
    City of New Orleans v. W. North.
    Under the city ordinance providing that “ every keeper of a transient theater, circus, menagerie, or other public exhibition or show, shall pay in advance a tax of ten dollars for each performance,rr &c., a tax cannot be levied on one who keeps a permanent establishment for an exhibition consisting of natural and artificial curiosities, for admission to which visitors are charged a certain
    APPEAL from the Second District Court of New Orleans, Morgan, J,
    
      F. G* La/oille & Morel, for plaintiff
    
      Simons & Former, for defendant and appellant.
   Merrick, O. J.

This case comes up on the following agreed statement, viz:

“It is admitted that the defendant has kept, as charged in the petition, a certain exhibition, consisting of natural and artificial curiosities, such as animals, fishes, paintings, cosmoramic views, &C., &c., on St. Charles street, opposite the St. Charles Hotel, for admission- to which he charged each visitor the sum' of twenty-five cents, and that the' same is a permanent establishment, and that the defendant resides in the city of New Orleans, and that no performances are exhibited there except as above stated.”

The petition charges the defendant with “conducting the trade or profession of exhibiting a museum and other curiosities, both natural and artificial, as a show, daily and nightly each day”’ and claims from the defendant three hundred and fifty dollars for thirty-five days’ exhibition of the curiosities of said museum, at ton dollars per day.

There is also a demand in plaintiff’s petition for' seventeen dollars and fifty cents, it being a tax of five per cfent. levied under an ordinance of the city to pay the interest on the bonds due-' the Pontchartrain Railroad Company. As this tax is a per centage upon thb‘ tax of ten dollars per day,- it is evident that it cannot be levied unless the other tax is rightfully' assessed.-

If> the defendant is indebted’ to the city at all- it is in virtue either of the fourth or seventy-first sections of the “ordinance to establish an uniform rate of taxes and licenses on professions, callings,- and other business, and on carriages, hacks, drays, and other vehicles.”

Those two sections provide that the taxes and’licenses shall be fixed, assessed and collected at the following rate, viz:

“Sec. 4. On every keeper'or lessee of a theater or amphitheater, $300.
“Sec. 71. Every keeper of a transient theater, circus, menagerie, or other public exhibition or show, shall pay, in advance; a tax of ten' dollars for each performance, unless the same takes place in one of the establishments on which the annual tax has been paid; and'every violation of this section shall be punished by a fine of twenty-five dollars, enforced'- by imprisonment as the law directs.”

The question presented by the appeal in'-this case is whether a tax has been levied upon the calling of the defendant by either of these sections.

It is clear that the defendant is not the keeper of a theater or'amphitheater, and therefore not within the fourth section of the ordinance. His business is not of that kind which admits of a convenient exhibition of his curiosities at a building constructed as a theater or amphitheater, hence the “performances” could not well take place at one of the establishments on which an annual tax has been paid, unless the annual tax be considered as the ordinary city tax fixed by law, which is paid by every owner of real estate. Therefore, if the defendant is liable to a tax at all, he is liable to pay for his “daily and nightly exhibition each day” the enormous tax of $7,300 per annum.

But the agreed statement of facts in this case shows that the defendant is a resident of New Orleans,, and that his establishment is a permanent one. The seventy-first section of the ordinance has reference only to transient theaters, circuses, menageries, or other public exhibitions or shows. The permanent occupation of the defendant is therefore not provided for by this section, and as it is not pretended that any other section of the ordinance has made provision for the levying of a tax upon the permanent business or calling of the defendant, it must be held to be a casus omissus, and the defendant left to the effect of the ordinary taxation upott> property.

The judgment of the lower court condemning the defendant to pay the tax must be reversed. ,

It is, therefore, ordered, adjudged and decreed by the court, that the judgment appealed from be avoided and reversed, and that there be judgment in favor of the defendant; the plaintiff paying costs in both courts.  