
    Bolte v. The City of New Orleans.
    The tax assessed by the Common Council on all drinking houses is legal, and the tax on the keeper of such houses is payable at any period of the year when it may be found that he is not provided, with a license. But the city has not the right to close the doors of a drinking house summarily because of the failure of the keeper of it to take out a license,
    from the Fifth District Court of New Orleans, Augustin, J.
    
      Roselius and Collens, for plaintiff:
    An expression of the opinion of your honors upon the following points, raised, by the issue between the parties, would not only decide this cabe, but many others turning upon the same questions, and would avert much litigation.
    I. The ordinance violates Article 123 of the- Constitution of the State, and the laws of the State incorporating the city, requiring taxation to be “ equal and uniform."
    
    Article 123 Cons, requires taxation to be “equal and uniform” — this clause applies to the whole article, and relates to the income tax on professions as well as to property.
    Moreover the Act of 1836, p. 127 Bullard and Curry, requires the general Council to fix “ uniform prices for all licenses ” &c. So does also the Act of 1847, p. 140, seo. 1, require taxation to be “equal and uniform.” The Acts of 1853, p. 154, extended the laws which applied only to the several Municipalities to the whole city.
    Now these laws are violated in two respects: 1st. By imposing different taxes upon different professions; arbitrarily taxing one profession more or less than another, and creating capricious and invidious distinctions between citizens, according to the professions they follow. 2d. By establishing an inequality and a non-uniformity even among the traders in liquor, and dividing them into six classes:
    Art. 2. Those who distill spirituous liquor, $500.
    Art. 4. Those who sell by the glass, $300.
    Art. 6. Those who sell by the quart, $150.
    Art. C. Keepers of drinking houses who sell beer, $100.
    Art. 7. Those who sell liquor in eating houses, $75.
    Art. S. Those who sell liquor by the gallon, $60.
    To say nothing of the distinctions drawn between grocers who sell spirituous liquors and those who do not sell them, thus looking more to the merchandise a merchant sells than to his profession itself.
    It is evident that if this be uniformity — if this be not a violation of the law and Constitution, then the law and Constitution are nugatory; for an artful classification of prQfessions would suffice in order to tax one kind of property higher than another, and to reach oppressively those who might be obnoxious to just or unjust prejudices.
    II. The ordinance was not legally passed.
    When it yvas sent to the lower Board (as fully appears from the date of the message) it had not been published together with the ayes and noes. See Acts of 1852, page 47, section 19. It should have been published “before” being sent to the other Board. It was passed by the Board of Aldermen on the 12th of December, was sent to the lower Board on the same day, and was published on the 14th of December, at which time the Assistant Aldermen were already in possession of it and were acting upon it.
    Passed by Board of Aldermen, 12th December, 1854.
    Published as passed by Board of Aldermen, 14th December, 1854.
    Received by Assistant Aldermen, 14th Dec, 1854.
    So that the publication (instead of taking place “ before” the ordinance, as passed, was sent to the other Board) took place simultaneously with the sending.
    III. To attempt to enforce the payment of the tax or price of license, even were it legal and constitutional, was premature. It was not due till 1st of March to 1st May. See Aots 1854, page 52, see. 35; and Acts of 1853, page 86, see. —•
    The “levee dues” are the only taxes exempted from this rule.
    The ordinance itself' denominates the exaction for the license “a tax,” and so does the law. See title and first article of ordinance.
    IV. The mode of enforcement was illegal and unconstitutional, for no authority was ever vested to coerce payment in this mode, which would make the corporation legislator, judge, suitor and executioner all at once, and which begs the question of a liability to pay the tax, precludes all just defences which might exist, creates a frontier process in rem for a tax which is purely in personam, deprives a man of his property without duo process of law, and virtually abolishes the Judiciary. Lanfear v. Mayor, 4 La., 97; Harper v. Dorsey, 4 La., 98; Rost v. Mayor, 15 La., 129; American Law Register, June, 1854, page 471.
    The mode of procedure in such eases is clearly and expressly pointed out in the Act of 1805, page 95 Bullard and Curry’s Digest, section 10.
    The ordinance itself prescribes the mode in which it shall be enforced. Sees. 25 to 35. Bullard and Curry, page 97 and page 101, sec. 33.
    
      Livingston, City Attorney, for defendant and appellant
    cited:
    
      Romazoy v. Mayor et al.,1 M., 263; Municipality No. 2 v. Schmidt, 1 A., 387; Charily Hospital v. Slickney, 2 A., 550; Charily Hospital v. Lammerman, 5 A., 380; Municipality_ No. 1 v. Devrou, 4 A., 278; Municipality No. 1 v. Cutting, 4 A., 336; Municipality No. 1 v. Manuel, 4 A., 328; City of Lafayette v. Cnm-
      
      mings, 8 A., 678; Buffington v. Drinkgrave, 4 A., 549; Municipality No. 2 v. Duncan, 2 A., 182.
   Buchanan, J.

