On Rehearing.
Morgan, J.Plaintiffs seek to recover from the city of New Orleans* $10,175 66, with legal interest on various amounts and from various dates, upon the ground that through error, or under protest, they paid to the city $1030 on the fourteenth January, 1867, for license tax for-that year; $3892 56 on the twenty-ninth January, 1868, for license tax for for that year; and $5253 on twenty-seventh February, 1869, for license-tax for that year. They aver that these various sums of money were exacted and collected from them by virtue of several ordinances of the city government, dated respectively twenty-seventh December, 1867,. thirty-first December, 1868, twenty-ninth December, 1869.
They aver that these ordinances were in violation of the constitution of the State which was in force at the time they were enacted; that they were unequal, oppressive, and not uniform; and were, therefore, by reason of their unconstitutionality, absolutely null and void. They aver that the city has exacted and collected the various large sums related by them without the color or authority of law, and that it still retains them, in violation of the constitution.
Further they aver, that the city specially agreed to refurn to them the-sum of $5253, if the Supreme Court should declare the ordinance imposing this license tax under which this sum was collected unconstitutional, in a litigation which was pending when this license was paid;, and that notwithstanding the decision of the Supreme Court which has declared the ordinance to be unconstitutional, the city persists in its, refusal to return the same.
Ip their supplemental petition they aver, that the ordinances under-*458which they paid were so rigid that they were compelled to pay or incur ■the danger of having their place of business closed.
Defendant admits the receipt of the money, and admits that there was an agreement on the part of a city official to refund the money in case it should be decided, in the matter then pending between the city and the Mutual Insurance Company, that the ordinance was unconstitutional, but avers that the official aforesaid had no authority to bind the city. It further avers, that any money paid by plaintiffs for license tax was truly and justly due and owing to the city ; that the money so paid was necessary for the purpose of defraying the expenses of the city; that it was faithfully appropriated to that purpose; and that plaintiffs have received their proportionate share of the benefit derived therefrom, in the protection of their interests and property.
They further allege, that if the plaintiffs were not legally bound to pay a license tax to the city, they were at least under a natural obligation to contribute their quota to the support of the municipal government from which they derived protection, and that under such circumstances an action will not lie to recover the several amounts alleged to have been paid, even though such payment had been made under protest.
It is not alleged nor, we believe, disputed that the money was not collected and disposed of in the manner and for the purposes set forth in the answer.
In principle, we think the case is governed by the case of Campbell v. the city of New Orleans, 12 An. 34.
In that case, as in this, Campbell paid to the tax collector a certain sum of money as his city tax for the year 1850. In that case, as in this, it did not appear that the money was paid under any compulsory warrant or execution. It is alleged here that if plaintiffs had not paid they incurred the risk of having their place of business closed, but it is not shown that they had been condemned to pay by any authority.
In that case, as in this, there was a judgment in a suit between the ■city and another party defendant, declaring the ordinance, under which the tax was proposed to be collected of him, unconstitutional. And there, .as here, it was not denied that the money paid by the plaintiff was necessary for the purpose of deiraying the expenses of the years for which they were collected. The court declared that the municipal authorities were virtually the plaintiff’s agents for the purpose of laying such an assessment upon his taxable property as would defray his share of the necessary expenses of police, etc.; that the assessment was laid upon property legally liable to taxation, although they had neglected in so doing to pursue certain prescribed forms — a neglect which would have rendered the plaintiff’s obligation to pay invalid m foro legis, if he had raised the objection in time and in the proper *459manner. The court considered that he was under a natural obligation to pay his proportion of the expenses of the municipal government :and that, inasmuch as he had paid the amount assessed to him for that purpose, he had only discharged a natural obligation ; and as no suit will lie to recover what has been paid or given, in compliance with a natural obligation, gave judgment for the city. If this opinion of the court be a correct exposition of the law, the plaintiffs have no •case.
