1 La. 1 | La. | 1830
delivered the opinion of die court. On the 22d of September, 1827, the city council passed an ordinance by which they imposed an annual tax for twenty years, on all the owners of lots in the city and fau-bourgs of New-Orleans, for the exclusive purpose of paving the streets and making banquets in front of their property; leaving, however, to the persons so taxed, the choice of exempting themselves from the annual payment of the sum charged on their property, by paying in cash the amount expended by the corporation in doing the work, or by giving their notes in four equal and annual instal-ments, with interest at eight per cent, for the delay of payment.
By this ordinance, the tax was demandable at once from all those in front of whose lots the work had been done, but those before whose property the pavement was not made,
The plaintiff chose to give his notes at 1, 2, 3 and 4 years, for the tax imposed on him, and now contests the payment, on the ground that they were given without consideration; the ordinance being illegal, unconstitutional, and in violation of the charter incorporating the city.
The district court gave judgment for the defendants, and the plaintiff appealed.
The case has been well and elaborately discussed, and like other causes where the interests of many are involved, it has assumed an importance to which we do not think it entitled from any difficulty it presents in the decision.
To one of the propositions of the appellant’s counsel the court gives its entire assent. The corporation is the creature of the legislature, and has no power but that which the creator has thought proper to bestow on it: its jurisdiction is limited; and the charter is to the city council what the constitution is to the legislature — neither can rightfully exercise any power not conferred on them. We have kept this principle steadily in view in considering the question before us.
First — What powers are conferred on the corporation?
Second — Could these powers be constitutionally given to it by the legislature.
Third — Is the ordinance imposing the tax complained of, within the powers vested in the city council, supposing it to be constitutional ?
I. And first, as to the power conferred. The 6th section of the act of incorporation, with other provisions in relation to the authority of the mayor and aldermen, has the following: “And the said mayor and city council shall have power to raise by tax, in such manner as to them may seem proper, upon the real and personal estate within the said city, such sum or sums of money as may be necessary to supply any deficiency, for the lighting, cleaning, paving, and watering the streets of the said city: for supporting the city watch, the levee of the river, the prisons, work-houses, and other public buildings, and for such other purpose as the police and good government of the said city may require.” In this section is also found a proviso of the follow
By an act passed in 1813, the corporation is authorized, “to determine the completion and dimensions, the maintainance, and repair of the side pavements in the said streets, at the cost of the proprietors of houses, lands or neighboring lots.” In this act it is also provided, that no by-law or regulation shall have any force or effect, which is contrary to the constitution of the United States, or to the constitution and laws of Louisiana.
By these provisions it is seen, that very extensive powers are conferred on the city council, and that a great deal is intrusted to their discretion. Authority is given them to lay such taxes as to them may seem proper, on the real and personal property within the city, for the supplying of any deficiency which may exist in their funds. After a detailed statement of the objects to which the money so raised is to be applied, a sweeping clause grants taxation for any purpose which the
The provisos in the statutes already cited, declare, all by-laws and ordinances invalid which are contrary to the constitution of the United States, and counsel have argued, that any species of taxation exercised by the corporation contrary to that which the general government could resort to, is null and void.
If the nullity of the ordinance is supposed . r to arise from its want of uniformity, and consequent opposition to the constitution of the 1 1 1 . United States, the answer is, that there is 7 nothing in that instrument which requires ° 1 direct taxes to be uniform. It merely declares they shall be apportioned among the respec
We have been unable to discover any thing in the constitution of the United States which would authorise us tosay the ordinance was invalid, and the examination of that of our own state has brought us to the same result. There is nothing in it which requires taxation to be uniform. In the case of Le Breton vs. Morgan, where a tax had been imposed by the state on the parish of Orleans for the reimbursement of certain expenses which the governor had incurred in the attempt to stop a crevasse on the plantation of B. Macarty, in the year 1816, and its payment was resisted, we held the law to be constitutional and enforced it. That case so far as it respects the constitutional question involved in. it, cannot be satisfactorily distinguished from the instance before us. 4 Martin, n. s. 138.
