State v. Clinton , 26 La. Ann. 561 ( 1874 )

Howell, J.

This appeal presents the intervention, of one G. A. Sheridan, as holder of certain “ levee, bonds,” in the injunction suit of the State against the Auditor and Treasurer, a branch of which we have just decided. The matter involved.in this proceeding is the validity .of the bonds .issued under act 32, approved February 25,(1870, to pay for] work on the levees of the State, th.e payment .of the coupons attached thereto having been injoi.ned by the State on the grounds:

First — That the Legislature had no power to create said, obligation.

Second — That the proprietors of property fronting on the water courses of Louisiana subject to overflow, had contracted in the original purchase of the property to keep up the levees in front of their lands, and had purchased the same by reason of said condition at a much reduced price.

Third — That the property in the State not subject to overflow can not constitutionally be taxed for the protection of lands which are so subject, that is, the property of the whole State can not be taxed for the benefit of a part of the State.

Fourth — That there is no valid consideration for said bonds.

First and third. It is urged that the law 32 of 1870, authorizing the bonds, is in conflict with articles 110 and 118 of the constitution of the State and the fifth amendment of the constitution of the United States, which prohibit the divestiture of vested rights, or the taking of private property, except for public purposes and for just and adequate compensation, and require taxation to be equal and uniform, and therefore the Legislature was without authority to create the debt or impose the tax, as is done, for its extinguishment. We are unable to perceive the conflict. The payment by the State, in the form of bonds, for work on the levees of the State, is not taking private property or divesting vested rights, in the meaning of the constitution, State or federal. The State simply caused certain work or improvements of a public character to be done or made, which, in the opinion of the Legislature, was for the benefit of the State and some or all of its inhabitants, which the Legislature had the power and authority to do, as it is not prohibited by the constitution. The question as to whether a tax shall be levied on all the taxable property of the State, or only on the particular localities where the work is done, is a question of policy to be determined by the Legislature and not by the courts, there being no constitutional regulation on the subject.

The other grounds are equally untenable. Whether the original proprietors were bound or not to keep up the levees, does not affect the power or right of the State to do so. And in this proceeding we can not pass on the question of consideration if it be a matter for judicial inquiry.

Judgment affirmed.