In one particular the con troversy between Campbell and the city differs in point of fact from the case we are now considering, in this, that whereas Campbell paid without objection or protest, and sought •only to recover after it had been decided in a controversy between another party and the city that the ordinance under which the assessment was made was unconstitutional, in this case the plaintiffs, before making the last payment, expressly stipulated with Mount, the City Treasurer, to whom the money was paid, that it should be returned in •case this court should determine the case of the city v. another insurance company in a certain sense. Still there was not any coercion on the part of the city, under force of which this payment was made There was no execution in the hands of the sheriff by which their property could have been seized in case they did not pay. There was no judgment commanding them to pay. They paid, not because they were forced to pay, but because they chose to pay. They aver, it is true, that they were threatened with the close of their place of business in case they did not pay, but their relief from this apprehension was not by paying; on the contrary, it was by resisting payment, as the •company did in the case upon the decision of which they were content to rest their obligation. The stipulation with Mount, the Treasurer, amounts to nothing, for it is not shown that he had any authority to make the conti act on the part of the city which the plaintiffs set up. If he was not able to bind the city, the stipulation which he made is not obligatory. There was an unquestionable natural obligation on the part of the plaintiffs to bear their quota of the expenses of carrying on the municipal government of the city of New Orleans.' Their domicile is here; their business is done here; they have an interest in the paving and lighting of the streets, and the building and repairs of wharves; they have the same interest in the maintenance of a good police that other inhabitants of the city have, and it is of vital importance to the success of clieir company that tiie fire department should be kept in a state of proper efficiency. None of these things can be done without money. The money necessary to carry them on must be contributed by the citizens. It is levied in the form of a tax or contribution, or by whatever name you may chose to call it, and when .collected it is used for these purposes. It is because of its general *460ramifications, benefiting each and every inhabitant of the city alike,, that each and every one of its inhabitants is under a natural obligation to contribute, in proportion to his means, toward the support of these departments, without which the place could not be lived in. Now, it is not pretended that plaintiffs have not enjoyed the advantages and protection of the municipal government. To return to them the money which they have paid in consideration of these advantages,, would be to give them the protection which is requisite to their existence, and make their fellow-citizens pay for it.
There is, in our opinion, another reason why the plaintiff should! not recover. It is, that the law under which the tax was paid was in full force and vigor at the time the money was paid. It is contended that it never had any life because it was unconstitutional; that an unconstitutional law is no law, and therefore must be considered as never-having been written. This is a fallacy. The rule of universal application is, that all laws are presumed to be constitutional until the contrary is decided. Courts do not assume to themselves the prerogative of deciding on their own motion, that a law under which rights are-claimed or duties are imposed is unconstitutional. To authorize them-to do this the matter must be directly put at issue by the parties-litigating before them. Rights can be acquired under a law which-may be determined to have been unconstitutional, and pains and' penalties be avoided by those who justify their acts as having-been committed under a law, however that law may have been subsequently declared to have been unconstitutional. If a piece-of property is sold under a fi. fa. issued in the case of A v. B, and C purchases it, if it should thereafter be determined in a litigation between D and C that the law under which A obtained his-judgment against B was unconstitutional, would B be entitled to get-back his property from C ? If the Legislature passed a law regulating trials in criminal cases, and A, being indicted for murder, was tried under that law, found guilty, sentenced and was hung, and in the-case of B, tried before the same tribunal for the same offense, B’s counsel should, after conviction, and on a motion in arrest of judgment,, convince the judge that the law under which he was trying the case was unconstitutional, and the prisoner be discharged, would the sheriff who had hung A be liable to be punished ? Certainly, if the position contended for be correct that an unconstitutional law is ipso facto null and void, for the killing would have been unlawful; it would have been willful, and would have been perpetrated upon a reasonable being, who was, when the killing was-done, in the peace of the commonwealth. Such a result, so monstrous, is only to be avoided by adhering to the rule that to escape the penalties inflicted by a law, or to avoid responsibilities imposed by a law *461■upon the ground that it is unconstitutional, its unconstitutionality ■must be distinctly alleged before the penalty is imposed or the responsibility is determined.
It is therefore ordered, adjudged and decreed that the judgment heretofore rendered by us be set aside, and it is now ordered, adjudged and decreed that the judgment of the District Court be avoided, •annulled and reversed, and that there be judgment in favor of the defendants with costs in both courts.