dissenting. In the outset I deem it proper to inquire into
the character of the claim which the relator seeks by process of the court to compel the defendants to place on the statement of the floating debt of the city of New Orleans. Is it a valid obligation, or is ft a fraudulent claim, for which the city is not liable 9 From the evidence, I have no doubt that it was a palpable fraud from the beginning; that it was never contracted by the city of New Orleans or any one authorized by it, and that the city received no consideration whatever therefor, and is not bound, either in law or equity, to pay it. What are the facts 9
On the nineteenth day of May, 1869, Coleman & Co. obtained from the Common Council of New Orleans the approval of resolution No. 1467, N. S., giving to them twenty-five per cent, additional upon the city’s share of the contract price for paving Eampart street from Common to Esplanade; or, in dollars and cents, the sum of $37,125 78. Such relief was bestowed upon the express understanding that Coleman & Co. should present no further claim for a gratuity, and particularly no claim for a bonus on the Esplanade street contract. With a view to obtain the twenty-five per centum on the Eampart street contract, Coleman & Co. executed a notarial act, containing a clear and distinct disclaimer on their part of any right or pretension to twenty-five per cent, additional, except upon the city’s share of the contract price for paving Eampart street.
Notwithstanding these facts, the Chairmen of the Joint Committees of the Board of Aldermen and Assistant Aldermen issued fifteen certificates of indebtedness, amounting to $57,815 33 — an excess of $20,729 85 over the sum allowed by the resolution of the Common *66Council. Among the certificates thus issued in excess was the one which forms the basis of the present proceeding', and that certificate is clearly shown by the evidence 'not to have been issued upon the Rampart street contract, in' conformity with the resolution of the Common Council and the act executed by Coleman & Co., but upon the Esplanade street contract, in direct opposition to such resolution and specific agreement.
Hero Coleman & Co., having several paving contracts with the city, obtained the gratuity mentioned in resolution No. 1467 upon the express condition “that the increase of twenty-five per cent, to be paid' by the city shall apply only in the case of the Rampart street contract.’7 And to remove all doubt as to the understanding upon which the ordinance was passed, the Mayor required Coleman & Co., in a notarial act, to renounce and relinquish all claims they might have for an “ increase of twenty-five per cent, upon each and every one of the several contracts which the said firm now have with the city of New Orleans for the paving of various streets with square Mocks, saving and excepting, however, the one for Rampart street from Canal to Esplanade street, to which contract only shall such twenty-five per cent, apply;” and moreover they bind themselves and heirs “at all times to acknowledge the force and validity of the relinquishment, and to admit and sustain the intent and meaning of said resolution.” * * *
In the face of the condition stipulated in resolution No. 1467, and iu the face of their solemn pledges in the notarial act, Coleman & Co. obtained from the Chairmen of the Finance Committees the certificate or order for $4131 16 upon which this suit is based, which certificate or order was not issued upon the Rampart street contract, but upon the Esplanade street contract, aud which order bore upon its face the false statement that it was issued iu accordance with resolution No-1467. I-Iere the Chairmen of the Committees of Finance aud Coleman & Co., the payees of the order, deliberately conspired to perpetrate a fraud upon the city to the amount of $4131 16, and attempted to cover it by placing the false statement upon the face of the certificate that it was issued under resolution No. 1467, when, in truth, it was issued fraudulently and falsely, and contrary to the provision of said resolution. In the face of all this, the counsel for the relator asserts that this certificate was not fraudulent in its inception. I have never seen a'clearer and more infamous fraud exposed in a court of justice. There is no proof, however, that the relator, the transferree, participated in or was privy to the fraud out of which arose the claim which ho now demands shall bo placed on the statement of the floating debt of the city of New Orleans. This may be so, but it gives him no legal or natual obligation against the city. His remedy is against his fraudulent transferrers, Coleman & Co. Prados aud Pemberton had no *67authority to issue this certificate as Chairmen of the Finance Committees } the resolution mentioned in the face thereof did not authorize-it, and it is well settled that paper issued by unauthorized agents is not binding on their principal, it matters not in whose hands it may fall. No transfer can vitalize such an absolute nullity, or oven impose-on the city of New Orleans a natural obligation to pay the innocent transferred, if such he may be called, who purchased the certificate with the statement on its face that it issued in accordance with resolution No. 1467.
