The New Orleans Democrat. (New Orleans, La.) 1875-1876, 1876-04-19
THE RAILROAD TAX.
rJDsJyo ARGUMENT BY JUDoE JOHN
IT. EENN4RD.
superior District Courf--L. &. R0uGanez
ct ais. VS.. Mayor ana Adn,n!stra-
tors Of New orleans.

Mny IL please your Honor. but for the magni
tule Of the interests involved in this case ans
the multitude ot errors committed by the epun
gel on the other side. should close on behalf b
the plaintiffs with this Language OF Judge stront
In the case OF the Railroad Company VS.. th.
county Of 0toe. on this Identical question:.
This subject has 80 often been discussed ant
thoroughly vindicated that it seems to be- need
less to say more ="
Before announcing formally the argumen
call attention TO the fact that the distinguished
senator. one Of the counsel on the other side
especially inexcusable as he was part and par
eel Of the law making power at tbs time the nc
which he Complains If was passed. lie statet
10 your Honor TINT when the General Assembly
came to enact the law which should govern the
imposition Of this railroad tax on the conntr,
parishes. they took good care to confine the vet.
TO property owners. ! say he was guilty OF .
mistake Of fact. ana prove il by reading IRON
the act with reference to the country parishes; !,
act No. n. | Will only read that portion OF II
which relates 60 this particular su1Ieeti
1nat upon the written demand OF me B2aru
Of Directors If the New Orleans PACING iiaiiWay
Company. the police jury OF any parish on the
line of said railway or its branches. or munich
pal authorities Of said cities and towns and up
IN the written petition Of one hundred free.
holders Of said parish, shall submit to n vote OF
tho qpai7ed eiectors Of said parish. the question
whether or not the said parish or municipal
authorities Of said cities and towns shall sub
scribe for capital stock " said company not ex-
ceeding three hundred thousand dollars for any
parish.
The Same rule applies 10 tho country parishes
rs to the city If New Orleans. / cprrtot that. rs
we'll IT, have law straight before the Court Us to
yindirate the cO-menibers Ui the House and Sem
ate who voted for the bill. II stands upon the
same platform.
also desire to cad your Hopor's attention to
the fact that the eases cited by Mr. Forman from
the Iowa and Wisconsin reports. and which
we're read nj length. have been oy' rruled by the
supreme Courts of those states and that they
have uniformly been r, iected as authority by the
Supreme Court Of tho United States long before
they warn overruled, The principal difference
between the argument propose 10 make and
that which we have listened to from the other
side IL this propose to argue the ease upon
the Constitution and the law rs they are. and /
PROPOSE TO show that the Constitution and the
iaw as they are. are right. Their entire argu-
ment has been addressed 10 your Honor as
though you were sitting before the adoption Of
any e institution or any statutory law | pro
pose h, show that if the doctrines announced in
this discussion by the other side were at all ten
able. no government If any kind. more espe-
cially republican government, could have an
Now. we are told. aud this is ut tho foundation
Of al their errors that this is an invasion Of the
inapnable rights ~ the taxpayer. In this as
settiOn rs involved popular heres,y the corrcc-
lion Of which would benollt the people Of this
State and of this whole country, immensely
There If no such thing as an innenable right
in government. except such as are guaranteed
by the Constitution aud the laws under which
we live ! moan that there Is no such thing as
legal inalienabe rirht-an nalienabe right
capable of enforceme nj by law. Every so-eaed
jnpIiannhIp right outsidn ~ that category Is a
right Of mountaineering moro and nothing
less.
Then we como % consider how the divisions
Of these powers are made under DOR form Of gov
eminent In tho National Government the Ma
topal Congress can exercise only such powers
as are specially delegated in tho Constitution Of
the United States, or az arc implied properly.
Under the State Constitution of Louisiana. and
oil other Stata constitutions. the authority Of
the Legislative department of the government.
so far from being restricted l. the authority
Of Congress s' Unlimited except where prohi-
bitions are found in The Constitution This sir
lviu nj If whole
makes it necessary for US to inquire whether or
not in the Constitution Of the state of Louisiana
there Is any prohibition which prevented the
Legislature Of this state from enacting the law
under discussion.
