63 So. 630 | La. | 1913
Lead Opinion
The present suit has been brought by the state tax collector of the city of New Orleans to compel defendant to pay the said tax; and defendant contends that the functions thus prescribed for the fire marshal are local in character, and the exercise of them in the city of New Orleans would constitute an exercise of the police power of the city, and the administration in part of its affairs, and that, therefore, inasmuch as said officer is required by said statutes to be appointed by the Governor the conferring of these functions upon him, in so far as the city of New Orleans is concerned, contravenes articles 31!) and 320 of the Constitution, whereby the electors of the city are given the right to elect the officers charged with the exercise of the police powers of their city, or with the administration of its affairs, in whole or in part. And defendant contends that the nullity of said statutes in that respect necessarily carries with it, in so far as the city of New Orleans is concerned, the nullity of the tax imposed for the purpose of paying the salary and office expenses of said officer, since within the contemplation of said statutes, the rendition of the services of said officer and the imposition of the tax for the payment of them go together and are inseparable.
There can be no serious denial of the fact that the said functions of the said fire marshal are local in character, and that their exercise in any city constitutes an exercise of the police power of such city and an administration in part of its affairs. If such functions as these are not of that character, it would be hard to conceive of any that would be. They are essentially and manifestly such. And, such being the case, the statute which authorizes an officer appointed by the Governor (not elected by the electors of the city of New Orleans) to exercise them in that city, contravenes said articles 319 and 320 of the Constitution, and is in that respect null and void.
It not being constitutionally possible for said officer to exercise his said functions in the city of New Orleans, the legal situation stands just as if in the act itself his functions were thus excluded from the city of New Orleans and confined to the parishes outside of said city. Now, if these statutes read in that manner, that is to say, if they provided that said officer should not exercise his functions in the city of New Orleans, but only in the other parishes of the state, it would be obvious that the special tax imposed by them could not be made to operate in the city of New Orleans. It would plainly be a taxing of the city of New Orleans for a purpose in which it had no interest.
It might be well to add here that nothing in this opinion impugns in any way the power of the Legislature to levy taxes upon the state at large for the general purposes of the government. The distinction between such a tax and that in question in the present case is that the latter is declared to be for a special purpose, a purpose which the city of New Orleans, on the assumption- of it not being constitutional for the fire marshal to exercise his functions within her limits, would have no more concern with than if it were to provide a fund for the maintenance of the fire departments of the cities of Shreveport and Monroe.
The defendant has urged several other grounds of nullity, but we do not find it necessary to consider them.
The judgment appealed from is set aside, and the suit of plaintiff is dismissed at its costs.
Rehearing
On, Rehearing.
The opinion and decree heretofore rendered in this cause is now reinstated and made the judgment of the court.