The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-01-03
CONSOLIDATED BONDS.
DISSENTING OPINION OF THE CHIEF
JUSTICE In THE SOUTHERN
BANK CASE

ing day by Justice Mari, In the case Of the
state on the relation Of the Southern Bank
against tho city. Below will be found the
mastery opinion read by Chief Justice Man
ming, setting forth the grounds Of bis dissent
from the Judgment Of the court:
No. 7i57. The State ex rel. Southern Bank
VS.. Il. Pilsbury, mayor, ct ais, appellants
Appeal from the Third District Court, parish
of Orleans.
do not concur In the opinion Of my broth
ren. and shall state the reasons of my dissent
as briefly MS the nature Of the case will permit
The main question Is the alleged unconsti-
nationality Of the thirty-seventh section of the
act Of 1859, as violatlve OF the constitutional
requirement that taxation shall be equal and
uniform. The argument is that the legsla-
tive order to levy special tax on real estate
and slaves (which last may be eliminated
from our consideration now, and not ON per-
sonalty. Is prohibited discrimination to the
detrlment of the former; and that the levy Of
any tax on an ANTICIPATED assessment, which
does not represent the shifting values OF
growing and ever-Changing city, ts Illegal, be-
cause unequal and not Uniform Tho rolator
meets this objection with denial that the
constitutional mandate refers TO municipal
taxation, and invokes the decisions Of this
court rs supporting and maintaining the doc
trine that reference was had to State taxes
alone.
The leading case Ia Dunean's, Annual 1872,
where the Second Municipality had imposeda
special tax Of one per centum on oil real estate
within it's limits, and the court said. replying
TO the objection that IL was unconstitutional
stitution Of 1916: THAT article, by It's very
terms, applies TO State and not to municipal
taxes. 1t provides for the equality and uni
formity Of taxation throughout the State,
~ The trainers OF this constitution
had before them the condition Of the munich
palities Of New Orleans, with their debts,
their abuses, and their wants; and their cor
porate existence Is recognized and continued
t,xn siaft ri, 10
vision. The Jurisprudence under which the
present system oil taxation had grown up
was before them, and the power OF remedying
the evils OF misgovernment was left I'm stntu
quo with the Legislature, and the convention
confined Itself to providing for tho State gov
eminent, leaving the municipal bodies. rs II Is
believed sound. policy justified. under legis-
fative control
This judicial declaration IL entitled TO the
greater weight from the fact that the then
Chief Justice, who delivered the opinion OF
the court, was one OF the trainers OF the
constitution whose provisions he was ex-
pounding. That decision was rendered In
Is47, and although 1t IL said that the case
originated before the taxation clause OF the
constitution OF 1916 went into full effect, the
same court approved and reaflirmed IT by
name and in express terms In Lafayette vs.
Cummlns., 8 Annual 674, and Bnfington vs..
Dnkgrave, Annual 549. These decisions
were in 1S4S and iS49, and the principle had
become rule Of property when the cons0l-
fdation act OF 1852 was passed, and the bonds
OF the relator were issued. Nor Is 1t unim-
portant to note in this connection that tho
courts OF Virginia and Arkansas, whose con-
stitutiuns contained on identical article with
ours, ruled in the same way. .Gilkerson vs.
Frederick, 10 Graft. SIT; Washington VS.. the
State, 10 Ark, 351.
The constitution OF 1852 reproduced this re-
.quirement touching the equality and uni
formty OF taxation tarticle 123), and In 1854
the court organized under that constitution
had occasion for the fret time to corstrue it,
rl,n Il. I'll xF n,rnn and nIa,,
doned, the, court being divided In opinion.
The Second Municipality had imposed tax
on the owners OF real estate contiguous to
Benton street. to pay the expense OF opening
1t, and the court said there WAS no other mode
OF apportionlng tax for such improvements
which will be equal and UNIFORM but that OF an
dd rdtorer tax on all property holders
within the district, or ny paying the expenses
out OF the funds derived from general taxa |
ton, and the tax on the real estate contigu- |
Gus to the street was held invalid and uncOn- |
stitutional There were two dissentient, Sli-
dell, 9. j., saying he considered the decision
In Duncan case as settled uoctr1ne ana no
longer res mona Whltes case, Annual 446
1t Ia now said that the opinion In Duncan's
case, 81 Tar as u treats 81 the ne, constitutional
mandate o. ls45, Is ooner Sildeil, y, was a
member OF tnat court ana concurred IN the
opinion, az ula every m ms OF that court,
and after seven years of rellection, being also
ON the new bencn, ~ was unable 10 discover
- wIat respect y was o1tter, ana not only
adhered 10 IL, but declared ne dld not cons-
der the question any longer an open one.
:, III was not long, however, before t1o que5.
lion was agaiin presented pfo pa ana one OF
the two conillctlng dlcta htta 70 DC ap on
IN leaImah vs., o[anaeil u annual KY, after
auoting tne ai1lcie vi Inc TWO conS1i'ueiohs'
stne court say
ms artlcie refers 10 otate taxauon ~ lts
proper soIlse, ~ BeneIaI u oMtto purposes;
Nnen " says that taxatlon snail pe equal and
unllprhi tn M Lne 2CaCo IL pDihts dl
Iecty ~ III oot9uo' wh . 70 W ,us "d.o sno
MODE Of nlilng the state treasury u does
not laho away wv pVmsi ~ iahHs mca.
~ 4; ~, ~, 80, ra ~ lnnd
- eniS al .,, iau T., paSn
az Bleao Vae lol io9ol pu. pooes ~ ouo pt.,sn
as s1i acfv ol elua, vaiue pays In amotner
parlsh. ~ no 4ie tnlllhs Cl,e constiCutlon
InlrlnYeu TX suun sIate " tIiinss. ~ 10
enough tlat oIate taxes loT SIate purposes