New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-12-24
THE COURTS.

Information has been filed in the Unite
States Circuit Court by the District Attol
ney against the brewery Of George Aue
& Co., for the violation of the act Of THU
tenth of July, 1866
The Pennsylvania Salt Manufacturing
Company and George Thompson hav
brought suit in the United States Circui
Court against Fleming & Patterson. TIL
action Is in chancery and an injunction sue,
| fOl.
Judge COllens, Of the Seventh Dlstric
Count, acting instead of Judge Duvigneaud
| OF the Second or Probate Court. has refused
the new trial applied for by the detendan
in the .Ganes case" The next movement
will be an appeal.
In the Sixth District Court the Life In
surance Company of America sued the cit,
to recover back license taxes paid from 1876:
to 1871, on The ground that the ordinances
under which the license tax was collected
did not apply to life insurance companies
they are unconstitutional. and are not uni
form.
The court held that ordinances No
1906 of 1869, and No 1911, of 1870, were moi
intended to apply to life insurance compa
MES, and that the ordinances Nos. 81 and
| $50 Of 1871, were in violation Of the constitu
ton, as well as an exemption in favor OF
| such companies, conditioned on their paying
| a tax Of one thousand dollars year to the
| State.
Judgment for plaintiff.
In the Eighth District Court the cases OF
the Beard of Assessors were dismissed on
the ground of the continued absence of the
parties interested
Judge Dibble yesterday rendered an opin-
ion and decision in the case of the State on
the relation Of Blakemore, Woodbridge &
Co., against the Auditor, in which the
mandamus is made perempt,ry, and the
object, retaining from tie treasury taxes
paid under the gross sales and receipts law,
was gained. This is considered a test
case. The following is the opinion:
By an act of the Legislature approved
April -, 1871, it was provided hat al!
taxes which were collected by the State
under the third section Of an act entitled.
AN act to provide Ter mere Using the e.en, Q
OF the State, and raise means to pay the i'll
terest on the State debt, approved April 4,
1865, shall he, and are hereby refunded to
the parties who paid the same, or to their
proper representatives, and the Auditor Of
Public Accounts be and is hereby author
lied and required TO issue to said parties or
to their proper representatives. certificates
for the amount paid by them. which shall
be receivable by all State tax collectors in
payment Of the general fund tax The re-
lators in this case aver that they paid into
account of the tax upon gross sales and re-
ceipts imposed under the said act of April
4. 1865.
They annex tho Treasurer's receipts; al.
lege that the Auditor refuses to issue certi-
icates to them under the act of April ~,
1871, and they pray for a writ of mandamus
to compel him to do so.
The Auditor responds, and urges several
reasons why he should not be compelled to
onV nj tho dam <,T 10
The State, by the Attorney General. inter
venes and adopts the return of respondent
In the case of the State va. Kennedy g.
Co, 19 An, 1897, the Supreme Court decided
that the act OF lSb5 was unconstitutional and
void, in 50 far as it authorized the levy and
collection Of a tax upon the gross sales and
receipts Of products Of other States of the
Union.
Evidence was offered in this case to prove
that the payments made by the REALTORS
were upon sales of foreign products. SO that
the claim is brought within the puryiew of
the Kennedy decision.
Respondent inists that the act of April
l9, 1871, is unconstitutional because it in
creases the debt of the State, in violation of
the third amendment.
The act does not create debt but only
the existence of one, and author.
ICES its liquidation and settlement
In the brief furnished for the Auditor it
is argued that the act of 1865 was not I'M
that the tax was valid: that
the State did not owe REALTORS the amount |
which they seek to have refunded and that, |
therefore. the act of 1871 creates a new |
iebt, and is mere donation to those claila-
ng under it.
l am unwilling to examine these uues-
ions. The superior court has decided, the |
Legislature has acted upon the decision.
IL -
ind IL would be unbecOmlnS to review the
ssues.
The act does not violate article Ill of
he constitution, which relates to the crea.
ion OF debts, by loan or otherwise. 1t does
lot violate article l0f, which is framed 10
prevent the withdrawal of mon ey from the
reasury OF the State without specific war
ant of the Assembly.
y s"ec!tic appropriation does not mean an
by items. Let the writ Of
handamus ne made temporary, the State to
'ay costs.
Judge Dibble passed upon the following
question IN an oral opinion:
In the case of the Board of School Direc-
ors of the parish Of Soss.er vs. Thomas w.
'oEway, there had previously been issued
Manda:nus to compel the respondent to
ecognize the right of the REALTORS to their
flee. Conway thereupon filed a motion to
uash the writ upon the grounds, first, that
ne writ OF Mandalnus was not served upon
i'm in person, as he was then absent from
ne State: and secondly. that the writ of
landamus will not lie to compel one officer
, recognize the right of another person to
n office
The court said =: Upon examination I .
nd that the writ was served upon the
rivate secretary of the respondent, and
ut upon the latter in person. This was !
error, as the writ should have been !
rived personally. Secondly, mandamus
lght not to issue to ascertain the right of
person to hold a public Office This is I
he first instance in which there has been 5
resented to me an application to quash |
ter the mandamus had been issued: but a
bon examining the common law from ,
hlch We get the writ OF mandamus. | find t
lat this is the proper remedy. 1t is there I
re ordered the rule he made absolute, and I
at the writ be quashcd.
In deciding the cases of McMilen, Whit
" and Henderson VS.. the State Treas I
'er, the court SAYS: $
The REALTORS are holders Of warrants Y
lawn by the Auditor of Public Accounts 9
| the Treasurer. which warrants were
sued out OF the appropriation of Sl25, 1000 L
pay the per diem, mileage and contingent l.
penses OF the General Assembly OF 1871 a
ley seek to compel the Treasurer to
gister and pay their warrants in prefer i
ce to all others. claiming that revenue v
IL No. - authorizes such preference in
gistratiOn and payment.
l think that the clause giving legislative y
arrants was law impairing the obliga- t
ms OF contract, and as in the cases of
llman and others VS.. the Treasurer (last a
| issued injunctions forbidding 4
Treasurer to recognize any preference 1
lateVer LII registering or paying warrants.
AN not issue these writs without annull- |
3 the injunctions already issued, and as | |