dissenting'. This suit is brought to compel the city of New Orleans to reimburse the one-half of the expenses paid by the State, in the year 1857, for the purpose of carrying into effect the provisions of an Act approved the 19th of March, 1857, entitled “ An Act relative to elections in the parish of Orleans. The defendants admit, that the allegations of the petition in relation to the payment of said expenses and the demand of reimbursement by the State Treasurer, are true; but plead that the Act of the Legislature above mentioned is contrary to and violates the Constitution, and that the action of the State, under said law, cannot be maintained.
The City Attorney, in his argument before this court, has designated the Articles 124,1, 74,104, 58,105, and 123, of the Constitution, as those which are violated by the Act of the Legislature in question.
Article 124 of the State Constitution provides as follows :
“ 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 the said city, pursuant to the mode of elections which shall be prescribed by the Legislature; provided that the Mayor and Recorders shall bo ineligible to a seat in the General Assembly ; and the Mayor, Recorders, Aldermen and Assistant *360Aldermen shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the punishment of minor crimes and offences, and as the police and good order of the city may require.”
The following provisions of the Act of 19th of March, 1857, are said to be inconsistent with this Article:
“ Section 16. The Governor shall, by and with the advice and consent of the Senate, appoint a discreet citizen, who has resided in the State at least four years, whoso duty it shall be to superintend all elections held in the city of New Orleans, and who shall be styled “ Superintendent of Elections,” who shall hold his office for the term of two years, unless sooner removed, and who shall receive an annual salary of three thousand dollars, payable quarterly, out of the Treasury, upon the warrant of the Auditor of Public Accounts; and onc-half of said salary shall constitute a debt against and to be paid by the city of New Orleans, in the manner hereinafter provided ”
“ Section 18. The said Superintendent shall keep his.office in the city of New Orleans, and shall be entitled to four chief deputies, to be appointed by himself, and removable at his pleasure; and each of said deputies shall receive an annual salary of one thousand dollars, payable quarterly, out of the Treasury, on the warrant of the Auditor of Public Accounts; one-half of which salary shall constitute a debt against and to be paid by the city of New Orleans, in the manner hereinafter mentioned.”
“ Section 19. That it shall be the duty of said Superintendent of Elections, to take charge of and superintend, under the control of the Central Board of Commissioners, and to the exclusion of all other persons, all elections held in the parish of Orleans and city of New Orleans, for the offices of the General Government, members of Congress, members of the General Assembly, Judges, parish or municipal offices, and for any other officer, federal, State, parochial or municipal, whose election devolves upon the people; to prescribe and arrange the ingress to and egress from the polls; to preserve tranquility and order during elections ; to prevent and suppress riots, tumult, violence, disorder, and any other improper practice tending to the intimidation of voters, or tho disturbance of elections, and in general, to take care that all elections are so conducted, that the privilege of free suffrage may be supported, and the constitutional rights of the citizens shall not be impaired or defeated by violence, tumult, intimidation, or other improper practices.”
“ Section 20. The said Superintendent shall have power to.employ any number of persons the Governor may think necessary, as his deputies, for such time previous to any election as the Governor may direct; and the said deputies may be organized in such manner as the Superintendent may deem proper and adequate for the occasion; and the said deputies, on the day of election, and during their term of service, shall be subject to the order and direction of said Superintendent, and obey all lawful commands issued by him.”
“ Section 23. That the said Superintendent of Elections shall have the power to appoint any number of extraordinary deputies, from amongst the citizens of the parish of Orleans, to protect the approaches to the polls, keep order thereat, and secure free access to and egress from said polls; and any citizen between the ago of twenty-one and fifty years, refusing to perform such duty, whenever thereunto summoned, shall be subject to a line of not less than one hundred, nor more than five hundred dollars, recoverable before any court of competent jurisdiction, *361in the name and for tlie benefit of the State of Louisiana; and in default of payment thereof, said citizen shall stand committed in the parish, jail for a term not exceeding' sixty days.”
