Dissenting Opinion.
Bermudez, C. J.The following dissenting opinion was delivered by his Honor, Edward Bermudez, Chief Justice :
I cannot concur in the opinion and decree of the majority of the Court in these cases.
As matters of great public interest have been agitated, I have made it my duty to assign the reasons which constrain me to dissent.
The issues presented in this litigation involve many important questions, difficult of solution, as well as matters of magnitude to those concerned.
The questions raised may, however, be unified and assumed to be:
Has this Court the legal right, and is it the duty of the Court, to enforce the act of the General Assembly of the State of Louisiana, approved March 6th, 1876, promulgated as No. 31 of the Statutes of that year, and generally known as the “Premium-Boncl Act ? ”
*751I consider that this Court is prohibited from doiug so, because of the glaring unconstitutionality of the act, both in substance and in form.
1 consider that it is manifestly unconstitutional:
First. Because, it divests vested rights, and impairs the obligations of valid contracts ;
Second. Because, it is contrary to public policy and good morals ;
Third. Because, it is framed in a manner forbidden by the State organic law in force at the time of its adoption ;
Fourth. Because, by enforcing it the rights of parties who have not shown themselves to be creditors are recognized, and the burden of taxation is increased, without a due regard to the provision for relief found in the Constitution now in operation.
An objection was made to the right of the city to plead and urge these defenses.
Let us examine and see to what extent the objection may be sustained :
It is' generally laid down that a person can set up in defense to an action upon a contract, that the contract was made in fraud of others not parties to it, and that in such instances the Court will lend an attentive ear to such a defense, and afford all possible adequate relief.
The character of such an agreement is not changed by showing that the claim of the third person whose rights were to be affected by it was also fraudulent.
Bandall vs. Howard, 2 Black, 585.
Coppell vs. Hall, 7 Wall. 542.
Fay vs. Fay, 121 Mass. R. 561.
Story’s Equity, 1, sec. 298.
2 Paige, 156 ; 9 Gill, 35G.
The defense is allowed for the vindication of the law itself on a principle which is indispensable to the purity of the administration of justice. So says the highest Court in the nation.
In 11-I. Black, 327, Lord Ellenborough said:
“ The law encourages no man to be unfaithful to his promise, but legal obligations are, from their nature, more circumscribed than moral duties.”
Now, in 2 Black, 588, the Supreme Court of the United States said:
“ It is against the policy of the law to enable either party, in controversies between themselves, to enforce an agreement in fraud of the' law, or which was made'to injure others.”
The maxim “ in pari delicto, melior est conditio defendentis ” must prevail.
Vide, also, 4 Ves. 461 (Am. Ed.) Eastabrook vs. Scott.
If an immoral contract be null, the principle “ quod nullum est, *752nullum producit effectum ” must serve as a guide, and tlie contract be declared inoperative.
Demolombe, 24 v. 380.
3 A. 318 12 A. 496 ; 30 Miss. 699.
An immoral act cannot be ratified. The doctrine of estoppel applies to acts not wrong in themselves, but only relatively so, or to which,, after contest, judicial adjudications have imparted a lawful character.
Coppell vs. Hall, 7 Wall. 542.
20 Wall. 496, 655.
3 A. 308 ; 6 R. 115 ; 12 A. 688 ; 28 A. 343 ; and Dillon, Mum Corp. 381,
“ An understanding between a debtor and one of his creditors, to effect a composition by which a preference is to be given him, renders the whole contract invalid, and the debtor himself can set up the illegality.”
Bigelow on Fraud, p. 343, and authorities in note.
Where a transaction contravening public policy has taken place, relief may be given, at the suit of one who is “partioeps criminis relief is given in such cases to the public through the party.
Lord Hardwicke once observed :
“ The truth is, that in these cases of violation of public policy, it is indifferent who stands before the court, if the intention of the contract be evident; because, the court does not regard the state and condition of the parties so much as the nature of the contract and tlie public-good.” ■ • ■
V. Gilbert vs. Chudleigh, 9 Ves. 299 ; also, 9 Ves. 292 ; 11 Ves. 535 13 Ves. 587 ; 3 Austr. 914; and 1 Story’s Equity, see. 298.
