On Rehearing.
PROVOSTY, J.The pleadings and the facts of this case are stated at length in the opinion heretofore handed down. In brief they are as follows:
Relators, the Illinois Central Railroad Company and the Mississippi Valley Railroad Company, are owners of six squares of ground bounding on the river in the city of New Orleans. They wish to construct wharves, docks, piers, bulkheads, and other improvements on their said front as terminal *431facilities for their railroads. By article 290 of the constitution of the state they are required to obtain the consent of the city council, or other governing authority, and of the levee board, within whose jurisdiction 'the property is situated. They have obtained the consent of the city council and have applied to the levee board; and the latter board has refused to entertain the application, for the double reason — First, that its own action must come subsequent to, and not previous to, the action of the other authority whose consent must be obtained; and, second, that this other authority is not the council, but is the board of commissioners of the port of New Orleans. The relators ask for a mandamus compelling the levee board to act definitely in the matter, either giving or refusing its consent. The board of commissioners of the port of New Orleans, commonly known as the “Dock Board,” and the city of New Orleans, have intervened in the suit to vindicate, respectively, their jurisdiction in the premises; and the controversy is now waged by the dock board on the one side and the relators and the city of New Orleans on the other side.
The first of the above-mentioned reasons assigned by the levee board for its nonaction need not be considered, since upon consideration of the second reason the court has found that the city council was the proper authority to be applied to for the consent in question.
Before tfie adoption of article 290, riparian owners wishing to build wharves did not have to obtain the consent of the public authorities; but the wharves were removable at the discretion of the public authorities, whenever the public exigencies required, without formal expropriation and without compensation. It was to change this order of things, and provide a more reliable tenure for private wharves, that article 290 was adopted.
The article reads as follows:
“Art. 290. Riparian owners of property on navigable rivers, lakes and streams, within any city or town in this state having a population in excess of five thousand, shall have the right to erect and maintain on the batture or banks owned by them such wharves, buildings and improvements as may be required for the purposes of commerce and navigation, subject to the following conditions, and n'ot otherwise, to wit: Such owners shall first obtain the consent of the council, or other governing authority, and of the board of levee commissioners, within whose municipal or levee district jurisdiction such wharves, buildings and improvements are to be erected, and, such consent having been obtained, shall erect the same in conformity to plans and specifications which shall have been first submitted to, and approved by, the engineer of such council, or other governing authority; and when so erected, such wharves, buildings and improvements shall be, and remain, subject to the administration and control of such council or other governing authority with respect to their maintenance and to the fees and charges to be exacted for their use by the public whenever any fee or charge is authorized to be and is made, and shall be and remain subject to the control of such board of levee commissioners in so far as may be necessary for the maintenance and administration of the levees in its jurisdiction. The council, or other governing authority, shall have the right to expropriate such wharves, buildings and improvements, whenever necessary for public purposes, upon reimbursing the owner the cost of construction, less such depreciation as may have resulted from time and decay; such reimbursement, however, in no case to exceed the actual market value of the property: provided, that nothing in this article shall be construed as affecting the right of the state, or of any political subdivision thereof, or of the several boards of levee commissioners to appropriate • without compensation such wharves, buildings and improvements, when necessary for levee purposes.
“The grants made by the city of New Orleans under the terms of Ordinance 11,765, Council Series, adopted January 14, 1896, authorizing the construction, use and maintenance of wharves, structures and improve-. ments upon certain riparian property in the Sixth municipal district, and other grants of the same nature made by the city of New Orleans to riparian owners with reference to their property, are recognized as necessary aids to the commerce of this state, 'and are hereby ratified and declared to be lawful, but shall in no event' be construed as conferring *433greater privileges than might be conferred under this article, or as releasing the riparian owners from the obligations herein imposed, or which may have been imposed, upon or assumed by such riparian owner by contract, municipal ordinance or otherwise.”
Under the order of things to be established by this article, the wharves were no longer to be removable without regular expropriation and compensation; but, in return, the plans and specifications for their construe tion would have to be submitted to the public authorities for approval, and the consent of these authorities would have to be obtained, and the structures would remain subject to the administration and control of the authorities with respect to their maintenance and the fees and charges to be exacted for their use by the public. Obviously, and we imagine that as to this there can be no dispute, the purpose of requiring the public authorities to be consulted and their consent to be obtained was to safeguard the public interest under the new order of things. ■ This being the ease, it would seem reasonable to assume that the authority charged with the care of the particular public interest most likely to be prejudicially,affected by the proposed constructions would be the authority required to be consulted; and the problem ■of ascertaining what authority is required to be consulted would seem to resolve itself into ascertaining what is the particular public interest most likely to be prejudicially affected, and what is the authority in charge of it.
