dissenting. The question presented by the pleadings in this case, is the constitutionality of the Act of the Legislature, approved 12th of March, 1852, entitled “ an Act providing for subscription by the parishes and municipal corporations of this State to the stock of corporations undertaking works of internal improvement, and for the payment and disposal of stock so subscribed.”
*569This question was before the court in the June term, 1858, in the case of the Police Jury v. McDonogh's Executors, and was in that case decided in favor of the constitutionality of the law in question. The great mass of authority which was brought to bear upon the subject, in decisions of the supreme tribunals of our sister States, collected in the ver}’' elaborate and learned opinion of the Chief Justice delivered in that case, induced my concurrence in the conclusions of that opinion. But I rejoice at the opportunity now afforded, of reconsidering the question, because much reflection on the subject has convinced me, that a contrary conclusion to that in the HcDonogh case, necessarily follows from a provision of our own State Constitution, which of course could not have been considered in any of the decisions of the courts of other States.
I allude to Article 121 of the Constitution of 1845, the Constitution in force on the 12th of March, 1852. That Article is expressed in the following words: “ The State shall not become subscriber to the stock of any corporation or joint stock company.” I take this to be clearly a limitation or restriction of the legislative power; for a subscription by the State to stock, were it allowed, could only be made by a statute or Act of the Legislature. When, therefore, the Constitution said, “ the State shall not become subscriber to the stock of any corporation or joint stock company,” it was tantamount to saying, “ the Legislature shall not pass any law authorizing a subscription by the State to the stock,” &c.
As long as the Constitution of 1845 remained in force, the Article 121 of that instrument opposed an insuperable bar to any legislative enactment having for its object a subscription to stock. That which the Legislature was powerless to do itself, it has nevertheless authorized every police jury and every municipal corporation in the State to do, by this Statute of the 12th of March, 1852. And this authorization so given is, bj’ its terms, unlimited — a general power of subscription to be exercised every where and at all times.
In considering the operation of this law, in relation to the Article 121 of the Constitution, we must first take into view the nature of a corporation. • It is a fictitious person, the creature of the law, deriving all its vitality from the law, and possessing no attributes or functions but those expressed in the law.
As regards municipal corporations, they are of the class denominated in the Civil Code political, which are defined (Art. 420) to be such “ as have principally for their object, the administration of a portion of the State, and to which a part of the powers of government is delegated to that effect.”
The municipal corporations of the State of Louisiana could have had, then, no power to subscribe for the stock of any other corporation or joint stock company, unless such power was given them by law. And this brings us to the inquiry — could the Legislature confer upon the municipal corporations a power which it did not itself possess? In matters of contract, and matters of inheritance, the maxim is, “ nemo ad, alium plus juris transferre potest, qua/m, ipse Tiabeatf This rule seems to result from the necessity of things. No one can give more than he has. And if its soundness be admitted in the relations of men with each other, there seems a more peculiar propriety in its application to the operations of a constitutional government. As the municipal corporation is the creature of the Legislature, so is the Legislature, in its turn, nothing but the creature of the will of the people, as expressed in the Constitution. When that will has imposed a restriction upon the legislative action in any particular direction, the power to legislate in that direction not existing, *570any attempted delegation to a corporation of a power of that nature, is a manifest evasion of the Constitution, and an usurpation of the most dangerous kind. The Constitution of the United States prohibits any State from passing a law impairing the obligation of a contract. Will any person pretend that the Legislature of Louisiana could authorize the corporation of New Orleans to pass an ordinance to annul and avoid one of its contracts ? Tet this would be a legislative enactment of the same .kind with, that of the 12th of March, 1852. It will be objected, perhaps, that the Act of March 12th, 1852, does not authorize a subscription to stock in the name of the State. To this I answer, first, that the statute is general — applying to every police jury, and every municipal corporation in the State. Now, it is believed that every foot of ground in Louisiana, is within the territorial jurisdiction of some police jury, or some municipal corporation. Therefore, the statute has an operation coextensive with the State, and is in substance, though not in semblance, a statute to authorize the whole State to become subscriber to the stock of corporations. And, secondly, the violation of the Article 121 would not be less real, although it would not be so palpable, had the statute authorized but one subscription by one municipal corporation or police jury. The nullity, the radical vice, of want of authority in the party authorizing the subscription, would have equally existed in the case supposed.
