Same Case — On a Re-Hearing.
THE judgment of the court, on a re-hearing, was pronounced by
Preston, J.A re-hearing having been ordered in this case, we have again carefully examined the effect of the acts of 1806, 1813, 1830, and 1834, *609upon the power of the municipality to tax its rural property, and have come to ,1 , , . . ... . , . . the conclusion again that the municipality had that power, tor the reasons expressed in the original opinion. Other laws fortify this conclusion. By the laws cited, the Legislature made a distinction as to the amount of taxes to be imposed upon what were called the incorporated and the unincorporated portions of the city. But by the act of 1836, the whole city was divided into municipalities, and each municipality was incorporated as a distinct corporation. The 2d, 4th and 10th sections of the act specially gave to the municipalities all the rights and powers which, by all previous laws, belonged to the corporation of New Orleans, the greatest of which was the power to raise, by taxation, the revenues necessary for the government and administration of the corporation.
The property which it is sought to tax, was situated in the Fourth Ward of the Third Municipality. The ward was entitled to representation in the council of the municipality and in the General Council. The aldermen from the ward, in which this property now claiming exemption from taxation was situated, had the right to vote for taxes on other wards; and, vice versa, it seems reasonable that their aldermen should have the right to vote for taxes on the whole of this ward.
By an act of 1840, the State assessments of all property in the whole of the municipalities, were to be used for the imposition of taxes.
The reason of keeping up the ancient distinction between incorporated and unincorporated parts of the city, as to taxation, is not so forcible as imagined in argument. The Legislature had exempted parts of the city from taxes for tho maintenance of lights of the city, the city watch, and for watering and cleansing the streets. But this constituted only a small part of the city burdens. The mayor, secretary and officers of the General Council were to be paid; the immense debt of the old city was to be paid, also the salaries of the officers administering the sinking fund; of the recorders of the municipalities, and their numerous other officers; the expenses of the courts, and criminal prosecutions; of public schools; of the poor, workhouses and prisons; and the innumerable other expenses which fall upon the municipalities in the discharge of their municipal duties: from none of which it is pretended the property taxed in this case is expressly exempted, and to most of which the proprietor has no pretence for exemption, which might not be made by any other citizen with equal plausibility —being expenditures equally beneficial to all. Indeed, the improvement of the streets and thoroughfares to and from the city contributes greatly to the facilities of the adjacent rural proprietors, and to the improvement and value of their property. They, in fact, use the streets, markets, and other improvements of the city, in common with other inhabitants. The assessment of their property for taxation, is reduced almost in proportion to their distance from the city — or rather, property in the city is increased in value so -much, by the necessary improvements, that it is probably taxed in proportion to the expenditures in its vicinity. And after all, there is not so much inequality in taxation as appears by a superficial view. It is for legislative and municipal wisdom to regulate taxes as equally as possible, and dispose of the revenues as wisely as they can. Courts have no control over this difficult subject.
The Legislature, by an act approved the 18th of March, 1850, have again made a distinction between urban and rural property within the limits of the city, and as to the rate of taxation to be imposed on each: and it is to be hoped» the municipalities will be able to execute it in such a manner as to avoid all complaint and litigation hereafter.
*610-A-3 t° the case before the court, the taxes for the years 1843, 1844 and 1848, are claimed. In pursuance of the powers conferred upon the municipality by ti16 ac(; 0f 1836, she imposed the taxes claimed for 1843 and 1844, and might recover them but for her own proceedings. By a series of resolutions, adopted the 31st of March, 1845, the municipality determined not to tax rural property, including that for which exemption is claimed in the present suit, and ordered all receipts for taxes up to and including the year 1844, to be burned. This was a remission of the taxes on this property for the years 1843 and 1844; and they cannot be claimed again. The remission of a debt extinguishes it.
It is true, that the council of the municipality, on the 29th of December, 1845, revived the ordinances imposing taxes on rural as well as urban property; but laws can prescribe only for the future, they can have no retrospective operation. Code, art. 8. The revived ordinances could, therefore, only operate upon taxation for the year 1846, and subsequently. The power to lay and collect taxes, has ever been understood to operate prospectively; and never retrospectively, as contended. If the council could legally tax for a year back, we see no reason to prevent them from doing so for any number of years. Such has never been the interpretation of the power to lay and collect taxes, either by the Legislature, or political corporations acting under its authority.
As to the tax claimed for the year 1848, the act of 1847 expressly directed the municipality to assess and collect an equal tax on all the property within its limits. The power of the Legislature to direct this equal and uniform taxation, is unquestionable. It is in conformity to the letter of the Constitution, so far as its principles may apply to municipal taxation. The tax claimed for 1848, in the opinion of the majority of the court, is, therefore, clearly legal: and for it tho plaintiffs must have judgment, with eight per cent interest, and costs in the district court.
As to the taxes claimed for the years 1S43 and 1844, a majority of the court are of opinion, they cannot be recovered; and that the judgment of the district court should be reversed, as to the taxes allowed the plaintiffs for 1843 and 1844, and the appellees condemned to pay the costs of the appeal.
It is therefore ordered, adjudged and decreed, that the judgment rendered by this court, be annulled. It is further ordered and decreed, that the judgment of the court below be reversed, so far as relates to the'taxes claimed for 1843 and 1844; and that the plaintiffs recover from the defendant, the tax claimed for 1848, with eight per cent interest, and costs in the district court; the appellees to pay the costs of the appeal.
Rost, J.I adhere to the decision in the case of The Ursuline Nuns v. Third Municipality, 2d Ann. 611; I see no cause to disturb the judgment first rendered in this case.