The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-06-14
THE BOND CASE.
WHAT JUDGE BILLINGS DECIDED
YESTERDAY CONCERNING THE
CITY BONDS.

OF the United States ex rel. j. F. Vignier vs. th.
City OF New Orleans. on an application for
mandamus to compel the city to levy O tax K
pay the interest on the consolidated bonds.
Vignfer set up In bis application that he wal
Judgment creditor of the city In the sum O
$3.50, byvtrtue OF decree Of the United States
Circuit Court. He alleges that upon his judg
ment an execution was issued and returned b,
the marshal 71ulia bona, no property Of the de-
xendant liable to seizure having been found.
Thistudgment was based upon certain eou
pons Of the bonds Issued By the city under the
act df February %. 1859. at the consolidation Of
the municipalities ofthe corporation and which
bonds have always been known as the consoli.
dated bonds Of the city.
The prayer was for mandamus to compel
the levying Of tax under the provisions of the
above act.
The return Of the city sets up that the provis-
IONS OF the act referred TO- SO far as they relate
70 those bonds. are void. because in violation OF
article liz Of the constitution OF 1852 and article
z2S Of the constitution of Louisiana. etc,
Judge Billings sustains the position Of the
city. and refuses to issue mandamus to the
relator as prayed for. citing numerous author
Aties In support of his opinion.
In referring to the defenses set up the Judge
says:
They rest upon the alleged unconstitutionali-
ty or the tax ITSELF as not having the uniformity
and equality required by the article 1873 Of the
constitution OF 1859. Whenever questions as to
whether an act Of the Legislature of State, or
of municipal corporation within State is
repuenant to the constitution Of that State, are
presented to the courts ofthe United States the
decisions of the highest tribunal Of that State
are its guide In determining the questions thus
presented. Gilman vs. City of sheboygan; I'd
of Black. $40 and biS In which the court through
Mr. Justice Swaine. at page 61S, says:
.'Acting. upon principle recognized 10 Its ad-
minisirati0 from the earliest period of its his
tory, this court considers itself bound In cases
like this to follow the settled adjudications Of
tbe ana H. wag @ Sa to
The questions. then. as to the constitution
allty OF this tax are to be solved by an examina-
ton q the decisions of the, Supreme Court of
the State Of Louisiana. If they have been de-
cided BY that tribunal.
He then gives section 81 OF the statute of 1852
An full. and says:
The article OF the constitution, which it is
constitution Of 1876, or article 1913 Of the copst
tuition OF 1882 and is as follows:
Taxation shall be equal and uniform
taxes may be levied In this State shall
pe taxed fn proportion to its value. TO be ascer-
tanned as DIRECTED by law. and no one species of
Shall be Tbe L esss T shs
nave power TO levy an income tax. and to tax |
slll persons pursuing any occupation. trade or
prOfessiOn."
The first ground of inequality and want of
uniformity urged Is that the tax is directed to /
be levied on real estate and slaves and that |
personal property and incomes are not directed
10 be included in the levy.
think this objection cannot be maintained.
He then discusses the question as to whether
N Ia nm md nj th.
entire locality or district upon which it has
been levied, He refers to several decisions,
and particularly to that Of the case of the Maen.
haut heirs against the city of New Orleans.
have read with great care the opinion Of the
nudge OF this court. because, not +
only my regard for the proprieties of the adj
for any opinion OF that iurist would prevant
my treaaslnR as an open question any point of
cisions Of his have been referred to.
But it seems to me that in one he expressly
excludes this question from consideration alto
serves IT. The suit in which his opinion was !
endered was suit In equity. 1t was sought in
nat case, among other things. to restrain the
unds, which had been raised by the collection :
II this tax in any other manner than TO the q
folders OF the bonds. or devotion to the sinking e
!lnd Tor the hna payment OF the principal of a
h6 same.
He goes on: 3
We have then bonds issued under the act of b
1852, without any valid means provided in the I
aid act for the levying of the tax to pay the c
ame Had there been In the act authorizing \
no issuance OF the bonds any lawful provision d
Or their payment that provision would have r
al the nature OF contract and would have q
cen inYiolable. and could have been enforced. .
9th as respects subsequent legislation and the
Had there been long continued acouiescence
Z the validity of the tax. as provided by sec
on ~ OF the act OF 1882 upon the doctrine of 4
stoppel the city might be precluded from as
But there has been no acduiescence In the va.
dity Of this tax. On the contrary there has "
cen for period of twenty years a complete a
couiescence on the part of the bondhofders =
nd the city In the position assumed In 1856 by is
70 Legislature, viz: that In these bonds was an tr
cling valid, but the method provided for their :,
ayment void. and they have treated the obli- 81
atlon as one WHICH necessarily left to the So
sthods from time to time as the city must p
llow Ia order to pay these obligations. &C
ana THESE methods varied as the Legislature u
wed by the city and have been acquiesced in iu
! the bondholders. and that for period Of tr
1t seems to me. that If municipal corpora-
ons are to be held to the obligations of indi-
duals. and l have no doubt they should be,
Publications and notifications of their obliga- m
II for the period of twenty years the CITY had "a
Quiesed in the series Of methods which the
legislature had imposed upon the assumption; m
az as to tax-and II tax.the manner of its 81
doubt that the City would be. estopped
ON denying the rightfulness and binding ed
rec of such an assumption? If the bond. | an
,lders have awaited themselves of this assump- be
IN and acquiesced In it. for this period of
ncluded7 p
No matter what had been the contract entered -
to between the city and the bondholders In the
ar 1852, Il was competent for them by mutual
nsent subsequently,. to modify til at agreement
d even II he section 81 had been valid, this
luld be true.
t seems to me clear that the Legislature in M
9 year 1865, as umed that the matter as to To
W these bonds should be paid rested wholly 10
tn Them and was not controlled by the see. Go
ii 81. w as
That both the city and the bondholders have, w
thout questioning or objection, aequiesced in w.
s assumption, on the part of the Legislature ON
tWo-th rds Of = generation. The advantage o oe
1t the bondholders have derived has been 7s
ompt payment OF principal and interest as ~
lg as the Legislature thought the city could ~,
Divide the means. and this. to large degree. VI
subjectinR to taxation property not within
provfSi0na of aafti0u