The Donaldsonville chief. [volume] (Donaldsonville, La.) 1871-current, 1881-02-19


fishing requisites to the validity of mort
gage? Clearly not. See Destreham rs
Police Jury, 81 A. 1sO. It is next con-
tended that, besides the provision made
at the time of issuing these bonds, there
existed provisions for the prior existing
obligations taken up by the bonds, which
continue i'll force for the payment Of the
latter. To this the answer is threefold /:
lst. The record does not enable us to
trace any connection between the bonds
here sued on and any preexisting obliga-
tions of the loan except the corporation's g
note or bond dated April 3, 1861, issued
in pursuance Of the resolution or ordi-
nance of Jan. l, 1861, which was itself
given in renewal of Il prior note issued
under an ordininance or resolution of
March 20, 1860. In neither Of these or
dinances was any provision whatever
made for their payment.
2nd. If we should undertake. on the
simple assurances OF counsel and with
out legal evidence to trace the consider
alton of these obligations still further
back, we should still find no provisions
made at any time except appropriations
or pledges of certain revenues of particu-
lar years long since exhausted or other
wise disposed of, and abandonded by the
creditors in tue acceptance Of new obli-
cations.
3rl. We regard the transaction be-
| tween the town and the creditors under
which the present bonds were issued, as
a complete novation of the former debt,
and . consequent surrender of former Sc
curities if any there were. The old notes
were surrendered, cancelled and marked
"paid by bond" The bonds stand as Il now
4 ~. E.
except that made at the time of its crea-
!ion Ii A. 54 /; 6 N. S. ;}77; 2 N. S. 144 2
La. Ill; Is La. l40; 4 A. 543; 2 A. 179 ;
26 A. :,45.
1t is contenlcd that the provisions
made for the redemption Of these bonds
can have no effect because it is tax on
real estate and therefore unconstitution-
al The law now embodied in Section
2445 Z. S., was not intended us a trap to
catch unwa:y creditors. It's motive was
simply to restrain municipal cxtrava-
gancc by requiring corporate officials, at
the moment OF contracting debt. to con-
template the necessity of providing for
its payment, aid, by requiring snch act
ual provision, to keep the tax payers adj
vised of the burdens to which they We're
being subjected by their official agents,
so that they might hold them re-
spol,sible therefor. Its effect is much less
radical than that of the constitutional
provision touching tho city OF New Or
leans discussed in our recent decision in
the case Of the Taxpayers Association
rs. Mayor. The latter disabled the city
from contracting a debt at all, and we
held that claims against her were not,
therefore, debts, but were mere claims
against the revenues appropriated for
their payment The same result does not
follow from SECTION 244s. Debts con-
tracted: when provided for, become, to
the extent of such provision, not only
claims against the provided fund, but
actual and valid debts Of tic corpora
ton.
In the instant case, the corporation
actually made provision to the extent of
$1,000 per annum for ten years, to he
raised by taxation. There can be no
donbt that at the time the corporate au-
tllortcs and the creditors and all con-
cerned honestly believed, and had reason
to believe, that the tax, directed to he
levied nreal estate alone, was valid
and constitutional tax. Such has heen
the Interpretation of prior constitutions.
2 a. 1872; 3 A. 673; 10 A. 1893, 402, 735
4. "a; 8 A. 562.
| uC SDIISiitiLlOl Dl ICof Dau recently
gone into effect and it's somewhat differ
ent provisions OH the subject of Taxation
had not received any different judicial
interpretation un this particular question.
The original charter of defendant,
passed in 1916, conferred the power Of
taxing real estate separately, and even
the new charter granted in 1870 con-
terrcu the same power. Were we now
to decide that the corporate authorities
and the creditors were mistaken in their
honest belief that the particular pro-
vision made was constitutional, we
would not, on that account feel justified
in holding that the debt of the town,
contracted i'll good faith, and to the eS-
tent of the provision, in intended con-
forlnity with law, was stricken with
nullity. Justice would require that an
honest error shared by both parties
shonll not operate to the advantage of
| one aud the destruction Of the other.
We should hold that the corporation WAS
| bound to supply the equivalent of the
provision made and TO substitute Il con-
stitional tax for the one supposed to be,
but discovered not to be, constitutional.
We are not, however, prepared to say
that the provision made it necessarily
unconstitutional, under any construction.
1t only required that an annual tax of
one thousand dollars be levied on all the
real estate of the corporation This does
not exclude the idea that this one thou
sand dollars might have been Il part of
an equal and uniform tax levied on all
| taxable property, real estate as we'll as
other. Nothing prevented the corpora
ton from appropratlng to q particular
purpose the taxes derived from a special
tax of taxable property.
| This view renders unnecessary, and
we purposely avoid, any expression of
opinion OH the yeAe.l question whether
or not the article Of the constitution APP
plies to municipal corporations. This
question, after various contradictory de-
cisions, is now pending before the Su-
preme Court of the United States in the
important case of the State &c rel, South
ern Bank rs. Mayor, and we prefer to do
nothing to anticipate or influence the
decision thereof.
The record shows that the annual tax
of $1,000 for the first four years was duly
collected and appropriated, and that, of
lected only six thousand dollars, heing
the annual tax for the years 1871, 1s72,
1873, 1874, 1879, 1876.
1t also appears from tie record that
this provision was not made for the
bonds held by petitioner alone, but was
a common provision for all the bonds
issued under the ordinance of which the
plaintiffs were only portion. OF course,
he is entitled only to his rateable share
of the provision. In the absence of other
Interested parties and of complete evil
denee on the point, we can not settle the
amount Of this rateable share SO as to
give a money Judgment therefor. We
principles on which the amount is to be