The objection that the city has no authority to raise these defenses, because it assumes thus to champion, without any mandate, the rights of bondholders and of taxpayers, who could not themselves complain, and who, besides, are silent, is not tenable. The city represents the interest of her creditors as well as that of her corporators and of the public, nay, the State itself, it being a State functionary. The officers appointed to administer its affairs are commissioned and sworn to represent the public interest and welfare, and they have a standing in court to urge all the defenses which may be hurtful or injurious to-those it represents.
See People vs. Bond, 10 Cal. 563.
In the present instance, the objection is the more groundless, because among the defendants are to be found municipal officers who, under the charter of 1852 (sec. 37), and under the charter of 1870 (sec. 17), are the Commissioners of “ The Consolidated Debt,” and who, in that capacity, are entitled to suggest to the Court matters which may, after all, be noticed ex officio by the Court. A fortiori, therefore, can. *753they be allowed to aver, and to substantiate by proof and argument, such suggestions.
I was surprised at the rapidity with which the proceedings in these cases have been conducted.
If it be true that injured bondholders and complaining taxpayers ■would have had the right to intervene and to join the city in a litigation, which is summarily to be tried, and without unnecessary embarrassment, the question may be asked :
How could such interventions have been prepared and presented in a matter which was being hurried through -with unprecedented celerity ?
If the affected bondholders and taxpayers concerned had no right to intervene in cases prosecuted with such unusual speed, the power of the city of New Orleans to set up the defenses pleaded in these cases for the benefit of ail cannot be consistently disputed, and should be recognized.
Assuming that the city can be heard, I will next proceed to examine the questions of constitutionality, treating together those relating to substance, as they are intimately connected and blended ; reserving the consideration of the unconstitutionality of the act for defect in form as the last point to be dealt with.
Act No. 31 of 1876 is “an Act to adjust, regulate, and provide for the bonded debt of the city of New Orleans.”
It sanctioned certain municipal ordinances, projecting a plan designated as “The Premium-Bond Plan.” The preamble discloses, as the motive of its enactment, the existence of conditions of disorder, derangement, and weakness in the finances of the city, and the inability of the citizens to pay the taxes assessed upon their property. It refers to the losses sustained in civil war, from-extravagance and reckless expenditures, accumulating the public debt. It enumerates disasters from floods and other like causes, as occasioning the depreciation of property. It proclaims the impotency bf the city to meet her engagements. It forcibly exhibits bankruptcy as staring in the face.
Act No. 31 was designed, if not to remove, at least to palliate, both the actual and the apprehended evils. The municipal authorities were commissioned to ascertain the principal and interest of the valid bonded debt, and, after the accomplishment of that task, to novate the ascertained debt, by the delivery of bonds of a character previously unknown" in this country, and termed “Premium Bonds.” They were to be accepted in exchange for the outstanding bonds of the city, dollar for dollar.
These bonds were to bear interest at five per cent, and to be payable at no fined time, but merely at dates to be determined by the happening of certain contingent events. All this was to take place under *754the plan established by the city ordinances to which a general reference is made in the statute.
Under this plan, money was to be collected by means of a special tax, which was to be applied exclusively to the Premium Bonds, at stated periods, by distribution, by lot or chance, among the bondholders. The fortunate bearer of the bond drawn by the allotment was to be paid in full, while others, less lucky, were to await their turn, without, in the meantime, receiving any accrued interest. The sum of one hundred thousand dollars ($100,000) was also to be collected to pay a debt in the shape of premiums, or prizes, and not in part extinguishment of the funded debt. It was contemplated that under the operation of this projected scheme fifty years would- suffice to extinguish the entire municipal debt. The consent of the outstanding bondholders was not at all considered and regarded as a pre-requisite for the undertaking. In their ordinances the City Administrators suggested, and, in their sanctioning act, the General Assembly relied upon, the coercive feature and influence of the seventh section of that act to accomplish the object in view. The seventh section reads as follows :
Extract from Act No. 31, approved March 6th, 1876, known as the Premium-Bond Act.
