March, 1830.

OAKEY.

Eastern District ing nature, "that no by-law, or ordinance to be passed by the said mayor and city council, shall have any force or effect, which is contrary to this charter, to any provisions of the constitution of the United States, or the laws of this territory," 2 Moreau's Digest, 111.

MAYOR & AL.

By an act passed in 1813, the corporation is authorized, "to determine the completion and dimensions, the maintainance, and repair of the side pavements in the said streets, at the cost of the proprietors of houses, lands or neighboring lots." In this act it is also provided, that no by-law or regulation shall have any force or effect, which is contrary to the constitution of the United States, or to the constitution and laws of Louisiana.

By these provisions it is seen, that very extensive powers are conferred on the city council, and that a great deal is intrusted to their discretion. Authority is given them to lay such taxes as to them may seem proper, on the real and personal property within the city, for the supplying of any deficiency which may exist in their funds. After a detailed statement of the objects to which the money so raised is to be applied, a sweeping clause grants taxation for any purpose which the

police and good government of the city may Eastern District. require. Not a word is said about taxation

March, 1830.

OAKEY.

US.

being uniform, and it may therefore be safely stated, that unless something is found in the MAYOR & AL constitution of the United-States, or of the state of Louisiana, which nullifies the ordinance in question on this ground, it will be in vain sought in the statutes empowering the corporation to levy taxes.

II. This brings us to the second question; could the legislature constitutionally confer on the city council power of so extensive a nature as that we have just examined?

The provisos in the statutes already cited, declare, all by-laws and ordinances invalid which are contrary to the constitution of the United States, and counsel have argued, that any species of taxation exercised by the corporation contrary to that which the general government could resort to, is null and void. If the nullity of the ordinance is supposed to arise from its want of uniformity, and con

The ordinance of the mayor, aldermen and city

council of New

sequent opposition to the constitution of the Orleans of Sept'r 1827, imposing a United States, the answer is, that there is tax on the front

nothing in that instrument which requires

direct taxes to be uniform. It merely

proprietors of

ground within the

city and incorpo

declares rated faubourgs,

they shall be apportioned among the respec

for the exclusive purpose of paving

March, 1830.

Eastern District. tive states according to their numbers, and leaves to congress after that apportionment is made, the power to select such objects as they may think proper for taxation.

OAKEY,

vs.

MAYOR & AL.

the streets & making the ban

quetts, violate

We have been unable to discover any

neither the con- thing in the constitution of the United States

stitution of the

that of Louisiana.

Taxation need

not be uniform.

United States or which would authorise us to say the ordinance was invalid, and the examination of that of our own state has brought us to the same result. There is nothing in it which requires taxation to be uniform. In the case of Le Breton vs. Morgan, where a tax had been imposed by the state on the parish of Orleans for the reimbursement of certain expenses which the governor had incurred in the attempt to stop a crevasse on the plantation of B. Macarty, in the year 1816, and its payment was resisted, we held the law to be constitutional and enforced it. That case so far as it respects the constitutional question involved in it, cannot be satisfactorily distinguished from the instance before us. 4 Martin, n. s. 138.

Since the argument, we have looked into a decision of the supreme court of Massachusetts, on a question somewhat similar to the present one. The constitution of that state

March, 1820.

gave power to the legislature "to levy pro- Eastern District. portionate and reasonable assessments, rates

and taxes on all the inhabitants of, and

per

OAKEY

vs.

sons resident, and estates lying within the MAYOR & AL. commonwealth; and also to impose and levy reasonable duties and excises upon any produce, goods, wares, and merchandise, and commodities whatsoever."

Under the first branch of this power, which requires taxation to be proportionate, the supreme court of that state considered, that a tax levied on a bank could not be justified. The exercise of the power requiring a valuation of all the property in the commonwealth, and then an assessment of each individual according to his proportion of that property. But under the second division, they held the tax to be rightfully laid: that the legislature had the same authority to tax banks, as they had to tax attornies, tavern-keepers, retailers of goods, &c. although other trades and professions were not made subject to taxation. 12 Massachusetts Reports, 254.

In our constitution, there is no such provision as that then existing in Massachusetts, which required the legislature to levy proportionate taxes, and if under it, the courts of that

March, 1830.

Eastern District. country did not think a law compelling a bank to pay a tax was a violation of their constitution, how much less reason is there,

OAKEY

MAYOR & AL. for contending here, that taxes cannot be enforced, which are not levied equally on all. It is no doubt desirable, taxation should be uniform, and a wise legislation, as far as it is practicable, will always make burthens of this kind fall as equally as possible on the whole of the community. But uniformity, in the sense for which the appellant contends, would annul all the fiscal laws of the state. The man whose lands and slaves were taxed, might to-morrow, on the principle urged, enjoin the sheriff from collection, because the cash of his neighbor which was used in market, buying bills and discounting notes, was not made contributory to the public revenue. The merchant and auctioneer could resist the payment of taxes levied on them, because mechanics and farmers were not assessed in the same way. The constitution we think has confided to the legislature the power of selecting such property as they may deem proper for taxation, and all the latitude which under it they possess, in relation to real and personal property, they have transmitted to the corporation by the charter.