dissenting. I concur with Mr. Justice Buchanan that the Act in question violates Article 124 of the Constitution, inasmuch as it conflicts with the administration of the police vested by the Constitution in the officers of the city.
The powers vested in the Superintendent are of the most extraordinary character. They place the city during the election entirely under his control, as will be seen by an enumeration of his powers.
1st. He has the power to impress into his service, under the penalty of a fine not less than $100 nor more than $500, any number of citizens over 21 and under 50 years of age, who are to act as extraordinary deputies, and they are to be paid ten dollars per day for the time they are “ in the actual service under the command and direction of the Superintendent.”
Under this provision not only private persons are liable to serve as deputies, to the number of thousands, if it shall please the Superintendent, but the Mayor himself and every other officer of the city, of suitable age, may be required to serve, in the language of the statute, under the command of the Superintendent. 'Fliis power may be continued not only for one day, but may commence as many days previous to the election as the Superintendent may deem expedient. It is then subversive of the power of the city authorities, because it may, for the time being, command them.
2d. The Superintendent is to take charge (under the control of the central board of commissioners,) to the exclusion of all other persons, of all elections in New Orleans. To prescribe and arrange the ingress to and egress from the polls ; to preserve tranquility and order, not at, but during elections ; to prevent aud suppress riot, tumult, violence, disorder and any other improper practice tending to the intimidation of voters or the disturbance of elections, and in general to take care that all elections are so conducted that the privilege oí free suffrage may be supported and the constitutional rights of the citizens should not be impaired or defeated by violence, tumult, intimidation’or other improper practices. This extra*367ordinary power of police is thus eo-extcnsive with the limits of the city. Public streets may be prescribed as ways of ingress or egress to the polls. The public buildings may be taken for that purpose, and tumults and disorder every where suppressed during the election ; and any person, even a city officer, who shall interfere with said Superintendent, or his deputies, shall be fined not loss than $500 and imprisoned at hard labor for one year in the penitentiary. Thus it is seen, that not only a portion of the police power is assumed, but wherever the two authorities are present that of the Superintendent is exclusive and paramount. The law is then in conflict with Article 124 of the Constitution, which has guarantied to the citizens of New Orleans the exorcise of the police power through officers to be elected by themselves. •
3d. He has the right to arrest, without warrant, for offences not only committed in his presence but out of his presence, as, where a person should prevent a voter from exercising his right of suffrage before or during the election, or where a riot had occurred in another part of the city.- If this be not a judicial power, it must be that of a conservator of the peace, the same which the Constitution has vested in the Mayor, Recorders, Aldermen and Assistant-Aldermen. In regard to the powers exercised by commissioners of elections under the territorial government and former constitutions, there was but little in common with the present statute. The commissioner, who was accompanied by the sheriff or his deputies, had power to preserve order during his actual sittings and in his immediate presence.
The Superintendent, on the contrary, has power throughout the entire city ; to preserve order and tranquility everywhere during the election, ne commands his deputies ; he takes possession of any street or public building he needs ; he enters upon private property and closes grog-shops and bar-rooms ; he suppresses riots, tumults, disorder and improper conduct tending to intimidate, etc., and protects the constitutional rights of the citizen at his own arbitrary will and pleasure, and whether disorder takes place or an improper practice has been resorted to in or out of his presence. The difference between the two offices is radical. The former one was an officer with the most limited powers, both as to timo and place. The Superintendent, on the contrary, has to a certain extent arbitrary powers. He is “ to take care,” among other things, that all elections shall be so conducted that the constitutional rights of the citizens shall not be impaired or defeated by violence, tumult, intimidation or other improper practices. What is violence, tumult, intimidation, or improper practices, and what are the constitutional rights of the citizen, is left to the sole will and judgment of the Superintendent to determine.
The judge of the election could only preserve order in his immediate presence, during the receiving or counting of the votes. The Superintendent, who does not receive a vote or preside at any poll, is empowered to take his measures as long before the election as may be needed to carry into complete effect the object of the Act. This power, absorbing as it does all police power, seems to me, as already observed, wholly incompatible with the grant by the Constitution of police powers to the officers elected by the citizens of New Orleans.
Municipal corporations are, as a general rule, but creatures of the legislature. The city of New Orleans is excepted by the Constitution from the operation of the rule in two particulars :
1st. By implication, it must remain a city and the legislature cannot deprive it of all rights as such.
2d. Expressly; the legislature cannot take from the citizons of New Orleans *368the administration of the police of the city through officers elected by themselves, nor from the Mayor, Recorders, Aldermen and Assistant-Aldermen the powers of Justices of the Peace as conservators thereof.
The legislature may prescribe the regulations of police for the city, but when that is done, those regulations are to be enforced through the several public officers, elected by the citizens, necessary for such administration.
It is true the legislature has power to prescribe the mode of election, but this must be understood with reference to former laws, and not construed so as to absorb the administration of the police, in the city at large, which had just been granted by the previous provision to the city and to advance which, the power to prescribe the mode of election had been retained. The grant of power and the restriction must be construed so as to give effect to both, and that is best done by reference to the state of things existing at the date of the adoption of the Constitution.
