The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-06-12
Supreme Court of Louisiana.


the ordinances of the General Council of New Orleans
and defendants admitted owing $500 and deposited ht
same in Court, and contested their liability for the resi-
due, and there judgment against them for $780, adj
mtted to be due. and afterwards Judgment against them
for the residue of 5000 held, that the Court had nc
jurisdiction of the c. P 567 Under the ACT
of Jan. IL. 1892 the power of the General Council Of
New Orleans to tax limited permanent residents and
sojournes; and tax inn osed by it all persons
gagged in banking and exchan &c business is imposed
the business function and upon the individual
members of firm. unless they present The jus-
dction of the Supreme Court. in suit to recover
OF less than $780, under art 63 of the Constitution is
confined to- the legality and constitutonaty of the
The application and execution of the remain exeu-
sively with the ordinary tribunals
MUNICIPALITY No. Two ps. J. CORNING d
Co.. Appeal from the Third District Court Of
New Orleans. :. .EUsTIs, c. J. Justice SLIDELL
dissented on the question of Jurisdiction. .. De-
PENDANTS, Corning and John Egerton, are sued for
$500, under the allegation that the firm of Corning
d Co., of which they are members, is liable TO the
tax imposed by the General Council on bankers, or
persons buying and selling bills of exchange as
their principal business in New Orleans. Defend
ants admitted the liability of the partnership for
the tax, which was 5000, and rendered that amount
which was paid into Court. Plaintiffs took judg-
ment for that amount, without impairing their
rights for the balance, which were expressly
served in the judgment. A trial was afterwards
had to determine the further Indebtedness, and
plaintiffs had judgment against the two defendants
for 800 each and costs, from which the latter
have appealed.
Per curiam The mode of proceeding by which
judgment for the part of debt acknowledged to
be due may be taken with a reservation of the
rights of the plaintiff for the balance claimed has
been sanctioned in several cases. l.. r. Alb;
Rob. AS; 5 Rob. 448. But it is obvious, that the
judgment for part of a debt leaves nothing but
the remainder in dispute between the parties, and
the defendant cannot call in question the Judgment
which he has confessed. The Code of Practice
expressly prohibits an appeal in such a case, art
SGT. The amount in dispute in this suit is there
fore not sufficient to give this Court jurisdiction.
But it is contended that the appeal can be sustained
because the legality of the tax imposed is drawn
in question. In the of Municipality No. Three
Us. Blanc, Ann. 1856, we held our jurisdiction to
be confined to the question of the legality and
stitutionality of taxes, etc, imposed by municipal
corporations, and that to their application and
execution such questions remained exclusively with
the ordinary tribunals, this Court having jurisdic
ton on the appeals in cases only in which the
amount in dispute vested the jurisdiction. The
legality of this tax can therefore be examined
The ordinance imposing it is to this effect: Art.
10. "All private bankers, and all persons buying
and selling bills Of exchange as their principal
business, all persons carrying on both the private
banking and exchange business, shall pay tax of
$500. This article is not to apply to the ordinary
money and exchange brokers, comprehended in
the 9th article'' The construction commended for
by the counsel for the plaintiffs that each partner
in banking house, or a firm making the purchase
and sale of bills of exchange its principal business
is liable to the whole amount of the tax, without
regard to the place of his residence presents con-
sequences which appear repugnant to all ideas of
justice and sound policy. Many of these estab- |
are connected with others in different |
capitals, and doubtless have numerous |
parties in interest in the concerns. banking part
nership would not he on the same footing with |
bail md hare tha ,horp f ri
ners is great would be subjected to SO heavy tax
as to render its doing business in this city impos
sible The construction which the counsel for the
puts upon this article of the ordinance
is that it imposes the tax on the business or func-
ton, and not upon the individual members of the
firm, unless they are present, and We think this |
is strengthened by other articles of /
the ordinances imposing taxes on theatres, etc. |
reference to the statute under which the tax was |
aid appears to remove any doubt as to its meaning
The power of the General Council to pass the or
1inance it is admitted depends exclusively on the
act of the Legislature of the 18th of January, 1912
Here the statute was quoted at LENGTH
The authority exercised by the General Council |
n laying taxes is derived from special grant of |
power, and there is no warrantfor extending this
power beyond the objects specified. The acknow-
edged power of the State itself to lay taxes extends
o the persons and property within its jurisdiction
Brown u.s. the State of Maryland, IL Wheaton AL;
:. c. art 9. We have been referred to no author
ty showing that it extends further.
The concluding paragraph Of the section OF the
let of 1912, quoted, seems to us to confine the
,ower granted within its just and proper limits, and
lot to purport to operate upon persons other than
residents or sojourners. On general |
principles, according to the rules by which the bye
avs of municipal corporations are always con-
trued, in reference to the mode in which the tax
ng power has been uniformly exercised in this
State and elsewhere, as we believe, and under the
tatute by virtue of which the ordinance was en-
cted, other construction can be given to the
rticle than that which is in conformity with the
air inten6Rent of the statute ITSELF Under that
which renders residents, whether per-
nanent transient, to use the very words OF the
tatute, liable to the tax for the business of bank
lg and buying and selling bills of exchange, we
ind nothing illegal in the ordinance.
In establishing the true construction of the artl-
lie imposing this tax, we virtually exclude every
Their, and decide against that which is assumed
y the plaintiffs, and which has been recognized
y the District Court in the judgment against each
{ the defendants for the amount of the tax The
rm of Corning q Co. is established in New Or
,ans, and both the defendants were engaged in
uying and selling exchange as charged in the petit
on. Corning resides in New York and Egerton
,sides in New Orleans
The tax we find to be lawful. Corning has been
to pay tax which he did not owe, not
lat the tax itself was illegally imposed, but be-
ause it did not apply to him. The amount is not
lhclent to enable this Court to take cognlZance
the appeal. The only decree we can make is
dismiss it. Appeal dismissed at the costs of the
efendants and appellants.
bill of exchange need not be attached to the bill of adn
which it is drawn. 1t sufficient if the bill of
change be drawn the shipment and the bill of adng
is delivered with it to the purchaser.
FoRMAN & KENNEDY Us. AUGUSTUS W. WALK
R. Appeal from the Third District Court Of Nep
rleanS. .EUsTIs, C. j.. D.. Plaintiffs have sued
e defendant to recover an alleged balance, due
three certain bills of exchange, drawn in Gin
matt by John G. WATSON, defendants agent, on
10 defendant in New Orleans, payable at sight.
he case turned principally on the power of the
,ent to bind The principal, which the latter de-
ed. The Court remarked that it would be
,ainst every principle of mercantile law tc enable
man, under circumstances like these, after
eating credit in favor of bills drawn by his
vn agent and for his own benefit, to throw the loss
his speculations on the bona .fde holders" 1t
,peared that the bills of exchange were not
is, were not fastened to the bills of
ding when they came to hand, but were received
the same time. The letter of defendant to Was
n, his agent, authorized the latter to draw on
m "with the bills of ladng attached Per