“ Section 24. That if any person, in the parish of Orleans shall, in breach of the peace, disturb any Commissioner or Clerk of Elections in the discharge of his duty, or any voter in the exercise of his right of.suffrage, or shall prevent any voter from exercising his right of suffrage, whether before or during the election time, such person shall be forthwith arrested by the said Superintendent, or any of his deputies, or extraordinary deputies, and instantly confined in the police or parish jail, and shall, upon conviction thereof, be sentenced to not loss than six months, nor more than three years imprisonment, at hard labor in the penitentiary, and shall be forever deprived of his right of suffrage; provided, however, that any person so arrested, if a lawful voter, shall be permitted to vote before being confined.”
“ Section 27. That the said Superintendent shall commission his chief deputies, and their commissions shall specify their seniority of rank ; and it is hereby declared, that in the event of death, resignation, absence, sickness, or inability to act, from any cause whatever, the said chief deputies shall succeed to the duties and powers of said Superintendent, according to the seniority of rank expressed in their respective commissions, so that the senior chief deputy shall first succeed, and in case of his death, resignation, absence, sickness, or inability to act, the second chief deputy shall next succeed, and so on to the last; and each chief deputy thus succeeding in his turn, is hereby authorized and empowered to assume and perform all the duties of Superintendent, and exercise all the powers vested in him by virtue of this Act, until the vacancy of Superintendent is filled, or the Superintendent presents himself and resumes the duties of his office.”
“ Section 28. That any deputy employed by the said Superintendent, except the chief and extraordinary deputies, shall be entitled to receive, during the time he is in actual service, under the command and direction of the Superintendent, ton dollars for each day of actual service.”
“ Section 30. That one-half of the expenses incurred for the purpose of carrying into effect the provisions of this Act, except those otherwise provided for, shall be charged' to and be paid by the city of New Orleans ; and the Treasurer of the State is hereby authorized and required, on the first day of January of e'ach and every year, to demand of the city of New Orleans the payment of one-half of whatever appropriation may be expended for the salaries of the deputies and officers aforesaid.”
Section 31. That the said Superintendent, for the purpose of preserving order, 'and preventing riots and tumults, is hereby authorized to cause to bo closed, on election days, all grog-shops and bar-rooms in the city of Now Orleans ; and any keeper or owner of a bar-room or grog-shop in said city refusing or failing to comply with the proclamation of said Superintendent, published in two newspapers of the city of New Orleans, requiring grog-shops and bar-rooms to be closed on the day of election, shall forfeit and pay á fine of two hundred dollars, recoverable before any court of competent jurisdiction ; the payment of which fine shall, after judgment, be enforced by imprisonment, not exceeding-sixty days.” '
The argument of the Attorney General admits that the powers vested in the Superintendent of Elections and his deputies by these sections of the statute are police powers, but he argues that they are powers essentially belonging to the *362police of the State, — not the police of the City — because the regulation of elections, and the protection of the elective franchise, are the very first duties of the State, the government being based upon and carried on by means of elections. And in this connection, we are referred to Article 93 of the State Constitution, which declares that the privilege of free suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence thereon from power, bribery, tumult, or other improper practice.
