New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-05-14
COURT RECORD.
SATURDAY, MAY l3, 1876.
United states Circuit Court.


sl.-Conspiracy to defraud. On trial. Case
finished and jury out with permission to re-
turn verdict at any time, the Judge en-
gaging to be within call.
Judge Billings, sitting as circuit Judge, on
Monday, May 8, rendered the following I'M
pOrtant decision in the cases OF the United
States ex rel. William S. Peterkin VS..
Mayor, ETC.; James WOdiok VS.. same; Nor
ris Ranger VS.. same.
These are applications for writs of man
damus to be addressed to the Mayor and
Administrators of the city of New Orleans,
comprising the Common Council thereof,
commanding them to levy and collect tax
sufficient to pay the principal OF certain
bonds issued by the city in the year 1854
The return made by the respondents
shows the following to be the facts: In the
year 1854 the General Assembly OF the State
of Louisiana authorized the city of New Or
leans to subscribe for stock in certain con-
templated railroads centering in said city.
To pay for said stock the city was author
lied to issue bonds equal in amount to the
stock at its par value (see acts 1854, Nos.
l08, 100 and HOY. Judgments have been OBJ
tanned in this court tor the principal OF the
sum named In said bonds, and an execution
has been issued thereon, which has been re-
turned nulla bona. The return then alleges
that there is no provision in these statutes,
or any other statute OF the State, for the
levying and collection of this tax; and re-
fers to this statute, especially the second
section, to show that the Legislature did not
intend that any tax should be levied to pay
the principal of these bonds, but that 1t in
tended that the principal should be paid out
Of the stock and its revenues.
The question is whether, upon this state
of facts, this court can q ant this writ Z
think the proposition can Eot be ques-
toned that this court is without authority
to direct levy of a tax unless it be in &C
cordance with the provisions OF some law
which makes j. the duty of the City Com
mon Council to levy the same. In other
words, that this court can not create, but
Can only enforce clear legal duty.
Mr.. Justice Bradley, in Haine va. the
levee commissioners, | Woods X. GAG and
247, whose decision was affirmed by the Su-
preme Court, says:
1.-The power of taxation belongs to the
legislative branch of the government. The
judicial department has no general power
over the subject. If the officers who are
charged with the duty Of levying or col
lecting taxes refuse to perform their func-
tons, the courts, IN d clear case OF failure
and at the instance of the party directly
Interested, can, by the prerogative writ OF
rhandamus, compel them to perform acts
those which are judicial or discretionary.
This is all the Judicial department can do
on this subject, unless the legislature has
expressly conferred upon 1t further covers. y
The question is, has the duty or power to
levy this tax been committed by the Legls-
lature to the city administration
1. is urged By the counsel TO- the REALTORS
that prior statutes, namely, those of 1905
and 1886, gave this authority, and that the
fav ha
fairly defuced from the permission to con-
tract the debt.
The act of 1905, section six. provides that
'.the said Mayor and City Council should
have power to raise Ey tax. in such man
ner as to them may seem proper. upon the
real and personal estate within eaic city such
sum or sums of money as may be necessary
to supply any deficiency for the lighting,
cleaning, paving aud watering the streets
of the said city; for supporting the city
watch, the levee of the RIVER the prisons,
warehouses; and other public buildings, and
| for such other purposes as the police and
| good government of the said city may re.
| Q1ire." 1t seelEs to me that Inscriptions
| TO works Of Internal Improvement are ex
| clnded from all the purposes here specified
The act of 1895, page thirty-one, section
| four continued to the several municipali
| ties into which the territory of the Old city
| was then divided the powers OF the old cor
| pcration, and those powers were az ain coz
| tinued when the different municipalities
| with additions, were consolidated. Bu
! there is here 10 power gwen to levy Thu
| tax.
/ This brings me TO consider the second ant
! principal point urged by REALTORS couusel
| viz: That the Legislature, by authorizin!
| the increasing of the debt, authorized tn
lew of the tax to pay it.
The decisions of the courts OF last resor
| Of several States were cited, which 1t Is 10
| necessary for me TO consider, because the.
| depend upon tho statutes OF these States
nor need l, upon this point, refer to NOR
than one decision Of the Supreme Court Q
the United States. The result of what
has said upon the general subject may b
summed up in this: 1t has held that tn
collection of judgments of the United Safe
courts may be aided by mandamus wher
ever there is d refusal or failure on the pal
| of the officers 10 perform any minister's
} act clearly imposed by law; it has treate
the repeal of laws il force at the time {
the issuance of the bonds, and which ca
ried with them substantial rights, IS volt
and generally has given, in behalf Of til
parties obtaining judgments in the court
OF the United States. the same aid to whic
| parties similarly situated would have bee
entitled in the cCurts of the State in whic
the cause of action arose: but II has revt
assented to the unqualified proposition t!s
. legislative permission to Issue BONDS carrie
with it the authority t. tax.
The principle upon which. alone, such
! deduction Is msintaina bic, Is, with its appr
pirate restrictions, clearly stated by MIR. y
tice Miller in the case OF the Loan Associ
; ton va. Topeka, 20 Wall, page 60. II
question was as to the validity OF certa
/ | interest coupons upon which an ordina
suit had been brought. The defense wa
| that taxation could only be invoked for pu
poses distinctiyely u0lic; and that parm
: sion to iesue the coupons carried With 1t Il
3 | right to a tax to pay them, and that as 4
purpose for which these coupons were issu
was not public one, tie statute author
ing them ard the obligations themselv
4 | were void. He had said that ordinarily {
/, | debt of municipal corporations had to
paid by means of taxation.
He adds (page 66o): 1T is therefore
: | be- inferred that, when the Legislature of
f | State authorizes county or city TO CO
, | tract debt by bord, it intends to a
, thorze it to levy such taxes as are neca
sary to pay the debt, unless there is in t
:. act itself, or in some general statute,
;, Limitation upon the power Of taxation VIII
repels such an inference"
| think it to be iDdisDutable that
J, absence of any permission by the L"gis
o ture for tax, and tke substitution of s 4
a other means of payment which was deem
fully adequate, would as completely rel
. the infere ace that a resort TO taxation VI
intended as would restriction upon {
g power of taxation itself.
r Now,it is urged by the counsel for
4 city that the statute by which these bon
we're authorized shows that the Legislatr
l, intended that the principal should be pa
B. by means other than taxation. An exal
o. nation of this statute has convinced I
. that the belief of the Legislature was til