In the case of the Louisiana State Bank v. The Orleans Navigation Company et al., 3 An. 301, where the question was whether the city of New Orleans was bound by its indorsement of the bonds of the Orleans Navigation Company, there being no question as to whether the city had authorized the said indorsement, this court, through Chief Justice Eust-is, its organ, said: “ It would seem to be evident and reasonable that where the indorsement is by an agent and a person not acting in Ms own right, and there is a direct reference in the body of the instrument to the procuration or authority under which the indorsement is made, a person who holds the instrument by virtue of the indorsement is charged with notice of the power under which it is made. Wo must therefore consider the plaintiffs cognizant of the resolutions of the City Council of the twenty-ninth of July and the fifth of August, and that the right to recover depends on the validity of those resolutions and the acts done in virtue of them.”
Here the validity of resolution No. 1467 is not questioned, but the relator must be held, under the settled jurisprudence of this State, to be cognizant of the fact that this certificate for $4131 16 issued in violation of the express provision of that resolution, because he is charged with notice of the limited power conferred by it on the Chairmen of the Committees of Finance, and because he is charged with notice of the acts done by virtue of said resolution. Here the agents of New Orleans held power to allow Coleman & Co. the extra compensation of twenty-five per cent, on the Rampart street contract, hut could not allow it on any other contract. Having notice of the resolution No. 1467, the relator had knowledge also of the limitation imposed therein. Ho therefore occupies no better legal position before the court than the perpetrator of the fraud would occupy, because, under the jurisprudence of this State, he is charged with notice thereof.
On the tenth of October, 1870, the relator instituted this suit to compel by mandamus the Mayor, the Administrator of Public Accounts and the Administrator of Finance to do what they refused to do, to wit, to place this fraudulent claim, held by the relator, on the statement of the floating debt of the city of New Orleans, which he insists was tlieir duty by virtue of section 40 of the act rechartering the city, being act No. 7 of the extra session of 1870.
*68We have lately held, in the caso of Monasterio, that the section of the statute referred to docs not require these officers of the city to place these false and fraudulent claims, such as the one held by the relator, in the “full and correct statement of all the mature obligations of the city,” which it declares “ shall be prepared by the Administrator of Public Accounts and by him attested under oath, and which shall be further approved by the Mayor and the Administrator of Finance; ” * ® * that in the meaning of the law only valid claims are to be embraced in that statement, otherwise the law would not require it to be “attested under oath” by the Administrator of Public Accounts, and also to “be further approved by the Mayor and the Administrator'of Finance;” that if all claims, whether false or valid, were intended to be put on that statement, it would he useless to prepare it with so much caution, and it would be unreasonable to require these officers to swear to he correct and approve of claims which they know to be falso and dishonest.
On the authority, therefore, of the State ex rel. Monasterio against these same defendants, a case directly in point where the question was carefully examined by this court, the defendants heroin, in my opinion, were right in declining to put this false claim on the statement of the mature obligations of tbe city.
But tbe relator contends that his claim, whether valid or not, is covered by act No. 103, approved second of May, 1871, amending section forty of the charter of 1870. This amendment declares that said section forty “ embraces and was -intended to embrace, as obligations of tbe city of New Orleans, all registered certificates or bills issued or approved by the chairmen of the Committees of Finance and registered by tbe Controller of the city of New Orleans or his deputy, which at the time of presentation for payment or redemption as part of the floating debt were held and owned by bona fide purchasers for value.” * * * * * *
If this act be regarded as a legislative interpretation of section forty of the charter of 1870, it can not be accepted, because it appertains to tbe judicial and not to the legislative department to interpret laws. 23 An. 225; 3 Howard 546. Construing both statutes together, as they ought to be, I maintain that the only fair and reasonable interpretation is, they do not cover false and dishonest claims like the one hold by the relator; that although within the letter they are not within the meaning of the law.
Section forty of the city charter requires to be placed on tbe statement of the floating debt “ all the mature obligations of the city at the date of the passage of this act, to wit: all final judgments, warrants, registered certificates and unredeemed city notes,” and this amendment says that section forty was intended also to embrace “ all *69registored 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.” * * * * * * *
Now, although section forty declares that “ all judgments, warrants, registored certificates,” etc., shall be embraced in the statement of the floating debt of New Orleans, this court hold in Monasterio’s ease that it did not cover the certificate presented by Monasterio, unless that certificate was found to be a valid debt of the city. The amendment extending the provision of section forty to embrace “ all registered certificates issued by the Chairmen of the Finance Committees,” in like manner ought to be construed to embrace only honest claims or certificates issued by the Finance Committees.
