement of the penalty of five dollars against such person as shall forfeit to the corporation or to the lessee of the corporation market-house “for each and every refusal to pay said rates, fees, tariffs and charges herein established when due,” etc.

These rates and charges are the following, viz:

1. From each and every butcher’s stand situated within the Main Market, and also from each and every butcher’s stand outside of said Main Market and within the corporate limits of said town.......................................$0 25

2. For each slaughtered beef................................ 00

3. For each slaughtered calf, provided the forequarters do not weigh over fifty pounds................................... 40

4. For each slaughtered calf, provided the forequarters do not weigh over fifty pounds.................................. 50

5. For each slaughtered hog weighing over one hundred pounds................................................. 50

6. For each slaughtered sheep............................... 30

# iff i * %■ -? '¡: d

I.

The plaintiff alleges himself to be the lessee of the corporation market-house in the town of New Iberia, pursuant to an ordinance passed by the board of trustees on the 10th of August, 1885, and that ho has complied with all the terms and conditions thereof, and that he, as such lessee, is entitled to collect all said charges and penalties as are either permitted or imposed by7 the corporation as rights and franchises of said market-house.

He shows that his lease began on the 1st of September, 1885, and will conclude or terminate on the 31st of August, 1886. He show's that the defendant, Simon Corrigé, “lias for several years past carried on the business of butcher within said corporate limits at a stand or market place outside of said corporation market-house, and that for the last tw7elve months he has kept his said stand on the southwest side of Main street, in the upper portion thereof, as he does” at this time, and is due him $371.80 for which he prays judgment.

Defendant denies the right of plaintiff to recover on the ground that the ordinance under which he sues as lessee “is unconstitutional, illegal and unwarranted in law, because the exactions and charges it imposes is a tax or license for revenue * * and it is violative of the Constitution and existing laws of tlie State * * * * and said pretended ordinance * * is unconstitutional and illegal, on the further ground that neither the law of the State nor the charter of the town of New Iberia gives the power and legal right to enforce the collection of its revenues by fine for violation of its ordinances, whenever it is attempted to collect a license or tax for revenue, which is the object of this illegal ordinance.”

The question propounded is whether the rates, charges and fees sought to be collected, and authorized by the statute and ordinance complained of were, in the nature of a tax or license, granted under the taxing power of the State; or constituted a contribution sought to be raised in the exercise of the police x>ower of the State, delegated by statute to the city of New Iberia.

The taxing power of the city of Now Iberia is its only power for obtaining revenue by exactions levied on its citizens, and that power is limited to the ad volorem or property tax and the license tax.

The Constitution declares that “no parish or municipal tax for all purposes whatsoever, shall exceed ten mills on the dollar of valuation, etc.” Constitution, art. 209.

It is obvious that if the statute or ordinance in question attempted or was intended to authorize a municipal tax beyond the constitutional limitation, to be either assessed or collected in the manner indicated, same would be undoubtedly unconstitutional and void. 36 Ann. 363, State vs. Louis Blaser; 34 Ann. 750, State vs. Patamia; 6 Ann. 515, Municipality No. 1 vs. Pauce.

II.

Can plaintiff’s right be recognized and enforced upon the theory that these rates and charges are contributions legally authorized by the State in the exercise of its police power ?

The Constitution provides that “the exercise of the police power of the State, shall never be abridged, etc.” Const. Art. 235.

It also provides that “the police juries of the several parishes, and the constituted authorities of all incorporated municipalities of the State, shall alone have the power of retaliating the slcmghtermg of cattle and other live stoclc within their respective limits, etc.” Const. Art. 248.

In 34 Ann. 1050, Delecambre vs. Clere, this Court had the question now before us under consideration and there held : “Whilst this section conferred authority incident to police powers to regulate private markets or the selling at private stands of meats, etc.,- and the right even to suppress the same and to impose fines and penalties to enforce its ordinances on the subject and punish their violation, it conferred no power to levy a tax, or license, or fee, tariff, or rate, as it is termed in this case, on butchers and other persons.

“There is a recognized distinction between the taxing power and the police power conferred on corporations. Licenses or taxes may be imposed on certain branches as a regulation under the exercise of the latter power, but it must plainly appear that they are imposed strictly and exclusively in aid of such power and not for the purpose of revenue. The rule is that mere police power, and the right to make needful regulations under it, gives no right to tax for revenue.”

In Dillon on Municipal Corporations, it is announced that tbo authority to establish and control markets is one of the police powers that may be exercised by municipalities. Sec. 93.

“The taxing power is to be distinguished from the police power. * * The power to license and regulate particular branches of business or matters is usually a police power; but when license, fees, or exactions are jplainly imposed for the sole or main purpose of revenue, they are in effect taxes.”

Again: “ Ordinarily the mere power to license or to subject to qiolice regulations, does not give the power to tax distinctly for revenue purposes ; but it may give the power when such appears from the nature of the subject matter and upon the whole charter or enactment, to have been the legislative intent, but not otherwise.” 2 Dillon, Municipal Corp., Sec. 609.

“ In harmony with the foregoing principles it has been held that, under the authority to license and regulate draymen, etc., a municipal corporation may, by ordinance, require a license to be first taken out, and charge a reasonable sum for issuing the same and keeping the necessary record, but cannot, by virtue of this authority, without more, levy a tax upon the occupation itself; and under the power to regulate, it may make proper police regulations as to the mode in which the employment shall be exercised.” Same, Sec. 292.

“So authority to a city to adopt rules and orders 'for the due regution of omnibuses, stages,’ etc., was held not to authorize the adoption of an ordinance requiring the payment of a tax or duty, on each carriage licensed, ranging from one to twenty dollars, according to the different kinds of carriages and stands occupied.

“This was regarded a» a direct tax upon the vehicle used or its owner, and not necessary to secure the objects of the above grant of power to the city.” Same, Sec. 293; 12 Wallace, 418, Ward vs. Maryland; 29 Ann. 261, Mayor vs. Gustave Roth; 32 Ann. 923, Board of Trustees of New Iberia vs. Migins; Cooley on Taxation, p. 387.

In Delecambre vs. Olere, this Court held that a charge of “twenty-five cents per day, termed a tariff or fee for keeping a private butcher’s stand within the corporate limits of said town,” was in that instance a license or tax imposed upon the calling or occupation of the defendant which was that of a butcher.

After a careful review of all the authorities cited and others at hand, we have reached the conclusion that all of the exactions demanded are within the terms “ tax ” and “ license,” and that same were manifestly intended by the mayor and trustees of the city of New Iberia to constitute a source of revenue under the apparent exercise of delegated police power, and that said statute and ordinance are unconstitutional, null and void to the extent of plaintiffs demands and that the judgment of the district court should be and the same is hereby affirmed.

This decree does not apply' to that part of the ordinance which authorizes the exaction of twenty-five cents “from each and every' butcher’s stand situated within the Main Market.”

Judgment affirmed.