dissenting. I still adhere to the opinion, read in May last, as that of the majority of the court, in this case.
The court, as then constituted, held, that the forced contribution imposed upon the lands lying in the rear of the city of New Orleans, but within its municipal limits, and within the limits of the operations of the Draining Company, according to the Act of 20th March, 1839, and the Act of 19th March, 1885, for the purpose of defraying the'expenses of the operations of said Draining Company, with interest, and various other charges in said Acts specified, was a violation of the 123d Article of the Constitution, inasmuch as the drainage of the swamps in the rear of New Orleans is a work tending to the salubrity and benefit of the whole city of New Orleans, and is declared by the preamble to the said Acts of the Legislature to have been undertaken with that view. Further reflection has confirmed me in the correctness of the opinion thus expressed.
I will add that it appears to me no less clear, that the power conferred by the Act of 1839, upon the Draining Company, of assessing upon a portion of the lands embraced within the municipal limits of the city of New Orleans, a contribution for the reimbursement of expenses incurred for drainage, with interest, including the amount of contracts paid therefor, machinery, damages paid, labor of the company’s slaves at thirty dollars per month each, and salaries of officers, — is, in fact, a power of taxation, which it is unconstitutional for the Legislature to delegate to a joint stock company, and is inconsistent with the taxing power vested in the municipal corporation by the various Acts incorporating the city of New Orleans, which are not repealed.
The inscription, by anticipation, of a mortgage and privilege for an undefined amount, in favor of the Draining Company, against each and every proprietor of land embraced within the company’s operations, strikes me as amounting to a divestiture of vested rights, because it must render all property thus situated unsaleable, in the interval which elapses between the inscription of the decree creating the mortgage and privilege before the work is undertaken, and the ho-mologation of the assessment and tableau of contribution after the work is completed.
The superiority which is given by the Act of 1839 to the mortgage and privilege of the Draining Company on the lands embraced in their operations, over all mortgages whatsoever, whether conventional, legal or judicial, is a provision divesting vested rights and impairing the obligation of contracts.
But this unconstitutional feature of the law, and the one immediately preceding, will be, perhaps, more properly examinable, when the consequences of the exorbitant privileges conferred upon the Draining Company shall be developed in their application to individual cases.