(Buchanan, J., dissenting.) The application of a few well known elementary principles ought, we think, to decide the principal question involved in this controversy.
The supreme authority in every state must have the power to provide for the general welfare of the inhabitants of such State. One of the main inducements for an organized society is the ability with which the collective power of the whole can be exerted on enterprizes beyond the individual capacity of its citizens.
By the common consent, it is the duty of the government to protect its soil from invasion. It is obliged to administer justice ; to protect the inhabitants, as far as possible, from great calamities, such as the overflow of rivers, or the sea, or from famine; to provide for the general health by regulations to prevent the introduction and spread of plagues and contagious diseases, and to drain insalubrious marshes in the neighborhood of great cities, and to abate nuisances. In fine, it has the power, among- other things, to adopt all laws and regulations calculated to advance the safety and prosperity of the people, whether it concerns its defence, its health, its commerce, its internal quiet and police.
The power which the State possesses is not wholly confided to the Legislature. A part of this power, guarded by the Constitution, sleeps in the arms of the people, from whence it can be called into activity only by a convention called by themselves. In all other respects the power of the legislative department of the government is supreme. Its only restriction is the Constitution.
The Legislature, therefore, had the power to create the New Orleans Drain*371ing Company, and to confer on it the powers specified in the charter, unless restricted by the Constitution.
If the Legislature had the power to drain the swamp in the rear of the city, directly or by its own agents, it had the povyfer to do it through the intervention of a company created for that purpose.
But it is contended that the Constitution' does restrict the legislative power in the very matter before us, and that the Articlps of the Constitutions of 1845 and 1852, recited below, have the effect of abrogating the charter of the New Orleans Draining Company. The first, Art. 105 of the Constitution of 1852 and 109 of the Constitution of 1845, is in these words:
“ No ex post facto law, nor any law impairing the obligation of contracts, shall be passed, nor vested rights be divested, unless for purposes of public utility and for adequate compensation previously made.”
Art. 128 of Constitution of 1852 and Art. 127 of Constitution of 1845, reads as follows:
“ Taxation shall be equal and uniform throughout the State. All property on which taxes may be levied in this State shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value, on which taxes shall be levied. The Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade or profession.”
And Article 124 is in these words:
“The citizens of the city of New Orleans shall have the right of appointing the several public officers necessary for the administration of the police of said city, pursuant to the mode of elections which shall be prescribed by the Legislature ; provided that the Mayor and Recorders, Aldermen and Assistant Aider-men, shall be commissioned by the Governor as Justices of Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the punishment of minor crimes and offences as the police and good order may require.”
Let us consider the questions arising under these Articles. We will commence with the last Article.
If the draining of marshes or swamps was a matter of police, within the , meaning and provisions of the Article 124 of the Constitution, there would be great force in the objection, for the power conferred upon the Draining Company is certainly more easily classed under the power of police than taxation, but it is not, we think, necessarily classed with either.
But whether referriblo to that class of powers or ni>t, wo do not think it was embraced by the Article 124 of the Constitution, which was adopted for the purpose of guaranteeing to the city of New> Orleans a form of city government and the election of its principal officers, and was mot intended to direct the manner in which contractors for works of public improvement should be elected, nor to abrogate contracts already made. The language of the Article does not bear the broad construction contended for: it is only the “ right of appointing the several •p'Mic officers necessary for the administration of the police of said city.” The kind of officers intended is shown by the proviso. The incorporated company taking a contract for the draining of a swamp cannot be called a public officer necessary for the administration of the police of said city.
We conclude, therefore, that Article 124 of the Constitution, independent of the rights reserved in the schedule, is not in conflict with the powers conferred *372upon the Draining Company, and if the charter of the company has been abrogated, it is by one of the other Articles specified. We will consider Art. 12S of Constitution of 1852, and Art. 127 of the Constitution of 1845,
If the Act incorporating the Draining Company is unconstitutional und'er Article 128, it is because the Act allows the company to assess upon the property of each person benefited by the draining of the section, his or her proportion of the cost of such work, and therefore it is the taxing of the property of those persons in the immediate vicinity of the work higher than others.
