dissenting. My first reason for not concurring in- the opinion of the court in this case, after further examination, is that the instrument on which the proceeding is based is not strictly a “regis*62tered certificate,” as is usually understood by such words. It is simply an authorization to the Controller to draw a warrant on the Treasurer for a specific sum under a particular ordinance. The Administrator of Public Accounts, who occupies the position of the Controller under the former charter, testifies that it is not what is properly termed a “registered certificate;” and the facts of this case show the importance and necessity of adhering strictly to legal forms. Secondly, if it be viewed as a registered certificate, in the contemplation of section forty of the present city charter, it is not a legal obligation of the city, having-been issued without consideration, without legal authority, and in violation of the good faith of the alleged payees, as plighted in a notarial act signed by them and the Mayor of the city, in special reference to this very matter.
The record shows clearly, by the contractors’ own list of their alleged losses, that it was issued as a gratuity or bonus on a contract for paving Esplanade street, and as stated on its face by virtue of ordinance 1467, which by its terms and the express construction thereof by the contractors in the notarial act above referred to, limited the gratuity or bonus to the paving of a part of Rampart street.
The manner and circumstances of its issuance, and that of others like it, are unusual and not warranted by any provisions of the law and ordinances relating to the subject. A recital of them here need not be made. Suffice it to say, the Finance Committees evaded any action themselves, although frequently pressed, and the chairmen seem to have leR it to their secretary to prepare the documents and ascertain from some other employe in the City Hall the particular ordinance under which they could be issued, and then affixed their official signatures, for reasons which are not legitimate.
But my most serious objection relates to the act No. 103 of 1871, which I can not think has made this a valid obligation of the city, and imposed on us the duty of ordering the defendants to acknowledge it as such. This act is entitled “An act defining the obligations of the city of New Orleans to be redeemed as a part of the floating debt, under the provisions of section 40 of act No. 7, approved March 16, 1870, and to enforce the same,” and it declares that said section embraces, and was intended to embrace, as obligations of the city, all registered certificates or bills issued or approved by the Chairmen of the Committees of Finance, and registered by the Controller of the city or his deputy, which at the time of its presentation for payment or redemption as part of the floating debt were held and owned by bona fide purchasers for value, and it authorizes the writ of mandamus to compel the officers, who are the defendants, to place the same on the statement of the floating debt, and specially confirms any proceeding by mandamus theretofore taken by holders of said obligations.
*63The proceeding- in this case was then pending, and the last clause discloses the motive of the act, while the record shows that the relator is the holder of other “obligations” of the same kind. In this proceeding, thus confirmed by an act of the Legislature while it was pending in the lower court, the question of the validity, the consideration, the good faith, the very existence of the alleged “obligation” was then at issue, and it becomes a matter of very grave inquiry whether or not the Legislature can thus forestall judicial action and decide upon the rights of litigants, if it be contended that the document before us is embraced within the above act.
I assume it as indisputable that when the relator, Hernandez, acquired the instrument in controversy, for I can not call it a “registered certificate or bill,” he acquired only the rights of the alleged payees, Coleman & Co., and theirs being contested as not well founded, his were no better; and I affirm that the questions, whether or not they are well founded, whether or not there is an existing obligation, and how it is evidenced, are judicial questions which the Legislature is incompetent to determine. Indeed, the question was presented to and pending before a court of justice by the voluntary action of the relator himself, and I am unfamiliar with that principle of government or justice which authorizes the legislative department to take jurisdiction of and decide disputes properly pending in the judicial, a co-ordinate department of the government, and order the latter to execute those decisions. Although the express inhibition of interference does not exist as a separate clause in the present Constitution, yet its.force and power just as clearly exist in the decision or distribution of the powers of government made as if expressed. See Titles II, III, IY. That the Legislature in its sphere is supreme, save as restricted by the Constitutions of the State and United States, I need not deny; but I maintain that its sphere is only that of legislation, and for the purposes enunciated in the preamble to the Constitution, and that the whole Constitution, taken together, contains, besides specific prohibitions, distinct limitations upon the action of the Legislature, which are prohibitory in their nature and effect. The vesting of the judicial power of the government in certain courts is a prohibition to the Legislature of the exercise of any such power. The Legislature ? may make, modify and repeal laws, but in doing so it can not take from any person the rights he may have acquired under a particular law; nor can it assume the duties and powers of the judicial department, and decree or adjudge how the law shall be administered in relation to a particular right. The duty of interpreting the laws made by the Legislature belongs to the judicial department, and it is that alone which has authority to examine and decide when a civil obligation has been incurred or violated, and give the judgment necessary *64in the premises. All this is fundamental. See 11 R. 414. Now, the alleged fights and obligations involved in this controversy, if any exist, spring from the contract between the city and Coleman & Co. for the paving of certain streets, and it is for the courts to determine whether there is an obligation on the part of the city to pay the sum sought to be secured in this proceeding.
