The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-03-27
act II. of 1852. under which REALTORS claim. land
especially section 37) Is null and void for this,

That said act Is vIoIattve OF article ito Of the
constitution of 1s45, which requires that no Law
pressed in the title.
That it Is vioIative Of articles 1877 Of said con-
stitution Of 1886. and 1913 Of the constitution OF
form.
Ia addition to the REALTORS and respondents
| certain other persons have appeared in this
suit BY way Of. interventions, which are sub.
John J. Weckerling and others. claiming to
and Sixth Districts OF this city. which will be
affected by the tax sought to be imposed set up
that interest, and pray that REALTORS petition be
Thomas Fl. Hunt. claiming to be the owner OF
| some Of the bonds issued under and by tue
the prayer that REALTORS peition Be dismissed
The state of Louisiana claiming an interest
In consolidated city bonds. Joins In the prayer
Of the relator for the writs OF mandamus and
II. W. Montgomery. John R. Clay and, others
set up an interest as owners OF real estate.
ators to the extent Of asking the levy of tax for
the years beginning with 1878, and thereafter,
but deprecate any attempt TO collect such tax
The applications of Messrs Weakening and
Hunt for permission to intervene having been
made in open court. counsel for REALTORS OBJ
| jected upon the grounds:
/. That interventions could not be allowed in
mandamus proceedings such as that before the
2. That no Intervention can be allowed unlees
| tho party show direct interest. which would
such party could bring a direct suit to recover
| the object of the Intervention.
These objections having been overruled. q bill
| Objection was also made to the filing by the
| respondents Of q supplemental and amended
| return. and bill Of exceptions was reserved to
similar ruling of the court.
subsequently, counsel for REALTORS fled mo-
| ton to strike out the returns made by respon-
dents upon the grounds
aTy1h rQc {rre nt n nd
| dalous matter relative to the procurement of the
| passage Of act No. IS of 1874.
2. Because respondents rs ministerial Offi-
GERS. have no interest and no right to assal the
constit utionality of the act of 1852 such objec
tons being appropriate only to those from
collected
| 8. Because said returns set up prohibitory
| acts which either have no application or are in
violation OF the constitution of the United
| States.
4. That respondents are estopped from deny
BY Of the fact that such UGH Validity g Ras
been formally recognized br Legislative enact
ments and by final judgment in the case of
docket of the United States Circuit Court for
this district. which is invoked as res iudcata.
| g.. Because the said returns are inconsistent
the levy and collection Of the tax in question
under section ~ of the act Of 1859. and yet set
| up the unconstitutionality of said act.
6. Because the charter Of the city recognizes
| the validity Of said consolidated debt.
1t was further moved to strike out the inter-
| ventions of these parties who joined the re-
| mentioned rs grounds Of objection to the filing
| of said interventions. and on the additional
That said intervenors cannot urge other de-
lenses than tho4 set up by respondents.
That said inttrvepors have no authority to
represent the city Of New Orleans, and are
estOpped from assailing the constitutiunality
Of the acts relied on by relator for, the reason
that the validity OF the same has been recog-
fha Hfntn / m ~ ia oau a DIV
stated
Considering this faction, first. in SO far as it
h poson oy Cat
the Mayor and Administrators of the city of
New Orleans have no interest, and therefore no
turn. that no citizen OF New Orleans can inter-
vene as taxpayer TO resist the demand made.
until the tax in question is actually sought to
be collected and that no holder of premium
bonds the tax for the payment of the interest
on which is sought to, be epjoined. can inter-
yene, as not having direct interest the aues-
ion arises. who. If any one. can defend this ac-
ton?
1t is argued that the intervenors have no title
to appear. for the reason that the city corpt ra-
ton represents all the members of the corpora
tn 1t Is evident then that the city corporation
is the party defendant before the court, and
Mayor and Administrators not merely in their
ministerial but in their representative capacity.
MAYOR nnd nf ha R Be ds ha the d
and collect a certain tax; that they be enjoined
from levyiDg other taxes that the city OF New
proceedings; that the right of REALTORS to per-
sonal process and t., damages against said Off
GERS on their official bonds be reserved. as also
Orleans.
The respondents are therefore not before the
court merely as executive officers without in
terest in the result, but constituting the cor
poration of the city of New Orleans, whose rev.
enues are the subject of the controversy. The
plea of res judicata set up by the lators is an
admission Of this fact. SINCE the suits of 'Maen-
haut" and Montgomery" relied on, are, both
dividuals or officers named as mayor and Ad-
ministrators, was the party defendant. 1t Is the
city of New Orleans. brought before the court by
the act OF the REALTORS, who opposes their de-
mand, and who. being the party in interest. is
entitled to set up any defense against which
A case has been referred to (27 A.. 1907, where
it was held upon an application for q man
damus against thu, State Auditor, that he had
the laws under which the application was
made 1t does not appear. however, that the
Stae Wa be made party 70 ha and
thority to set I'D such defense in behalf of the
State, it by no means follows that the defense
could not have been urged by the State IL made
The same thing may be said Of the case cited
from, II A. 672. where the defendant in the
d TRe rebt of Tt this ezeontve oep
to raise these constitutional objections is by no
means GEAR. etc. Inc Sheriff In that case rep
resented neither the parish Of Avoyelles nor
the citizens of that parish; his duties were de-
fined by law. and did not include the obligation
to represent any one concerned in that suit in
judicial proceedings.
So far as concerns the conflict between the
act of 1852 under which the REALTORS claim, and
the subsequent acts, and more particularly act
No. SO of 1874 and act No. 81 of 1876 unless it be
conceded hat the Mayor and Administrators
right to decide upon the constttutionality Of
statutes duly enacted by, the Legislature, 1t
would seem to be their plain duty to submit
for determination: and in case OF none inter
ference by those interested. or in case, no such
proper that they should be governed by the
latest expression of legislative will. Who're. as
in this case. the propriety Of their action is
their duty. and this whether they appear in
representative or in a ministerial capacity. to
hibition under which they act or refuse to act.
It Is claimed. however, that respondents are