Year: 1878

The argument of this case was resumed
yesterday by Messrs. Finney and Jonas
against the mandamus. In his argum ent d
the day before Mr.. w. w. Howe, In addition
TO tho points heretofore reported, made the
following by way Of preliminary objection tt
a mandamus:


That the remedy by mandamus is taker
away by the premium bond bill, and that its
abolition is not u violation Of the alleged con
tract of 1859. 1t is not of the essence of things
that there should be such writ as mandamus
1t exists only in England and the United
States. 1t is. unknown IN the rest OF the world
II has been decided by the Supreme Court Of
the United States that the abolition OF the
writ of arrest did not violate previous con
tract. So the Court Of Appeaisof New York
held that the abolition Of the remedy Of dis
tress for rent did not Violate the contract made
by previous lease. Same decision as to man.
damus in. 2s An. Macauay VS.. Clinton, and
20 An, Carney va. Red River parish, and In
80 An, Marr, j., Strauss vs. New Orleans.


Mr.. Finney concluded his argument In the
consolidated bond case yesterday, contending
that it was absurd to claim that the unconsti-
titional levy of an unequal tax upon real es-
tate In the several districts could be reme-
died by the imposition OF likewise unequal
tax OF similar amount upon personal proper
ty. He said that although the tax was to be
levied upon both real estate and slaves, the debt
was apportioned according to the real estate
alone In each district, making. yet another in
equality. He claimed that the tax was lin
tied to ~ per cent; provided the tax upon
real estate ut that rate would meet the de-
mands of the consolidated debt; il it would
not do this, 1t must be increased, and under
the plan of equaizing the whole tax, through
the tax upon personal property, that levy
must also be increased, whether wanted or
not. which involveda q second conflict with law.
That the complainants were in this predca-
,,i1 hot al l..
tutional and invalid, and hence could not be
carried out, and that their only relief was in
Legislative action, which the court could not
compel.


Mr.. Jonas, for the city, held that the admin
istration held that no tax for the payment OF
bonds could be levied by the present admins
tration, because forbidden by the premium
bond act; that, even If the act Of 1852 had au-
thorized the issue Of writ of mandamus to
compel the levy Of the tax therein provided
power to abolish any summary process OF
collection, and this the Legislature had done,
the act Of 1876 repeating that OF 1852, thus
taking away such authority, and remitting. the
consolidated bondbolders to the status OF all
other creditors of the city. But the act does
not expressly give such authority, and none
such was therefore conferred, for neither the
Jurisprudence OF the State, nor OF the United
States, recognized the issue of q mandamus
TO compel the levy of a tax, or the perform
ance of any Legislative act


He further denied entirely the validity OF
the act of 1852, in that it did not comply with
the requirement Of the constitution, which
said that the title of the bill must contain the
subject matter thereof, because no one could
infer that an act to consolidate the city OF
New Orleans would contain u provision au-
thorizing the assumption Of the debts of de-
funct corporations and of liability therefor,
nor the issuance Of bonds; nor that its cor
porate powers were to remain in abeyance
until the tax levying mandate Of the act was
complied with, and that any ordinance passed
before such levy should be null and void; yet
these things were In the act. He denied the
power of the Legislature to add to the burden
upon real estate, and take from that Of per-
sonal property. He said that the holders Of
consolidated bonds must stand upon the same
footing as other creditors, and collect their
claims in the manner provided for such col
lections at the time the debt was incurred
and that no special tax could be levied to pay
q special class OF creditors to, the prejudice Of
all others.


At the conclusion Of Mr.. jonas argument
further hearing Of the case was adjourned
until to-day at 12 o'clock, when Judge Camp
bell closes for REALTORS.