dissenting. I was inclined to withdraw from the decision of this cause, having some interest in the question by reason of proceedings now in progress with reference to another proposed public improvement. But I was advised by my brethren, that I had no legal ground for withdrawal, and that, on the contrary, it was my duty to take part in the decision of the present cause. I shall therefore briefly state my views.
The subject of assessment under the Act of 1832, underwent elaborate argument before the Supreme Court, organized under the Constitution of 1845. The subject being deemed of great public importance, the case was held under advisement for a long time ¡ and the decision, under all these circumstances, must be regarded as the result of a diligent and deliberate judicial investigation by the court of last resort.
In the case of the opening of Euphrosine and Roffignac streets, to which I refer, I dissented upon the question as to the mode of paying a proprietor whose land is taken for public use; but did not differ upon the question of assessing proprietors of lots fronting upon, or adjacent to the proposed improvements. The other members of the court were unanimous in the opinion delivered by the Chief Justice, and, to the best of my recollection, I concluded that in future cases; I would consider the whole doctrine as settled.
Such would probably have been my course, if other cases of assessment under this Act had come before the former court under the Constitution of 1845. There is greater reason for a similar concurrence under the present Constitution. The reason is this. The Articles 105 and 123 of our present Constitution, are taken literally from the Constitution of 1845. Both relate to subjects of the gravest importance. In copying those words from the Constitution of 1845, we must presume the framers of the present Constitution were aware of the construction they had received from the Supreme Court, and intended that, in the new Constitution, they should have the same meaning and effect. I have no doubt that in framing the instrument, the cautious preservation of the very words in this and several other cases, was dictated by the important consideration, that they had been the subject of judicial interpretation. I conceive the interpretation of a new Constitution to be eminently a case in which the judicious maxim should be applied — Si de interpreta-tione legis quseratur, in priinis inspiciendum est quo jure civitas retro in ejusmodi casibus usa fuisset. See also McKee v. Ellis, 2 Ann. 166, and the able arguments of council as there reported.
I have felt it my duty to give expression to this theory of constitutional interpretation, because this court is now at the outset of its career; and it is of grave importance that some landmarks of constitutional interpretation should be designated.
*454Let it be observed, that in the following oases, the operation of the Act of 1832, after the adoption of the Constitution of 1848, was either expressly or tacitly recognized: Matter of Claiborne street, 4 An. 7. Matter of Exchange Alley, 4 An. 4. Mallard v. City of Lafayette, 5 An. 112. Municipality No. One v. Young, 5 Ann. 362. Boulat v. Municipality No. Two, 6 An. 363. MeLaughland v. Municipality No. Two, 5 An. 604. Matter of Roffignac street, 7 An. 77. Matter of Euphrosine street, 7 An. 72. Moreover, an Act similar to that of 1832' was enacted in 1846, to provide for opening and improving streets and public places in the city of Lafayette. Acts of 1846, p. 138, sec. 4.
I may add, as not inappropriate to the subject of constitutional interpretation, that three of the Judges who occupied scats in the court which has recently gone out of existence, were members of the convention of 1845, among them the late Chief Justice,, who- was a prominent member of the Judiciary Committe in that convention, and whose recent retirement' from-the bench I deem a public loss:
In conclusion upon a subject which I consider a matter of settled doctrine, and no longer res'nova, I think it not improper to add a few words respecting the theory of the Act of 1832.
Its object is to-avoid the injustice of general taxation for a special local object. It professes to apportion the assessment according to the maxim, that he who receives the advantage, ought to sustain the burden,- and to exact from each of the parties assessed,, no more than his'just share of the burden according to this equitable rule of apportionment. See People v. The Mayor of Brooklyn. New York Court of Appeals,, and cited by Eustis,.C. J., in the case above mentioned.
At the same time as such improvements may be not Only productive of local advantage, but also tend"- to the salubrity and benefit of the whole city, the statute provides that in such cases a just and equitable portion of the expense may be assessed upon the city.-
There is more justice in this theory than in making the city treasury,, which is the result of the contribution of all the inhabitants,- pay the whole expense of an improvement enuring,, in a considerable degree, to the special advantage of a few.
It is upon this principle, that for many years the expense of paving has been apportioned between the municipal or city treasury,, and the owners of property fronting on the street paved. See City of Lafayette v. Orphan Asylum, 4th Ann. 2.
To illustrate the equity, let us" suppose a case. It" is proposed to open a public square in that portion of the city formerly known as Lafayette. It is obvious that a proprietor of a dwelling house, fronting on the contemplated square, will derive a greater benefit than the proprietor of a dwelling house at the other end of the city, some miles off, in the late 3d Municipality. It would be unjust they should both bear the burden in equal proportions, as would be the case if the improvement were paid for out of the city treasury, whose coffers are filled by the contribution of the landed proprietors of the whole city.
I concede that the system of local assessment is liable to abuse, for which reason courts should scrutinize its application with care, and also see that an equitable share of the burden should be borne by the public. But it will be *455readily foreseen, that if the whole charge of local improvements is to he borne by the city treasury, grievous abuses might be practised upon the inhabitants generally, to subserve the local interests of designing men holding property in a particular neighborhood.
Campbell, J. I concur in the opinion of the Chief Justice.