The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-01-27
NUMBER 1879.
SEVENTH DISTRICT COURT.
Importapt Decision of Judge ColIsns.
One per Cent Tax DEMONSTRATIONS
Legislatures Action in Direct Conaict
with Radical Constitution.

Henry Frellsen VS.. f. C. Mahsn, state tax col
lector.-Judge Collens yesterday rendered judg-
ment in this case.
Plaintiff complains that defendant threatens to
seize and sell certain of plaintiffs property, be-
cause of the on-payment Of the tax imposed by
act of the Legislature of Sept 20. 1868, levying
special tax to provide for payment of the past in
terest on the bonds of the State, outstanding war
rants, certificates of indebtedness and convention
warrants. .t.
Plaintiff prays for Injunction on the ground that
the act is unconstitutional and cannot Lawfully be
enforced. He relies specially on articles AZ, ll0-
and lis, which be contends have been violated by
the proceedings of the Legislature in passing the
act, as also by the provisions and effect of the act
itself.
Article AZ says: "No bill shall have the force
of law until on three several days, II be read in
each house of the General Assembly, and free dis-
cusson allowed thereon, unless four. ffths of the
house wherein the bill is pending may deem il ex-
pedent to dispense with this rule" Article ITO
says: mo erpost fdcto or retroactive law, nor
any law impairing the obligation on contracts
shall be passed no vested rights dyested unless
for purposes of public utility and for adequate
compensation made.n Article lis says: Taxa
tion shall be equal and uniform throughout the
State all property shall be taxed according to it's
value. to be ascertained as directed by law"
The attorney general representing the State and
the collector of taxes admits the intended seizure
and sale. but denies the alleged unconstitutonality
of the act of ls6S, and prays that the Injunction
be dissolved with damages and costs. So
Before considering the questions raised under the
articles OF the Constitution and statutes OF the State
Judge Collens says the first question presented
is that arising under the AID article of the State
Constitution. IL is contended that the four fifths
majority required by the article is fOur.ffths of
the members elect, and not merely of the MEM
bers present and forming quorum and further.
that the journal Of each house must show affirma-
lively and expressly. not only that the constitu-
tional rule was dispensed with. but that the dis-
pensaton was carried by the required consttu-
tional majority.
II either Of these positions were correct in law.
the statute imposing the tax would be clearly un-
constitutional. IL appears from the journals that
the bill was passed from one reading to another
on the same day, when the whole number of men,
bers present was less than four-ffths Of all the
members elect, though there was quorum. Aud
even assuming the vote was unanimous, the num-
Der present was not sufficient to make the consti
tonsl mejority, and hence a compliance with the
constitutional rule was impossible and could not
have taken place.
Also, the journals offered in evidence only saw
the day it was introduced the bill passed itsIfrst
and second readings under q suspension Of the
rules, but do not expressly mention the constitu-
tional rule that the suspension was caused by o
majority of four-ffths.
But on the first ground it is clear from the con-
text of the Constitution in several places that the
words. 81 the house," mean only the assembled
majority of members forming quorum to trans
act business. / cannot admit that the words "the
mouse " are used in the same article in two differ
ent senses 1t is clear that the House required to
hear the reading on three several days. --f
IL is not denied that mere quorum might have
passed the bill by three readings on three several
days, and that on each Of these days, the quorum
would have been the House so that when the
same article says the House may dispense with
the rules, il must mean the same quorum.
Upon the promulgaton of law, the speaker OF
the House and the governor Of the State, the ju-
dietary. etc., must presume that II was passed by
the majority. This rule has often been applied in
favor Of records of Judicial proceedings, etc.,
The journals show there was a suspension Of the
rules. Shall show that this means only the rules
made oy the House. or that includes also the con-
In fact, the law attacked is a tax law, aud it's
operation as such is charged to be retrospective.
The inequality alleged against is charged to arise
from this retrospective character.
After long and elaborate. as well as a most
able and interesting review Of the points in the
case, Judge Collens concludes as follows
" To resume, consider that the act of Septem-
Der, 1865 imposing the per cent. tax violates the
constitution Of this State.
/" il creates against persons named in past and
expired assessment roll new liability, different
from and beyond that which was produced under
completed.
"Ittakes past facts of ofownership and value that
had been sscertained for particular period and
purpose, and applies them to another period and
purpose so as to give rise to new privileges and
to unequal taxation.
at does not ascertain ownership and value in
the manner required by article lis, but deter
mines these, according to an arbitrary, fallacious
and retroactive standard.
at takes prior state of things and nd'substitutes
II for subsequent and actual facts and makes
this fiction the basis Of ,exacton, so as neces-
sarily to affect parties and property falsely and
uDjustly.
1T does not provide for an assessment to be
made by executive authority, but creates one by
mere act of legislative will, not authorized by the
constitution.
at is unequal and retroactive contrary to arti-
Dles ITO and lis of the constitution.
"JudOment for pIainffF an nrauad for ~