Under resolution No. 1467 valid certificates were issued by the Chairmen of the Finance Committees to the amount of $37,125 78, and false and fraudulent ones to the amount of $20,729 85.
Although both classes of these certificates fall within the letter of the statute amending section forty, to my mind it is only the valid certificates' that are within its meaning. This is the only just interpretation that can be placed upon this legislation without easting reproach upon its authors, because it would be impossible for honest men deliberately to enact a law compelling anyone to pay a false or fraudulent claim or a claim against good conscience.
Charity, at least to the Legislature, a co-ordinate department, demands the construction that false and dishonest claims were not intended to be embraced in the meaning of the statute, although they fall within its letter.
In all civilized countries law is held to promote honesty, to condemn fraud 'and to protect the people from spoliation and violence, and it can not fairly be presumed that the authors of the statute before us intended to ignore these boneficient motives solely for the purpose of rewarding the fraud perpetrated by Coleman & Co.
“ Juris praecepta sunt: honestévivere, altnm non laedre, sumn euiqiietribune.”
But the relator contends that his claim, whether valid or not, was. intended to be embraced in the statute, and the motive of the lawgiver was to promote the credit of New Orleans; that it was a measure of policy adopted by the political department of the State and it is the duty of the court to enforce it. This is a fallacy so transparent that it will not for a moment stand the test of scrutiny.
How is the credit of New Orleans to be advanced by driving it from the protection of the courts, and compelling it to be burdened with debts which it never contracted, and which in no wise inured to its benefit or advantage? Would the credit of an individual bo promoted if he were compelled to pay every false claim that might be *70trumped up against Mm? If Ins property be the common pledge of Ms creditors, would their confidence be enhanced by a statute placing that pledge within the grasp of every dishonest person?
In justice to the intelligence of the Legislature, I maintain they did not intend the payment of the fraudulent claim held by the relator as a measure or policy to advance the credit of New Orleans. But the position that the Legislature intended the payment of such claims as a measure of policy, is a bald assertion. There is nothing in the statute or its preamble to justify such a purpose. The title of the act is not an act to promote the credit of New Orleans, not an act to bestow a gratuity upon Hernandez, but “an act defining tho obligations of the city of New Orleans to be redeemed as part of the floating-debt, under the provisions of section 40, act No. 7, approved sixteenth March, 1870, and to enforce the same.” The whole purpose of the original act and its amendment was to provide for the redemption of certain mature obligations of the city, by requiring them to be placed, in the manner indicated, on the statement of the floating debt, for which funds of the city were1 to be issued, under section 41 of tho charter of 1870. Tho false and fraudulent certificate of the relator is not a mature obligation of the city; and, in my opinion, it does not fall within the meaning of section 40, as amended by act No. 103 of the .acts of 1871, especially when that section is read as interpreted in the Monasterio case, and in connection with section 41 of the city charter ■of 1870. But assuming- that it was the purpose of the Legislature to ■compel New Orleans to pay this fraudulent claim, I maintain it is not in their power to do so; that the grant to legislate does not embrace authority to plunder the citizens; that private property can not be taken for private purpose; that the Legislature can not take the property of A to give it to B; that it has not authority to take $4131 16 from the city treasury for tho purpose of bestowing a liberality upon the relator, Hernandez, to whom, the city is not bound either by a legal or natural obligation; and that as it can not take the money now in the treasury, it can not compel the city to issue its bonds -for the amount payable at a future day.
If private property can not be taken for private purposes at one time, it can not at another, because the taking is absolutely prohibited at any time.
“In respect to public or municipal corporations, which exist only for public purposes, as counties, cities and towns, the Legislature, under proper limitations, have the right to change, modify, enlarge, restrain or destroy them, securing, however, the property for the use of those for whom it was purchased.'' 2 Kent 305.
Notwithstanding the power of the Legislature over these public eoiqjorations, their private property is protected. Story on the Constitution, section 1393.
*71The same author in section 1399 says: “Whether, indeed, independently'- of the Constitution of the United States, the nature of republican and free governments does not necessarily- impose some restraints upon legislative power, lias been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no State government can be presumed to possess the transcendental sovereignty, to take away vested rights of property; to take the property of A and transfer it to B by mere legislative act. That government can scarcely be deemed to be free where -the rights of property are loft solely dependent upon a legislative body without any restraint.
