New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-05-14
) RKPUBLIOAN, SUNDAY. NAY II, 1875

following provision: "And NO ordinance (of
the city Of New Orlesns) creating debt or
loan, shall be valid, unless for some single
objecr, or work distinctly specified therein;
and unless such ordinance shall provide
ways and msans for the punctual payment
of running interest during the whole time
for which said debt or loan shall be con-
tracted, and for the full and punctual dis
charge ut maturity of the capital borrowed
or the debt incurred" ;
The act of 1853, No. 25S, page 23l, pro.
vides "that the police juries of the several
parishes of this State, and the constituted
authorities of incorporated towns and cities
in this State, shall not hereafter have power
to contract any debt or pecuniary liability
without fully providing, in the ordinance
creating the debt, the means of paying the
principal and interest of the debt 80 CON-
tracted."
A subsequent section provides that
whenever police juries or authorities Of
incorporated town or cities shall have pro-
vlled for the payment of debt by levying
q tax, and shall fail or refuse to cause said
tax to be collected, the court rendering
judgment may issue it's mandate" etc.
Now, since the general statute, and the
statute with reference to the city of New
Orleans struck with nullity all obligations
of cities unless the ordinance creating the
since one of the same statutes makes special
enactments with reference to cases where
'the provision for payment shall be BY
levying tax" thereby showing that taxa
tiol was included in the term "means," 1t
seems to me that when q contemporaneOus
Legislature authorized city to issue bonds
and prescribed the form of the ordinance
which the City Common Council shall
adopt. creating the obligation. the absence
,,,o m nYQaarihp
sion tor taxation, and the insertion in such
ordinance of other means of payment which
appear to have been deemed abuDdantly
ADEQUATE, OF itself repels the inference that
taxation was intended.
The Legislature knew that the ordinance
was void unless it contained full provision
for payment 1t meant, therefore, to set
forth all the "means" which were to be con-
sidered as provided, and any addition OF
means, by way Of inference, i5 excluded.
1t follows, therefore, that since the Legis-
any general or special statute, expressly or
by implication, made it the duty of the
Common Council to levy this tax, that this
court is without any authority to direct Its
imposition.
1t remains for mo to consider the special
circumstances in the case of Morris Ranger.
The petition alleges, and the return admits,
the sale of this stock by the predecessors OF
the present Common Council (provided
they had the power to cell the same), and
that they received therefor the sum OF
$32O,OOO. The return then states that "no
part Of said proceeds of said sO-called sale
is now in the treasury of the city. or in the
possession, or under the control OF these
respondents: that the said proceeds have
long since been used and expended, and no
portion thereof ever came into the posses
sion or under the control of these respon-
dents, the present authorities OF said city.
The respondents show that no writ OF man
damus can issue to compel the payment OF
the relato,'s demand out of said proceeds,
because said proceeds are not in existence
Courts can not issue writ commanding
the performance OF an admitted impOs-
sibility. -.
Ii there are 10 funds arising from this
sale. in the treasury of this city, now under
control of respondents. and they were spent
years since BY respondents predecessors,
then it would be idle to issue a mandate to
the respondents to pay the relator out of
them. Whatever may be the remedy of the
relator by reason of the special facts, OF
this transaction, it is clear that he is not
| entitled to mandamus.
| Let the demurTers be overruled and the
| writs Of mandamus be refused.
Huperfor District Court.
State ex rel. Eugene Waggaman vs.
| George b. johnson, State Auditor.-Three
| cases. Mandamus issued in each for fees IL
| State tax suits.
| Superior Criminal Court.
| w. r. Whitaker. Esq presiding.
MOTIONS FOR NEW TRIAL.
Ramon AmorOsa. convicted April II, o
en- Observation-Disclosures Overruled.
Cohn ValcOur, convicted April IL OF rob
| bery.-Motion Overruled.
Hon. Hiram R. Steele, judge.
| MOTION.
Octave Llveau, convicted of embe zzle
meut-MotiOn for new trial.
| SENTENCE.
Thomas j. Observation-Disclosures of mar
slaughter. Continued until Friday.