New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-11-22

| galIy imposed and collected. Ii was on
| this ground that based my own decision
in the case Of Blakemore, Woodbridge 4 Co.,
| now on appeal to the Supreme Court.
| Second-I DO not dwell longer on the fore
| going point, because l am clearly of opinion
| that the third section Of the acS Of 1861
was in violation of article I25 of the con
! stltutiOn OF the State of 1864, and. there
| FORE that all taxes paid hereunder were
| Illegally imposed and collected. The said
| third section Is in these words:
That there shall be assessed and col
| lected the sum of one-fOurth of one per
| cent upon the gross sales or receipts of each
and every person pursuing any, trade, pro
iesslon or occupation, whose annua! re-
| ceipts exceed the sum Of $4,000"
| ]. DO not conceive a tax upon ''gross
| sales or receipts" to be within the contcIn-
| platoon OF the constitution or reconcIlable
| with 1t. 1t is manifestly impossible to make
| such tax equal and uniform or accord
| ing to value" because there is no standard
| according TO which the value OF ''sales and
| receipts to the seller or receiver who is
the person taxed) can possibly be measured.
| The sale may be made at d large profit: at
| a small profit; even at a loss The yaria-
| tions may be and are infinite. And where
| is the equality or uniformity in law which
requires the small dealer who makes gross
sales to the amount OF $4,000 in year, on
same tax as the lawyer who receives
$4,000 per annum in fees This is evil
IDENTIFY a tax on business or rather on GER
tain functions Of business. But the cOnsti.
tuition permits no tax on business except a
license tax or an income tax. AS license
tax, it is i'll direct conflict with the decision
OF the Supreme Court. See city of New Or
leans VS.. Home Insurance Company, 23d
An, 4l9; State vs.. Endom Id, 663 As an
income tax, it is too unequal to admit Of
discussion.
2, 1t violates the constitution because it
discriminates between the gross sales and
receipts of persons pursuing any trade,
occupation or profession" and those Of per
sons who pursue none, taxing the former
and 6Xemptlng the latter. Is this equal and
uniform Why should the receipts or sales
Of the retired capitalist or gentleman Of
leisure be exempt while those of the labor
er, the mechanic, the professional or bust
ness man are taxed Nor can it be said
that che capitalist or property holder pur-
sues trade, occupation or profession
within the meaning of the law, and is there.
fore not exempt; because this phrase is ia
miliar TO the law and has a we'll understood
meaning having been used in every license
law Tor many years, and nobody ever
dreamed that a retired capitalist or proper.
ty holder was required to obtain license.
3. 1t violates the constitution further be.
cause 1t dlscriminates between persons
whose annual receipts exceed the sum Of
S20OO,' and those whose receipts are less
than that Bum-taXing him whose receipts
are S2OOl on the whole amount while he
whose receipts are only $4,000 escapes scot
tree. Such discrimination strikes at the
very root OF the principles and reasons on
which the constitutional requirement. Of
equality and uniformity" rests If it can
be made with regard to sales and receipts.
1t may be made equally with regard to real
estate or other property. If the Legislature
may exempt from taxation people worth
$4,000, 1t may exempt people worth $4,000.
and would thus place the small class Of
large property holders az the mercy Of the
large class of small property holders, which
is the very evi! the constitutional provision
was enac.ed 10 prevent.
See on this point police jury IS. Cochran, |
20 An. 373.
On all the foregoing grounds consider
the third section Of the act Of 1865 repug-
lant to the constitution of the State 1t |
follows, therefore, that all taxes paid there |
under were 'ilIegally imposed and col
ected," as the reimbursing act declares. !
But the Auditor contends that even
though ILLEGALLY imposed and collected" |
Il violation of the constitution, the State
was not bound to reimburse these illegal
9xactions, and therefore in the absence of
any legal obligation to refund no debt due
~ the State existed. ! can not recognize
any such a doctrine. Our jurisprudence
las uniformly maintained the obligation of
bodies polite to return taxes under uncon-
titutiOnal laws, excluding certain excep-
iOnal cases within which these claims do not !
all
The recent decision Of the Supreme Court
n the case of the Factors and Traders In
urance Company VS.. the city Of New Or
cans would preclude further discussion on
his point, il it should be adhered to- But
is not at all necessary to rely on the deci-
ION IN that case TO maintain the case at
ar. The evidence of Mr.. PeraIta and the
ubic documents referred to by counsel for
elatOrs, viz, the Auditors, Attorney Gen
rails and Ireasurer's reports to the Legs-
ature OF 1867, present state of facts from
9hlch the obligation of the State to refund
hese taxes clearly results. They show a
istinct and public understanding on the
art OF the taxpayers of all departments
the State government that these taxes I
ere paid under the implied agreement t
lat If the Kennedy case should be decided {
gainst the State, they should be REIN t
ursed to the parties paying. So we'll was Y
lis understood that Mr. Peralta, in his re- Y
)rt to the Legislature, made in January, a
'O(, during the tendency of the Kennedy {
Use and six months prior to its decision, +
Ills attention to it, and furnishes an est y
ate OF probable receipts and eXDendi- L
res based on the contingency of drci- f
On adverse to the State in which he in c
udes this item: {" Reimbursement of S
Mount collected of tax on gross sales and C
Ceipts, should the suit be decided against D
G State, $i59,4lO 49," #
| further ind that very large amount of s.
G taxes due under this act was withheld b
the parties liable for them. awaiting the a
cisi0n OF the Kennedy case. After that ! Il
clsIon, lind that the State abandoned f
rther collections under the act All who ell
d not paid at that time escaped scot free. !
d by the subsequent repeal Of the act the Ell
ate finally RENTED all unpaid taxes. ! ST
wv, l can not see, under the circum- ! n
tnces, on what principle of law or Justice, ! sc
Q State having relieved parties who had te
t pad, should retain the money of those s.
10 paid There was no difference between te
I'm as to liability, and they should be bt
lced upon an equal footing. can not ad- vi
t a construction of any constitutional nro-
ion, the effect of which would prevent al
} State from acting honestly, The Audi til
makes sundry other objections to the to
lance OF the mandamus prayed for. sc
ich consider of no weight. His plea of
is frivolous. His exception to al
annulation of the demand of REALTORS an
8 waived. His exception to the claims pc
Champlin n Arlington Cummings, tn
)wn II Co, and other REALTORS named in no
thirteenth article of his answer, on the
und that one K. E. Norton, assignee of ca
parties in bankruptcy, has applied for isl
andamus against him, on account of fix
claims, in the United States District jul
lrt, which proceeding is pending, must yo
sustained, since otherwise the State pr
hit be compelled to pay twice. If those ele
ties have rights, they must assert them ito
tradict0rily with said Norton pa