The problem is not difficult of solution. Plainly, no other public interest is involved than that connected with the use of the river front of the city; and while the public uses of this river front are various, the use for levees and the use for the port of New Orleans are so paramount that all others dwindle into insignificance and need not be considered. The levee board and the authority in charge of the interest of the port of New Orleans are, then, the authorities to be consulted.
Authority over the public interests connected with the port of New Orleans is vested primarily in the legislature. This is not ■contested, and is incontestable. State v. City of New Orleans, 41 La. Ann. 156, 6 South. 592; Duffy v. City of New Orleans, 49 La. Ann. 114, 21 South. 179; State v. Flower, 49 La. Ann. 1199, 22 South. 623. To what subordinate agencies the legislature has delegated the authority is the question. We find that by Act No. 70 of 1896 and Act No. 36 of 1900 the legislature has delegated the authority in its plenitude to the dock board, save and except, however, in connection with private wharves. Act No. 70 of 1896 contains the following proviso: “Provided, that nothing in this act shall apply to wharves owned by riparian proprietors, whether individuals, firms or corporations, and maintained and used by the owner or owners or their lessees.”
Act 36 of 1900 contains the following proviso:
“Provided, nothing in this act shall apply to wharves owned by riparian proprietors, already constructed or hereafter constructed, in accordance with the provisions of article 290 of the constitution, whether individuals, firms or corporations, and maintained and used by the owner or owners or lessees.”
No one can, or does, pretend that the dock board has any powers outside of these two acts, and the provisos explicitly declare that nothing in the acts contained shall apply to these private wharves. The conclusion, then, is irresistible that the dock board has no jurisdiction over the matter of these wharves.
A recognized effect and operation of a proviso is to deny or prohibit; and when connected with a delegation of authority, as in this case, it is tantamount to a command not to exercise the authority. In the case of Voorhies v. Jackson, 35 U. S. 473, 9 L. Ed. 490, the supreme court of the United States defined a proviso as “a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided.” For further authorities on the same subject see Sedg. St. Const. Law, p. 49; Commissioners v. Keith, 2 Pa. 218; Bloodgood v. Railroad Co., 18 Wend. 9, 31 Am. Dec. 313.
The dock board not having jurisdiction, •the city council has; for no one pretends otherwise than that the jurisdiction is vested in one or the other of the two bodies.
The dock board is charged with the duty to build additional public wharves as the exigencies of the port shall require. The construction of private wharves at the places *435where it might be desired to build public wharves might block the performance of this duty. From the inconvenience or conflict of authority which might thus result, it is argued that the dock board, and not the council, must be the authority to be consulted in the matter of these private wharves. The argument addresses itself to the legislature, and not to this court. If this serious detriment to the public interest is likely to result, there is excellent reason for the legislature to recall the provisos quoted above; but there is not sufficient reason for this court to hold that the dock board has a power which not only has not been delegated to it, but has been expressly withheld from it.
It may be well to add that the court does not agree with the view that article 290 restricts to the city council the jurisdiction over the matter of the giving of this consent to riparian owners. If the article did, the legislature would be powerless to transfer the jurisdiction to any other functionary, and the result would be that the supreme authority over the public servitude on the banks of the rivers, lodged in the legislature from the foundation of the government, would have been to that extent taken away from the legislature and vested directly in the city councils. To that extent a change would have been made in the organic law, and a new limitation placed on the powers of the legislature. The framers of article 290 had no intention to operate such a divestiture and investiture. Evidently they were legislating solely with a view to providing a more reliable tenure for the wharves of riparian owners, and at the same time to protecting the public interest, and were not aiming at taking away any jurisdiction theretofore enjoyed by the legislature. Those purposes were fully and completely accomplished by letting the authority be exercised by whatever functionary the legislature had theretofore delegated it to or might thereafter delegate it to.
This change in the organic law, this placing of a new limitation upon the powers of the legislature, must result, if at all, by implication from the meaning of the word “municipal,” made use of in article 290 to qualify the jurisdiction of the authority whose consent is to be obtained. Much of the argument in support ,of this change is devoted to showing that the dock board is not a municipal corporation. Granting that it is not, the conclusion does not follow that it does not exercise a municipal jurisdiction. Municipal courts exercise municipal jurisdiction, but they are not municipal corporations. The different public boards which administer in part the affairs of the city of New Orleans —the school board, the board of police commissioners, the board of fire commissioners, the drainage board, the sewerage and water board, the civil service commission, the board of health, and the board of liquidation of the city debt — exercise a municipal jurisdiction, and yet they would hardly be called municipal corporations. We imagine it would be unsafe to predicate a decision upon the fact that these boards were not exercising a municipal jurisdiction.
