Roudanez v. Mayor of New Orleans

29 La. Ann. 271 | La. | 1877

The opinion of tho court was delivered by

•Spenoeb, ,T.

The plaintiffs, Roudanez and forty-two other citizens and property holders of New Orleans, bring this suit. They allege in substance. that each and every one of them owns real and personal property in said city liable to taxation. That the General Assembly, by act No. 20 of 1876, authorized and required tho Mayor and Administrators of Now Orleans to hold a popular election, to- decide whether or not a tax of one-half of one per cent on all taxable property in New Orleans should be cohected annually for four years, for tho use and benefit of the said Pacific Railroad Company. That said act.and the tax proposed therein are violative of the fifth and fourteenth amendments of the constitution of the United States, and of various articles of the constitution of Louisiana. That the Mayor and Administrators arc about to execute or attempt to execute its provisions against your petitioners and other inhabitants of New Orleans, to their great wrong and injury, etc.

Wherefore, they pray for an injunction restraining said officials from in any manner attempting- to carry into effect the said act No. 20.

The injunction was granted.

The Pacific Railroad Company intervened, -and moved to dissolve tho injunction on tlio face of the papers, and as bring prematurely and improvidently sued out.

Tho court below sustained this motion, dissolved the injunction, and plaintiffs prosecute this appeal.

The case has been ably and exhaustively argued before us, both as to the question of prematurity and as to its merits. But as these are matters of fact alleged in the petition, which for tho purposes of tho motion only arc taken as true, we do not see how wc can do more than pass upon tho motion and the ruling of tho court thereon. If wo sustain it, that ends tho case. If wo overrule it, tho case will have to be remanded to lie tried on the questions of law and fact involved.

Tho question therefore presented for our decision is, can tho plaintiffs, citizens and taxpayers of Now Orleans, alleging that tho defendants, the Mayor and Administrators of tho city, are about to hold an election to decido upon the levying- of a tax under act 20 of 1870, and that that act is unconstitutional, and that any tax levied by virtue thereof will be illegal and void, restrain and enjoin them from so proceeding'?

It is not protended that any tax 1ms been levic'd or is demanded of the plaintiffs. Nor is it oven asserted that such tax will be levied, but only that it may bo tho result of the proposed election.

Wo think that tho danger apprehended is too remoto and too conlingont to form the basis of a proceeding in court to avert it.

Courts of justice have enough to do in dealing with real, existing, and present wrongs, without anticipating and combating hypothetical evils of tho future that may or may not arise. It will be time enough for the plaintiffs to complain wnen their rights arc actually invaded, or when danger to their persons or property is imminent and impending. There are too many contingencies fit present between them and danger to justify them in resorting to law. Act No. 20 may yet bo repealed, or the tax proposed may ho voted down, or plaintiffs may cease to he taxpayers, or the railroad corporation may cease to exist, or forfeit its charter.

It scorns to ns that tlio plaintiffs have sot up, and now ask us to protect them against, a mere possible adversary, which at present is without substance or power to harm them.

Even if it he conceded that tho levy of tho tax contemplated by said act would bo unconstitutional (upon which wo of course express no opinion), wo do not see that that fact would render the holding of the election uneonstitutioiúil. If Hie tax would bo unconstitutional, it is fair to presume that a law-abiding people would vote it down. We know no provision of the constitution which forbids the Legislature from ordering an election to take the sense of tiio people upon any question which it may deem important. If private individuals were thus allowed to' interfere with and embarrass tho government, its most ordinary functions could be completely stopped by persons claiming to champion and protect the rights of tho public. Thus, if the Legislature should in its wisdom direct that a vote of the people be taken upon a proposed constitutional amendment, or upon tho calling of a State convention, or upon any other matter, ono or more individuals, alleging that tho expenses of such election would increase tho State debt, or necessitate a State tax beyond tho constitutional limits, could enjoin the holding of such election, and in fact paralyze tho government in its every step. While this court will always be found to favor tho largest liberty of the citizen asserting liis individual rights, and ready at all times to lend its aid for his protection, we can not give our sanction to a doctrine which we think destructive of all government, and which would till our courts with litigations based upon mere theories and hypotheses, and not upon actual grievances.

If the city of Now Orleans should, by vote or otherwise, seek to extort from tho plaintiffs illegal or unconstitutional taxes, whether to pay for election or other purposes, they will have ample opportunity to protect themselves through the courts. But “sufficient unto tho day is tho ovil thereof.”

Wc can not better express and conclude our views upon this subject than by quoting the language of that eminent jurist, Mr. Justice Cooley, in Miller vs. Grandy, 13 Michigan, 548.

“ An individual has no right as a taxpayer, either in his own name or on behalf of himself and tho other taxpayers, to filo a bill to enjoin proceedings in advance of tho actual levy of a tax. Ho can not seek redress until his own tax can bo ascertained, and he cannot then proceed in equity, except to protect his individual interest from injuries not remedial otherwise. * * • * * * * *

“Without undertaking to go into any elaborate discussion of all tho questions which might arise, wo feel confident that no case can be found which recognizes any propriety in enjoining the preliminary proceedings in advance of the actual levy of a tax on either personalty or realty. Apart from tho palpable difficulty of determining in advance whether the complainant will be in a condition to be injured when the tax is assessed, it is always to bo remembered that, under our system, taxes must be provided for at regular times, and by animal and somewhat rapid proceedings. . * * * ' * * * * *

“No court could over bo justified in such an interference vúth tlio necessary course of government. After a tax has been assessed and becomes collectible, each man’s share becomes severable from the rest, and delaying its payment will not necessarily operate upon his neighbors. These principles are familiar, and rest on good sense and sound policy.” •

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, with costs of both courts.