There are many burdens which are imposed by the State upon its citizens which are of necessity unequal, and which cannot be classed under the head of taxes.
Of this kind is the service which the able-bodied man is obliged to render the State, when he is summoned from his employments to attend military musters and drills, or when he is drafted to bear arms in defence of his country, and even labor on fortifications. It cannot be pretended that the small amount of pay which is given while in actual service is an adequate compensation to the business man and artizan who have perhaps left lucrative employments in order to serve the country.
In the country parishes the roads are worked by the able-bodied men. The poor man, who is compelled to work for his daily bread, is obliged to labor upon the road, while his rich old neighbor, whose wealth does not happen to consist in men-servants, is exempt from any contribution whatever. In one neighborhood the labor upon the roads may occupy but two or three days in the year; in another, those subject to road duty may be compelled to labor ten or twelve days. With reference to the State at large there is no equality in this.
Take, for example, the levees on our rivers and bayous. The common welfare requires that each proprietor should keep up the levee in front of his own plantation. The government, from which title to real estate under the theory of our laws, emanates, and by which each person who acquires it is guaranteed in the possession of his land, whether he is capable of actually occupying it or not, has the right to impose this condition upon every possessor of land. This, we presume, no one will question. But this service required from the front proprietors is often exceedingly onerous and unequal. One proprietor, whose lands are favorably situated, may be obliged to make his levee only of moderate height, and at a cost only of a few hundred dollars, while his neighbor, who possesses less land than he, may be obliged to expend several thousands. This is unequal, yet but few would pretend that it was unconstitutional, and we can see no injustice in the State when it says to each front proprietor: “You shall not be permitted to hold these lands unless you conform to the regulations which I prescribe, and on which the safety of others, as well as your own, depends.”
Now, would it be unconstitutional if the Legislature, instead of compelling each proprietor to build the levee, should appoint some officer to make an exact estimate of the cost of the work on each plantation, and compel the owner to pay it to such officer to pay for the work to be done? We think not. This would be but interposing another agent to accomplish the same thing which is now done directly by the owner.
Other examples of the unequal impositions of the burdens of the government might be given, such as the grading of streets in cities, the paving of sidewalks, and the like, and the service of jurors, etc. Enough examples have *373been given to showvthat it could not have been the intention of the people in convention to equalize these sort of burdens by Art. 123 of the Constitution.
What was intended to be remedied by this .Article will be apparent by seeing how the tases were levied for the support of the government at the time the Constitution of 1845 was adopted.
A certain sum was raised on lands, and this was arbitrarily apportioned by the Legislature among the different parishes.
Slaves were taxed one dollar each, whether worthless or valuable, old or young.
Horses and horned cattle were taxed so much per head. The billiard-table paid fifty dollars tax.
A tax of ten dollars (afterwards reduced to five) was levied on every four-wheel carriage. The costly carriage paid no more than the most plain and unpretending vehicle. It was to correct these evijs in collecting the revenues for the purpose of the government that the Article was introduced into the Constitution, and it ought not to be extended to cases not within the mind of the lawgiver when it was framed.
Assuming that the Legislature had the power to cause the swamps to be drained, we find nothing unconstitutional in the manner in which the cost of the work is to be reimbursed. It was within the power of the Legislature to require, if possible, the proprietors themselves of these marshy lands to drain them. It had the power also, for sufficient causes, of which the Legislature alone was the judge, to cause the work to be done and charged to the proprietors, respectively, and all this was not the levying of a tax in the sense of that word, as used in the Constitution. The money was not intended to go into the treasury and become subject to the rules by which alone it could be appropriated annually.
Having satisfied ourselves that the Constitution has not abrogated the charter of the Draining Company so far as it refers to the manner of assessing the cost of the work, we come now to consider how far it is affected by Art. 105 of the Constitution.
