The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1876-01-05

the limitations imposed by act No. 5, ap
proved March II, 1870, on the power of tn
courts to issue wrlts of mandamus against thu
auditing offic9r or treasurer, or other dis
bursting officer Of the city, have no appilca
ton where the State, through its Attorney
General, Or the Board Of Metropolitan 20
lice, or the Board of School Directors is seek
ing to compel the levy Of tax for public
purpose; indeed, any citizsn might proceed
by mandamus to enforce the levy OF the
school tax Watts vs.. Carroll, II An. al.
Nor do the provisions of said act No. Of
1870, interfere to prevent the bondholders
who may obtain judgments on their bonds OF
coupons, from proceeding by mardamu5 to
compel the Council to levy a tax tor the pay
ment of their demands, especially in cases
where the bonds were issued prior to 18th Of
March, 1870, under legislation requiring the
imposition of u special tax for the payment OF
the principal and interest of the bonds.
| Even in cases where the bonds were issued
subsequent to the 18th Of March, 1870, the
creditor, after Judgment, could enforce by
mandanus the imposition of the interest taxes
which the 18th section of act No 70 Of 1872,
requires the Council to levy. We can not as
sent to The legal proposition that the police
tax or the school tax Is void, on the principle
that the Legislature has no constitutional au-
thority to regulate and control our local insti-
tutIons except through the agency of munich
pal officers elected by the people. We do not
COILS DIR the question open in this State.
The trainers of the constitution Of 1868 de-
signedly omitted the provision contained in
all our previous constitutions, which secured
to the citizens of New Orleans the right of
appointing the several public officers neces.
sary for the administration and police of said
city, pursuant to the mode of election to be
prescribed by the Legislature This proyis-
ion is found in article % of the constitution
of 1912, article 145 of the constitution of 1915.
article 124 of the constitution Of 1852, and
article l33 of the constitution of 1864 This
last mentioned article provided for a uni
formed police to consist of citizens to be
selected by the mayor. The omission Of this
i'm portant provision in the constitution Of
1868 is significant; the Supreme Court has
declared that it means that the whole subject
Of the city corporation and its police are
under the power and discretion of the Legis-
lature. Diamond vs.. Cain, 81. An. 3l9.
This is no new doctrine; it is sustained by
ample authority, and little hope can be en-
ter,ained of overturning it.
Mr.. Justice Spofford, in the case Of An
drews W. Saucier Q3 An, 303) says: In en-
tering upon an inquiry into the validity OF
that law speaking of the election law OF 1857
we must bear in mind that the city of New
Orleans is not an independent sovereignty,
which, like one Of the States of this Union,
has parted with portion of its power, pre- |
serving all that is not expressly delegated; |
but that it is like any of the parishes, or other
corporations of the State, subject |
70 the legislative control, except in SO far as
The State Constitution has prohibited the
Legislature from acting. or furnished ex-
press rules for its action"
The Court Of Appeals Of New York,
when the constitutionality of the metropoli-
an police act was in question, said II: "Plena-
y power in the Legislature tor all purposes
If civil government is the rule A prohibi-
ion to exercise a particular power is the ex-
,eption." People VS.. Wood ct al, Is N. Y.
In similar case the same court said 1.-THE
20 yer Of the Legislature Of the State is su-
)reme over that of all local legislatures, ex.
,ept when the constitution intervenes to re-
trict it. The Legislature may recall to itself,
md exercise at its pleasure SO much Of the
oowers it has conferred upon the city corpor-
tion as are not secured to it by the constitu-
ion." People vs.. Pinkney, 80 N. Y. 1893.
la the same case Chief Justice DEMO de-
Jared that: IF we were to establish the
rinciple that the Legislature can never re-
uce the administrative authority of coun-
les, cities and towns, can never resume in
Ivor OF the central power any portion of the
lrisdiction OF those local divisions, or
hange the partition of it among them, as it ]
xsted when the Constitution was adopted,
9 should, think, make an impracticable ]
overnment"
Mr.. Justice Nelson, in Is Wendell, 33l,
'rsely remarked: at is an 'unsound and
ven absurd proposition that political power
onferred by the Legislature can become 5
tod p1vht /
ldividual or body of men, 1t is repugnant
, the genius Of our institutions and the
oirit and meaning Of the Constitution, for BY
nat fundamental law all political rights not
lere defined and taken out Of the exercise Of
gislative discretion were intended to be left
Inject to its regulation"
Again, in the People vs.. Shepard, sc N. Y,
,6, the Court Of Appeals Of New York con. t
der the following propositions as settled @
W: a
~ The police powers exercised in the
wns cities and counties, respectively, were
sted in the local authorities by legislation,
i'd not by irrevocable constitutional grant
e. Ths Legislature has authority to ar =
nge the distribution of these powers as the
lblic exigencies NAV require, apportioning
EN- to local Jurisdictions, to such extent as ,
9 law making power deems appropriate, 8
d committing the exercise Of the residue to q
icers appointed as it may see fit to ordan. :,
The Supreme Court Of the United States :
es the following emphatic language in the y !,
Sc OF the United States VS.. Railroad Com
ny, II Wall, 329: "a municipal corpora 7
n like the city OF Baltimore is representa- 4
. not only Of the State. but it is portion $
its governmental power. 1t is one Of its il
aatures, made for specific purpose-to J.
ercise within a limited sphere the powers "
the State. The State may withdraw these B
al powers Of government at pleasure, and p
~ through its Legislature or other appoint G.
channels, govern the local territory as it G
yerns the State at large. 1t may enlarge or :
,tract its powers, or destroy its existence. +
Yours truly,
SEMMEs & MoTr.
Mr.. Brown moved that the ordinance do
" pass, the vote of the Mayor to the con- .,
ry notwithstanding, seconded by Mr.. ,
IKE. and carried by the following vote
rs, 6 ; nays. l.
The chair then declared the Ordinance
)ptir o An estim alta Of the receiptS or reye-