“ Sec. 7. Be it further enacted, etc., That no tax for the payment of Bonds or interest on Bonds other than that authorized by the preceding sections, shall be levied either for the year 1876 or any year or years-thereafter by the City of New Orleans, and that all existing laws requiring or authorizing the City Council to levy any tax whatsoever for bonds or interest on bonds other than said Premium Bonds be and the same are hereby repealed, and it shall be hereafter incompetent for any Court to mandamus the officers of said City to levy and collect any interest-tax other than that provided for in this act, or in case of such mandamus by a receiver or other-wise to direct the levy and collection of any such tax.”
It unmistakably contains a repeal of all laws which prescribed or authorized the levy of taxes to pay anterior bonds or interest on the same, and was intended to exclude from participation in taxes to be, collected in future all bonds other than Premium Bonds. It forbade the levy of taxes in future to pay principal and interest on the then existing bonded city debt. It provided for a special tax to meet the payment of those Premium Bonds with interest, and formally proclaimed that by contract no assessment of taxes would be made for the payment of the principal and interest of any other bends. A clause in that section went to the unprecedented and scandalous extremity of paralyzing the courts of the country, by disabling them from affording adequate aid and relief to the municipal creditors. Ostensibly, with all the solemnity *755of a legislative enactment, that section proclaimed and legalized, as far as it was in language possible to do, a Repudiation of part of the legal municipal debt! It is evident that the corporation could not have expected any bondholder to novate his bonds by an exchange for a Premium Bond, unless an effective means of coercion was adopted. It is, indeed, owing only to this provision that the public money in the municipal treasury could actually be diverted from its legitimate purposes and appropriated to a class of favored obligations, in consideration of partial abatements of interest.
The sixth section of the Act is to the same effect as the seventh. The latter portion of it reads as follows :
“ The said tax to be raised shall be denominated the Premium-Bond Tax, and shall be separately mentioned in the tax-rolls and receipts • provided, that the taxable power of the corporation of the city of New Orleans for all purposes, including general administration, school, police, lighting, salary of officers, court expenses, and every other purpose of government, including the sum to be raised to pay the Premium Bonds, as above stated, shall never, until the full, complete, and final payment of the said Premium Bonds, exceed the rate of one and one half per centum on the dollar of all the assessed value of property subject to taxation within the limits of the said city of New Orleans. The above-limitation on the taxable power of the corporation is hereby declared to-be a contract, not only with the holder of the said Premium Bonds, but also with all residents and taxpayers of the said city, so as to authorize any holder of said Premium Bonds, resident or taxpayer, to legally object to any rate of taxation in excess of the rate herein limited. It being also a part of the consideration of this contract that the city of New Orleans shall be incompetent to incur any debt or obligation, as now provided by the Constitution of this State, until the final payment and extinction of the Premium Bonds aforesaid.”
The fifteenth section of the enactment, which is really the last, as that which follows, solely proposes to repeal conflicting laws and ordinances, reads as follows:
Seo. 15. “ Be it further enacted, etc., that this Act, in all its pro- ' visions and limitations, be held a contract between the city of New Orleans, the holders of said Premium Bonds, and the taxpayers or residents of said city, so as to authorize any of the contracting parties to resist any and all contracting of debt by the said city, or increase of taxation above the rate limited in the previous provisions of this act.”
It must strike every disinterested mind that by this section it was unquestionably intended that the Act would be, “in all its provisions and limitations,” an indivisible and entire contract between the State, the-City, the bondholders, and the taxpayers.
