City of New Orleans v. Graihle

Ogden, J. The first question presented in this case is, whether the city can maintain an action to recover the tax imposed by its ordinance on the owners of real estate, to meet their subscriptions to the stock of the two railroad companies, known as the New Orleans, Jackson and Great Northern, and the New Orleans, Opelousas and Great Western Railroad Companies. That question was not raised in the case of the Police Jury v. John McDonogh’s Succession, in which this court affirmed the constitutionality of the Act of the Legislature of the 12th of March, 1852, under the authority of which the ordinance, providing- for the subscription by the city to the stock of these companies was passed; but we can see no reason to doubt the right of the city, to prosecute the delinquent tax payers under that ordinance. The subscription to the stock of those institutions has created a debt which the city is bound to discharge, and the means of discharging it has been granted by the law, which authorizes the city to levy a tax, for that purpose, on the owners of real estate within its limits. The collection of the tax by resort to legal process is necessarily embraced within the powers conferred, of making the subscription, and of imposing the tax to meet it. The second question involved in this appeal, is precisely the one decided by — 563 — this court, in the case referred to of the Police Jury v. McDonogh's Succession, 8th Ann., to wit, the constitutionality of the Act of the Legislature authorizing the subscription. We had occasion, when the question was then presented, to examine the subject fully, and had the aid of all the light which could be thrown on it by the able discussions the subject has elicited, both in our own and in our sister States, and we came to the conclusion that there was no ground on which we could feel ourselves authorized to declare the Act of the Legislature unconstitutional. The court below has affirmed the verdict of a jury in the present case, which in opposition to the opinion expressed by this court, declares that the Legislature, in passing the act authorizing the subscriptions, have transcended their powers, and it again becomes our duty, on the appeal taken by the city, to pass on the same question between other parties. The opinion in the former case was prepared with much care by the member of this court who then acted as its organ, and the conclusion to which the court came is, we think, supported by sound reason and high authority. . The question being one which had undergone judicial investigation in other States of the Union, the decisions of the highest courts in those States were referred to in support of the opinion then pronounced. Some of the principles then settled by this court, are recognized in other decisions of our sister States, not then referred to. See cases of Slack, &c. v. Maysville and Lexington Railroad Company, B. Monroe’s Ky. R., vol. 13, p. 1. Justices of Clarke Cy. v. The P. W. and K. R. Turnpike Company, 11 do. B. Monroe, 143. On the review of that opinion, we still adhere to its correctness. In that case, it was held by us: 1st. That the restriction imposed by Articles 108 and 109 of the Constitution of 1852, upon the aid to be given by the State to corporations for internal improvements, did not limit the aid which the parish and municipal corporations of the State might grant for such purposes. 2d. That the provision in the Act of the Legislature of 1852, referring it to the voters on whose property the tax was to be levied, to decide whether the ordinances imposing the tax should take effect, did not conflict with the letter or the spirit of the Constitution. 3d. That the burden imposed by that act on the owners of real estate, was a tax for local purposes, and that the duly constituted local authorities were the proper judges, to determine whether the public good within the limits of the local government, warranted the imposition of such tax. 4th. That the provisions by which the tax payers were constituted stockholders to the extent of the taxes paid by them, did not change the true nature of the law, as one imposing a tax for local purposes, and could not be considered as a grievance, but rather as a benefit to the tax payers. We are satisfied that the principles thus declared, are conformable to reason and to the true and correct theory of our State Government. The taxing power for local purposes has alwaj's been exercised under legislative control by the subordinate local governments in the State; and under all the State Constitutions which have been adopted, the people have acquiesced in this, as one of the necessary means of carrying on the government, so that it has been the settled and uniform practice for the Legislature to delegate to the municipal governments presiding over the affairs of the cities, towns and parishes, throughout the State, all that portion of the legislative power which relates to taxation for local purposes. The power so delegated to the city of New Or564 ieanS) ]las been long exercised by its constituted local government without complaint, and under it, the commercial prosperity which the city enjoys, has been gradually increasing. The opposition which is made to the exercise of that power in the case of taxation for railroad purposes, is founded on some distinctive features of the law authorizing the imposition of taxes which have not existed in the prior legislation, and are supposed to conflict with the Constitution. Those features, distinguishing the present from former laws authorizing taxation for local purposes, are : 1st. That the agency of a private corporation is adopted for the purpose of effecting the object for which the taxes are imposed, and that the taxes, when collected, are paid over to those corporations who are bound, under their act of incorporation, to apply the money So paid, to the construction of the work or improvement in aid of which the tax is levied. 