Granting that the preservation of the public peace at elections held to fill the offices required to carry on the State government, and the protection of persons who are entitled to vote, in the exercise of such right, are matters of State policy and concern, in all the parishes and municipal corporations into which the territory of the State is subdivided ; yet, it cannot bo denied, and in the argument of the Attorney General it is admitted, that the measures for the repression of disorders at elections, and for the protection of voters, are matters of police administration. Police is a term of extensive application. It embraces attributes, administrative, preventive, and punitory. In all those attributes, it is essentially executive. The Legislature of the State has fulfilled the Article 93 of the Constitution by general laws concerning elections, other than the one now under consideration. There is nothing in that Article inconsistent with Article 124 ; which last prescribes merely who shall bo charged with executing and carrying out, in a particular portion of the State, the laws enacted in virtue of the Article 93, as well as all.other laws which come under the head of police regulation.' But the Attorney General further urges, that the police administration is not vested in the “ city of New Orleans ” by the Article 124 of the Constitution, but in the “citizens of the City of New Orleans.” The city of New Orleans, it is argued, is a municipal corporation, deriving its powers exclusively from the Legislature, and absolutely subject to its control; and & dictum of Chief Justice Eustis to that effect, in the case of the Louisiana Stale .Bank v. Orleans Navigation Company, 3 An. 306, is quoted. It is worthy of remark, that Judge Eustis, in the passage cited, expressly excepts the constitutional right of the inhabitants of New Orleans to elect their public officers; the right for which the defendant contends in the present suit.
The distinction drawn by the Attorney General between the citizens of New Orleans, and the corporation, is one of no practical utility ; and if it were, is not justified by the terms of Article 124. The city corporation represents the collective mass of the citizens of New Orleans. Financially, the citizens can only be collectively reached through the city corporation : a fact, of which this very suit, instituted against the city corporation, is a judicial admission on the part of the plaintiff. The city corporation is called upon to defray the salaries of certain officers, and to reimburse moneys expended upon warrants of those officers. It answers, on behalf of the citizens, whom it represents, and out of whose pockets the money will have to come, which is to satisfy the judgment demanded in this suit, that the law on which the action is based is unconstitutional, and therefore, that the citizens ought not to pay, as demanded. Why is the city corporation sued for this money ? The answer is obvious. Because the 16th, 18th and 30th sections of the Act of the 19th March, 1851, have so ordained. The obligation is, therefore, an obligation of the city corporation, created by a statute. And it is not only a competent defence, but the best of all defences to an action upon a statutory obligation, that the statute violates the Constitution. And as no one has an interest, or can be heard to make a defence to an action, except the party *363defendant to the action, it follows that the distinction made in argument between the citizens of New Orleans and. the city corporation, is useless, and can load to no result except a denial of justice; for, if, maintained, it would amount to a declaration by, this court, that the defendant is properly sued, but has no right to defend the suit. But the Article, in its terms, really offers no foundation for the ' supposed distinction between the citizens and the corporation. It refers, in various parts, to the corporate organization established by statutes already existing. It mentions specially the Mayor, the Recorders, the Aldermen and the Assistant Aldermen, who are officers of the corporation. It ratifies and confirms the Oity Charter, by declaring that the citizens shall always possess the franchises which that charter had bestowed upon them, to-wit, the appointment of the several public officers necessary for the administration of the police of the city. This is qualified, it is true, by the clause 11 pursuant to the mode of elections which shall be prescribed by the Legislature.” But that clause is one of modification, not of destruction. On no correct principles of construction can it bo interpreted to confer upon the Legislature the power of abrogating in tato the right of appointment by the people. The Legislature, under this clause, may modify the election of public officers charged with the administration, of the police of this city; may alter the forms of election, its periods, its incidents, its consequences and effects; but it must always remain an election, and an election by the citizens in their corporate capacity.
Another argument which has been forcibly urged by the Attorney General is, that the power to enforce order, and prevent violence and malpractices at the jjolls, in elections held in the city of New Orleans, under the constitutions of 1812 and 1845, which contain provisions analagous to those of the Article 124, was, by many statutes, vested at different times, without any doubt or question being raised upon its . constitutionality, in officers appointed by the Governor, to-wit, Judges and Sheriffs. These statutes are in perfect harmony with the Article 124. They are component and necessary parts of the statutes for the regulation of elections, passed in conformity with Art. 93 of our present State Constitution,, and analogous Articles of the preceding constitutions. But it will be found, that the police powers vested in the officers named by the statutes referred to, did not extend beyond the immediate precincts of the polls, and did not endure longer than the time fixed by law for receiving and counting the votes, and preparing the official returns of the balloting. Powers thus limited cannot with propriety be styled the administration of the police of the city, in the words of the Constitution. But the same thing cannot be said of the powers conferred by the Act of the 19th of March, 1857, upon the Superintendent of Elections and his deputies. Their jurisdiction is co-extensive with the limits of the city; may be exercised during an indefinite period; and enforced by an armed force, levied by themselves although paid by the city of New Orleans; and any resistance to any one of whom is punishable with fine and imprisonment in the penitentiary.
