New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1868-12-08
LICENSE CASE DEcIDED.
CONSTITUTIONAL POINTS SETTLED,

In the Supreme Court yesterday Asso-
ciate Justice R. K. Howell rendered the
following decision in the case OF the State
of Louisiana vs.J. Volkman. Appeal from
the Fourth Justice Court of New Orleans.
H. G. Dibble for appellee and @. H. Nc
Caleb for appellant:
The defendant has appealed from judg-
ment against him for the sum of $l00 as q
license tax for the year 1868 upon his occu-
patton as keeper of a brewery, assessed by
virtue of the seventh section Of an act to
provide for increasing the revenue of the
State, aud to raise means to pay the interest
on the State debt, approved April IA, 1865.
The tax is resisted as unconstitutional in
not being equal and uniform ner pro rata
upon the amount Of income or business
| done, and the law imposing it is said to
violate article one hundred and twenty
four of the Constitution of 1864, under
which it was adopted, and article one hum
dred and eighteen of the Constitution of
1868, under which it is sought to be en-
forced.
Counsel for defendant admits that such q
tax has been held not to be in conflict with
the Constitution of 1852, but he contends
that the Constitution of 1864 and 1868
have made material change on this sub
ject, 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 State, and that property
shall be taxed in proportion to its value.
On this point now before us, that of 1852
says, in article 1913: The Legislature shall
have power to levy an income tax and to
nj ru ION u
| trade or profession" That of 1864, in arti-
Gle 124, says: "The General Assembly shall
levy an income tax upon all persons pursu-
ing any occupation, trade or calling, and
all such persons shall obtain a license, as
provided by law. All tax on income shall
| be pro rata on the amount of income or
business DONE" r
That of 1868 in Article lis, says, "Ths
General Assembly may levy an income tax
upon all persons pursuing an occupation,
trade or calling. And all such persons
shall obtain license as provided by Law.
And tax 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 tormer,
and the word "may" in the latter, in the
FIRST part of the clause, and in the former q
comma is used and in the latter q period
afterithe word calling" 81
1t is urged that the Constitution of 1852
did not restrict or limit the Legislature to
a pro rata tax on the amount Of income or
business done, and that such restriction
was inserted in the Constitutions of 1864
and 1868, expressly to prevent the in
justice and inequality of taxation, which
made small traders pay the same license as
large traders, that by the latter instrument
the tax should be pro rata on the "occupa-
} ton, trade or calling, and on the amount
i of income or business done, and that only
the persons upon whom this income tax has
, been levied are required to obtain Ii
cense, because the levying Of an Income
tax is o prerequisite to the obtaining of q
license which is dependent upon and
+ inseparable from the income tax. aa
! As it Is conceded that g license tax -
upon persons pursuing any occupation,
, trade or calling, if it operate uniformly on
! all persons of the same class, was held not
= to be in conflict with the Constitution Of
1852, and as it is not suggested that some
brewers are made or required by the Law
In question to pay one sum and Others
another, we have only to inquire whether
or not there is any inhibition, special or by
: necessary implication, OF such tax in those
of 1854 and 1868, or whether, if not pro-
hibited, it is imposed In an unconstitutional
form and manner.
The theory Of our form Of government Ii
that the Legislature in its sphere is supreme
10 all respects. save when restricted BY the
Constitution of the State or United States,
|. and may do everything not prohibited BY
such authority.
The court then recites numerous author
n lilies, and concludes as follows:
II isa principle ofjurisprudence, and one
necessary to the harmony of our system Of
government that the Judiciary will only
pronounce a law unconstitutional when e
Is mauifestly so---8 NJ, IL; A N. s., I36; S
: R., 2S3; 8 An, SAL; 9 A., 562.
n Our conclusion is that there being no con.
stitutional inhibition, special or BY neces-
!. sary implication upon the Legislature. to
r impose the tax claimed, and Il being equal
and uniform as to all persons Id the class
; to which defendant belongs, and not in CON
Q tilct, as to the form or manner Of imposing
! It. with the Constitution Of 1864 ana 1865,
1t can be collected. o }M
It is, therefore, ordered that the Judgment
appesIed nom be affirmed, via costs.
thH 81. h.rFia al h-st rGfi