It is true the corporation of New Orleans, a municipal corporation, is the creature of the Legislature, and subject, in the words of Mr. Kent, “under proper limitations,” to be changed, modified, enlarged, restrained or destroyed by the Legislature; yet, as a creature, it is •endowed with a volition, a will, which it alone can exercise. It can make contracts, incur obligations, possess property, provide or raise means or revenue; under the formalities prescribed by the Legislature. But having once exercised these powers, its rights and liabilities, in •case of dispute or controversy, are to be determined by the judiciary. In case of dissolution even the Legislature is bound to “ secure the property for the uses of those for whom it was acquired.” 2 Kent 305; 9 Cranch 52; Greenleaf’s Ev. § 331; 4 Scammon 269. The Legislature may ratify or authorize the corporation to ratify acts done and contracts entered into by its officials without proper authority or the observance of prescribed forms; but it can not compel the corporation to acknowledge and pay what it does not owe, nor can it enrich an individual at the expense of the corporate funds. Such acts are mere spoliation. It may, as it has done, provide for the manner of liquidating the obligations of the city, and direct how means may be raised for finally paying.them, but it can not determine what are obligations, nor legalize a fraud.
In my opinion, it is our duty to designate as unconstitutional (8 An. 149) whatever in act 103 of 1871 may be considered as establishing •conclusively tlie validity of all certificates or other evidences of debt, whether fraudulent or not, issued by the Chairmen of the Finance 'Committees and registered by the Controller or his deputy, and compelling the defendants, without the right of contesting their correctness, to place them on the statement of tlie floating debt, and as making in the hands of the relator, Hernandez, a legal obligation, what had no valid existence in the hands of Coleman & Co. Hernandez, by well established rules of law and equity, took the instrument in question at Ms own risk, and no statute can, by retroactive effect, increase his rights against the city. Art. 110 Constitution.
It is not so much the want of the observance of prescribed formalities in the issuance of this document, as it is its reality, its validity, its cause that is involved. An obligation without a cause is void, and •the Legislature can not make it valid by subsequent enactment. Nor ■do I think the legal principles drawn from the authorities cited in *65support of the relator’s demand, sustain the doctrine on which alone it can be allowed. The control which those authorities recognize in the Legislature over a municipal corporation, does not extend to the arbitrary appropriation of the funds of the corporation to private advantage, nor to the exercise of judicial powers, nor yet to compelling the acknowledgment and payment by a municipal corporation of what is not due, with the view as a public plea to preserve its credit, a measure which must, in my opinion, produce the opposite effect.
But, to conclude, I think acfc'103 of 1871 may be construed, without doing violence to its words, to apply only to certificates and bills, issued without proper form and authority, but for a real, valid consideration, and to authorize the writ of mandamus against the city officials in regard to them. The construction given to it in behalf of the relator, makes the courts the mere instruments of the Legislature to do what I am constrained to designate a public, dangerous wrong.