Municipality No. One v. Wheeler

Spoítord, J. The defendants and appellants contend that the Act of 7th. February, 1850, (session Acts, p. 5,) empowering each of the Municipalities of New Orleans to levy taxes on capital on the assessment rolls of 1848 and 1849, (not to exceed the amounts imposed by ordinances already passed,) as well as the ordinance of Municipality No. 1, in pursuance thereof, approved 19th March,, 1850, are unconstitutional and void. The statute is said to bo unconstitutional because it is retroactive in its ope-ration. It is not an ex post fapto law, as it has no relation to crimes and penalties. Article 8 of the Civil Code, which is the creature of the legislative power,, cannot control the power that created it. However repugnant to logic and sound policy they may be, retrospectiv.o-laws in civil matters do not violate the Constitution, unless they tend to divest, vested rights or to impair the obligation of contracts, neither of which can be., predicated of the Act in question. [746] “Mais eñfin, tant qu’une loi existe, si mauvaise, si peu logique qu’elle puisse étre sous tel ou tel rapport, le pouvoir judiciaire ne peut pas ne point l’appli-quer : Dura lex, sed est lex. En fait, done, le législateur peut porter une disposition retroactive; et toute irrationelle que sera cette disposition, elle n’en devra pas moins s’appliquer.” Marcadé, §62. But the the law under consideration does not seem to be obnoxious to severe censure. It is not, strictly speaking, a retrospective law. It authorizes the future imposition and collection of a tax according to a past assessment. This was within the legislative power. Shaw v. Dennis, 5 Gilmore, 418 ; Opelousas & Great Western Railroad Co. v. Harris, 10 Ann,-. There was an equity in authorizing the course in the present instance which frees the law from the odium of injustice. A tax had been levied upon capital in those years by the municipality, under the impression that the Legislature had previously conferred the power. The tax-pavers had received the benefit derived from the outlay of the money sought to be re-ircibursedby the new tax. Many persons had paid the tax without resistance, and, indeed, it appears in this very case that the defendants, paid their tax for.the year 1848, which they seek to recover in reconvention. The equity of preserving equality in this matter was probably the main inducement to the passage of the Act by the Legislature, after doubts" had arisen about the legality of the old ordinances. The Act.does not involve the exercise of a judicial function. It provides for the passage of a new ordinance. The point ruled in the case of Municipality No. 3 v. Michoud, 6 An, 605, has no application to the present case. The Municipality, there, attempted without any legislative authorization, to revive back taxes which had been remitted. Parol evidence was properly received by the District Judge, to correct a mistake in the date of the tax receipt produced by the defendants. The demand in reconvention was not necessarily connected with and incidental to the main action. It is, therefore, ordered, that the judgment be affirmed, with costs.