*756Ia other litigations, tho seventh section was invoked as a bar to the suit of certain bondholders, asking relief against, its provisions, and it cannot be said that practically it did not prove to be a valid enactment. In the present controversy, no one was bold enough to uphold its constitutionality. In truth, however extreme were the circumstances under which this Act was enacted, it must be acknowledged that it is an unprecedented and avowed desecration and trampling u'nder foot of the inviolable safeguards with which the wise framers of the National Constitution have surrounded vested rights, by prohibiting States, in the exercise of any of their powers, in any of the branches of the government, from impairing the obligations of contracts.
It is contended, that, conceding the unconstitutionality of section seventh, it does not follow that the whole act is open to the same objection ; what would remain of it can well stand by itself, and may be •executed as valid legislation. The legal proposition contained in the argument is elementary ; the question really arises, whether the remaining portions of the act assailed in the present instance can stand by themselves and be executed.
The object of the act was, per fas aut nefas, the exchange of municipal bonds. Necessarily, provision had to be made for some distribution of money among the holders of the new bonds; and no such money could be realized, unless by taxation, and once realized, could prove available, except if exclusively raised for the benefit of the new bonds and divided among their holders, under the arrangement agreed upon. This could not be done, without depriving of their rights other creditors of the city who were not willing to enter into the scheme. Such a result could not be successfully obtained without legislation to that end. It is expressed, as fully as possible, in article six, which provides that the taxable power of the city, for all the purposes of government (including the general administration of its affairs), the sum to be raised in order to effect the payment of the Premium Bonds, shall never exceed one and one half per cent on the dollar of the assessed value of property. This limitation to the taxable power of the corporation is declared to be a contract not only with the bondholder, but also with all the residents and taxpayers of this large metropolis. The city was, accordingly, to be powerless in incurring any debt or obligation, as now provided by the present State Constitution, until the final payment and extinction of the Premium Bonds.
Section six and section seven have the same object, the same purpose. They were inspired by the same motives, and are open to the same objections. Every obnoxious provision found in section seven is incorporated in section six.
If, consequently, section seven be stricken out as unconstitutional. *757section six must be treated in the same manner and for the same reason. It must be remembered that section six provides for the levy of the tax wherewith to carry out the provisions of the Act by the payment in capital and interest of the drawn Premium Bonds. It is this section which is the soul of the Act; if it cease to form part of it, the unavoidable consequence is, that there remains, in the Act, no provision authorizing the levy of a tax to pay the singular class of obligations thus-issued, which, if they are to be considered as valid, would have to remain unsatisfied, at least until the Legislature would be pleased to provide for their payment. Two sections of such importance and magnitude,, which were to be like the lungs through which the Act was to breathe for life, being considered as unwritten,- the necessary result would be that the dismembered and mutilated Act would fall of itself as-though stillborn and lifeless. These sections were, therefore, essential for the execution of the projet or plan in contemplation. No one holding municipal obligations maturing at fixed dates, bearing a larger rare of interest, and secured by special laws for the levy, collection, and application of taxes, would ever have exchanged the same against obligations of an unusual form, with no positive date of maturity, bearing a lower rate of interest, no part of which was payable before the bond was drawn Inj lot, and for the payment of which no provision for the levy of a tax was made.
The denial of this proposition would not only not be plausible, but would carry on its face its own refutation and destruction.
Under section 15, “ all the provisions and limitations ” of the act are grouped together, for the purpose of stating the terms of the contract, and, therefore, form a unit and constitute one indivisible obligation.
See Morgan vs. Second Mun. 1 A. 116.
Mouton vs. Noble, 1 A. 192.
Also, 35 New Jersey, 621.
7 Cal. 759 ; 10 Cal. 593.
10 Cal. 563 ; 19 Wis. 468.
It is a principle irrevocably implanted in the heart of man and of nations, and universally admitted, wherever law and justice are recognized and prevail, that an insolvent or a defaulting debtor cannot legitimately assign his property, so as to confer a priority or preference (like that granted in the act under consideration to the Premium-Bond holders) to a privileged class of individuals, to the prejudice of other creditors who are unwilling to accept obnoxious terms and conditions proposed. All such arrangements have, necessarily, to be disregarded and denounced as actual or as constructive frauds by courts of justice in the discharge of their stern and sacred duties.