It therefore appears, that the Act of 19th March, 1857, creates a stringent system of police of the city at large, of which the administration is committed, by the statute, to officers not appointed by the citizens of New Orleans, according to any mode of election prescribed by the Legislature. In this respect, the statute is contrary to the 124th Article of the Constitution; and it follows, as a necessary consequence, in my judgment, that no action can be maintained, under it, against the city, for the salaries of the officers thus unconstitutionally appointed.
*364It is further objected, that the statute violates the 1st and 2d Articles of the Constitution in those of its enactments which relate to the Attorney General.
Article 1 divides the powers of the State Government into three distinct departments, Legislative, Executive, and Judicial.
Article 2 declares, that no one of these departments, nor any person holding-office in one of them, shall exercise power properly belonging to either of the others.
The argument of the City Attorney, in relation to this branch of defence, is, that the Article 74 of the Constitution, which creates the office of Attorney General, is placed in the fourth title of that instrument, which treats of" The Judiciary Department ” — that the Attorney General is, therefore, to bo considered as an officer of that department of the State Government; and that, by the Act of 19th March, 1857, sections 6, 7, 8,10,11,19, executive powers are conferred upon the Attorney General. .
The first Article (No. Cl) in the title of the Constitution referred to, declares as follows :
“ The judiciary power shall be vested in a Supreme Court, in such inferior courts as the Legislature may, from time to time, order and establish, and in Justices of the Peace.”
In the same title we find Article 74, which creates the offices of Attorney General and District Attorney, and Article 80, which creates those oí Sheriff and Coroner. But neither of those Articles are viewed by us as conflicting with and overruling- Art. 61. The fact of the Attorney General being- connected with tire administration of justice, particularly in criminal prosecutions, has probably been the cause of mention being made of him in the Constitution, in connection with the Judicial Department of the Government; bat his functions are essentially executive. Informations and indictments originate with him. He conducts, on behalf of the State, criminal and civil proceedings; but he does not decide them. The power of judging — the judicial power — resides elsewhere.
It is next argued by the City Attorney, that the 25th section of the statute violates the 104th Article of the Constitution.
By Article 104, “ All prisoners shall be bailable by sufficient securities, unless for capital offences, when the proof is evident, or the presumption great, or unless after conviction for any offence or crime punishable with death or imprisonment at hard labor.”
The 25th section of the Act reads as follows :
“ When any person shall be arrested, on the day of the election, by the said Superintendent, or any of his deputies, or his extraordinary deputies, ho shall not be released from his imprisonment by bail or otherwise, until the following morning-, unless it be by order of the Superintendent, or any of his chief deputies, or by writ of habeas corpus.”
I find nothing inconsistent in the provisions of the Article and section above copied.
The Article 58 of the Constitution is also stated by the City Attorney to be violated by sections 22 and 27 of the Act of the 19th March, 1857.
The Article 58 provides that “ All commissions shall be in the name and by the authority of the State of Louisiana, and shall be sealed with the State seal, and signed by the Governor.”
The 22d and 27th sections of the Act empower the Superintendent of Elections to commission his deputies.
*365These sections are not in conflict with Article 58 of the Constitution. That Article refers entirely to cases where, either the appointing power is in the Governor, or whore, the office being elective,'the returns of election are required to bo made to the Governor and verified by him. The Article must be construed in connection with Article 47, which declares that the Governor “ shall nominate, and by and with the advice and consent of the Senate, appoint all officers whose offices are established by this Constitution, and whoso appointment is not therein otherwise provided for; provided, however, that the Legislature shall have a right to prescribe the appointment to all other offices established by law.”