It is also said that “municipal” is the adjective of “municipality,” meaning “pertaining to a municipality.” This is true; but between the noun and the adjective there is the difference that, while the noun names the thing, the adjective merely describes a relation to the thing. In a thing there are no degrees; in a relation there are. The relation may be more or less close or complete. The adjective “municipal” is much more elastic in its meaning than is the word “municipality,” or even than the term “municipal corporation.”
Nothing is better settled than that police juries are not municipal corporations, within the strict meaning of that term, and yet this court in any number of instances has called them munieix>al corporations, simply because they are public corporations, and all imblic corporations are municipal corporations, as contradistinguished from private corporations. Parker v. Scogin, 11 La. Ann. 629; Droz v. Parish of East Baton Rouge, 36 La. Ann. 307; Hoffpauir v. Wise, 38 La. Ann. 704; Dill. Mun. Corp. (3d Ed.) § 23, draws the distinction sharply between municipal corporations proper and counties; nevertheless he, in the same paragraph, calls the latter “municipal organizations.” The jurisdiction of a police jury is a municipal jurisdiction, although a police jury is not a municipal corporation properly speaking.
In Horton v. Commissioners, 43 Ala. 598, it was held that a repealing clause, worded § as follows: “That all laws or parts of laws, *437of a general or special character, except those enacted for municipal purposes, upon the subject of taxation in this state, be and the same are hereby repealed,” — did not repeal an act creating a board of school directors for the city of Mobile and requiring certain taxes to be imposed and collected and paid over to it. In discussing the case the court used the following language: “The word ‘municipal’ has no well-defined technical meaning, nor does the language of the revenue act seem to confine its import to any very narrow bounds. It is evidently used in a general, and not in a particular, sense. The legislature was aware that it did not apply solely to incorporated towns or cities, but that it was equally applicable to incorporated bodies organized for the accomplishment of great and important public purposes, which, for the sake of uniformity and successful administration, needed a corporate body and special laws for its management. ‘Municipal’ has been defined to be that which belongs to a corporation or a city, and to include the rules or laws by which a particular district, community, or nation is governed. It may also mean ‘local, particular, independent.’ ”
In the case of Society v. Houseman, 81 Mich. 609, 46 N. W. 15, it was held that the constitutional provision that “no corporation, except for municipal purposes, or for the construction of railroads, plank roads, and canals, shall be created for a longer time than thirty years,” did not apply to a corporation created for the declared object of promoting agriculture and its kindred arts; this corporation being a corporation for municipal purposes and within the exception of the constitution. The court said: “The authorities are numerous that the word ‘municipal’ has not a well-defined and technical meaning, and must be construed with reference to the evils to be prevented and the purposes to be accomplished, the history of the provision of the constitution in which it is used, and the practical construction that has been placed upon it.”
In Canadian Pac. R. Co. v. City of Winnipeg, 30 Can. Sup. Ct. 558, a state by-law exempted a railroad corporation from “all municipal taxes, rates and levies, and assessments of every nature and kind.” The court held that this exemption applied to school taxes. The court said: “But we much prefer to rest our judgment upon the main ground that municipal taxes include school taxes.”
In State v. Hellman, 56 Conn. 190, 14 Atl. 806, it was held that a statute providing that “the towns or the municipal authorities of any city, borough or town may fix the time for closing at any hour not later than 12 o’clock at night,” did not necessarily apply to the common council alone of a town, but applied also to the selectmen of the town, and “that the term ‘municipal authorities’ may be reasonably applied to the selectmen, who are agents of the town or municipality.”
These decisions show that the phrase “municipal jurisdiction” does not necessarily designate the jurisdiction of a common council, but may designate the jurisdiction of any public authority administering a business pertaining to a city, such as would have to be administered by the common council of the city in the absence of such specially constituted authority. One can draw the line with some certainty between what is and is not a municipality; but we imagine it would not be so easy to fix the boundary line between a jurisdiction that is municipal and one that is not. In order to exercise a municipal jurisdiction, it is not indispensable to be a municipal corporation. It suffices to be given authority over a business pertaining to a municipal corporation. The public wharves of the city of New Orleans are within the municipal jurisdiction of the dock board, and these private wharves would also be, if it were not that the legislature has otherwise provided.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that the mandamus prayed for be made peremptory; the board of commissioners of the Orleans levee district to pay the costs of the lower court, except those of the intervention of the board of commissioners of the port of New Orleans, which are to be paid by the latter board, and the costs of appeal to be paid by the said boards, one-half by each.
NIOHOLLS, O. X, dissents, reserving the right to file his reasons hereafter. MONROE, X, dissents.