On Application for Rehearing.
Bermudez, C. J.We understand the application for a rehearing as claiming that we have committed two manifest errors:
First, when we said that we did not' find in the transcript of appeal •before us the judgment for the drainage tax on propertv in the First-District for $358 50.
Second, when we ruled that the summary proceedings in which the judgment for a similar tax on property in the Fourth District was obtained for $5867 20, and which it is said constitute part of the objects of Act 30 of 1871, were not expressed in the title of that statute.
1st. We reiterate and affirm that the judgment for $358 50, said to have been rendered for the drainage tax in the First District, is not to be found in the transcript of appeal made in the succession of Patrick Irwin. But we are told in the brief for a rehearing, and for the first time, that this judgment and the proceedings upon which it is predicated, are to be found in the transcript bearing No. 1338 of the docket of this Court; that the judgment and proceedings were introduced in evidence in the lower court; and that, concerning them, is to be found at p. 178 of the transcript before us the following entry:
*‘ It is agreed, that the transcript in the Supreme Court of that case, already copied, shall serve in case of appeal.”
It is to be remarked that neither the title of the case, nor the number, nor the date of filing of the transcript alluded to, is given in this *74entry, and that the numerous and voluminous briefs submitted on the merits by the opponents, do not mention that entry, and no where specify the title or number of the case in this Court, the transcript whereof was to serve in case of appeal.
The Code of Practice, Art. 585, provides that after .an appeal has been allowed, and the surety given, the clerk of the court from whose judgment the appeal is taken, shall make a transcript of all the proceedings as well as of all the documents filed in the suit, in order that the same be delivered when demanded. In furtherance of the authority delegated by law, this Court has adopted rules directing the manner in which such transcripts should be prepared for transmission.
For the purpose of lessening costs and expediting business, this Court has thought itself justified in abstaining from a too rigid enforcement of the law', and of those rules, by tolerating a moderate relaxation in permitting parties to eliminate from the transcript useless and cumbersome documents and papers, and to dispense from incorporating into it the record of cases introduced in evidence in the lower court, when there exist transcripts of the same in this Court; but such sanction has always been treated as confined within reasonable limits, and as one which, in practice, was to be used with discretion. The actual Court, for the greater relief of litigants, has itself authorized such consents, saying that it would be uselessly, nay, injuriously onerous, to require a new complete transcript of the whole voluminous record of the lower court, when large portions of the same are pn file in this Court, 32 A. 563; but we have subsequently announced that parties venturing to try their cases on transcripts known to be defective, did so at their risk and peril. Bacas vs. Smith, not yet reported.
It is the jurisprudence of this Court, on this,subject, that where, by agreement, the parties have the right to refer in the Supreme Court to a record already filed therein, offered in evidence below, and which is not embodied in the transcript, and where reference is made, neither to the title nor to the number of such record, this Court will not assume the inconvenience and make it their duty to hunt up among its archives 'for records to- which allusion may have been made, nor to tax its memory with appeals previously decided. Such defects cannot be remedied on applications for a rehearing. 10 L. 514; 9 A. 292; 14 A. 67. Had counsel seasonably and properly made reference here to the transcript alluded to in the “ stipulation ” entered into in the lower court in general language, the unpleasant consequence which has followed would have been easily avoided. For such omissions- and results' parties litigant have none to blame but themselves.
The executors insist, in their brief filed in answer to the applica*75tion for a rehearing, upon the enforcement of those rules of practice, and thus leave us no discretion on the subject.
2d. We have held that the title of an act, entitled “ An Act relative to the drainage of New Orleans,” was not expressive of summary proceedings for the levy and collection of the drainage tax claimed, and, therefore, that such proceedings, in which the judgment relied upon was rendered, being unauthorized by law, were nullities, and that the judgment, itself was, therefore, of no binding force and effect.
We found in the body of the act no authority for the creation by the Council of New Orleans of a new drainage district, and encountered none but the vaguest mention for the making of assessments, for the execution and enforcement of the same, oh property not situated in the original three districts.
It is insisted, however, that by section 9 of that act (No. 30 o£ 1871), the city administrators were authorized to make assessments on such lands as were brought within the protection levees contemplated by the act, where no assessments had been made, and to execute and enforce the same, as provided for by the several acts of the Legislature creating and regulating the Board of Drainage Commissioners.
It is true that the tenor of the act is to that effect. It is possible, nay probable, that the desire, the intention, was to engraft upon the act of 1871 the provisions of .the act of 1861, which was passed for the very purpose of authorizing summary proceedings for the collection of drainage taxes, assessed under the acts of 1858 and 1859; but it is patent that the desire was not realized, that the intention was not expressed, and that the deficiency cannot be supplied by judicial action. The acts to which reference is made by the 9th section, are the two last acts, which are the only acts “ creating and regulating the Board of Drainage Commissioners.” The reference is not levelled at and does not, in terms, propose to include the act of 1861 (No. 57), which is not an act creating and regulating those boards, but which is an act to provide for the collection of drainage assessments under the acts of 1858 and 1859. It was adopted for the express purpose of providing for exceptional remedies previously unknown to the law.
But, had the Act of 1871, instead of the surreptitious reference which it vaguely makes, boldly embodied, mutatls mutandis, the solitary and lengthy section of the act of 1861, it could not be justly claimed that such portion of it, an important and vital element or object, was germane to the subject matter in view, as is announced in the title.
