Ramozay v. Mayor of New-Orleans

1 Mart. 241

• Court: Supreme Court of Louisiana
• Decided: July 1, 1811
• Status: Published

Opinion

Martin J.

The city having enjoyed the right of receiving a tax on billiard-tables, taverns and boarding-houses, during a period of upwards of forty years, the whole time that it was under the dominion of Spain, that right would be considered as one of those to which the legislature made a reference by the words, rights....which heretofore belonged to the city, even if it were clearly proved, that O‘Reilly had exceeded his authority.

The number of taverns &c. which existed at the time of the assignment, appears, to me to have been inserted, to describe rather than to limit, the objects of taxation. The reason of the thing, and the cotemporaneous construction of the officers of Spain, lead to this conclusion. The act of 1806 ch. 10, which lays an imposition on taverns without the city, impliedly recognises the liability of those within, to a tax for the benefit of the city. I feel no difficulty, therefore in saying that the city may exact the tax from every tavern, billiard-table and boarding-house.

Whether they may cumulate two or the three taxes in one license, is a question which must surely be answered in the affirmative, in every case in which the applicant for a license desires it for the cumulated objects. As it appears from the books of the mayoralty, which have by consent been read in evidence, that a license authorising the plaintiffs respectively, to keep a tavern, billiard-table and boarding-house, was received and paid for, by each of them, and there is no proof of an application for a limited license, the court cannot presume, that the plaintiffs were not satisfied therewith. They have enjoyed the faculty for which they have paid.

I am, however, not ready positively to say that, if it were in proof, that one of the plaintiffs had made application for a license to sell liquors, keep tavern, taberna, and expressed his unwillingness to receive one, authorising the keeping of a billiard-table, &c. and on the refusal of the officers of the Mayor, had yielded to the necessity and taken a license and paid for the cumulated objects, he could have been relieved. For, it would have, perhaps, been his duty to apply to the city council, who might have considered his application, and given orders to accomodate him.

Neither is it very clear, that this cumulation is an extortion. No one has an absolute right to demand a license. The city council might from reasons of policy confine to boardinghouses, the sale of liquors and the keeping of billiard-tables. By confining to a small number, establishments which have a tendency to promote noise and disorder, the vigilance of the officers may be more successfully employed.

It is true, the passing such ordinance might be attributed to motives of avarice. But improper views will not be presumed in a body of magistrates, while correct ones naturally present themselves. Whether it would increase the revenues of the city, is a problematical question. Many who willingly would take a license for any one of these objects, would abstain from it, if it could not be obtained without being joined to the others.

Lewis J.

Neither of the plaintiffs is entitled to relief, unless he shew that his application was for a single license. If he took one for the cumulated objects, on the presumption that a single one could, by no means, be obtained, he must fail in his application to be reimbursed, because he has neglected to provide the evidence of the injustice, which he contends has been done to him.

I cannot join, however, in the opinion that the city council may lawfully withhold a license for one of the three enumerated objects, with a view to raise the tax on it, by compelling the applicant to take one for the other two also.

Cur. advis. vult.