New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-04-16
THE COURTS.

THE COURTS.
.U.ised states District Court-In Bank
ruptcy.
Mr.. w. R. Smith was discharged from al
his liabilities previous to the fling of hi;
petition in the bankrupt act, it being shown
that he had made a bona tide surrender o.
all his property, and otherwise complied
with the provisions of the law.
The case Of TarletOn, assignee, against
the firm of Brandies & Crawford was again
continued until to-day.
United States Circuit Court.
The United States has brought sui,
against John S. Chapman, on bond as
disbursing agent
The suit of Frederick Hecker agains,
Samuel Fasnacht, and the suit of Aimee
Jumonville, wife Of Edward Vivas, against
A. jackson Sharp and G. Rouyer, have
both been transferred, the one from the
Seventh District Court of Orleans, the
other from the judicial district court, parish
of Ascension.
The case of the United States against
Olmstead, Ripley & Co., went by default.
The plaintiff in the case OF Bette A.
ThOrnhill against William Z. Miles recOy-
'ers of defendant S26S5 Sc.
The suits of nine insurance companies
against S. A. Stockdale, will come up for
argument today.
Sixth District Court.
Andre VS.. Becker g. Plaintiff
alleges that at public sale, December 81,
1871, he purchased the right of occupying
certain stalls in the Bazaar Market; that on
the second of January, 1872, he applied to
the party who had been previously in eccu-
patton to deliver possession to him, but was
refused, the defendant cOntending that the
market was public place, and no person
had any claim to any exclusive right there:
in, the police regulations being cOnformed
to and the dues being paid. The court held
that the city, by its police powers, had a
right to regulate the use of markets, as well
as other public places; and that in this
case the privileges given the plaintiff by the
city were not in violation Of any rights of
ton of the city in the exercise Of its police
powers. Therefore there should be judg-
ment in favor of the plaintiff, Andre, and d
writ issued to put him in possession.
Seventh District Court.
In the matter of the board of commits
sioners of the of the first drainage district,
city of New Orleans subrOgated.
The city Of New Orleans, in pursuance of
certain acts of the Legislature, has filed
petition and assessment rolls for the. pur-
pose of compelling the proprietors Of
in advance the estimated probable cost of
draining that district The work Of ex-
cavating the drains, building the levees,
etc, has been commenced, and is in progress,
but far from completion.
Judge Wharton Collens reaches the fol-
lowing conclusions:
If it were true that the assessment in
question is necessarily either a tax or a
mode of appropriation, then it would GER
tot, 10 ,<,,+; ri xox- -
would be in violation Of article ll8, since it
is levied only on particular portion of the
land within the corporate limits instead of
being equal and uniform throughout the
city, and since it is imposed according to
the measure of the lands served BY the
drains instead of being assessed Sin pro-
portion to their value" As a mode of ex-
preparation 1t would violate article ITO.
since the city, under the act, assumes con-
troll OF the property belonging to private
persons, changes its interior and natural
condition contrary to the will of the owner,
and thus diminishes the owners jus in re.
without awarding him any COMPENSATION,
but, on the contrary, makes him paw the
expenses OF this partial divestiture Of his
absolute ownership.
1t is only by claiming to have acted as
the necessary agent of the parties assessed.
and for special purpose distinct from the
general obligation of contributing to the
common treasury that the municipal cor
poratiOn steers clear of the articles in the
constitution relative to taxation and ap-
preparation.
l take the case, then, as demand for the
reimbursement of an actual expense, Justly
and prudently incurred by a necessary
agent for the benefit of his principal
These premises being settled, it follows:
|. That from the ground and nature Of
the cause and right OF action, it being for
the reimbursement of an expense prudently
and necessarily incurred, neither the State
nor city can compel the payment OF an ar
bitrary sum fixed by themselves and really
exceeding the price at which the work
could have been properly effected.
:. That for the same reason payment
can not be demanded in advance, since
the action itself is founded on the fact of
an actual expense, work really done, a
benefit positively conferred-a reimburse
ment-not a tax depending upon the mere
discretion Of the sovereign.
3. That when the draining of section
has been completed and an assessment
thereon for the week has been made and
paid, the squares and lots thereof can not
be included in new and undrained section.
or. at any rate, can not be made to nav for
the draining OF all or part of another sec
ton.
The assessment now demanded infringes
all three of these conditions.
1t is therefore ordered and decreed that
the motion to homologate the tableau and
assessment, filed herein ON the seventh Of
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