The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-11-29


both State and federal, which hiss passed upon
and decreed the unconstitutiona,iy OF q statute
because it impaired the obligation of contracts,
has been 30 rendered upon an issue raised pre-
cisey In the manner it is done in this case. II Is
evident that the confusion arises from an attempt
to apply TO such case the rules which ob.sin.ss
10 the manner OF attacking judgments. suit
must be brought to annul judgment; but AN
not aware of any law which authorizes suit TO
set aside law, except as incidentally, In con-
tract between conflicting private interests. The
ground taken against the validity of the act OF the
9Th July. ls66, Is that il was passed by the House
of Representatives and Senate before the General
Assembly bad acted upon the proposed fourteenth
amendment to the Constitution of the United
States. This objection Is derived from article l59
of our Constitution, which reads as follows;
Art. 159 The General Assembly elected under
this Constitution shall hold it's first session in the
city of New Orleans on the third Monday after the
official PRONUNCIATION aforesaid, and proceed i'm
mediately upon its organization to vote upon the
adoption of the l4th amendment to the Constitu-
ton of the United States, proposed by Congress-,
and passed June IL, 1866; said General Assembly
shall not have power to enact any laws relative to
the per diem Of members. or any other subject,
after organization. until said constitutional amend
ment shall have been acted upon. o. t15n
The meaning of the convention in adopting
the limitation upon the action of the first Legisls.
ture to be convened upder the new Constitution
lie plain enough. The original article introduced
BY Mr.: Wickliffe proposed to compel the adop-
constitutional 9En0ndHnont. b.
lung al ilesislstivs action on other mattsrs.
until its adoption. (See journals of the conven-
ton, psges2ll and 2l2.) Mr.. NAPLES proposed an
amendment by which action only, without refer.
epce to its kind, was required, and as amended,
tie above sriicle was adopted. (See journals Of
the convention, 2l7 and 2lS.) 1t was evidently the
object of the convention 70 force by all proper
means. the adoption of the fourteenth amendment.
BY the journals Of the House OF Representatives,
1t appears that the fourteenth amendment was
Al
having suspended the rules for that purpose. (See
journal House of Representatives, page 81
fhe same resolution rstifying the consti.
tutional amendment was, only finally
acted upon by the Senate on the 9th OF the same
month but before this, viz on the I'd july the
act No. i. under discussion, was introduced in the
House OF Representatives, and passed on its first
reading. (Jour. House Rep, page l0.) And the
third and final reading Of this bill occurred on the
4th July. (See Jonr. House Rep. page l4) Now
it is plain that though the I'd July the House of
Representatives had acted on the fourteenth
amendment, the Senate had not. The action re.
CURED by article l59 of the Constitution is that of
the General Assembly" and according to
Assembly consists of two distinct branches,
the =" House " and the Senate"
II is rule which is invariably upon such cues
tons, that the Legislature is presumed to have
fulfilled the conditions necessary to invest it with
legislative authority but this presumption is
completely rebutted when its own journals. be-
sides proving the passage of law also establishes
the non fulfllment of the only condition upon the
performance of which 1t had the power to enact
The law. The act of the 9th July, 1868, entitled
" an act creating Board Of Police Commission
ers," having been passed in violation of l59th ar
ticle Of the Constitution. is therefore null and
void and no repeal of the 10th section Of the city
charter under the act of 1856 effected thereby.
Having thus passed upon all the preliminary
quesii Is raised in the argument, proceed to
consider whether the act No "A, and commonly
known as the A" metropolitan police act" is con-
stiiutionsl. II is urged by the plaintiff that the
set is unconstitutional, as violating articles 81,
III and lis of the Constitution. The following
are the articles referred to:
ART. 81. No judicial powers, except as commit.
ting magistrates in criminal cases, shall be con-
fened on any officers other than those mentioned
in this title, except such as may be necessary in
towns and cities and the judicial powers of such
officers shall extend no further than the cogni-
lance OF cases arising under police regulations Of
town and cities in the State. In any case where
such officers shall assume jurisdiction over other
matters than those which may arise under police
regulations under their jurisdiction. as commit
ting magistrates, they shal be liable to action
of damages in favor OF the party injured, or his
heirs, and a verdict in favor of the ~
ART. III. No person shall hold or exercise, at
the same time, more than one Office of trust or
profit. except that of justice of the peace or no.
Arr. lis. Taxation shall be equal and uniform
throughout the State all property shall be taxed
in proportion to its valne. TO be ascertained as
directed by law: the General Assembly shall
have power to exempt from taxation property
actually used for church, school or charitable
purposes. The General Assembly may levy an
income tax upon all persons pursuing any occu-
patton, trade or calling. And all such persons
ehall obtain a license, as provided by law. All
tax on income shall be pro rata on the amount Of
income, or business done. And all deeds of sale
made, or that may be made by collectors of taxes,
shall be received by courts in evidence prima
facie valid sales. The General Assembly shall lay
q poll tax on all male inhabitants of this State
over tweDty-one years old, for school and chari-
table purposes, which tax shall never exceed one
dollar ana fifty cents per annum. il
1t seems to me quite immaterial for the purposes
of the issue in this case, whether the sections Of
the metropolitan act referred to in the argument
of plaintiffs counsel be constitutional or not. 1t
is too clear for argument that the section making
the lieutenant governor of the State member of
the Police Board, is palpable violation of article
III. The argument that ii is not comforting
another office. but extending the duties of the
lieutenant governor is not sound. The lieutenant
governor is q constitutional officer, whose duties
and powers are prescribed and defined In the
Constitution. No law can force him to perform
any other duties as lieutenant governor; and If
the extra labor Is imposed upon him in any other
capacity than lieutenant governor. it Is distinct
office, and comes within the inhibition contained
in article Ill. But be this as il may, and con-
cedDg as il was admitted by the counsel for
defendant in the first argument, that many sec
lions of the act are invalid what follows, Surely
il cannot seriously be contended that the whole
act must be declared unconstitutional, because
some of its sections violate the Constitution. II
has been repeatedly held that parts of q law may
be unconstitutional and parts good. I do not
think the act violates the oath nor the llsthy
articles of the Constitution above cited. 70 r
The subject matter of the law was one within
the Legislative power; that the details presented
in the metropolitan act exhibited a loose reading
of our Constitution that they violate articles In
that Constitution intended to secure the most 10.
valuable and sacred rights possessed by the citi.
zen Is so PLAIN that il Is wonder that they could
have ever received legislative sanction. But the
essential features of the bill are in accordance
with the orgsnic law. 800 -
The next and last question TO be considered is
whether this act repeals the 26th section of the
charter of the city Of New Orleans, contained In
the act of 1856: and this involves the inaniry
whether the metropolitan police system, inaugu-
rated by act No. "a, is compulsory on each and
every part Of the district therein designated as
the . metropolitan district" ..Hr'
After careful study of the different sections Of
the act I have arrived at the conclusion that the
police Of the city of -NeE- arLAA..--.,-ss-
-6nucr rnafter IL not superseded by the me-
tropolitsn police unless the city consent and au.
thoriZe the supersedure. shall proceed to give
the reasons which have forced upon my mind shfs
Interpretation.
And first it must be plain to any one that the
metropolitan act was passed 10 great hurry. or