It must not be supposed, that because the legislature can provide the mode for the appointment of commissioners of elections, as known to the laws of the country at that time; therefore, it can superadd other and prohibited powers, such as judicial or executive powers, or the administration of the police, etc., to the same officers. It needs no argument to demonstrate that things unconstitutional cannot be added to those which are constitutional. To hold because the Constitution has made it the duty of the legislature to provide for the election of the city officers, that, therefore, the officers of the election may be made to perform the duties and absorb the power of the city authorities, appears to me to be an exposition which permits the means to defeat the end. If the owners of a ship had contracted with a towboat company, in this city, to deliver the vessel at the mouth of the Mississippi, the company would hardly be justified in displacing the officers, passengers and crew, and putting on board officers and crow of their own, and taking possession of deck, cabin and stores, although the voyage were but a short one. Moreover, the argument proves too much, for by the same reasoning it can be demonstrated that the judicial power may bo conferred on the Superintendent of elections also.
Some reliance has also been placed upon the fact that this is the first time that there has been any opposition made to the exercise of this power by the State. The reason is most obvious; this is the first time since the change from the Spanish government that such extraordinary and arbitrary powers have been vested in any individual.
I concurred fully in the decision in case of St. Martin v. the City of New Orleans, although it was not decided without hesitation on the part of some of the members of the court. Hence, the opinion in that case is extremely guarded, and applies only to the questions of repeal and construction. The constitutional question was neither raised by counsel nor decided by the court. And if it had been considered, the question would have been different, for the Constitution enjoins it upon the legislature to create the registry of voters. Art. 11. Again, it supposed that the restriction contended for by defendant is incompatible with the sovereignty of the State.
Under our system of government, it is plain, the legislature is supreme only in a qualified sense. It is itself, the creature of the people assembled in convention, and it exorcises only a delegated power in their name. 'Wherever the people have limited or restricted the power of the legislature, its sovereignty ceases, The Constitution is the charter by which the power is conferred upon the legislature to make laws, and as this power is limited and restricted, a jurisdiction has *369been conferred by the same instrument upon another body of magistrates, to determine the meaning of the instrument, and to declare all violations of the same null. It is as I think, the duty of the courts to stand at the post assigned them by the Constitution, and with unwavering fidelity to declare void every act tending in any manner to overthrow the constitutional rights of the citizen, whether considered as an individual or as a member of a municipal corporation : lest one unwise precedent may lead to innumerable and unforeseen evils by its consequences.
The Constitution being an instrument for interpretation, becomes subject to those rules of interpretation which existed long before the instrument was penned.
’Hie restriction upon the legislature contained in the 124th Article of the Constitution, appears to me to be plain and intelligible as it stands. It says that the citizens of the city of New Orleans shall have the right of appointing the several Public Officers necessary to the administration of the police of said city. My argument is, that if an office be public, and necessary to the administration of the police, the power is vested in the citizens of New Orleans by the Constitution, (which created the legislature, established this court, and recognized New Orleans a city,) to fill the office.
In my opinion it is a matter of no consequence how the office is created, whether by the legislature under general laws as to all corporations, or by a power delegated to the city itself. For, as the Constitution does not provide in what manner the laws governing the city are to be passed, I see nothing to prevent the entire legislation of the city from being engrossed by the legislature. But .when the laws are once enacted, the Constitution directs, that the execution of all those in relation to the administration of the police of the city, shall be entrusted to officers elected by the citizens of the city of New Orleans.
The question, therefore, is resolved into this, (as implied by the leading opinion of the majority of the court,) whether the .Superintendent of the Elections administers police powers within the city ? If he does, the law creating the office is unconstitutional, because the citizens of New Orleans are not permitted to appoint or elect him.
What, then, does the Constitution mean by the word “ police ? ” It is defined to be “ A term employed to designate those regulations, which have for their object to secure the maintenance of good order, cleanliness, health, etc., in cities and county districts.” See Brande. See also Tomlins Law Die. verbo Police. It is the more evident that the framers of the Constitution used the word in this sense, as the city authorities had exercised such powers previous to the formation of the Constitution of 1812, as well as since. See Martin’s Dig. vol. 3, p. 196 el scq.
To hold that the police of a city, as such, is limited in its functions to the prevention or punishment of infractions of city ordinances would be, it seems to me to ignore the ordinary meaning of words, and leave the city unprotected as to those crimes and offences the most dangerous to the peace and safety of the citizens. Can it be successfully maintained, that the city authorities cannot interpose to prevent murder, arson, burglary, robbery, larceny, assaults, affrays and the keeping of disorderly houses, because those offences are punished by State laws ? If the city authorities can interpose to repress these dangerous disturbances, it is manifestly a police power. Now, is not the power to preserve “ tranquility and order,” to prevent and suppress riots, tumult, violence and dis*370order, and to take possession of all the streets and public buildings equally a matter of police ? If it be, then the law conferring this power upon a “ public officer,” the Superintendent, (who is not elected by the citizens of New Orleans) to the exclusion of the city authorities is unconstitutional and void.
The restriction in the Constitution upon the legislature may, or may not, evince sagacity in the framers of that instrument. But certain it is, that tho provision was deemed important, for it has been consecrated by three several constitutions. Possibly the statesmen of 1812, who were securing to the town of New Orleans the right of appointing its public officers, may have had in view tho influence which independent and well governed cities have exerted upon modern civilization and freedom, and might have glanced forward to the great future of this city, when its teeming population might awaken jealousy by its opulence and commercial importance, or resentment by the obstinacy of political opinions, and they may have chosen to shield it in all coming time from the possibility of a harsh administration of any unfriendly laws it might thus provoke.