The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-04-17
THE RAILROAD TAX.
Important Decision Rendered Yesterday
by Mr.. Justice Spencer.
The Question of Levying n Tax In Ala
OF the New Orleans Pacific Rail
read to be Determined
by u Popular Vote.


No. G4t4-+L. q. Houdanez ct ais, appellants, vs.
the Mayer and Administrators. The New Or
leans Pacific Railroad Company. intervenors.
Appeal from the Superior District Court, par
ish Of Orleans.
The plaintiffs, Roudanez and forty J
two other citizens and property holders
Of New Orleans, bring this suit. They |
allege, IN substance, that each and every |
one Of them owns real and personal |
property in said city liable to taxation.
That the General Assembly, by act No. |
20 of 1876. authorized and required the
Mayor and Administrators of New Or
leanssto hold u popular election to de-
eide whether or not u tax OF one-half OF
one per cent on all taxable property In
New Orleans should be collected an
nually for four years for the use and
benefit Of the said Pacific Railroad Com
pany.
That said act and the tax proposed
therein are violative OF the fifth and
fourteenth amendments of the eonstitu-
tion Of the United States, and of vari-
ous articles of the constitution of Lou
isiana,
That the Mayor and Administrators
are about to execute or attempt to exc
cute its provisions against your petit
TONERS and other inhabitants OF New
Orleans, to their great wrong and in
jury, etc.
Wherefore they pray for an injunc-
tion restraining said officials from in
any manner attempting to carry into
effect the said act No. 20. The injunc-
tion was granted.
The Pacific Railroad Company inter-
vened, and moved to dissolve the in
junction on the face OF tho papers, and
as being prematurely and improvidently
sued out.
The court below sustained this motion,
dissolved the Injunction, and plaintiffs
prosecute this appeal.
The case has been ably and exhaust
lively argued before us, both as to the
question OF prematurity and as to its
merits. But as there are matters OF
fact alleged in the petition, which, for
the purposes Of the motion only are
taken as true, we do not see how we can
do more than pass upon The motion and
the ruling Of the court thereon. Ii we
sustain 1t, that ends the case. LIZ we
overrule it, the case will have to be re-
manded to be tried on the questions OF
law and fact involved.
The question, therefore, presented for
our consideration Is, Gun the plaintiffs,
citizens and taxpayers OF New Orleans,
alleging that the defendants, the Mayor
and Administrators Of the city, are
about to hold an election to decide upon
the levying OF a tax under act No. 20 of
1876, and that that act is unconstitu-
tional, and that any tax levied by virtue
thereof will be Illegal and void, restrain
and enjoin them from SO proceeding?
It ia not pretended that any tax has
been levied or Is demanded of the plain
tiffs. Nor is 1t even asserted that such
tax will be levied, but only that 1t may
be the result of the proposed election. -.
We think that the danger apprehended
, is too remote and too contingent to form
the basis OF proceeding in court to
} to do in dealing with real existing and
present wrongs. without anticipating
! and com batting hypothetical evils OF the
future that may or not arise. 1t will
be time enough for the plaintiffs to
complain when their rights are actually
} invaded, or when danger to their PER
! sons or property Is imminent and i'm
pending. There are too many contin--
gencies at present between them and
danger to justify them In resorting to
law. Act No. 20 may yet be repealed
or the tax proposed may be voted down
, or plaintiffs may cease to be taxpayers
, or the railroad corporation may
cease to exist or forfeit its char
! ter. It seems to us that the plaintiffs
> have set up, and now ask us to pro
! tect them against q mere possible
0 adversary. which at present Is without
r substance or power TO harm them.
Even IL it be conceded that the levy o1
the tax contemplated by said act would
= be unconstitutional (upon which we, o.
a course, express no opinion), we do moi
\ see that that fact would render tht
holding of the election unconstitutional
s If the tax would be unconstitutional il
! Is fair to presume that a law abiding
: people would vote 1t down. We know
: no provision Of the constitution which
= y forbids the Legislature from ordering
: an election to take the sense OF the peo
:. pie upon any question which 1t ma.
d deem important. II private individual
o were thus allowed to interfere with ant
i ordinary functions could be compietel.
. stopped by persons claiming to champion
q and protect the rights OF the public
a Thus, IL the Legislature should, in It
r, wisdom, direct that vote OF the peopl
y be taken upon proposed constitu
], tional amendment, or upon the callin
II OF q State convention, or upon an
70 other matter, one or more individuals
:. alleging that the expenses Of such cleo
tion would increase the State debt, o
necessitate State tax beyond the con
stitutional limits, could enjoin the hold
q ing of such election, and, in fact, para
. lyze the government in its every ster
Whilst this court will always be found i
ID favor Of the largest liberty OF the citize
8, asserting his Individual rights, an
ready at all times to lend it's aid for hi
ID protection, we cannot give our sanctio
I. to a doctrine which we think destrue
is tive of all government. and whic
er would hll our courts with litigation
IN based upon mere theories aud hypethe
Il ses, and not upon actual grievances.
the city of New Orleans should, by vot
W. or otherwise, seek to extort from tn
We plaintiffs illegal or unconstitutions
q: taxes, whether to pay for elections {
IN other purposes, they will have amp
onnortl1nity TO protect themseiyt