“ The fundamental maxims of a free government seem to require that the rights of personal liberty and private property shall be held sacred. At least no court of justice in this country would be warranted in assuming that any State Legislature possessed a power to violate and disregard them, or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general graut of legislative authority, or ought to be implied from any general expression of the will of the people in the usual forms of the constitutional delegation of power. The people can not be presumed to part with rights so vital to their security and well being without very strong and positive declarations to that effect.” See also Wilkins v. Leland, 2 Pet. 627, 657 ; Satterlee v. Mathewson, 2 Pet. 380, 412, 413, and also Fletcher v. Peck, 6 Cranch 67, 134.
“ Under our form of government the Legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the State who exceeds his jurisdiction, are utterly void.” 4 Hill 144.
“ The nature and end of legislative power will limit the exercise of it. !" * * There are certain vital principles in our free republican government which will determine and overrule an apparent and ■flagrant abuse of legislative power, such as to authorize manifest injustice by positive laws, or take away that security for personal liberty or private property, for the protection whereof tire government was -established.” * s 9 3 Dalas 386.
“ The Legislature has not, by the right of eminent domain, the right to take the property of a person to give to another, not even in police regulations.” 3 Paige, Chan. N. Y. Rep. 159; 8 Wendell 85; see also •18 Wendell 56, 61, 63; Cooley on Limitations 487; 21 Penn. 147.
Authority upon authority might be added in support of the position that tho Legislature has not the right to take the money or bonds of *72Now Orleans and bestow them, as a gratuity, upon the relator, Hernandez ; but I think enough has already been adduced to settle the question beyond doubt. I can not, however, refrain from adding the following quotation from Chief Justice Marshall, in which I entirely concur, viz:
uWe can not resist the conclusion that it would be a violation of the general tenure and spirit of the Constitution for the Legislature to attempt to deprive any citizen of his property without previously providing compensation therefor. And whenever such acts are passed, we believe it to be the duty of tho judiciary to disregard them and consider them as nullities. We can not perceive any reason which shall compel the judiciary to obey a legislative act at war with the tenor of the Constitution and the fundamental principles for the preservation of which the government was instituted, that would not apply with equal force to produce obedience to a legislative act directly opposed to any one of the positivo inhibitions of the Constitution. We grant the representatives of the people are the shepherds of the flock, but they are not exclusively such, although vested with great and extensive powers. If through inadvertence or design they should endeavor to sacrifice any one or more as victims, it can not be done so-long as the judiciary remain virtuous, intelligent and independent. Both departments must concur to work iniquity before the people can be made to mourn, and in bitterness to curse their government.”
In conclusion, I therefore maintain that the Legislature has not the authority to compel New Orleans to bestow its bonds for $4131 16 upon Hernandez as a gratuity. I can not call the fraudulent certificate he holds a debt of the city. I do not believe that act No. 103 of the acts of 1871, amending section 40 of the charter of the city, ought to he construed to embrace this false claim, because its title does not justify the purpose, and because the evident object of the lawgiver was not to bestow a gratuity, but to provide for the redemption of certain mature obligations of the city by issuing its bonds; and no other fair interpretation can be put upon sections 40 and 41 of the charter of 1870. I see no reason why the lawgiver should intend tho city to issue its-bonds to redeem the fraudulent certificates issued by the Chairmen of the Committees of Finance. We have held, in Monasterio’s case, that such was not intended in regard to the fraudulent certificates issued by the city itself. Now, if it would improve the credit of New Orleans to pay the fraudulent certificates issued by its agents, the Chairmen of tho Finance Committees, why would it not have the same effect to pay fraudulent certificates issued erroneously by itself? If it will improve the credit of New Orleans to pay the claim of Hernandez, why would not the payment of Monasterio have tho same effect, whether his claim be valid or not?
*73' This court has said to Monasterio, holding a registered certificate of the city, your claim ought not to be paid if it be fraudulent, as the defendants aver, notwithstanding section 40 declares that all registered certificates of the city shall bo put on the statement of the floating-debt. It.now says to Hernandez, your fraudulent certificate issued by the Chairmen of the Finance Committees ought to bo paid, simply because the amendment of section 40 declares that “ all registered certificates or bills issued or approved by the Chairmen of the Committees of Finance,” shall bo placed on the statement of tho floating-debt.
How the payment of fraudulent certificates issued by its agents can improve tho credit of New Orleans, more than the payment of fraudulent certificates erroneously issued by itself, I can not imagine. Indeed, the whole theory that the payment of such claims was intended by the Legislature as a policy to advance the credit of New Orleans, is the most palpable legal absurdity I have ever heard advanced in a court of justice.
For the reasons stated, I deem it my duty to dissent in this case.