2d. That the ordinance of the municipal government imposing the tax, to be thus applied by a private corporation to the projected public improvement, is required to be approved by a majority of those on whom the tax is to fall, at an election to be held for that purppse, before the ordinance shall take effect. Whether it has been wise and prudent in the legislative department of the government, to make these innovations in the laws heretofore regulating the subject of local taxation, it is not our province to decide. Under this new legislation, great abuses may spring up. In regard to the application of the money which the tax payers are required to contribute for such improvements, there may be stronger grounds of dissatisfaction and complaint, than those which have been heretofore so common, in relation to the disposition of the public funds, often lavishly squandered for useless or improper objects; and it cannot be denied, that the test of a popular election, to ascertain the will of the majority of those by whom the tax is to be paid, is uncertain in its nature and liable to great corruption and abuse. But these objections furnish no ground for the interposition of the judiciary to arrest such a course of legislation, however disastrous .the consequences with which it may be fraught, The only guide set before the judiciary in administering the laws which are made by an equal and coordinate department of the government, is the Constitution of the State, which both alike are sworn to support. Wo find nothing in these new features, which have been introduced into the legislation of the State, that conflicts with either the Constitution of 1845, which existed when the statute was enacted, or with the present Constitution of 1852, Both Constitutions recognize the power of taxation, without any other qualification than that of equality and uniformity, from which it follows that the Legislature may delegate the power of taxation for corporate purposes, to the municipal governments of all the political subdivisions of the State, subject only to that qualification, and as each of these political divisions of government are formed on the basis of equal representation, the great principle of a republican government, that there shall be no taxation without representation, is fully carried out — the evils which, notwithstanding, still remain, are inseparable from such form of government — and the Constitution has no remedy against them. It is, therefore, no ground for our interference, that the taxes imposed and collected for the purpose of such improvement, may he misapplied or squandered by the private corporations who are selected as the agents to carry out the purposes of the municipal government in imposing the tax. . — 565 — The other objection founded on the reference of the ordinance imposing the tax, to the tax payers for their approval, was fully considered in the former opinion pronounced by us, on that subject, and there is no principle of the Constitution, which is violated by such legislation. The Act of-the Legislature possesses the full vigor and effect of a law enacted with all the formalities prescribed by the Constitution ; it is a law not mandatary, but premissive in its character. It was within the constitutional power of the Legislature, to have authorized the local government to levy a tax for any corporate purpose, absolutely and unconditionally. They thought proper, however, to grant the permission on two conditions: 1st That the representative local government should pass the ordinance. 2d. That a majority of the tax payers should approve it. It has been long felt as a serious objection to the manner in which the municipal local governments are conducted, that those who do not own any real estate, and who pay no taxes, have as great a voieg in passing laws imposing taxes on real estate, as the owners of real estate themselves, on whom alone the tax is to fall. No constitutional objection, however, has been supposed to exist to this mode of levying taxes, and we can only see in that feature of the Act of the Legislature in question, a partial remedy for that evil which is founded in correct and just principles, and does not conflict with the letter or spirit of the Constitution. Our views are fully expressed in the former, case, as to the power of the municipal government to impose a tax for works of internal improvement not wholly within the limits of the local government, or of the State. The termini of the two roads are within tire limits of the city, and the tax is imposed for a corporate purpose. To open new channels for the commerce of a city, when necessary to sustain it in the competition with other cities for its due share of commercial prosperity, falls withjn the legitimate objects of a government founded to protect its interests and advance its prosperity. If the taxation for that purpose, which becomes necessarj' in the judgment of the representatives of the people who support such government, is equal an.d uniform, no principle of the Constitution is violated, however onerous the taxation may be. The constitutionality of the measure is not affected by the great abuses which may result from the exercise of such a power, provided the object for which it is exercised, relates to the public welfare,. It remains to notice the special objection to the Act of the Legislature, which the Judge of the court below thought was,a sufficient ground for declaring it to be unconstitutional. The Constitution of 1845, which was in force when that Act was passed, contained a provision, that the State should not become subscriber to the stock of any corporation or joint stock company. It was the opinion of the Judge of the court below, that this inhibition extended to the municipal corporations of the State. The Article of the Constitution in its tenor, only applies to ¡the State in its corporate capacity, and we do not think we would be authorized f© extend it to the corporations which the Constitution authorizes the Legislature to create for political or municipal purposes, unless such inhibition is necessarily implied; and in order that it be necessarily implied, we must be of the opinion that the reason for the inhibition in regard to the State becoming subscriber to the stock of a corporation or joint stock company, applies with pre.