New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-05-24
THE COURTS.
snnreme Cnnrt Oninions

Supreme Court Opinions.
Factors and Traders Insurance Com
pany VS.. the city of New Orleans.-Appea
from the Sixth District Court of Orleans
The plaintiff sued the city for $l0,175 Sc
the amount of a license tax paid by it to tn
city during the years 1867, 1868 and 1863
on the ground that the said tax was uncOn
stitutiOnal, because not equal and uniform
upon all persons pursuing the business O
occupation of insuring
The court gave Judgment for the amour
claimed, and the defendant appealed.
Justice WHY, in delivering the opinion o
the court, says:
The license tax collected from the plaintiff
was five-eighths of one per cent on thu
amount of premium received, and in 1866
and 1869 it was one and One-haf per cent OF
the amount of premium.
Any percentage on the amount of pre-
miums received is clearly unconstitutional
because all insurance companies do not re
ceive the same amount of premiums.
Article l24 of the constitution of 1864 and
article llS of the constitution of 1868 re
quires that a license tax as well as a tax or
property, shall be equal and uniform.
. To be equal and uniform the tax must be
the same on all persons, the particular call
ing or occupation taxed, without reference
to the abilities, fortune or success of those
engaged in it. City of New Orleans VS.
Home Insurance Company, % An. "He
who receives what is not due to him,
whether he receives it through error OF
knowingly, Obliges himself 80 restore it to
him from whom he has unduly received it. ?
Rev. G. c., article 23Ol. Upon this article
and articles 1902 and 1904 the plaintiff re-
lies to support its demand for the resti
tuition Of the amount improperly paid.
The defendant, however, contends that
there was a natural obligation binding the
plaintiff in conscience and natural justice
to pay what was paid, and therefore, under
article 1908. 1t can not be recovered.
Article 2303 declares that, ITO acquire
this right 1.-THE right to recover what was
improperly paid) it is necessary that the
thing paid be not due in any manner, either
civilly OF naturally. A natural obligation
to pay will be sufficient to prevent the re-
cOvery."
1t will be observed from the plain pro
visions of article 23O3 that in order to de-
feat the right of recovery there must be a
natural obligation tOpay 'the thing paid"-
to pay the particular thing that has been
collected.
If A pays forged note to B, recovery of
the amount can not be defeated because the
latter may hold a natural obligation against
him, resulting from being the owner of an
other note that is prescribed.
The law, in express terms, only permits
the action for repetition to be defeated
when there was a natural obligation to pay
the "thing paid;7 that is, to pay the particu-
lar debt that has been paid.
Now, the inquiry is not whether there
was a natural obligation binding the plain
tiff in conscience and natural justice to pay
some other debt of equal amount to the
city OF New Orleans for the support of its
government, or otherwise, but it is simply
whether there was a natural obligation to
pay the particular debt or claim that was
paid, and which is alleged to be uncOnsti-
tutiOnal.
1t is useless to pursue any other inquiry,
because the defense announced, in article
Z3O3, is, in precise terms, limited to the par
tlcular debt or claim paid.
The question is, was the plaintiff under
natural obligation to pay an uncOnstitu-
tiOnal taxi We say no.
An unconstitutional ordinance of a muni-
'clpal corporation is an absolute nullity 1t
was void from the beginning 1t never had
any obligatory force either in law or CON
science.
To say that az assessment in direct viola
ton OF the constitution binds the citizen in
conscience and natural justice is an absurd
ity too manifest to require argument.
Until there is an assessment land an IN
constitutional assessment is no assessment)
there is no debt; there is no obligation
either natural or civil.
The amount collected from the plaintiff
was unduly collected, because he never
owed the debit there was no ordinance of
the city requiring of the plaintiff a license
tax. What we supposed to be an ordinance
requiring the assessment Of the tax never
had any existence because it cOntTavened
article l24 of the constitution of 1864, and
article lI8 of the constitution OfI868.
In support of his position the counsel of
4ha 4 oit ~
court, 9 X. 325, u A. 81, BAG, All. In mo-
one of these cases was the question now
under consideration presented to wit
Whether there is a natural obligation to pay
an unconstitutional tax
The court has never held that an uncOn
stitutiOnal tax imposes a natural obligation
to pay.
natural obligation is defined to be one
that can not be enforced by action but it il
binding in conscience, and according t.
natural justice. Revised Code, 1857. How
any act of the corporation of New Orleans
prohibited by the constitution, can create
an obligation binding "in conscience anC
according to natural justice" we can no
imagine.
In Isaac J. Sims VS.. the parish of Jack
son, y A., 44O, question was, whether the
plaintiff could recover from the defendant
the amount Of a cotton tax collected from
him during the years 1865, 1866 and 1867
on the ground that said tax was not equa
and uniform, and therefore it was violativ
of article l24 Of the constitution o
1864, then in force.
The court held he could do so, and CAV
Judgment against the parish of jackson 70
the amount unduly collected of Sims
This is the only case to be found in our re
ports where the precise question now undo
consideration was presented.
While that decision stands, and we Sc
no reason to override it, party who ha
paid municipal corporation an uncOnstitu
tiOn8l tax, may demand its restitution o
the restitution of the amount thereof.
Judgment affirmed. Justice Howell dis
sented
Merchants Mutual Insurance Compan!