(Spofford, J., dissenting.) -Of the many oppositions filed herein, sixteen have called in question the constitutionality of the charter of the New Orleans Draining Company.
The points of unconstitutionality urged, may be reduced to four, namely :
1. The charter taxes a portion of the community only, for a work beneficial to the public at large; which is against the. principle of equality and uniformity in taxation, consecrated by Article 127 of-the Constitution of 1845, and Article 123 of that of 1852.
2. The charter divests vested rights, without an adequate compensation previously made, contrary to Article 109 of the Constitution of 1845, and Article 105 of that of 1852.
3. It delegates the taxing power to a private corporation, which the Legislature had not the constitutional power to do.
4. It delegates the administration and police of a portion of the territory comprised within the limits of the political or municipal corporation of New Orleans, to a private corporation, in violation of section 23 of the 6th Article of the Constitution of 1812, which was repeated verbatim in the 128th Article of the Constitution of 1845, and the 124th Article of that of 1852.
Of these points, it is only necessary to examine the first. Tested by the doctrine of the majority of this court, in the Benton street case, 9th An. 444, it must prevail.
The New Orleans Draining Company was incorporated by Act of the Legislature of-19th of March, 1835. An unusually full preamble leaves no doubt of the motives which actuated the Legislature in granting this charter; and as those motives have an important bearing upon the .constitutional question under examination, we will here transcribe the preamble in full :
*340“Whereas, in accordance with the opinion of physicians of the greatest experience, it appears that the epidemics which, with few exceptions, have annually prevailed in the city of New Orleans and its faubourgs, are in general to be attributed to two causes, intense heat and excessive humidity, which, when combined, frequently produce the most fatal diseases; and although the limited powers of man cannot obviate or control the first, yet he may mitigate its virulence, by adopting such means as will effect a free circulation of air; and the latter would be in a great measure, if not entirely, removed by draining off the stagnant waters which accumulate on the low and marshy grounds. And whereas, after the draining of the said grounds shall have been accomplished, if the woods which at present mostly cover the entire space between Lake Pontchartrain and the said city and faubourgs, be cut down and removed, it is more than probable that the salubrious breezes from the said lake, will be felt to the banks of the Mississippi, and after passing over a well drained surface, reach the city, free from those exhalations which are now brought thither bj' winds blowing from that quarter, vitiating the atmosphere and proving fatal to human life. And whereas, the improvements aforesaid form an object of serious importance, not only to the inhabitants of the said city and faubourgs, but also to those of every other section of the State, as their inevitable results would be the'increase of population, and the general prosperity thereof. And whereas, so desirable an object can only be effected through the medium of a large capital, in consequence of the great number of workmen required, and the immense expenses necessarily attending the undertaking thereof, and which the proprietors of the soil may want either the means or the inclination to provide for the same, particularly as the success of an enterprise of this nature chiefly depends upon the preparation and adoption of a judicious plan of well combined operations, on which it might be impossible for them to agree. And whereas, it being a well established maxim among all civilized nations, that the welfare of society always takes precedence of the interests or the will of individuals, should it conflict with the same.; hence, it becomes the duty of those’ to whom the legislative power is confided, to prescribe and adopt the most efficient measures for the accomplishment of so important an object.”
For these considerations, a company was' created by the statute, with the style of the New Orleans Draining Company, with a capital stock to be raised by subscription, whose duty it should be to drain, fill up and improve, all that portion of the incorporated limits.of .the«ity of New Orleans, which were not then drained and improved ; which comprised perhaps three-fourths of the superficial extent of the territory of that corporation as defined by law. The modus operaniA of the Draining Company, in effecting these improvements, was minutely detailed in the charter, but has been since essentially changed by an amendatory statute passed the 20th of March, 1839. By the provisions of the last mentioned act, the company was authorized to clear and drain the land by sections, taking an accurate account of all the expenses incurred, hire of laborers, and salaries of officers, and by means of Assessors appointed by themselves to apportion the whole of the said charges among the proprietors of the land comprised within the section thus cleared and drained. For the security of their payment, a mortgage of the first class, superior to all other claims or liens upon the land, was granted -to the company ; and the most summary process for the collection of .the assessment from each proprietor of the land.
*341As in the case of the Act of 1832, for the opening and widening of streets in the city of New Orleans, the assessment upon the individual proprietors of land, goes through the formality of a judicial inquiry and a judgment of ho-mologation ; but this does not change its character of a tax or impost, paid by the proprietors of the section drained, to defray expenses incurred for the benefit of the whole community.
That the work has been done for the public benefit, the preamble of the Act of 1835, and the 13th section of the Act of 1839, prohibit the company from disputing. This being the case, it is unconstitutional t.o charge the proprietors of the land drained with all the expenses of drainage. It strikes us as entirely inadmissible, to permit the company, in the face of the declarations of the preamble and the whole tenor of the charter, original and amended, to assume the quality of negotiorum, gestor of the proprietors embraced in their assessment roll. The. negotiorum gestor is one who does the business of another without an authorization. But whose business has the Draining Company done? The business of the State, who had given it the most formal authority, and the business of the city, which it was preserving from pestilence by its operations, at the same time that it was increasing her population and resources. The relation of the company to the proprietors of the land, is not that of an agent, but of a creditor — a creditor of the most favored and peremptory kind — who is equally independent of the ipsolvent court, and of the court of probates.
It should be observed, that the stock of the Draining Company is owned almost entirely by the State and the city, and .has been paid for in city and State bonds. With the proceeds of these, the company has done the work which is the subject of this tableau. In rejecting the claim against the proprietors of the land drained, that charge falls where it properly belongs — upon the taxpayers of the city and State at large.
Judgment of the District Court reversed ; and it is decreed that these proceedings I¡e dismissed; the costs in both courts to be paid by the New Orleans Draining Company.
Ogden, J.The suit being one, based entirely on the authority which the Draining Company claim to have derived from the Acts of the Legislature, which are, in my opinion, unconstitutional, I therefore concur in the judgment pronounced by Mr. Justice Buchanan, dismissing the proceedings, without thinking it necessary to express any opinion as to the right of the plaintiffs to recover, in an equitable action, the amount to which the defendants have been benefited by the work and labor done in the improvement of their property.