The New Orleans crescent., 1868-12-08

acceptance order of 81. G. ndrews & Co. upon
Summers & Brsnnins. The rule, therefore. taken
upon the latter by the interyenOrs, TO show cause
Why that money should not be paid over to them,
was properly dismissed. Il appears that Il. u:
Andrews i Co.. against whom citation was prsyed
for in this Intervention, were, in fact, never cited
and they never answered. The Intervention as
10 them was never put st issue.
II is. therefore. ordered, adjudged and decreed,
that the judgment appealed from by defendants
ard iuiervenors be affirmed, with costs in both
courts, each party appellant paying his own
costs.
BY ASSOCIATE JUSTICE R. K. HOWELL.
No. Is63-The State of Louisiana VS.. ]. Volk
NAL Appeal from the Fourth Justice Court OF
.--~ Orleans. II. c. Dibble for appellee and I.
b. McCseb for appellant.
he defendant has appealed from Judgment
: eainst him for the SUN of 500 as q license tax
for The yesr 1868 upon his occupation as keeper
OF a brewery, assessed by virtue of the seventh
section Of on act to provide for increasing the
reveLue Of the State, and to raise means 70 pay
the interest on the State debt approved April l4th,
1865. The tax is resisted as unconstitutional in not
being equal and uniform nor pro rata upon the
amount of income or business done. aud the law
imposing it is said TO violate article ia Of the
Constitution OF 1894 under which it was adopted,
and article lis of the Constitution Of 1865 under
which it IL sought TO be enforced.
Counsel for defendant admits that Fsuch tax
has been held not TO be in conflict with the Con.
ttution of 1869, but be contends that the Consti
| change on this subject. and virtually forbidden
| the imposition and collection of license tax.
The three instruments declare alike that all
| taxation shall be equal and uniform throughout
the Stale, and that properly shall be taxed in pro.
portion 10 its value.
On this point now before Us that of 1852 says in
article 1873 1.-The Legislature shall have power TO
| levy aD income tax and TO tax all persons pur-
suing any occupation, trade or profession" That
of 1854 IN sriicie 1884, says 1.-The General Assem-.
| bly, shall levy an income tax upon all persons
| pursuing any occupation, trade or calling, and
all such persons shall obtain license, as provided
bV law. all tax on income shall be pro rata on
| the amount of income or business DONE"
That Of 1865 in Art. u.s. says, The General
| Assembly may lsvy an income tax upon al per-
| sons pursuing an occupation, trade or calling
And all such persons shall obtain license as pro-
vided by law. And tex on incomes shall be pro
| rata on the income or business DONE"
The only difference in the last two are, that the
word shall" is used in the former, and the word
may in the latter, in the fret part of the clause
and ID the former comma Is used ana 10 the lat
ter period after the word @ caiiing.n
Ii is urged that the Constitution of 1852 did not
restrict limit the Legislature TO pro rata tax
on the smount of income or business done, and
that such restriction inserted in the Const-
tutions Of 1854 snd 1865, expressly to prevent The
injuftic and inequality of taxation, which made
small traders pay the same license as large traders
| that by the lsIer instrument the tax should be
| pro rata on the " occupation, trade or calling"
| and on the amount Of income or business done.
| sDo that only the persons upon whom this income
/ tax has been LEVIED, are required to obtain a
/ license because the levying OF an income tax is
prerequisite 10 the obtaining OF a license which Il
/ dependant upon and inseperable from the income
Iax.