The City Attorney next contends, that the 14th section of the Act, which authorizes the Board of Commissioners to use, for the purpose of an election poll in the parish of Orleans, any building’ belonging to the city of New Orleans, violates the 105th Article of the State Constitution, according to which “ vested rights shall not be divested, unless for purposes of public utility, and ior adequate compensation previously made.”
It is not perceived how the permission, accorded by the satute to the Commissioners of Election, to make use of any building belonging to the city, divests the vested right of the city in such building. In the first place, it is not obligatory on the Board of Commissioners to use buildings belonging to the city. It may, says the same section, rent any buildings proper for the occasion, with the exception of grog-shops, or places where liquor is sold, which are formally prohibited from being used for election polls in the parish of Orleans.
Again, the statute does not authorize the Board of Commissioners to use buildings belonging to the city of New Orleans, against the- consent of the municipal authorities. The refusal of such consent, it appears to me, would constitute one of those cases of necessity, in which, according to the section, the Board of Commissioners is authorized to rent the buildings proper for the occasion.
It is, lastly, argued by the City Attorney, that the section 30th of this Act of 19th March, 1857, is contrary to the Article 123 of the Constitution, which declares that “ Taxation shall be equal and uniform throughout the State.”
The 30th section of the Act roads as follows :
“ One-half of the expenses incurred for the purpose of carrying into effect the provisions of this Act, except those otherwise provided for, shall be charged to, and be paid by, the city of New Orleans ; and the Treasurer of the State is hereby authorized and required, on the first day of January of each and every year, to demand of the city of New’ Orleans the payment of one-half of whatever appropriation may be expended for the salaries of the deputies and officers aforesaid.”
The allegations of the petition heroin, admitted to be true, inform us that a large sum, about six thousand dollars, has been paid by the State Treasurer, out of appropriations made by the Legislature, under this section of the Act under consideration, for the year 1857. The funds in the State Treasury, with which this payment was made, were, in part at least, the’proceeds of taxation, of which the city of New Orleans had contributed a large share. In addition to the contribution thus already made by the tax payers of New Orleans, towards defraying the expenses of carrying into effect the provisions of the Act in question, the city, in its corporate capacity, is now called upon to reimburse to the State Treasury one-half of the amount thus disbursed by it. This call can only bo met by taxation of the corporators, levied by the Common Council. The inhabitants of the city of New Orleans are evidently thus taxed twice, for an object for which the other parishes of the State will only have been taxed once. It is remarkable *366that, in his written brief, the Attorney General has not touched this ground of the defence. In his oral argument, that officer was understood by me to take the position, that an objection to pay one-half of the expenses incurred under the Act, came with a bad grace from the city, inasmuch as the Legislature might, had it thought proper, have charged the city with the payment of the whole of those expenses. This argument does not seem to state the case with entire exactness ; for, in my view, as above expressed, the city is made to defray, under the statute, considerably more than one-half of the total sum of expenses. But this error of the Attorney General’s argument, if it be an error, is immaterial. The case put by the argument is not the one before the court. The Legislature has not said in this statute, (as was said in the statute reviewed in St. Martin’s case,) that the city shall pay all the expenses of carrying its provisions into effect. It has said, on the contrary, that the city shall pay a part of those expenses — but what part? A part proportionate to the amount of the Slate revenue derived from this city? No : but one-half of the total expenses, in addition to its proportionate contribution to the State revenue, already paid. This legislation appears to me equivalent to a special tax imposed upon the city of New Orleans, in addition to the burden of taxation which it bears in common with the other parishes, and is, consequently, an example of the unequal taxation reprobated by Article 123 of the Constitution.
I am of opinion that the judgment of the District Court should be affirmed.