We have not understood from counsel that there are any cases in which the property has not been so far benefited by the work done, as to be increased in value more than the cost of the work assessed. Were not this the case, the property of each proprietor, to the extent of the difference between the increased value and the cost 'of the work assessed to him would be taken for a purpose of public utility without adequate compensation previously made, and consequently there would be a violation of the provisions of Article 105 of the Constitution.
There can be no question that the purposes and objects recited in the preamble of the Act of 1835, (see page 67) were clearly of such public utility as would justify the Legislature, if need be, to appropriate the land for the public benefit. And had any of the proprietors chosen to abandon their lots to the company, we would have directed an estimate of the value of these lots before they were drained, and this amount to be paid to the proprietor and the residue awarded the Draining Company to whom the lots were so abandoned.
But as no such complaint is made to us, "we have no sufficient showing before us from which to infer that the property of !any one of these proprietors will be taken for the public use without an adequate compensation.
See case of Yeatmen v. Crandell, 11 An., decided since the preceding portion of this opinion was prepared.
*374Having thus disposed of the main difficulty, let us proceed now to the consideration of the other questions presented by the parties on the re-hearing of this case.
1st. It is objected “That if the company can recover at all, it cannot recover more than the estimated cost, to-wit: $80,000; for that is the only legal lien upon the property in the second section. If it has expended more, it has done so without giving notice to the proprietors and the public, such as the charter contemplated, and as a consequence must suffer the loss.”
An examination of the statute does not bear out the construction here contended for. It is true that the estimate of the probable cost of the work wras required to be made previous to the commencement of the proceedings, to obtain the decree subjecting the property to the first mortgage and privilege in favor of the Draining Company, but this estimate formed no part of the decree itself. It stood in the same relation tó the decree that the plan and statement of the probable duration of the work did. Even the plan was not required to be recorded in the registry of mortgages; a copy was required to be deposited only with the Recorder for Ms information; doubtless to facilitate him in making a certificate of mortgages.
It will appear by the eighteenth section of the Act of 1885 and the first section of the Act of 1839, amendatory thereof, that the intention of the Legislature was to give the Draining Company a superior mortgage and privilege upon the lands drained for the whole cost of the draining of the section.
By the first section of the Act of 1839 the Court were to decree “That each portion of the property situated within the said limits, is subject to a first mortgage and privilege in favor of said Draining Company for such amount as may be assessed on it for its proportion of the whole cost of the draining of the said section.”
By the same section it was made the duty of the Recorder of Mortgages, whenever required to deliver a certificate of mortgages of any property embraced within the said section, “ to mention therein that said property is subject to a privilege and first mortgage in favor of said Draining Company, for such a sum of money as will hereafter he assessed on said property for the draining thereof.”
The same section of the Act continues, “The said privilege and first mortgage shall take precedence over all mortgages whatsoever, whether conventional, tacit, legal, or judicial, and shall attach to said property until the amount which will be assessed on it, and the notes which may be given for said amount, as provided in the 5th, 6th, 7th and 8th sections of this Act, shall have been paid in full.”
The law does not require the estimate to be recorded in the office of the Register of Mortgages, and if it did, in reference to these provisions of law, we should be compelled to hold that it could have no more effect upon the privilege created in favor of the Draining Company, than the recording of the tutor’s bond has on the extent of the tacit mortgage in favor of the minor. The Statute did not require the decree to be recorded in the name of each proprietor in order to give it validity as a mortgage. The section to be drained was described, and the plan furnished the Recorder, with the subdivisions and names of the proprietors, as far as practicable. The statute was permissive to the Draining Company to record the decree against each, not imperative.
This view of the case disposes of the obligations of such opponents as have *375become third possessors of the property during the progress of the work. They are purchasers with notice.