I conclude that the Statute of the 12th of March, 1852, is void for unconstitutionality. I base my opinion upon the doctrine, that what a Legislature cannot constitutionally do itself,, it cannot constitutionally authorize a municipal corporation of the State, its creature, to do. • And this doctrine is not at variance with any authority quoted in the decision of the case of the Police Jury v. McDonogh's Executors. It is not at variance with that decision itself, properly considered; for, singularly enough, the Article 121 of the Constitution of 1845, was not adverted to, either in the argument or in the decision of that case. The argument turned, indeed, in part upon the Article 108 of the Constitution of 1852, which is a modification of the 121st Article of that of 1845. But this argument was met, in the decision pronounced, by the very obvious response, that the Constitution of 1852 was not in force, when the Act was passed.
I now pass to the consideration of another matter, which, in my opinion, has taken away the right of action in this case, so far as the railroad taxes are concerned.
Two Acts of the Legislature were approved on the 15th of March, 1854, entitled respectively, “ an Act providing for the subscription by the city of New Orleans to the stock of the New Orleans, Opelousas and Great Western Railroad Company”; and “ an Act for the subscription by the city of New Orleans, to the stock of the New Orleans, Jackson, and Great Northern Railroad Company.”
The date of the passage of these acts, which was subsequent to the judgment of the District Court rendered in this cause, sufficiently accounts for their not being noticed in the pleadings nor in the reasons for judgment. But if they shall appear, upon examination, to have materially modified the rights of the parties litigant, we have the authority of Judge Martin for saying, that we are bound to notice a change in the law made since the rendition of the judgment in the court below. Atchafalaya Bank v. Dawson, 13 La. 510, 511.
The two statutes in question are in all respects literal copies of each other, with the exceptions which will be hereafter noticed. They authorize the com*571mon council of the city of New Orleans to subscribe to the stock of the Ope-lousas railroad, for one million and a half of dollars, and to the stock of the Jackson railroad, for two millions of dollars. They prescribe the clauses of the ordinances to be passed by the city council, for the subscriptions thus authorized. Those clauses are:
1st. A statement of the number and amount of the shares subscribed.
2d. The subscription to be made by the Mayor, and paid in city bonds, having twenty years to run, and bearing interest.
3d. A special tax on real estate and slaves, to be levied annually, for the payment of interest on the city bonds, &c.
4th. The bonds to be issued as called for by the railroad companies.
6th. The ordinances of the city council, approved May 13th and May 17th, 1852, providing for the subscription by the city, to the stock of the Jackson and Opelousas Railroads, (the ordinances under which the present suit is brought,) to be repealed — “provided,” says each statute, “ the repeal of said ordinance shall not be so construed as to relieve the city from the obligation to collect and pay over to said railroad company, that portion of the railroad tax imposed under said ordinance for the year 1853, which has not yet been collected and paid over to said company.”
Subsequent sections in each statute provide, that the railroad companies shall receive, at par, the city bonds issued for the subscription to their stock; that the board of directors of each railroad company shall notify, in writing, to the Mayor, their acceptance of the city ordinance prescribed by the act.; that upon such acceptance, the ordinance shall bo submitted to the voters of the city, who have the right, under existing laws of voting' at city elections, for approval and ratification, at an election to be held for that purpose, and shall only take effect after such approval by a majority of such voters ; that bonds issued by the railroad companies, and secured by a pledge of the railroad tax for 1854, 1855, 1856, 1857, and 1858, levied under the ordinances (repealed) of 13th and 17th of May, 1852, shall be canceled by the company which issued the same, before the said company shall receive from the city any of the bonds authorized to bo delivered for subscription to the stock of said company, by virtue of this act, &c.; and, lastly, that the city council shall elect annually, three directors in each of the railroad companies mentioned in the acts.
I assume as facts of public notoriety, that the city council of New Orleans have passed the ordinances required by the Acts of 15th of March, 1854, above mentioned; that said ordinances have been accepted by the Jackson and Ope-lousas Railroad Companies, for whoso use and benefit the present suit is prosecuted in this court; that an election has been held, at which the said ordinances have been approved by a majority of the voters; and that the Mayor has subscribed in the name of the city for stock, and city bonds have been issued, for the amount of such subscription, according to those statutes and ordinances.
It is apparent, from a review of the legislation, that the subscriptions to railroad stock authorized by the two Acts of 1854, were intended to take the place of the subscriptions to the stock of the same companies, made by the city ordinances of the 13th and 17th of May, 1852, This fact clearly results from the obligation imposed by the Legislature upon the city corporation, of repealing the ordinances of 1852, simultaneously, and in the same ordinance, *572with, their subscriptions for precisely the same sum under the Act of 1854. It results with equal clearness from the requirement of the formal acceptance by the railroad companies,'of the ordinance repealing the previous subscription, as a condition precedent to the validity of the subsequent subscription.