For the reasons given hy the District Judge for the judgment from which this appeal has been taken, it is adjudged, and decreed that the said judgment be affirmed with costs.

REASONS OF JUDGMENT OF THE DISTRICT COURT..

The plaintiff has sued out a writ of injunction against the city corporation, in order to restrain the acts of the City Treasurer, by whom he was notified to pay $315, due for his house for keeping a drinking house, and in default whereof, that the drinking house shall be closed by the police, in virtue of a resolution of the City Council, approved the 16th July, 1852.

The plaintiff alleges that there is no Act of the State Legislature which authorizes such a summary proceeding on the part of the city authorities; and further, that the said tax is illegal and unconstitutional; and if found legal that the tax is not due before the 1st of May next.

The city has joined issue upon these points, and prays that the injunction be dismissed.

The right of the city government to fix a uniform price for the license to drink- . ing houses is clearly established by law.

The Act of 1805, section 11, provides that the Mayor shall give licenses for keeping houses under the restrictions to be imposed by the Council, and that ail grog-shop keepers, without a license, shall be prosecuted for a fine.

The Act of 1816, page 113, Rev Stat., provides that the city of New Orleans shall have the power to regulate anything which relates to grog-shops, etc.

The Act of March 5th, 1836 — the General Council shall have the power to fix uniform prices for licenses to grog-shops, etc.

From the early period of legislation in England the right of control of the police over taverns has been maintained. So the old Norman, cited by Britton, c. 30: Soil requis de tous iaverniers qui’onl vendu vins a Tencontré du droit d’assiee.

The colonial government of Louisiana, from the primitive police, maintained the same control over grog-ihops.

In 1751, at a time when the population of New Orleans numbered in all 975 persons, Governor Vaudreuil published an ordinance imposing an annual tax of 300 livres on every grog-shop, for the benefit of the church and of the poor; forbidding them at the same time to sell liquor on Sundays and holidays during the hours of divine worship. Gayarré’s Louisiana, vol. 2, page 42'.

The ordinance of Oreilly, of 1770, fixed at $50 the price of these licenses. Walker’s Dig., page 7.

The City Council of New Orleans in 1826 fixed the price of these licenses at $150 per annum. In the same ordinance it was-provided that every person intending to keep a grog-shop shall obtain from the Mayor a license, upon the recommendation of two respectable freeholders, and besides, he shall furnish a bond, with security, in the sum of one thousand dollars, to secure the payment of all fines for contraventions against the city ordinances. A. Dig City Laws, 1830, page 63.

Besides these salutary restrictions on grog-shop keepers, there exists a penal statute of the State. The Act approved 7th April, 1832, sec. 7, page 167, provides that no person shall be allowed to keep a grog or tipling-shop without previously obtaining a license from the Police Jury or city corporation, under penalty of being criminally prosecuted and being fined not more than $500, and in default of paying the fine and costs, of being imprisoned not more than four months.

It becomes then the duty of the District Attorneys throughout the State to cause to be arrested and tried all grog-shop keepers who have not obtained a license as aforesaid.

The Mayor and the Recorders, as ex-officio Justices of the Peace, may certainly exercise the power of arresting all persons found in contravention of the law.

This court therefore considers that the tax of $315, assessed by the Common Council upon all drinking houses, is fully authorized by law. Also that this tax, being uniform upon all similar establishments, is constitutional; that it was passed by the Council in the manner and form prescribed by law, and that it is payable by every grog-shop keeper', at any period of the year, on his being found not provided with the license required by law.

In icgaid, however, to 1l.e right v.hieli is chimed ly the city authorities to c'ose summarily the doors of drinking houses which are not licensed, this proceeding being a hard one, and derogatoiy to common right, requires for its justification to he supported by an express provision of law.

The statutes have given to the city against the refractory grog-shop keepers several remedies: first, by fines imposed; second, by suits for the recovery of the tax, and finally, by criminal prosecution.

Tne cily has by law the right of closing the doors of all theatres, ball-rooms, and other places of public exhibition, but nowhere in the statute books is to be found a provision for the application of this measure to grog-shops. For the better efficiency of the police in regard to those establishments, many of which are clens of murderers, rioters, drunken slaves, and clandestine gambling hells, it would probably be desirablo that this power be vested in the City Council.

The corporation, a; mere creature of the law, cannot exercise a power deroga-tord to any common right of citizens except by express grant from the sovereign power of the State.

The plaintiff has claimed no damages, and it is evident that, being himself an offender of the law for not taking a license, he could have claimed none.  