-cisely the same force to the political and municipal corporations whieji it wjjs — 566 — contemplated would be created by the Legislature, and that it is impossible to suppose the one was intended without the other. We think, on the contrary, that the framers of the Constitution might well have thought it proper to prevent the State from incurring a debt or from employing its means, in taking stock in such companies, while they were willing that the parishes, towns and cities, enjoying a distinct municipal government, supported by local taxation, should be left free to act in that respect as might best suit thoir interests. As the Constitution speaks of the State, which is a distinct corporate body, and of other corporate political bodies to be created, and the inhibition is applied to the former and not to the latter, it would be the exercise of arbitrary power in us thus to extend this Article of the Constitution, by construction, beyond its letter. After the most careful examination of the subject in all the various aspects in which it has presented itself to our minds, we conclude there is nothing which could authorize us to set aside the deliberately expressed will of the Legislature, on the ground that they have transcended their constitutional power. While this court, in the discharge of the duty confided to it of deciding in the last resort on the constitutionality of legislative acts, may bo said to be clothed with a power higher than that of either the legislative or executive branches of the government, we cannot lose sight of the true nature of that high function which it was not intended should be arbitrarily exercised to correct the abuses of power other departments of the government, against which the Constitution itself has furnished no security. We should be transcending the limits of onr own constitutional duty, by declaring null and void an Act of the Legislature, except when a case presents itself, in which the clearest conviction is forced on our minds, that the Legislature have misunderstood the language of the Constitution and violated the letter or spirit of that instrument, and as such conviction has not been produced in regard to the law under consideration, it is our duty to uphold and enforce it. The proviso in the Act of the Legislature of 1854, that the repeal of the city ordinances shall not have a retroactive effect, so as to relieve the city from the liability to collect and pay over to the railroad companies, that portion of the tax for the year 1858 not yet collected, we think meets the objection which exists in the mind of one of the members of the court, arising out of the passage of these acts, subsequent to the judgment rendered in this case. The city ordinances, imposing a tax for 1853, have been partially carried into effect by the collection of the tax, and those ordinances were only repealed as to the taxes imposed for the subsequent years. The railroad companies will be bound to furnish certificates of stock, to all the delinquent tax payers, when they shall have complied with the law, and paid their taxes for the year 1853. A judgment is asked for five per cent, on the whole amount of the taxes due by the defendant, as commissions of the City Assistant Attorney, directed to be paid by the defaulting tax payer, under the Act of the Legislature of 1853. It was made the duty of the Treasurer, by the Act passed on the 15th of April, 1853, to hand over all unpaid bills for taxes to the Assistant Attorney of the city, on the first Monday of May of each year; and it was made the duty of the Attorney to put them in suit immediately. The act further provides, that there shall be added to the amount of each bill, thus confided to the Attorney, a commission of five per cent, on the amount of the bill, to — 567 — be paid by the defaulting tax payer, and received by the Attorney in full compensation for his services. By a supplementary Act passed the 30th of April, the time of payment of the city taxes for the year 1853, was extended to the 1st of July, when the bills unpaid were to bo handed over to the Attorney. There were separate bills made out against the defendant for her railroad taxes, and we are of opinion that the tender of payment of the two bills for the other taxes before they were confided to the Assistant Attorney for collection, relieves the defendant from the obligation of paying commissions on them, and also from interest. It is therefore ordered and adjudged, that the judgment of the court below be reversed; and proceeding to give such judgment as in our opinion ought to have been given in the court below, it is further ordered, adjudged and decreed, that the plaintiff recover from the defendant, the sum of two thousand six hundred and sixty-four dollars sixty-two cents, with eight per cent, interest per annum, on the sum of eight hundred and forty-nine dollars and seventeen cents, from the 1st of July, 1853, and five