The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1850-02-05

sons2 Has Mr. Coamer any of his deputies power TO cor
rect these abuses the interests of the Souhen cities
be sacrificed 10 the additional expense Of expressing the
Presidents Message TO the Northern ces?f any of your
numerous correspondents can satisfactorily answer these ques
tons, they will very much oblige AN INQUtRER.
The Power of the municipality to Tax
Capital.
The present court has rendered no Judgment
which has excited so much remark in the city, as
that in the of Municipality No. Three as.
Sherman johnson, which denies the Municipality
the right to tax capital. As yet that judgment has
not hardened into law-it yet remains in the hands
of the potter. Until it is the law it is fairly open to
criticism. When, however, the three judicial
days have elapsed, without the filing of an appli-
cation for Tehearing, then the decree becomes the
law in that particular case, and establishes rule of
decision for all similar cases. After that period if
decision is to be criticised it should be done only
in the forum whence it emanated. The Legislature
may be applied to for repeal change of the law
but all newspaper comments the decision, we
think indeeorous, and tending to diminish that re-
spect for the tribunals of the last resort, which is
so necessary for the well-being of society.
Governing ourselves by this rule, we find this
decision still within jurisdiction, and we mean
to give it its day in Court.
We wish to inform our readers accurately of the
point actually decided that they may judge for
themselves the by which the Supreme
Court has determined that capital is not the subject
of taxation. And for this purpose we avail our
selves of the learned and most mastery argu-
ment of Randell Hunt for rehearing. The lam
guage of panegyric is SO ndiscreetly used that it
has lost, in great degree, its original meaning In
i
of itself enough to ell the ambition of a common
man." It is marked by an accuracy of reasoning
and extent and variety of learning which we have
never seen compressed into the same compass AS
piece of legal reasoning, it has never been sur
passed within our limited reading
g This case is simply and clearly stated in the
opinion OF the Court
SO The defendant says the Court, is sued for
the amount of municipal tao, imposed on the
capital employed By him traae within the limits
of Municipality No. Three. X
1.-THE question presented for our consideration is
whether capital eHtpiOyeG III commerce is personal
estate within the meaning Of the Act OF Incorpora-
ton Of the city, passed in 1905, which coufers on
the corporation tie o'cey to raise By tue, IN suc
manner as to them may SeeD5 proper anon tie
real a1l@ personal estate within the city, such sum
or sums OF money as may be necessary &c lar
gunentl
The Court decides it is not; because capital en-
ployed in commerce is not embraced within the des-
criPtions oil property subject to taxation as "real
and personal estate" 1t is contended that capi-
tai employed in commerce is a fictitious thing"
The Constitution requires only that judges shall be
men learned in the law, and any errors they may
commit in political economy will not be very seri-
ously punished. Against this novel doctrine, Mr.
Hunt piles up the definitions of approved authors on
the science. It's undoubtedly true that some years
ago in the speculation era, there was great deal
OF fictitious capital but at present, it would be as
easy to prove that capital is not as that capital is
mere Pigment of the BRAIN and not reality.
The Court go further, and say that money is not
included in the word movable property. But the
words in the charter real and personal estate"
technical words Of the common law, found only in
that system, and with no corresponding terms, eli
Their in the Roman law or any OF the codes founded
upon it, A reference to the common law author-
ties show that personal property includes all sub
iects not Of freehold nature'-2 Kent SAL Real
and personal estate includes ones whole property
Coke
But his review of the civil law and its Spanish
and French commentators is the most satisfactory,
He has carefully examined these, and we think the
conclusion is irresistible, that as a general rule,
money was considered as movable Celscus
the commentator quoted by the Court, himself SAYS
LliObtStHm appelIatione ooRtiAeltur etian, NUM11f
atrHDt, ergentuns. " In the title of moveables is
included money, gold, silver The sentence which
the Court quotes is taken from that portion of the
commentary which treats of legacies. cit seems
that, by the Roman law, in a legacy of things upon
a farm or in house, those things are included
which are accustomed to be there, even though
they should not actually be there and that those
things which are only accidentally there are not in
cluded in the legacy" Thus, money which was
in house for the purpose of being loaned was not
included in the legacy of The house and all it CON
tanned, but money deposited in house for its re-
pairs and improvement would be included. A dis
tincton Of similar character is found in the decis
ions of the Ecclesiastical Courts Of England. Yet
it has never been supposed that this rule effected
change in the nature of property.
The argument concludes with general summing
up, contained in thirteen propositions, which we
insert, and which we think must convince the Court
that its first impressions are erroneous We ven
ture to assert that the Americans who composed
the legislative council and framed the charter, never
dreamed that between the words " real and personal
estate was a Granny wide enough for commercial
capital to creep out.
This article occupies more space than we had
intended but the great importance of the question
to the city has induced give this extended re-
view OF the able argument of the Attorney of the
Second Municipality.
In the course of this argument it has been at
tempted to maintain the following propositions
ls. That the terms real and personal estate are Common
andncorporePli lands, tenemens and hergdhamen money
goods and nights.
N me peculiar and appropriate sense attached them by the
English and American Common Law.
ID Ihal the Act Of incorporation was originally drawn
and passed In the English language, and thatuo synouy
nous ami equivalent 10 real aud personal could be
found ID the French language
Adj That the power conferred by the act of 1896 upou the
corporation to tax the real and personal within the
city included therefore, the power to property every
9TH That CAPITAL employed in commerce property real
9Th That the capital Of merchant a circulating capital
that Is, continually going from him IN shape and returning
to him IN another, and that II Is only by OF such Ccu
latlOn successive changes that il yield him profit
h That this capital whether it consist of money or OF
goods, merchandise or stock ia trade, within tie deli
milton Of personal estate.
6h That to substitute moveabes - for personal g.
tate IN the act OF 1872 and to apply the Roman, Spanish
and French Interpretation OF mOyeabes, instead of
Common Law construction OF " personal estate to the Act
oi S5, TO make new law, and not to expound the exist
ing law,
9h. That under the Roman Law things are corpoea or In
10Th That 4, like manner, under the Spanish Law money
IS lGcluded IN the word qsa5ic --moveabiw
Hin That under the French Law lleat in the restricted
sense attached by Art 53S of the Napoleon Code, does
o include money! heres, eqpago Jewels, books, CREDITS
Instruments OF science, art and trade. grain, We hay and
other commodities, the objects OF commerce; but thar this