New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-03-26

sssiIs &C.,
that tne ~ tss2 seSs q ssrstioe and enp5e
| 3 (1S...o ~ ikIese Is can disregnrd fneS
s s.,,.ss.;oS n sovereign viii (1rtscle
TX which feals that the 49,.
iature shall provide for tno ~. =, =
If public schools BY mA a.,iS ..em
otherwise. and which g nsss TTsS 5000
s.ss,r so,,trsi;ct = Without there being
nossibility Of reconciliBG tho two .oH as;sr
H. w.',.ss .son nroucrtyH were inserted aileI
ti.o -s.J Il - xatioI,.' omits the words g.
r nc and. thsrefDres, clearly ana es s
DENLY refers to the taxation eenn 4ua 10
made obligatory upon the Legls'a ~ male
article 116-that Is " poll ~ ~ ta sS
Inhabitants Of the State above tWen.y o .o..S
years a Of ace. and which must not exceeu
- si9 ,,.r snnum. Tho words sr Otner-
vr;.e y I'm; in that article (ll8) refers to announcer
NODE ,ninted out by article lS'. ana e.
sultine from the proceeds Of lanus, " 'lS
estates of deceased persons, or the Esny' "
lands, etc. a.. &l,ot .enAion
Xnpr01OTSs Tue cVOIt OVtAS
so,,en If the act Of the sixth March. laying
fax ON the taxable property u the Guy Ea
New Orleans for the support OF puDll0
s"h"ols IL Unconstitutional, void and q no
e4sact ma employing different mode OF TAX
Stim from the one ordered and maze oDns.
atory by the constitution OF tooc, sIa. ~. .no
only taxation that can pc imfc ~ - Iyu, s
school. il the poll tax, and that NOT 10 eA.
Cod .Si 80: that there il no law making II
.ha ,,,,tv III the CITY of New Orleans 10 COL
iect sai,l Doll tax. but that ON the cor trary
it is made the duty Of the state tax col-
lectOrs. - 81. man.
damus be dismissed, with Judgment III Aas"1
ofatbe city of New Orleans. CO.,,
Rendered and signed March %. ISL:
CHARLES BEAUMONT.
n. xx.s.eien Of Wriss Asaisss the Cay.
The following decision by Judge Dibble,
inst rendered upon the above, will he iound
John Kirwin vs.. City Of New OrIeans.-Inf
january. 1870. the plaintiff made . contract
! with the city of New Orleans to put re-
pairs on an enginehouse belonging to the
civ. He was to receive seventeen hundred
and eiQLty-tive dollars (4l7S5). The work
| wms done. and the contract was recorded
| that it might operate rs . mechanic's lien:
| The city was unable to pay. In July the
plaintiff was given certificate for the
| amount due him, bearing seven-thirty per
cent interest The ordinance under which
! the certificate was issued provided that the
| interest should continue until the debt was
Maid. unless cult should be brought, in which
event the claim should only bear legal In
terest. sa.Hs i. -,
In November the plaintiff saw fit to bring
| suit upon his Claim, in order to have bis
mechanics lien judicially recognized. He
4 obtained Judgment for the amount Of the
certificate, with interest at the rate Of
seven-thirty per cent from the date tnereoI
| until judicial demand. The Judgment
recognized q lien upon the property for the
work 80 done. .ysg
/ The act of the Legislature, No. 5, ap-
| proved March IL, 1870, provides that NO
writ of execution or fieri facias shall issue
against the city of New Orleans to enforce
the payment Of any. Judgment for money
| vides how euch Judgments may he regis
tered in the Department of Accounts. and
how the same shall be paid. Nevertheless,
the plaintiff has this rule to have writ
issue to enforce his Judgment and lien. The
city sets up the aforesaid act in bar Of the
proceeding.
The plaintiff insists that the statute cited
is a law impairing the obligation Of a con-
tract, and therefore unconstitutional and
| void, and he insists that at all events, if the
act is valid, it does not deprive him of his
lien and the right to enforce it.
The decisions are numerous and uniform
to the effect that the State ''has complete
| control over the remedies which it shall
| afford to parties in its courts. II may give
new remedies or take away or modify old
Ones' ANY rule or regulation in regard
to the remedy, which does not, under the
pretense of regulating it, impair the right
| itself, can not he regarded as beyond the
province OF legislation" Cooley, Con. La,
page 36l. So it has been held that an act
taking away the right to arrest for debt did
not impair the obligation Of contract
taken away.
With this view think that the act No.
is valid. 1t simply takes away the remedy
which the law provided for enforcing the
payment of money Judgment against New
Orleans, and substitutes q new mode. This
new remedy will stand the test which has
been applied by the higher courts in similar
cases. The new remedy must be sub
stantial remedy. If the act is ITO change the
nature and extent OF existing remedies as
materially to impair the rights and interests
of the owner, it is jnst as much violation
of the compact as it it overturned his rights
and interests 8WheatOn, ].
But this act No. must be construed
strictly since it derOgates in a greater OF
| AS.cc eAO8ACO AAVsu ONAcsAA8 AASusos AuO P1O-
hibitiOn is against the Issuance Of writs Of
fieri facias to enforce the payment Of judg.
ments for money. Here the plaintiff has =
privilege and lien upon particular piece Of
} property. This right existed at the time
J Of the passage Of the law. It has been re.
cognized by q Judgment from which no up
peal has been taken. l do not think that
the act set up can be construed so as to
prevent the enforcement of that lien.
doubt if the act could be held valid if il
} expressly prohibited the enforcement Of
such privilege. If the city owed a mort
gage debt no one would sustain an act which
should attempt to prevent proceedings t.
J enforce such mortgages. In such a case al
in this the debt is owed not only by the
: debtor, but by the property itself; there
exist obligations not only between the
creditor and his debtor, but between the
creditor and the property-the thing
! pledged.
Let the rule be made absolute
Third District Ceurt-Judsment Asains
the Sc. Leuis~ CaehedralThe Merxnu
Texas Railroad.
In the Third District Court. Judge Emer
son, Judgment has been rendered aQains
the st. Louis Cathedral and in favor Of the
} State, in the matter Of State taxes assessei
| on church property situated ON the square
bounded by Basin, Rampant, St. Louis and
Cont streets and also ON nrOnertv IN TN