per cent, commissions on the same amount, to wit, the sum of forty-two dollars forty-five cents, as commissions to be paid to the Assistant Attorney of the city, and that the defendant and appellee pay the costs in both courts. Slidell, O. J. Some time since, we had occasion to consider the question of the constitutionality of the Act of 12th of March, 1852, entitled an Act providing for the subscription by the parishes and municipal corporations of the State, to the stock of corporations undertaking works of internal improvement, and for the payment and disposal of stock so subscribed. The subject was deemed of so much public importance, and so large a mass of the community was interested in the question, that the court invited argument from the profession generally, and without reference to a retainer in the particular case. The cause was ably argued, and after careful deliberation, resulted in an unanimous decision in favor of the constitutionality of the statute. Upon the faith of that decision we may reasonably presume that manifold contracts have been entered into and large advances of money made, the railroad enterprises then initiated, being of great magnitude. To overthrow the decision of a question of such moment would involve a responsibility most grave, and which a court of justice should not assume without the most clear and unqualified conviction, that its former conclusion was erroneous. A vaccillating jurisprudence is a grievous evil. It would be especially deplorable with regard to constitutional questions, embracing a wide practical range. Misera est servitus ubi jus est vagum amt inaertum. So far from being satisfied that the former decisions was manifestly erroneous, a review of the subject leaves my opinion unchanged, and I am only induced to say anything now on the question, by deference to the views of one of my brethren. Mr. Justice Buchanan considers the unconstitutionality of the statute deducible from the Article 121 of the Constitution of 1845, which Constitution was in force when the statute of March, 1852, was enacted, and which article declares that the State shall not become a subscriber to the stock of any corporation or joint stock company. My recollection is distinct, and I think the recollection of some of my brethren must be concurrent, that in our consultation before the preparation of the opinion in the case referred to, the spirit and effect of this article was considered, and our unanimous opinion was that the inhibition of the State did not imply a restraint of the legislative power to de — 568 — legate to municipal bodies authority to subscribe to such corporations. The reason the point was not expressly noticed in the opinion of the court, probably was, that it was virtually embraced in what was expressly said upon the kindred article of the Constitution of 3852. It had been argued for the defendant, that the Article 109 of the Constitution of 1852, limited the power of the Legislature, i. e. of the State, to a subscription within certain amounts for the stock of internal improvement companies; and it was said this restriction would be evaded by permitting the Legislature to confer on municipal corporations the power to tax the people for an unlimited amount. In answering this argument, the court observed: “It is true the Statute of 1852, imposes no limit of amount upon the subscription of municipal corporations; while the subsequently adopted Constitution of 1852, does limit the grant of State aid. But it is clear this difference involves no constitutional repugnancy ; and on the score of policy and prudence, there was a reason for limiting the power of the Legislature, who were to impose a burden upon the entire population, for purposes which might result in unequal advantages to portions of its inhabitants ; while in the matter of local taxation, there was a safeguard in a greater identy of interests, and in the control of the vote of the tax payer.’ This reasoning affords an equally conclusive answer to the argument, deduced from the prohibition contained in the Article 121 of the Constitution of 1845. The two articles differ only in degree. The one prohibits any subscription at all to the stock of any corporation; the other prohibits subscription beyond a certain amount anda certain class of corporations.- Both restrictions were dictated by the same eonsideration^the fear that the.public treasury, which is supplied by the contributions of the proprietors of every section, might be unjustly used for purposes resulting in advantages to particular sections not equally shared by others; while in the matter of municipal taxation, operating only on small sections of the State, there was a safeguard in a greater identity of interest. Upon the question of the legality of the tax as affected by the omission to furnish lists duly certified, I concur in the conclusion of Mr, Justice Ogden. Upon the question of the repeal of the ordinance, supposing the question were properly before us, I have to say but a few' words. I am not prepared to say that a person paying the tax, would be without right to receive stock. I think the conclusion of Mr, Justice Ogden, on that point, is correct. If the repeal of the ordinance in anywise impairs any vested right of the tax payers., it is sufficient to say that such subsequent legislation, so far as it would tend to impair such vested right, would be constitutionally inoperative. My only reason for alluding at all to points not presented by the record is, that they are noticed in the opinion of Mr. Justice Buchanan. I must not be considered, however, as recognizing the doctrine that this court can take judicial notice of municipal legislation. I think municipal ordinances should be pleaded and proved.