Monatt v. Parker.

But such dispositions cannot be attacked by the parties themselves. The heirs or the creditors of the donor may invoke the nullity of donations in fraud of the law and of their rights by alleging and proving his turpitude, which he would not have been permitted to do in his own behalf.

That which one promises to give for an illegal or immoral consideration he cannot be compelled to give; and that which he has given on such a consideration he cannot recover. The law will not afford relief to either party, in pari causa turpitudinis; but leaves them just where they have placed themselves. See Mulhollan v. Voorhies, 3 N. S. 46; Gravier v. Carraby, 17 La. 118; Pucket v. Clarke, 3 Rob. 82.

The Roman law did not permit that to be recovered which had been given for an illegal or immoral consideration; nor did it allow any action to enforce promises and undertakings made on such consideration. Such an action as that brought by plaintiff in this case would not have been tolerated under that system:

*

"Si ob stuprum datum sit quod meretrici datur, repeti non potest." Dig. lib. 12, tit. 5, 1. 4. The rule and the reason for it are stated very clearly and forcibly by the Emperor Antoninus: "Cum te propter turpem causam, contra disciplinam temporum meorum domum adversario dedisse profitearis: frustra eam tibi restitui desideras, cum in pari causâ possessoris conditio melior habeatur." Code, lib. 4, tit. 7, 1. 2.

It may be questioned whether the concubine of her master who continues in that relation after her emancipation is in pari causá turpitudinis with him. It is certain that he could not, during her lifetime, have maintained an action against her for the recovery of the property; and her death has not invested him with any right which he had not during her life. All that plaintiff alleges in his petition may be true; it must be assumed to be true for the purposes of this decision; but it only serves to show that he is attempting now to avoid the legitimate consequences of his own acts and conduct in violation of "good morals and public policy."

The exception was properly maintained, and the judgment appealed brom is affirmed with costs.

City of New Orleans v. Mechanics and Traders' Insurance Company.

CITY OF NEW ORLEANS v. MECHANICS AND TRADERS' INSURANCE

COMPANY.

(30 La. Ann. 876.)

Constitutional laro· -“ property” subject to taxation — notes, bills, etc.

The notes, bills, etc., representing money loaned at interest by a corporation, are its "property," and are liable to taxation within the Constitution.*

UIT for taxes. The opinion states the facts. The plaintiff had judgment below.

SUM

Saml. P. Blanc, for plaintiff and appellee.

H. N. & O. N. Ogden, for defendants.

SPENCER, J. This is a suit to recover of the defendant $1,846.25, taxes of 1875, on an assessment of "personal property," to wit: "Merchandise, capital, and money at interest."

The defense relied upon in this court is, that "credits," "money at interest," are not property within the meaning and intent of article 118 of the Constitution, and that the legislature has no authority to impose, therefore, a tax upon them.

The argument is, that to tax credits, promises to pay, notes, bills, etc., is double taxation. Thus, if A loans B $1,000, and takes his note therefor, you tax the money once in B's hands, and the same money again in A's under the name of credits. It is argued that this process ultimates in the borrower paying a double tax; for it is said that the lender will increase his interest to the extent of the tax, and thereby throw upon the borrower eventually both taxes. If this be so it might afford the borrower a strong argument for resist ing his taxes; but we are at a loss to see why the lender should complain, since the theory is that he ultimately pays no tax at all— imposing his taxes on the debtor's shoulders. At all events, it is not pretended that the creditor pays two taxes. At most, he pays but once, and we do not see what mission he has to protect anybody but himself from wrongful taxation. Credits represent value, so

To same effect, Williamson v. Harris (57 Ala. 40), 29 Am. Rep. 707.

City of New Orleans v. Mechanics and Traders' Insurance Company. much so that it is admitted that to the extent that a man is in debt, to the same extent his creditors may be said to have an eventual title to his property. Now, the proposition is that this creditor class who may in reality own thus, indirectly, the whole property of a State, shall pay nothing for the support of the government. It seems to us that this result is exceedingly inequitable, and that if anybody is to be exempted from taxation on the amount of these credits, it should be the man who owes them, and whose property and possessions are diminished in value by the amount thereof.