The city subscription of 1852, to the stock of the two railroads having, then, been superceded by subscriptions to a like amount in 1854, which last subscription is either paid or payable in city bonds, what is the position of the property holders, upon whom was assessed the payment of the first subscription ? This question does not concern those who have paid their railroad tax of 1858. Probably they have got certificates from the railroad companies, as provided by the Act of 12th of March, 1852, section 4, for the amount of the tax by them paid, are satisfied with those certificates, and not inclined to insist upon their original right to acquire more certificates of railroad stock, by paying more annual installments of railroad tax. At all events, they are not before us. But the present defendant, who has never paid the tax, or any portion of the tax assessed to her under the ordinances of 1852 — before condemning her to pay this claim, even-handed justice requires that we should examine whether Tier position has not been changed to her disadvantage, since this tax was levied, by the State and municipal legislation which we have been reviewing; and should such appear to be the case, I maintain that upon legal principle, she is released from her obligation to pay.
The defendant being a woman, did not vote at all upon the question of approving and ratifying the ordinances of May, 1852. Conceding, however, that she was bound by the vote of the majority of the holders of landed estate who vote, the Act of 1852, and the city ordinances passed under it, in imposing an obligation upon her, conferred, at the same time, a valuable right— whatever she was to have joaid, was so to be paid for her own individual benefit. The subscription was m name a subscription by the city of New Orleans— but, in reality, a subscription by the owners of landed estate in New Orleans; and the payment of the tax was a payment of that subscription, entitling the payer to a certificate of stock of like amount, transferable by delivery.
Such was the defendant’s original position. But should payment now be enforced from her, she would pay without receiving any certificate — any equivalent. And why? Because the ordinances of 1852 have been repealed, which ordinances were her only title to such equivalent. It would be in vain to say, that the right to the certificate is expressed in the Act of the Legislature of the 12th of March, 1852. That act applied pin terms to no particular case of subscription. It authorized, generally, subscriptions by police juries and municipal corporations. The corporation of New Orleans availed itself of that authorization, and passed the ordinances of the 18th and 17th of May, 1852 — ordinances expressly referred to as the source of defendant’s obligation upon the face of the bills, which supply the place of a petition in this record. The ordinances are repealed — not merely with the consent, but by the command of the Legislature — and the city has issued its bonds for the whole amount of its subscription, which bonds the railroads are obliged to take at par. Of course, those companies cannot give their certificates to individuals for stock for which the city has paid. Still less can they give them for stock which, by the repeal of the law creating it, has ceased to have any legal existence.
*573It has been repeatedly held by the Supreme Court, that if judgment be eor-rectly given under a law which is repealed pending the appeal, the judgment must be reversed. 12 La. 547. 13 La. 497. 17 La. 478.
It is clear to my mind, that the defendant is released from the obligation of paying the railroad tax of 1853, by the repeal of the ordinance which imposed it, and by the substitution of a subscription in which she can claim no share, in the place of one in which she would have been entitled to a share proportionate to her payments.
This proposition would seem indeed unsusceptible of controversy, were it not for the proviso in the 5th paragraph of the 2d section of the Acts of 15th March, 1854, declaring that “the repeal of the said ordinances, (those of 13th and 17th of May, 1852,) shall not be so construed as to relieve the city from the liability to collect and pay over to said railroad companies, that portion of the railroad tax imposed under said ordinances for the year eighteen hundred and fifty-three, which has not yet been collected and paid over to said company.”
This proviso immediately follows a peremptory requirement by the Legislature, of a repeal of the ordinances of the 13th and 17th of May, 1852. The analysis already made of those ordinances, has shown that they imposed taxes on all landed estate, in the one case, to the amount of two .per cent., and in the other, to the amount of three per cent., collectable one-sixth each year, through six successive years — 1853, 1854, 1856, 1856, 1857 and 1858. The repeal of the ordinances, then, abolished'the whole tax — the one sixth payable in 1853, as well as the five-sixths payable in the five subsequent years. The injunction to repeal is entire — reserves no portion of the ordinances- — -no portion of the taxes. Under these circumstances, the proviso above quoted is simply unmeaning. What liability could there be on the part of the city to do a legal impossibility — to collect a tax which had been repealed ? This proviso may be viewed as an instance of that careless legislation which too often disfigures the statute book.
I am of opinion that the judgment of the District Oourt should be affirmed.