The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-03-27
for the imposition of which this proceeding

III the city q Of New Orleans should by vote or
gal or unconstitutional taxes. whether to pay
Tor election or other purposes. they, will have
P eou But t. aetea unFo ahe ds
Is the evil thereof
SO 1t may be said in this case. For the pur-
poses Of this writ the city corporation represents
all the members Of the corporation it was for
| that purpose that the corporation was enacted.
and It !, Tor that PURPOSE that 1t s before the
and ana others, the motion to strike out must there
which the motion is also directed, is based upon
different grounds. He appears ss the holder Of
certain bonds issued under and by virtue of act
ton defendant, but. like the REALTORS. as credi-
1ot 81 HI that whose claims conflict
| the collection Of the tax provided for the pay
ment of the principal and interest Of his bonds
prejudcial to the REALTORS claim. He has,
| therefore, manifestly an immediate and direct
| interest In defeating that result. The. motion
ruled .'''s 'ne'Ven''on must therefore 10 over
REWRITING. to the question Of estoppel as set
strike out 80 much of The return as "a attacks the
validity of the bonds held by REALTORS. and In
the plea OF res j,tdicata. 1t may be remarked
validity, of the bonds-in fact. 1t was substan-
tally admitted IN the argument of the case that
they are valid obligations OF the city, nor have
OF defeating the methods here resorted to Of
enforcing the payment, Of said bonds been
hat the return made by the respondent set up
the unconstitutionality OF the act Of 1862 upon
SPECIFIC e grounds and concludes with the aver
bonds and tax specned in said thirty seventh
5 sh e. act Of 1872 in far as a
purpose) are upon the same grounds wholly
uneonstituti9nal. nun and void ~ '
beer, passed BY the LEGISLATURE, in which these
a stiqetiy as SSId obligations Of the eliy Of
charters Of the city down to the present one,
under which It lives and moves and has its be-
ing, and ALSO includes act No 50 of 1874; the pro-
visions OF which are set up by respondents as a
defense to this proceeding. In that act the fol-
lowing language is used:
And provided further, That the validity of
leans is hereby recognz d in all its q? integrity
it being the object of this act to afford Tempo
rary relief to the taxpayers of New Orleans in
to ,detract from or impair, the rights Of the
holders Of said b. nds or Others"
:. The court does not understand the counsel
for the respondents as using this act as d de-
Tense and at the same time attacking its con-
stitutionality. Nor does the court understand
ate existence. and yet the charter of the city OF
New Orleans recognizes the validity Of the con-
soldated bonds in terms almost as distinct as
Beyond this, 1t is averred by the respondents
that tax to pay the interest on said consoli
dated bonds was regularly ed and col,
lected until the year 1876, when it was prohibited
by the provisions of said act No. 81 Of 1867
such an averment OF acQuiescence during a
eardsd denial at th}s TIME TIME Of Of the
validity Of these bonds.
See Bigdon on Estoppel $50. 90 Ark, $685.
Referring to che cases in which judgments
are required. establishing the validity of the
debt as preliminary to the issuance Of the
writ Of mandamus We find in Burroughs on
If the debt be an ordinary debt, one as to
which there is no special provision made by
an action at law" etc And further on at page
1853. he continues:
There is an exception to the rule that judg-
ton for mandamus will be obtained. It is in
that class Of cases whereby the statutes Great
inG the debt as in the case In bonds in aid Of
to levy tax for the purpose of paying such
bonds: Here there Is clear legal duty upon
other remedy for failure to perform such
duty but mandamus. and there is no nece s.
ty for a judgment to ascertain the amount due"
is suggested as to the validity of the bonds. the
nartv wi be required to establish his calm by
Judgment,
40 nas already been indicated, the court Is OF
opinion that a reasonable construction OF the
pleadings OF this case, taken in connection with
written. which have been submitted, does not
Justify the conclusion that the doubt suggested
by the action of the defendants was intended to
go beyond the question of the validity of the
tax and the method Of its enforcement. and
does not affect the validity Of the bonds. ;,
- Of IN sne
the city of New Orleans" decided by the Circuit
Court OF the United States, are conclus!ve
Of the bonds, but as to the validity of the tax
here claimed.
Inc question: decided In the case of ''Maen-
haut'' was that an Injunction would lie upon
city from misappropriating fund collected and md
in bank to the credit of the consolidated bonds |
That fund was certainly not collected under the |!
poses of that proceeding that It should have |
been. 1t was sufficient that it was imposed by |
law, and collected and held in trust by the par;
from that provided by the act Of 1852, and |
vided by that act could have been enforced |
was not before the court, and proved no |
fact of the, decree. The suit of Montgomery |
which. as far as the court is informed the rela- !
tors were not parties. The method of enforcing |
the Judgment obtained by Mr.; Montgomery was
be, under the act OF 1852 were reserved to him.
The case has, therefore, no element of res Judi
cata, as against the defense here set up. other
than the cause Of action-and it may be doubted
whether even this was identical with that on |
which this suit iss based, since the coupons are
not Tt the same e as those held by the REALTORS.
thus disposed Of. the case may be considered
upon Its merits.
The claim of the REALTORS is to enforce by man
damus the provisions of the thirty seventh |
secti OF act No. u. of 1883 In so far as to com
pei the proper officers of the city of New Or !
leans to levy tax for the payment of the prin-
cipal and interest of their bonds in the manner |
provided by that section, and further to enjoin |
the imposition and collection Of any other tax
force.
1t is objected that the provisions relied on are |
unconstitutional, because the objects of the act |
are not expressed in the title, and because the |
tax provided for is not equal and uniform.
. Frst-The title of the act in question reads as |
follows:
An act to consolidate the city of New Orleans. |
and to provide for the government and admins |
tration of its AFFAIRS
OF New Orleans WIS diYidad into three munich |