Board of Levee Commissioners v. Lorio Bros.

On Motion to Dismiss. The opinion of the Court was delivered by Fenner, J. The above two oases were consolidated, tried and adjudicated together. The judgment appealed from is for the amount of $80 50 against each defendant. The right of appeal rests on the claim that the case is one in which the constitutionality or legality of a tax, toll or' impost is in contestation. ■ The motion to dismiss is based on the denial that any such question is involved. The plaintiffs aré a corporation, organized under Acts 78 of 1876, and 16 of 1877, vested with powers to construct and maintain levees for the protection, from inundation by the waters of the Mississippi river, of lands within a certain designated district, and, in the language of the act, “ to levy a contribution upon all lands protected by said levee,” etc.. [277] The suits are brought for the collection of such assessments, and •the question is, whether they are a “ tax, toll or impost ” within the meaning of the Constitution. The question seems to be no longer an open one in our jurisprudence, it having been held in numerous decisions, that contributions of this character, provided for the purpose of constructing public works for the advantage of particular districts, and levied on property with reference to the supposed benefits derived by the property from the works, are not taxes, tolls or imposts, within the meaning of those words ■as used in the Constitution. 21 An. 51; 20 An. 499; 11 O. S. 324; 2 An. 330; 4 An. 1; 11 An. 220, 324, 370; 14 An. 498; 9 R. 333. In Rooney vs. Brown, 21 An. 51, the precise question of jurisdiction here involved was presented, and the appeal was dismissed on the ground that suits for the collection of such contributions, though their legality or constitutionality were contested therein, were not cases involving the “ constitutionality or legality of a tax, 'toll or impost.” Questions affecting the validity of acts of the co-ordinate legislative branch of the government should not be decided by courts unless ■clearly and necessarily within their jurisdiction. The appeal is, therefore, dismissed at appellants’ cost.