*758What principle is better established and consecrated than that which declares that individuals cannot by their own conventions derogate from the rules sanctioned and recognized by long-existing usage, custom, and law for the preservation of public order and good morals ? Also, that in all cases in which a thing is not expressly or impliedly prohibited, men can renounce what may be established in their favor when the renunciation does not affect the rights of others, and is not repugnant to the public welfare.
“ Pacta, quae contra leges constitutionesque vel contra bonos mores Jiunt, nullam vim habere, indubitati juris est et privatorum conventio juri publico non derogat.”
Broom’s Legal Maxims, p. 621.
Now, can a Legislature, which is the representative of the conscience of the people, whose integrity and honesty of purpose, and whose submission to the paramount authority of obligations must be assumed by ■the courts of the country, arrogate to itself tho power of enabling a ■debtor to divest vested rights, to practice a fraud upon his creditor, or to exclude such a creditor from participating, in payment of his claim, In the proceeds of his (the debtor’s) property, unless, first, he consent to an alternative in the form of a contract repugnant to the fundamental law, to public policy, and to public morality ? It was to guard against such an abuse of power that the Federal Constitution has wisely restrained States from performing acts which would impair the obligation ■of valid contracts, and also that State Constitutions have likewise forbidden the divestiture of vested rights. So was it said in the case of Murray vs. Charleston, reported in 96 United States, 449. The language there used is as follows:
“ The inviolability of contracts, and the duty of performing them as made, are the foundations of all well-ordered societies, and to prevent the removal or disturbances of those foundations, was one of the great objects for which the Constitution was framed.”
The provision of inviolability applies not only to creditors, but to debtors also. A valid compact, once made, cannot be undone without the consent of all the parties who entered into it, in the mode prescribed by law for its modification or destruction by judicial interference, or in eases provided for by law and equity. The constitutional clause was never intended to shield contracts from impairment by State authority ■which are formed in violation -of public policy or good morals. The United States Supreme Court has uniformly refused to review State 'adjudications based upon that ground solely.
Any legislation by the law-making power which is violative of the •organic law, which is paramount to it, is necessarily immoral, void, and *759inoperative. Such enactments must remain a dead letter upon tbe statute-book, and are not susceptible ol enforcement on the part of an impartial and independent judicial tribunal. Courts are without power to declare an act immoral or contrary to public policy, as long as there exists no conflict between it and the organic fundamental law. Laws which contemplate or attempt to divest vested rights are essentially immoral, and must be treated and declared as null, void, and of no effect. In different and more forcible language, can a Legislature authorize a debtor to say to his creditors : “ I have property ; I can pay you in fifty years ; I offer to pay a portion of you every year ; creditors to be paid, to be. selected by lot; those who refuse to accept my terms will not be paid at all.” If such an understanding between debtor and creditor were incorporated in an assignment made for the benefit of creditors, no court will be found to sustain and enforce it on its very face, even between the parties.
The authorities denounce, without mercy, such a transaction as a fraudulent attempt to hinder and delay creditors.
Tide, 4 Ala. (N. S.) 374.
11 Wend. 201; 6 New York, 517.
10 N. Y. 593 ; 7 A. 270 ; 13 L. 457 ; G2 Barbour, 395 ; 10 Cal. 563 ; 12 Bush. K 110 ; N. J. L. 3R. 110 : 2 Cal. 52 ; 4 Am. L. Times, 226 ; 38 N. J. R. 110.
The least impairment of tire rights secured by the contract, either as to the substance or as to the means of enforcement, by a postponement of the time of payment, a change of the mode of settlement of the quantum of money to be paid, or by a resort, as a substitute, to some unusual, whimsical, or previously unheard-of settlement and method of payment by allotment, could not be maintained, unless unanimously concurred in by the creditors.