AS il is conceded that "license taxi upon per-
sons pursuing sny occupation, trade or calling, if
/ 10 operate uniformly on all persons OF the same
Class, was held not TO be in conflict with the Con-
stiiution OF 1852 aud as 1t is not suggested that
| some brewers are made or required by the law 10
| question TO pay one sum and others another, we
have only to inquire whether or not there is any
inhibition, special by necessary implication of
such a tax in those of 1864 and 1868, or whether,
If not prohibited, it is imposed in an unconsttu
| tionsl form and manner.
| The theory Of our form of government is that
the legislature in its sphere is supreme in all re-
specis save when restricted by the Constitution of
the STATE or United States and may do everything
not prohibited by such authority.
| The court then rectes numerous authorities,
| and concludes as follows:
/ Ii is q principle Of jurisprudence, and one ne
cessary TO the harmony of our system of govern
ment, that the judiciary will only pronounce a law
| unconstitutional when it is msnlfestly so-3 NJ,
! II: n. s., 1875; 5 r., 3S3 s An, 34l; A. 562.
Our conclusion is that there being no constitu-
tonal inhibition, special or by necessary implica
| tiOn upon the Legislature, to impose the tax
i claimed, and it being equal and uniform as to all
/ persons in the class to which defendant belongs,
and not in conflict, as TO the form or manner of
| imposing it, with the Constitution OF 1864 and
| 1865, it can be collected.
1t is, therefore. ordered that the judgment ap-
| pealed from be affirmed, with costs.
BY cHIEF JUSTICE ]. T. LUDELNa.
| No. ls24-Geo. Kaiser VS.. sandrock. Appeal
| from the First District Court.
The judgment of the court upon the motion to
| dismiss the appeal herein. Ordered that said mo-
| ton be overruled.
BY CHIEF JUSTICE j. T. LUDELING.
| No. l923-Mrs. Elizabeth A. Leroy VS.. Michael
| GeTnon. Appeal from the Fourth District Court.
On the motion TO dismiss the appeal herein. was
| overTuled.
BY ASSOCIATE JUSTICE r. K. HOWELL.
No. l372-Kasper Auch VS.. Mrs. M. F. Labousse
and F. V. Saucier. Appeal from the Second Dis
| trict Court
Ordered that the Judgment appealed from be
| amended by increasing the amount thereof from
$500 40 TO 1891 As and costs in both courts, and
| amended approved.
BY ASSOCIATE JUSTICE W W. HOWE.
| No. 6787-C. Flint Jones VS.. Mrs. C. A. Raw.
/ lngs. Thos. Askew third opponent and appel
| liant Appeal from Sixth District Court Of New
| Orleans.
judgment affirmed with costs in both courts.
| BY ASSOCIATE JUSTICE W. W. HOWE.
No l376-Ferdinand Gumble VS.. Maurice
Abrams q Joseph Simon. Appeal from Third
| District Court.
L OtCtreu ana aOluOgeu tnhb Tue JuuRnenJ III
| favor OF the defendant Simon be avoided and
reversed, and the plaintiff have ana recover of the
said defendant Joseph Simon the sum Of $4,000
81, with legal interest from judicial demand, and
| costs Of both courts.
BY ASSOCIATE JUSTICE W. G. WILEY.
No. 1ol7-A. r. More1 VS.. st. Charles Hote
| Company, appellees-Felows 4 Mills for appel
| lsnt, and Sullivan, Billings d Hughes for appeli
| lest-Appeal from the Sixth District Court oil
| New Orleans.
This is an appeal from rule made absolute dis
solving plaintiffs writ Of Injunction restraining
defendants and sperif from ejscting him oy legal
process from the premises known as No. $50 Com
mon street.
The ST. Charles Hotel Company, appellees here
u tfs ef6S4u fst rnst ne safd appssy wss i'm
| provdently and contrary to law allowed
I'd. hat the bond given in said appeal il utterly
inadequate TO protect the rights of the defendants
| We do lot conceive that the appeal bond can
| or should protect the defendants from any loss
they may sustain by reason of the injunction sued
out by plaintiffs. The Injunction bond alone il
considered adequate. But we are called upon
| by this motion to decide whether a suspensive aD
peal lies from rule rendered absolute by the
lower court Gissolving the Injunction. We think
that either party can appeal from an order of the