2d. But it is objected that the decree could not bind the holders of property in the section to be drained, because a notice published in the newspapers was not a notice to the proprietors. It is in the power of the Legislature to determine in what manner parties may be brought into court, and we have recently decided in regard to the city taxes, that a decree rendered upon such notice is obligatory. See The City v. Cordeviolle & Lacroix, 10th An., p. 732.
3d. It is further contended that the estimate-made was not in conformity with the charter; that it was not intended as an estimate of the cost of a complete drainage, and, therefore, the company cannot recover. This objection is inconsistent with the objection that the estimate was binding on the company, and that they cannot recover beyond it. But if it wero irregular, as alleged, the irregularity has been cured by a judgment of a competent tribunal, which has not only become final, but has been acquiesced in by these parties who .have daily seen the work upon their land in progress, and who have made no objection or remonstrance.
4th. The next point is, “That the company cannot recover for any work or labor done or money expended on said Section No. 2, after the 1st of January, 1849, for then, according to their own showing, (by their own engineer) the draining of the section was completed, and ought to have been, according to the intent and meaning of the charter, turned over into the hands of the city.”
The Judge of the lower court, after a careful examination of the testimony, came to the conclusion that the work ought to have been delivered to the city by the 10th of May, 1849, and ordered all charges after that date, whether occasioned by the crevasse or attributable to the remaining in possession after that day, such as charges for salaries, office hire, expenses for running the engines, &c., to be stricken from the account. The amount of these rejected charges, with two items withdrawn by the company, is $58,800 45.
The principle on which this large sum has been rejected is that the Act of 1839 required the Draining Company to proceed to the draining of the section with all possible expedition ; that by the 10th of May, 1849, the work might have been completed and delivered to the city ; that had it been so delivered, the loss occassioned by the crevasse would have fallen upon the city and not upon the Draining Company, and consequently the property holders.
It is by no means clear that the failure to deliver at that time, has not benefited the property holders by the more perfect condition in which the works were subsequently delivered, and that the facilities possessed by the Draining Company, during that time, to re-open the canals, did not contribute to an earlier possession of their property than would have been the case if this heavy labor had fallen upon the city.
Still the testimony gives rise to so much doubt that we do not feel authorized to disturb the judgment of the District Court in this respect.
5th. But whatever may be our views as to the rejection of the foregoing items, we think the District Judge erred in refusing, on the same grounds, to the Draining Company, interest on the sums of money expended by them previous to the 10th of May, 1849, during the period which intervened between that date and the surrendering of the section to the city on the 20th of January, 1851.
*376The statute gives the Draining Company interest on the money expended, and we know no principle upon which we can interfere with a right given by a statute on a subject entirely under the control of the Legislature.
The judgment must therefore be so amended, as to allow the Draining Company interest at the rate of ten per cent, per annum, on $191,504 28, from May 10, 1849, to January 20, 1851, to wit, $32,449 32.
6. It is further objected, that if the company was delayed and hindered in the prosecution of the work by want of means, that they cannot recover for any more than the work would have cost, if the company had ample means and good credit, and had pushed forward the work in an expeditious manner.
We do not discover such delay in the operations of the company, as to entitle the property holders to any further deduction, and it is by no means certain that the gradual manner in which the work was actually accomplished, was not less expensive than it would have been had a larger force and more expensive means been used at> the commencement, and before the soil had acquired firmness by the joint action of the atmosphere and drainage.
7th. It is further objected, that section number two has never been completely isolated, and that it receives the drainage of all that portion of the city of New Orleans between St. Peter and Julia streets.
It could not have been in the contemplation of the Legislature to require the company to isolate the section from that portion of the city naturally draining on these inferior lands, which owed such servitude to the superior portions of the city. On the contrary, the object was to drain the inferior section, notwithstanding such additional labor imposed upon the company by throwing off the water falling upon a larger area.
8th. In regard to the rejection of the items of expense for the cutting of the wood and timber standing upon this section, we think there is no error in this part of the decree of the District Court. It was made the duty of the Draining Company to charge the expense of cutting, removing, and selling the timber to the proprietors of the “ wooded land,” and to credit them with the proceeds. Not having done so, the Draining Company cannot recover the cost of cutting the wood as a general charge against all the proprietors.
