City of New Orleans v. Robira

• Citation: 42 La.Ann. 1098,8 So. 402
• Decision Date: 01 November 1890
• Docket Number: 10,659
• Court: Supreme Court of Louisiana
• Parties: CITY OF NEW ORLEANS v. LOUIS ROBIRA

8 So. 402

42 La.Ann. 1098

CITY OF NEW ORLEANS v. LOUIS ROBIRA

No. 10,659

Supreme Court of Louisiana

November 1, 1890

APPEAL from the Second City Court of Orleans. La Villebeuvre J.

W. B Sommerville, Assistant City Attorney, and Carleton Hunt, City Attorney, for Plaintiff and Appellant.

Farrar Jonas & Kruttschnitt, for Defendant and Appellee.

OPINION

BERMUDEZ C.J.

This is an action for the recovery of the amount of a license for the year 1889, under the provisions of a municipal ordinance, No. 3375, which levies it conformably to legislative authority. Act of 1886, Sec. 12, No. 101.

The defence is that both the ordinance and the statute are unconstitutional and void, for the reason that the defendant is exempt from the payment of such license by the organic law.

He avers that by Article 206, which renders liable to such tax all persons who pursue any trade, profession, business or calling, those engaged in mechanical and other named pursuits are exempt.

Specifically, he contends that, as he is a photographer engaged in a mechanical pursuit, he is exempt from such license.

Two questions are to be considered:

1. Whether the words "engaged in mechanical pursuits" have the meaning which he places on them.

2. Whether the pursuit of the defendant comes within the constitutional purview.

I.

The object of the framers of the organic law was, primarily, to render liable to a license tax all persons, associations of persons, and corporations pursuing any trade, profession, business or calling; but they at once perceived that unless some restriction or qualification was provided for, many would be subjected to the burden who should not be so equitably, as being worthy of special encouragement and protection. Hence, they excepted from the operation of the clause: clerks, laborers, clergymen, school teachers, those engaged in mechanical, agricultural and mining pursuits, and a certain class of manufacturers.

Strictly, the language invoked means the following of an occupation by one who performs acts which are purely mechanical, that is, which could be done by a machine or a regulated physical agent of power.

The term mechanical is employed to indicate that the business, calling, or occupation in view must be one which can not be utilized, unless resort is had to the use of some machinery, or instrument of force, or application of power, in aid of manual work, in some physical undertaking, in which the intervention or interaction of a superior mind is not required; in other words, the expression means that the occupation must be one by which the object realized is not dependent for its confection on the exertion of a controlling intellect, but rather on the adaptation of some helping mechanism, or use of some auxiliary tool or instrument.

On two occasions this court was called upon to ascertain the constitutional purpose and meaning of those terms.

In N. O. vs. Bayley, 35 An. 545, it held that one who was a plasterer and employed others of the same class was engaged in a mechanical pursuit, and declared him dispensed from the payment of a license.

In the quite recent case of Theobald vs. Connor, 42 An. , the court said that the framers of the article intended to relieve from license those who are engaged from day to day in the performance of manual labor, and thus in mechanical pursuits.

The purpose in view seems clearly to have been to exonerate those who in the pursuit, mechanical to be, would exert more manual labor than intellectual labor, so that the occupation was to be one for the practice of which the efforts of the body, aided by some mechanical instrument, would be mainly called into activity, to be controlled by an ordinary intelligence only.

II.

In the instant case the defendant is a photographer, that is, a person who makes pictures by means of photography.

Photography is defined as "the science which relates to the action of the light on sensitive bodies, in the production of pictures by the fixation of images and the like." Webster Unab. Dict.

It is also said to be "the art of producing images of objects by an application of chemical change produced in certain substances by the action of light or more generally by radiant energy." The Century Dictionary.

A polite or liberal art is that in which the mind or imagination is chiefly concerned, as poetry, music and painting.

A useful or mechanical art is that in which the hands and body are more concerned than the brain.

A painter is defined to be one who represents the appearance of natural or other objects on a surface by means of colors.

There may, and surely there does, exist a marked and honorable difference between a painter and a photographer, though they both be artists, as more dexterity is required in the former than in the latter. Some painters enjoy a celebrity to which photographers can not aspire.

Certainly in both, painters and photographers, the hand and the sense of sight are...