Since the argument, we have looked into a decision of the supreme court of Massachusetts, on a question somewhat similar to the present one. The constitution of that state
Under the first branch of this power, which requires taxation to be proportionate, the supreme court of that state considered, that a tax levied on a bank could not be justified. The exercise of the power requiring a valuation of all the property in the commonwealth, and then an assessment of each individual according to his proportion of that property. But under the second division, they held the tax to be rightfully laid: that the legislature had the same authority to tax banks, as they had to tax attornies, tavern-keepers, retailers of goods, although other trades and professions were not made subject to taxation. 12 Massachusetts Reports, 254.
In our constitution, there is no such provision as that then existing in Massachusetts, which required the legislature to levy proportionate taxes, and if under it, the courts of that
pQr contending here, that taxes cannot be enforced, which are not levied equally on all. It is no doubt desirable, taxation should be uniform, and a wise legislation, as far as it is practicable, will always make burthens of this kind fall as equally as possible on the whole of the community. But uniformity, in the sense for which the appellant contends, would annul all the fiscal laws of the state. The man whose lands and slaves were taxed, might to-morrow, on the principle urged, enjoin the sheriff from collection, because the cash of his neighbor which was used in market, buying bills and discounting notes, was not made contributory to the public revenue. The merchant and auctioneer could resist the payment of taxes levied on them, because mechanics and farmers were not assessed in the same way. The constitution we think has confided to the legislature the power of selecting such property as they may deem proper for taxation, and all the latitude which under it they possess, in relation to real and personal property, they have transmitted to the corporation by the charter.
The tax levied by the corporation on all persons owning property in the city, in front of which the streets had been paved, and on all persons in front of whose lots pavement might hereafter be made, does not present a case of extreme injustice. Indeed we have been unable to discover any thing unjust in it, and it is as uniform as any taxation in relation to the subject matter could well be. It falls alike on all, who stand in the same situation.
It is shown that in the cities ofNew-York and Boston, the same burthen is imposed on the owners of property fronting the streets, and the acquiescence of such intelligent communities, in the justice and constitutionality of these regulations, has been properly presented to us as an argument in favor of the
III. The last question is, whether independent of any objection to the constitutionality of the ordinance, it is within the powers granted to the corporation. To this point the principal part of the arguments addressed to the court on behalf of the appellant, has been directed.
The first objection is, that by the charter the corporation is authorized to tax rúal and personal estate, and that the tax now complained of is on real estate alone.
It does not appear to us, that the power given to tax real and personal estate, renders it imperative on the corporation to tax both. By the same section of the law, the city council are empowered to exercise their authority as to them may seem proper.
The next objection is, that the law was retrospective in its operation, because the citizen was taxed for work already done. Admitting this was the reason which induced the passage of the ordinance, we do not see how the motives of the law maker can make the law retrospective and void, unless the party complaining could show he had a vested
It was next said, this was not a tax, or at least not a tax on property: it was an assessment on individuals, in consequence of the situation in which their property was situated.
It appears to us a tax, and a tax on pron ... , i t perty. .because it is only on persons holding . , , property, and because they do hold it, that . . i . the tax is imposed. Where is the difference between saying all lots are to be taxed ten dollars, to be paid by the owners, or- declaring that all owners of lots shall pay a tax of ten dollars? There is some in the words, but none in the thing. It is still a tax on the property. The argument addressed to us on this head, was quite too refined for any.practical purpose. The land tax of the state in every parish might be attacked by the same ingeni ous reasoning. An inhabitant of St. John the Bap
Lastly, and with most earnestness it was pressed on us, that the corporation was only authorized to lay taxes to supply a deficiency in their funds, and that no such deficiency was shown to exist at the time the ordinance was passed.
The account of the city for the year 1827 is produced. It exhibits receipts to the amount of $210,729 45 cents. The expenses are $196,502, leaving a balance in the hands of the treasurer of $14,226 73 cents — there was therefore no actual deficiency.
If the argument of the appellant was correct, this circumstance would raise doubts of the legality of the tax in question. Our examination of the law has however satisfied us, that the position assumed cannot be maintained. The actual deficiency contended for, could only exist, where the corporation was indebted on contracts, or engagements, and could not discharge them, or where the
Under this view of the case there is nothing on record which shows a violation of the charter, and it is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.