The New Orleans Democrat. (New Orleans, La.) 1875-1876, 1876-04-23
PACIFIC RAILWAY TAX.
BEroRr surERzoR DISTRICT COURT
T.. &. f,ouaanez ct MS. vs.. Mayor and ADJ
n,inistrators.
New Orleans Tacinc Hallway Company,
IntervcnOrs--on Rule 10 Dissolve
Injunction.

New Orleans Pacinc Railway Company,
Intervenor---on Rule 10 Dissolve
Injunction.
This Is motion to dissolve the In
junction granted by tho court against
the execution OF the act No 20, 1875,
levying u tax OF one-half per
cent on all tbs property In New
Orleans to aid the New Orleans
and Pacific Railway Company For
the purposes OF this rule oil the allega-
tions in tho petition must be taken as
true. It Is first urged by the railway
company that this action OF the owners
Of property, to tho amount OF several
millions Of dollars, TO protect their
property against the attempted execu-
tion Of this net imposing this burden on
their property Is premature. IL Is urged
that tho Plaintiffs should have waited
until they were each severally sued for
their tax.
The cases cited by Judge Howe from
States where tho distinction between
law and equity practice prevails, to the
effect TINT IN Injunction In equity will
not lie, whore the party has plain and
adequate remedy Mt law, have no applt-
cation in this State, where there Is no
such rule and no such distinction. In
Louisiana the law is that plaintiff may
obtain an injunction to prohibit one
from doing any act which may be injuri-
Gus to him or impair right which ho
claims. @. r.. art. 206.
If IN injurious act Ia threatened, Il
any steps have been taken toward doing
tho wrong, then an Injunction lies TO
prevent ".
"that an Illegal and unconstitutional
tax Is levied on tho plaintiffs property
by the act; that the Mayor and Admins
istrators are about To execute the pro-
visions OF the net against petitioners to
their great and irreparable injury, and,
If permitted, will take away the prOper-
ty Of petitioners" Certainly, when
such n wrong is about to be perpetrated
an injunction will lie TO prevent 1t.
But the learned counsel says the reg
istcred voters Of New Orleans may vote
against tho tax, and the tax Is levied
and to be imposed and collected only on
condition that the majority Of the regis.
tered voters vote for IL. The ans yer TO
this is contained in those parts Of the
petition which allege that the expenses
Of holding this election will exceed
so, 900 Indeed, / am told il can not b.
held for less than 800, 900 or $25 900, and
no provision is made In the act for this
expense, and it will necessarily add 20
much to the debt Of the city, which po-
titioners, with other owners Of properly,
will be compelled to pay. That the tax
levied by the act already rests az con-
ditional burden on their property. The
theory urged by the riilway company
would compel plaintiffs TO submit their
right to their property TO the decision *
q majority Of the registered voters OF
New Orleans. tribunal which has
under our constitution, no Jurisdiction
to try the case.
The principle OF the civil Inv Is thAt
whenever you can resist an illegal exeo-
ton or IL wrong, IL it is attempted to b.
enforced through the courts, you can at
tho same time become plaintiff and suo
TO prevent its perpetration or enforOe-
ment.
~. Neither the Legislature nor the
majority OF the people under our system
have an absolute and unlimited power
over property. No majority has the
right to compel q citizen TO invest his
money in any way IN which he does
not wish and no such power has been
delegated to the Legislature. The gov
ernments are the Instruments estabIisn-s
ed by society TO protect and defend the
property Of individuals as we'll as their
lives and liberties against aggressors.
TO the Federal Government Is deloss
gated the power to protect the citizens
OF the country against foreign aggress-
ors : and for this purpose, TX necessary,
she makes war, and provides by taxa
ton for all the necessary means ana
instruments OF war, including railroads,
if they be necessary instrument for.
Transporting soldiers and the Inunitlono
OF war, to repel % foreign invader.
TO the State government is delegated
the duty Of protecting her inhabitants
against individual or domestic aggres-
sion, through the police power and the
administration Of civil and criminal
Justice in her courts; and for such pur-'
poses alone can the power Of taxation
be legitimately and constitutionally ex-
ercised. No legislature has the power
TO say that the property OF shall there
after be the property OF Is. says tn0
Supreme Court OF the United States ~
| the Topeka case:
| II must be conceded that thero are. private
rights in every free government beyondthc con-
rrol Of the State. g9yernmsnt Wnien recgG-
nized no such rights. which held the lves. upoEty
and property Of its citizens subject at all times
to the absolute disposition and Unlimited con-
trol of even the most democfatic deposItary ~
! power IL after all but n dsapOtisin. IL mar W9M
be- Il d.ubted il a man is 10 hold all that he iG ~
custnmed to call his own. all In whieh ne ~
placed his happiness, and the security OF whte1
4 essential to that happiness. under the nm.
limited dominion Of others, whether II ~ no1
wiser that this power Should oe exercised y
one man DlhD Dy many. th'Soi WI vseA
ernments, State and National. Ia opposed 10 IN
dnporit OF nm United power anywhere. Thu
legislative executive and judicial branches an
ali of limited and defined powers.
In this case it is decided, and In all
the cases, commencing with Sharplees
VS.. Philadelphia, II Penn, In which
D taxation in aid OF railroads have been
: sanctioned, it is conceded that the powel
of taxation can only be used for publif
purpose that is q governmental one q
a purpose that the whole public, ~
unit, have q public or governmental a.
terest. It is contended that 1t IS the ~
elusive province OF the Legislature. q
4 OF the majority Of the people, 70 declde
whether or not the purpose be punlic
one. and one for which the taxing
c mower may be exercised.
+: If that principle be true, then ther!
. is absolutely no limit to the power q
the majority Of the people or g
- the majority Of the Legislature. l
Y under some popular prejudice or hai!u
r cination, they should consider that fns
q building OF hotel was public or goV
i ernmental purpose, they could vQ1l
: away the money of the taxable imam
), tants to build hotel aad give u " =
q individual for that purpose.
il They might be led to believe that fns
. atres and public shows and feastS y0uh
q be of great public advantage, and 1Ortn
NO i'll have a n0T}fl lar etegEfOU ~