State ex rel. Johnson v. City of New Orleans

39 La. Ann. 342 | La. | 1887

The opinion of the Court was delivered by

Boché, J.

Relator seeks a judgment for the cancellation of the inscription in the mortgage office of drainage taxes in favor of the city of New Orleans against property which he owns in said city.

He predicates the relief which he prays for on the following averments substantially:

1.That said tax rests on no consideration in so far as it is intended to affect the property which he describes in his petition.

2.That said property had already been drained, and the tax for the same had been paid to the New Orleans Draining Company.

3.That the drainage work undertaken by the city of New Orleans, under color of the acts of the General Assembly of 1858, 1859 and 1871, has not been carried on, but, on the contrary, has been abandoned.

The citjr made no defense, and the district court dismissed the action as in case of non-suit, for the reason that relator had failed to prove the facts necessary to his success.

The amount of the tax complained of is $1,368.35, and therefore we have no jurisdiction of the case.

As it clearly appears from the allegations which make up the groundwork of the mandamus prayed for, this controversy involves purely and simply questions of fact.

Hence the legality or constitutionality of the tax in suit is not in contestation.

Relator does not complain, allege or intimate that tlie drainage tax is either illegal or unconstitutional, but his contention is that under the circumstances which characterize the condition of his property in reference to drainage, the tax inscribed against it cannot be exacted, either because it is not due, of becau'so it had already been paid, or because the drainage work, which is the only consideration therefor, has not been carried on, but is abandoned.

These three questions of fact, depending for solution exclusively on evidence, cannot be construed as a contestation involving the legality or unconstitutionality of the tax under discussion.

And that feature of the controversy is the sole condition .of our jurisdiction when the amount of the tax does not exceed two thousand dollars. Gillis & Kennett vs. Assessor, 33 Ann. 285; New Orleans vs. Blanks, 35 Ann. 1201; Cobb vs. Tax Collector, 36 Ann. 801; Breaux vs. Recorder of Mortgages, 36 Ann. 742.

It is therefore ordered that this appeal be hence dismissed.