9th. The appellees further object, that the charge of interest up to the time of closing the general account and then charging of interest upon all the items, is interest upon interest, which is prohibited by law.
The anatocism results from the manner in which the company are directed to keep their accounts. By the second section of the Act of 1839, they were directed to open an account with the section of the swamp to be drained, and charge it with all the expenses incurred for the draining thereof, and it further provides that on every charge in said account, interest shall be calculated at the rate of ten per cent, per annum from the time it is made.
The third section provides, that as soon as the draining of the section is completed, the company shall make out a general account.
The fifth section of the Act provides, that the amount due upon each property for the draining thereof, as settled by the confirmed tableau, shall be payable in cash, with ten per cent, interest from the day in which the aforesaid account of the Draining Company shall have been closed.
We think these provisions fully justify the manner in which interest has been charged.
*37710th. In regard to the mode in yhich tlie assessment has been made, it is true the statute leaves great discretion in the appraisers, as respects the principles upon which their assessment is to be made. But this want of specific direction to these officers, does not render their acts void, or deprive the courts of power to approve such as they may think equitable and just. There is nothing in this record which satisfies us that the District Judge has adopted an erroneous basis upon which the assessment is directed to be made. We think it is supported by the testimony, or at least we have no data before us by which we could change it in one particular, with certainty that we were not doing a greater injustice to another class of the proprietors.
Whilst we feel the almost impossibility of doing exact justice among so many persons with conflicting interests, we are satisfied that whether we adopt the area or value of the lots, as the plan upon 'which the assessment is to be made, it will approximate the right so nearly,-that less injustice and injury will be done by adopting either, than by sending this case back for prolonged litigation and further proof upon this question.
The principal that it cost as much to drain one foot of land of little value as it did to drain an equal area of land more valuable, and that both were alike benefited, prevailed as to all the lands below the ordinary level of high water, in the lower court. This seems to be recognized by the third section of the Act of 1839,-which directed the appraisers in making the distribution, to take into consideration principally “ the extent of the individual properties.”
The large portion of the expenses which, by this view, is thrown upon the city for the streets, meets in some measure that equity which has been urged upon our consideration, that as this work has been undertaken for the public good, the public ought to bear the charge of it, notwithstanding the benefit to the owners of the soil.
It is therefore ordered, that the judgment of the Supreme Court heretofore rendered in this cause, be set aside and annulled. A'nd it is now ordered, adjudged and decreed, that the judgment of the court below be avoided and reversed; and proceeding to pronounce such judgment as should have been rendered by the lower court, it is ordered, adjudged, and decreed, that the amended account D, filed on the 24th of February, 1854, be amended by adding thereto, as a credit to said Neri Orleans Draining Company, the sum of $32,449 32, on the interest account, and that said account thus amended, be homologated. And it is further ordered, adjudged and decreed, that the tableau marked A and B, filed on said 24th day of February, 1854, be also homologated, and the objection to said account D, and tableau A and B be overruled. And it is further ordered, adjudged and decreed, that there be judgment in favor of said New Orleans Draining Company, for the sum of $259,957 32, with ten per cent, interest per annum thereon, from the 10th day of January, 1851, until final payment, and that said New Orleans Draining Company recover said sum and interest by an assessment of four mills and 16,597-100,OOOths of a mill, together with ten per cent interest thereon, from 21st of January, 1851, on each superficial square foot of ground English measure, shown upon the plan book on file, excluding therefrom the portions of ground exempted from contribution, shown by said schedule A and B, and rating three superficial feet of high land as equivalent to one foot for the purpose of contribution, and that the payment of said contribution in principal and interest, be secured by a first mortgage and privilege upon the lands upon *378which the same are assessed. It is further ordered, adjudged and decreed, that the appellees pay the costs of the appeal.