But. u begin with the Constitution Of the
United States that you may see the extreme
folly Of tho positions assumed. that Constitution
being Us have said bHfore, d power Of attorney.
containing no special delegation of power
thorzing such improvements as railroads un-
der that power Of attorney the ablest men from
the formation Of the Government down to this
very day have been able to lind in implied
powers SUI icicnt authority to warrantthe expen-
diture Of the money Of the Government Tor such
purposes. II 81 happened, unfortunately for
the friends on tho other side. who are SO strenu-
ons i'm the advocacy Of these local rights. that
Mr. Calhoun was the very nan who llrst M, MI
welfare trying 10 make q connection. should be-
built by the Government at Government OK
pense, stating that it was not only its right,
but its highest duty, 10 construct that national
Highway ,.o corrt ,,o,ao ,vh,,o w,s n Wash
ington in the month OF January last the Supreme
Court delivered in my hearing M opinion on
this very same quest on, when these very same
hackneyed arguments had been Introduced.
They repeated the assertion Of Mr.. Calhoun.
with reference to these great railroads, the
Union Pacific and the Central If then under
sricted the power is found to enable the Gov
eminent to aid these roads. then go to the con
sttntipn Of the State and yon find so far from
there being n prohibition. that there has been
careful ON ssion of that prohibition. That your
Honor may fasten this In your mind refer to
fhah iut. vafth n tnuG inu nf
1863. In the Constitution Of 1913 you will re-
member that there was prohibition. 49,,
In 1852 he spirit OF enterprise hwoke in THIS
community. and they determined at all hazards
10 have some internal improvements The result
OF that constitutional convention was the inser-
ton Of a clause which allowed certain aid 10 be
given TO railroads. Mr.. Forman stthed that in
the constitution Of 1868 the omission Of that
clause intended to imply that the constitution of
1868 went back TO the prohibition of the constitu-
ton OF lsis. Far from II. sir. The omission Of
that prohibition was simply tho omission of a
piece If surplusage. because the lawmakers
knew very well that all that was necessary was
TO remove the prohibition contained in the con
sttution. and they opened wide the doors Tor the
exercise of the powers OF the General Assembly
1t is universally conceded and will not insult
the intelligence Of the court by reading authori-
ties TO prove it, that the question M to whether
such use as this IL n private or public use
primarily resides in the Legislative department
which enacts the law: and the courts have been
very slow aud the cases are very few, In which
by Judicial construction. there has been an at
tempt TO restrai that discretion, Bearing that
the facts of this case. Her IL a law passed by
the General Assembly in regular form. whose
preamble declares. in SO many words, that IT Il
mntter Of public improv ment. thereby decld-
ing in advance that II Is a public use.
A law thus passed regula ~ by the Legislative
department goes to the Executive and receives
his sanction. Then only one other possible inn
pedment could stand in the way and that ~ the
impedimcnt that. by possibility Of judicial con
structiou, there has been u violation OF the Con-
stitution in enactng the law But the tenor OF
decisions from the beginning to the end 81 Inc
history Of this State has been Ia favor OF these
being public uses. Then what do we haveP We
have the legislative department enacting, the
Executive department signing the bill. the whole
Judiciary of tho state indorsing their acton;
and nest comes a self-constitutod association,
arrogating to itself portion of the powers dis
tribued by law between these three departments
and says you have urcspasscd upon our inaien-
able rights.
Could greater absurdty in government
eSistl LII they want to correct the existing state
Of things there Is only one way to do 1t. lfthey
desire, rs til seem to do. to share in the gov
ern'nental powers Of this State. they must call
new convention and have it subdvided into four
PARASITIC legislative the executive. the judicial
and the tax-rcsisting. The thing Is so absurd
that Its bare presentation is an entire annihila-
ton of the preJcnse that they can come In here
and ask the court 10 arrest the execution 81
law which Is distinctly within the purvlew oil me
Legislature. which has been approved by the
Executive and which has been indorSed by the
judiciary of the State and formally by the SUI
prone Court of the United states.
:. In this connection, by way oil showing your