
    No. 8291.
    City of New Orleans vs. Harry L. Graves.
    The Constitution prohibits any political corporation from imposing a greater license tax than is imposed by the Legislature for State purposes, hence, such corporation cannot impose any such tax on a trade or calling not subjected to a State license tax by the Legislature.
    As travelling agents are not required to pay a license t ix to the State, they cannot be held to pay a license to any political corporation in the State.
    ApPEAL from the First City Court of New Orleans. 81cinner, J.
    J. Ward Gurley, Assistant City Attorney, for Plaintiff and Appellant:
    1. The City of New Orleans is authorized “ to levy, impose and collect a license tax upon all persons pursuing any trade, profession or calling, and to provide for its collection.” Sec. 12, City Charter; Act 30, Extra Session 1870.
    2. Art. 206 of the State Constitution of 1879, does not prohibit the City of New Orleans from imposing a license tax upon any ‘ ‘ trade, profession, vocation and calling, ” upon which the General Assembly has notimposed a license tax for State purposes.
    3. Sec. 12 of City Ordinance No. 6773, A. S., as amended by Ordinances Nos. 6793 and 6868, A. S.,H which imposes upon “ all travelling agents offering any species of merchandise fci* sale or selling the same,” a license of $25 per month, or at their option $10 per weelc, is legal, just and proper, and does not violate any of the provisions of the State or Federal Constitutions.
    
      4. Ait. 206 of the State Constitution of 1879, does not require the City of New Orleans to graduate her license taxes. A license may be graduated otherwise than by the sales or receipts of a business.
    The license involved is a graduated one.
    
      Meyer Gufheim, for Defendant and Appellee:
    1. Municipal corporations have no inherent power of taxation. All power that they assume to exercise in this respect must be derived by direct grant from the State.
    2. In cases where the State of Louisiana levies no tax the municipal corporations of the State can levy none.
    3. Where the constitutionality of a city ordinance is in question, the active effect of the ordinance is to be considered, rather than the mere reading.
   The opinion of the Court was delivered hy

Pociré, J.

The defendant contests the right of the City of New Orleans to exact from him a license tax of $25 a month on his occupation as travelling agent, and urges, among other grounds, that the city ordinance imposing said license is violative of Art. 206 of the Constitution, which prohibits any political corporation from imposing' a greater license tax than is imposed hy the General Assembly for State purposes, and that no license is imposed on that calling hy the Legislature.

The City, appealing from a judgment in favor of defendant, contends that Art. 206 cannot he construed so as to imply a prohibition to impose a license on trades or occupations which are not liable to duties to the State, under its legislation, hut means, that in reference to any particular trade or calling, on which the State does impose a license, no municipal corporation shall be allowed to impose a greater license on such trade or calling than is imposed on the same by the State, and that under its charter, the City of New Orleans has unlimited power to impose a license tax on all trades, professions or callings, even as to those on which the State imposes no license at all.

We cannot assent to this proposition, and we give an entirely different construction to the Article under consideration.

It is a fundamental principle in our system of government that there is no inherent power in municipalities to levy taxes; they can tax only, as the State in its wisdom has thought proper. Cooley on Taxation, p. 209.

Under the present Constitution of this State, that principle is specially consecrated by the declaration that the taxing power is vested primarily in the General Assembly, and through the legislative department ; secondarily, in the parishes and municipal corporations. Art. 202 ; Surget vs. Chase, 33 An. 833.

Now, we hold it as an indisputable proposition that the Legislature, as the special repository of the State’s taxing power, can delegate no greater power than it can itself exercise, or at least than the Constitution allows it to confer or grant.

Hence, it is clear, that under Art. 206 the Legislature could not specially authorize the City of New Orleans, or any other municipal corporation, to impose a greater license tax than the General Assembly itself would choose to impose, or to impose a license on trades not taxed by the State itself.

It follows from the same premises, that any previous act of the Legislature conferring such power to the City of New Orleans would necessarily be inconsistent with the Constitution, (Art. 206) and would, therefore, be of no effect since the adoption of the Constitution.

Such is the inevitable fate of all powers conferred by the City charter of 1870, under which it is claimed that the City of New Orleans has the unlimited authority to levy a license tax upon all persons pursuing any trade, profession or calling, etc., without reference to the action of the Legislature on the subject of license or no license on such trade or calling.