Tide, 1 P. C. C. 410 ;
1 Binney, 110 ;
4 Yates, 34 and 84 ;
1 Com. Pleas Div. 265 ; 1 Q. B. Div. 679 ;
Law B. Q. B. 491; 90 W. S. 184.
Act No. 31 was adopted to adjust, regulate, and provide for twenty-three millions of dollars (823,000,000) of the bonded debt of the city. There had been pledges in favor of large portions of that debt, which were, in some instances, coeval with the issue of the bonds, and were designed to accredit them.
Eor a long period it had been the organic law of the land that courts were to be and remain open for the vindication of rights and the redress of wrongs, both public and private, by speedy justice and adequate process, which were accorded to all; that vested rights were not *760to be wrested, away; that the obligations of contracts were not to be altered or impaired by any branch of State Governments. There had been enacted a Code of Laws, derived from the most ancient and modern fountains of recognized justice and authority, regulating civil order and proclaiming the admitted and indisputable principles established and enforced in the civilized world for the well-being of social, municipal, and domestic intercourse. Those codes embody the rules under which conventional obligations arise and are executed, and under which the-contracting parties can be coerced to a strict performance of their-duties ; the means, also, by which those obligations can be extinguished are set forth. One of the rules has always forbidden a defaulting or insolvent debtor to grant a preference to one creditor over another. His property is considered the common pledge of all his creditors, who are to share in its proceeds, and, then, only in the manner and with the rank provided for by law. The debtor and creditor were permitted to indulge in no fraudulent or deceitful practices to hinder, delay, or defraud other creditors.
Individuals and corporations stand on the same'footing. A common duty, to be honest and pay legal debts, within the bounds of their respective ability, exists and binds both alike. A bargain by which a municipal corporation agreed to divert public funds in the distribution of which all its creditors are entitled to participate away from one class of- creditors, and apply them to a privileged class of creditors, has been justly deemed fraudulent, and, consequently, pronounced to be null, void, and of no effect. The Mobile case, 4 Am. Law Times, 226, is to that effect. See, also, Craig vs. Missouri, 4 Pet. 436 ; 1 Binney, 110 : 4 Yates, 34 and 84.
The most elevated tribunal of the nation, the sole expounder in last resort of the true principles of the Federal Constitution, and to which all legislation must yield, has gone to the extent (and most properly, too,) of applying the inhibition relating to the impairing of obligations and contracts even to the judiciary of the States, so as effectually to prevent it by unauthorized adjudications from attempting to alter or impair, in the least degree, obligations and contracts validly formed.
• An analysis of Act 31, and of .the practice under it, conclusively shows that the intent and purpose of its framers was to hinder, delay, and obstruct the operation of pre-existing laws relative to the anterior bonded debt of the city of New Orleans. By the terms of the Act itself, a large number of statutes are formally repealed in block, for the evident purpose of hampering successfully the existing creditors entitled to rights under the repealed legislation, but who were unwilling to submit to the scheme, and of -impeding them in the assertion and vindication of their well-founded pretensions, and thus of coercing them to yield and *761■submit to the high-handed measure. The powers of the judicial tribunals of the State were, so, expressly curtailed by the Act and shackled for that very object.
•II.
It is next argued and urged that the Act is unconstitutional in point of form, because it violates Article 116 of the Oonstitution of 1868, in force at its passage. That article declares, that the General Assembly shall never adopt any system or code of laws by general reference to such system or code of laws, but in all cases shall specify the several provisions it may enact.
The test under this article of the constitutionality of an Act is, whether the act attacked would be operative without reference to the act or acts alluded to ?
In Walker vs. Caldwell, 4 Annual, 298, the Court held :
“ The Act of 1848 purports expressly to amend the Act of 1847 by reference to its title, and without reference to the act of 1847 its provisions would be inoperative. It purports to do that which the Constitution declares shall not be done, and the act must yield to the operation of the Constitution, or the articles of that instrument providing for the forms of legislation shall be declared to be of no effect. These forms have been placed, under the guarantee of the Constitution, as a safeguard against errors or abuses by the legislative power.”