The argument by which it is attempted to be shown that notes bills, bonds, stocks, etc., are not property is too sublimated and metaphysical to be practical in matters of legislation. If they are not property they represent value and produce revenue. But to say that our Constitution forbids them to be considered as property would be to expunge from our Codes provisions and principles that are as old as the civil law. See C. C. 474, 481, 483, 484, 491, 2642, 3155, and many others. C. P. 642, 676. They are classed as "things," may be bought, sold, appraised, seized, and make up and constitute the wealthiest patrimonies in the world. Is it not rational, in seeking the meaning of the word "property" in the Constitution of 1868, that we ascertain what has always been its acceptation in our law, in our jurisprudence and by common usage? And when we ascertain that from time immemorial "incorporeal things" of the kind in question have been held and treated as embraced in the term "property," shall we turn our back on all this and run away after the metaphysical abstraction that "property is always, and of necessity, a physical actuality?"

It is our duty to interpret words in a statute "in their ordinary and usual signification" as they are "popularly used." C. C. 14.

We are referred to no authority for the proposition that notes, bonds, stocks, etc., are not property, except that of the Supreme Court of California in People v. Hibernia Savings Society, 51 Cal 243; S. C., 21 Am. Rep. 704, and that of a writer in the Atlantic Monthly for September, 1877. These productions are certainly able and ingenious discussions of the abstract nature of property. But it is a full answer for us to say that we are here to interpret the laws of this State as the framers thereof intended and understood them; and we are tempted to say of this California decision what Mr. Walker, in his work on Taxation, p. 59, says of it: "We venture to affirm that the idea that these evidences of debt are not property, in VOL. XXXI- 30

State v. Rolle.

the legal acceptation of that term, never before entered the brain -f a lawyer."

But it seems to us that if it were conceded that these credits are not property it would not follow that the legislature could not tax them. The theory of our government is that a State legislature may dc anything which is not prohibited in the State or Federal Constitutions. Now, strip these "credits" of their title as "property" and you thereby make them nondescripts, and there is no prohibition in the Constitution against taxing them "as credits" ad libitum, for it is only "property," "incomes" and "trades," the taxation of which is restricted by the Constitution. We think it better and safer for capitalists that we adhere to the old landmarks and treat them as "property holders," in duty bound to contribute like other people in proportion to their means and the protection accorded them, to the expenses of the government.

The judgment appealed from condemned the defendant to pay the amount claimed, with interest and costs, and it is affirmed.

STATE V. ROLLE.

(30 La. Ann. 991.)

Constitutional law-equality of taxation.

The law imposing a smaller license tax on proprietors of bars, or drinking saloons, kept on steamboats owned and registered in Louisiana, than on the owners of bars kept on land, does not violate the clause of the Constitution prescribing equality and uniformity of taxation.

A

CTION for tax license, The opinion states the facts. The plaintiff had judgment below.

Jas. C. Egan, Assistant Attorney-General for plaintiff and appellee.

Frank D. Cretien, for defendant.

DEBLANC, J. Defendant has appealed from a judgment condemn ing him to pay to the State, as keeper of a bar-room a license of eighty-five dollars as a grocer one of fifteen dollars. The first

-

State v. Rolle.

mentioned of these licenses-that of eighty-five dollars is claimed under section 10 of act No. 14 of 1872, which reads as follows:

"From the proprietors of all coffee-houses, bar-rooms, beer-saloons or gardens $85: from the proprietors of all bars kept on steamboats, owned and registered in this State $50."

Defendant resists the payment of the license of eighty-five dollars on the ground that the section of the act of 1872, under which it is levied, discriminates between those who carry on on land and those who pursue on water what he considers as being but one and the identical occupation.

In his book on Taxation, Burroughs says: That except in only one of the States—the provisions as to equality and uniformity do not apply to taxes on licenses, whether those provisions be mentioned in the Constitution or not. P. 167. The license is granted by the State under its police power; it is a personal privilege - not a contract; the tax paid is not regarded as the consideration which moves the granting of the privilege, which may be revoked, annulled or amended at the pleasure of the legislature. Burroughs, p. 148, 392, 393.

It is true that whether pursued on land or on water, the calling itself is the same; but that in its exercise and results, one is different from the other, there can be no doubt; on water, the bar is entirely under the control of the officers of the boat, they canaccording to circumstances - prevent or forbid the keeper from opening it, regulate or order its closing. Their interest is to check intoxication, restrain extravagant drinking and preserve quiet on the boat; on land it is otherwise; every one enters the coffee-house, and — far from restraining the bar-keeper is generally disposed to encourage the abuse of intoxicating liquors, and often that abuse breeds disorder, violence and crime. Burroughs, 392, 393.

In its form, and in many of its effects, the bar-room on a steamboat is distinct from the bar-room on land, and as the State has the power of dividing into classes the objects of taxation, the distinction which exists between those bars, justifies the difference made in the price of the licenses. City of New Orleans v. Kaufman, 29 La. Ann. 283; S. C. 29 Am. Rep. 328.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.