We construe the true meaning of Art. 206 as a positive prohibition to all political corporations from imposing any license tax on all trades, professions or callings which are not subjected to a license tax by the General Assembly for State purposes.

Hence, we hold that the failure, omission or refusal of the Legislature to impose a license tax on any particular trade, calling or profession, is an implied prohibition to all political corporations in the State from exacting a license from the same.

For those reasons, we hold that the defendant is not liable to the license claimed of him by the city authorities.

The judgment of the lower court is, therefore, affirmed with costs.

Dissenting Opinion.

Bermudez, C. J.

The defendant resists payment of a license tax of $25 per month, levied by the City of New Orleans by ordinances, on persons pursuing his business. He charges its unconstitutionality- on several grounds, which were sustained by the City Court, from whose judgment the plaintiff has appealed.

It is claimed that the tax is unconstitutional:

(a) Because the City has not been empowered to levy it;

(&) Because the State itself levies no such ta.x, and there exists a special constitutional prohibition, in the Constitution now in force, against the levying by municipal corporations in the State, of any greater license tax than is levied by the General Assembly for State purposes;

(c) Because though, on reading, the ordinances appear to impose upon all travelling agents such license, they operate only against travelling agents from other States, and are in conflict with the Federal Constitution which guarantees to the citizens of each State the rights, privileges and immunities of the citizens of the several States.

{A) By its charter, Sec. 12, Act 30 of 1870, the City was delegated by the State the power “to levy, impose and collect a license tax upon all persons pursuing any trade, profession or calling, and to provide for its collection, etc.”

The exercise of the power lias uniformly been judicially sustained, and must continue to be so, unless the right to it has been withdrawn or abridged.

{J3) Article 206 of the present Constitution, which is relied upon as revoking or curtailing the power, reads: “No political corporation shall impose a greater license tax than is imposed by the General Assembly for State purposes.”

The object of this provision was to prevent municipal corporations from exacting higher licenses from persons pursuing particular avocations, than the State had adjudged such persons should pay.

In order to charge victoriously the invalidity or illegality of a license tax imposed by such corporation on that ground, there must exist a term of comparison, viz: the fact of the levying of a license by the State on the same calling. Where such is found wanting, the power of the corporation cannot be challenged successfully.

This Article modifies Sec. 12 of the City Charter in such cases only.

It is not pretended in this controversy that the State has levied any license on the business, within the purview of the city ordinances in question, or that the City has levied a different license on resident travelling agents.

■ While it is perfectly true that the State ■ cannot delegate taxing powers which she does not possess, it is no less so, that -where the State possesses a taxing power, but does not exercise it, she can delegate it in a proper case.

The State could undoubtedly have levied a license tax on the defendant, but she has not done so. From the fact that she did not exercise that power, it does not result that the power previously conferred on the City, to tax all professions and callings not exempt, have been revoked by the omission to tax. The abstention of the State cannot have the effect of a repealing law. A power delegated continues until recalled. The wants of a municipal corporation may proportionally be greater than those of the State. Hence, the power lodged in the City to require a license when the State would not deem it necessary to demand any. In the comparison of quantity, the absence of all quantity on the one side is no initial point. Zero' is no quantity.

(O) These ordinances, Nos. 6793 and 6868, A. S., impose the license without distinction, upon “ all travelling agents offering any species of merchandise for sale, or selling the same.”

They make no discrimination at all between resident and nonresident travelling agents. Had they made such discrimination, they would have had to share the same fate as a State law attempting such. 32 An. 832.

No privileges are secured by Sec. 2 of Article 4 of the Constitution of the United States, except those -which belong to citizenship. 18 How. 591. It was designed to prevontf each State from, discriminating in favor of its own people and against those of another, and to secure all' privileges and immunities in any State, as are by the laws and Constitution of the United States, secured and extended to her own people of the same class and otherwise similarly situated. 7 Minn. 13. But the citizens of other States are not entitled to greater rights than the State grants to her own citizens. 26 Barb. 270: 5 Sand. S. C. 5, 681; 20 N. Y. 562.

A tax upon non-resident traders, or transient merchants, is valid where the taxation is the same as that imposed upon resident traders. 6 Iowa, 546; 51 Ala. 52; 12 Wall. 418; S. C. 31 Md. 279; 12 Wheat. 449; 27 Mo. 664; Cooley on Taxation, 64; Burroughs on Tax., § 591.

I think that the judgment appealed from is incorrect and that the City should recover.

Rehearing refused.

Levy, J., absent.  