The concurring opinion, of Chief Justice Eustis (who was not the organ of the Court) in the matter of the Succession of Franklin, 7 An. 407, does not and could not pretend to establish a contrary doctrine.
The title of the Act is expressive of seven distinct objects, one of which is to authorize the exchange of bonds of the city according to a plan known as “ The Premium-Bond Plananother to adopt and give •legislative sanction to said plan, as set out in Ordinances 3130 and 3233, Administration Series, of the city of New Orleans, approved May 25th •and August 31st, 1875.
The first section of the act authorizes the Mayor and Administrators to exchange the bonds “ in accordance with the plan adopted by the City Council of Neio Orleans, and approved by the Mayor on the twenty-fifth of May and thirty-first of August, 1875.”
What that plan is does not at all appear, not even substantially, from the body of the act. For the understanding and execution of the act, the object of which was, after all, but an exchange of old for new bonds, it is absolutely necessary to consult the ordinances to which express reference is made in the act. No one can know what they are from the face of the act. The official journal of the city, the archives of the City Hall, are to.be searched as the only guides for a knowledge of the *762act. In point of fact, after a serious examination and close scrutiny, they furnish no satisfactory data to the enquirer.
It is established that an act which refers to another act, without specifying its provisions, and which is inoperative without such reference, is unconstitutional. If the Legislature is prohibited fz’om vivifying acts by reference — acts found in the statute-books, of easy access, which the public, and every one, was bound to know — how can it be for a moment pretended that such a reference is to be tolerated, sanctioned, and upheld, when it has for its object municipal ordinances which no one, surely none out of the municipal territory of the city of New Orleans, is bound to know, and which all have a right to ignore.
Constitution of 1868, art. 116 ; 4 An. 297 ; 10 An. 721; 11 An. 56.
A citizen residing in any parish, that of Orleans excepted, could not understand the act without coming to New Orleans and inspecting the archives at the City Hall.
Oan it be asserted with any degree of plausibility that the intention of the framers of the Constitution ever was to sanction such a mode of legislation ? The proposition is too clear to require any further elucidation.
I conclude that the act in question cannot be enforced in favor of the holders of the bonds issued under it, as is proposed by the plaintiffs in these cases ; but I do not express any opinion upon what their rights might be if they were remitted to the original evidences of indebtedness given in exchange of the obligations now held and exhibited by them.
This view of the case would have dispensed with an examination of the question of the validity and effect of article 209 of the present (1879) Constitution, which provides that no municipal tax shall exceed ten mills on the dollar of assessment. While on this subject, however, I may observe that the motives and considerations which have induced the Convention to place such a wholesome restraint on the power of municipal taxation need not be told, and much less enumerated, to a tax-ridden people. I purposely omit to express any opinion in regard to the applicability claimed for that article to the cases before the Court.
Nor am T to be understood as expressing any opinion as to the validity of the bonds issued prior to 1876, and not herein assailed, on the ground that the consent or authority of the people was not previously obtained, and provision for payment was not made, as required by section 37 of Act No. 71 of 1852 (then the city charter).
It will be time enough to consider the question when the same shall, if ever, be presented to this Court for determination. I conclude merely, that the act which confers exclusive right of taxation for the purpose of providing means for the allotments described is one that this Court cannot legally enforce, because in contravention of the *763rights and interests of creditors protected by the Constitution of the-State; further, because it tends to hinder, delay, and obstruct them ire depriving them of their just rights, rights vested in them under the-organic law; and, because it is violative of public order and policy-under the Constitution and laws of the State; and, also, because it is-not framed according to the forms prescribed by law under pain of nullity, and directed by the Constitution in force in the year 1876.
My intention in expressing views different from those of the majority of the Court is to be tested only by a proper appreciation and sense of official duty.
Mr. Justice Poché concurs in this opinion.