Where the power to levy a tax is conferred, the power of collecting it, being germane, follows, but that power does not necessarily include the right to have recourse, for the purpose of collection, to summary proceedings of unusual harshness and rigor. It only implies a right to *76resort to ordinary process. The complaint is against the summary character of the proceedings.
The constitutional provisions, Federal and State, which guarantee due process of law to every citizen for pleading and impleading, secures to litigants the unconditional and absolute right of a legal notice and trial before judgment, however given, provided it be authorized by a valid statute. The forms of such notice are determined, as a rule, by the general laws, but, as an exception, by the special laws of the land.
Had the judgment insisted upon been obtainedln the regular course of ordinary proceedings, no complaint from the defendants, in the process, could be entertained on the question of form; but as it was procured in the irregular course of exceptional proceedings, the question arose, and was determined, whether such proceedings were authorized and sanctioned by a valid statute.
An author of recognized distinction says ;
“It is a well settled and wholesome rule, that statutes authorizing summary proceedings, and by which extraordinary powers are given to courts, or officers of justice, are to be strictly construed;” * * “ that all statutes conferring special ministerial authority, by which any man’s estate may be affected, must be strictly construed.” Sedgwick, 274, 275, 300, 302.
Long since, the jurisprudence of this State has settled, that laws substituting a fictitious or constructive citation to that which is required by the general law, and which is the essential sine qua non foundation for the validity of judicial proceedings, are in derogation of common right, and must receive a rigid construction. H. D. 785; 7 A. 76; 8 A. 19; 9 A. 368; 13 A. 268; 14 A. 658; 8. A. 365; 9 A. 233; 10 A. 764, 767; 8 N. S. 325; 11 A. 338; 12 A. 751; 13 A. 455.
It is perfectly true, that the forms of a citation and of judicial proceedings fluctuate with the legislative will, and are entirely within its control and discretion. The usual form of proceedings resorted to is the rule, while the unusual form- is the exception. Exceptions to the ordinary forms have been made, and properly, too, for the prompt liquidation and enforcement of certain claims, prominent among which are those due the State, and those due municipal corporations; but such exceptions are unequivocally provided by valid special legislation, announced in titles expressive of the same. The act of 1861 itself, under which the drainage tax for the First District is claimed to have been reduced to judgment, is an illustration of such special legislation for the collection of drainage taxes assessed on property in the drainage districts in existence at its passage; although it has been mooted whether its title is expressive of the summary proceedings for which it provides.
Whether the formalities mentioned in the Act of 1861 were or not *77complied with, is a question with which we have not dealt, for the reason that such compliance was immaterial, inasmuch as we thought that the existence of this portion, or object of the act, was not expressed, or even indicated in the title, which seems to contemplate but one object— “ the drainage of New Orleans.”
Whatever may be encountered in the body of the Act of 1871, relative to summary proceedings for the collection of the drainage tax sought to be recovered as against property in the Fourth Drainage District, must be considered as unwritten, and, therefore, as not justificatory of the proceedings instituted as a basis for the judgment declared upon, which is, consequently, an absolute nullity, and not susceptible of enforcement. Non obsérvala forma, infertur adnullatio aetus. 2 Just. 388; Dwarris, 611.
While considering the meaning of the title of the Act of 1871, we took occasion to subject the language used to a slight, and, perhaps, immaterial, verbal criticism, declaring that we thought we found in it a reference to a definite, and not to an indefinite drainage of New Orleans, viz: that in existence at the date of its passage; deeming that, in so saying, we were, as we are, supported by the nature of the contents of the law. In doing so, we do not perceive that we have transgressed the recognized rules by which the import of human language is tested in order to be correctly measured and properly comprehended; but, even if we were mistaken — philologists will differ — the error is of no practical moment, as the emphasis or accentuation complained of does not necessarily enter in the determination of the question passed upon.
We attach no importance to the argument advanced for the first time in the brief, on the application for a rehearing, that the Act of 1871 became in 1874, by the constitutional amendment of that year, part of the State organic law. If that were so, and on that question we express no opinion, its incorporation at that time in the Constitution could no more have a retroactive effect than could be claimed for statutory legislation.
The general doctrine is, that constitutions are to be expounded in the same way and according to the same rules as statutes. Bishop on St. Cr. § 92; 7 Md. 135; 5 Ind. 557; 5 Md. 337.
The general rules of interpretation are the same, whether applied to statutes or constitutions. Sedgwick, Constr. 19.
We are aware of no reasons applicable to ordinary legislation which do not upon this point-apply equally well to constitutions. Cooley on Const. Lim. 63; 3 Ind. 258; 21 N. Y. 12; 10 O., N. S. 588.
This principle is not only applicable to legislative acts, but to State constitutions. Wade on Retroactive Laws, ? 37, \ 8, and authorities in note.
*78If the Act of 1871 was embodied in the Constitution, in 1874, and. then acquired vitality, the inference necessarily is, that previous to such incorporation, it was a lifeless form, as far as it provided for summary proceedings for the collection of the tax in the Fourth District. It could operate prospectively only, and could not affect, so as to vivify and validate a judgment previously rendered, and which was a nullity. The Constitution of 1868, article 110, provided distinctly against the adoption of retroactive laws ; and it. cannot be supposed that the constitutional amendment of 1874 was designed to act retrospectively in contravention of the rule thus prescribed. When so saying, we do not wish to be understood as meaning that a constitution cannot validly contain retroactive provisions which do not impair the obligations of contracts.
Last. The proposition lightly advanced, that the rights of the other opponent, Palmer, as a warrant holder, have been impaired by our judgment, can hardly be considered as a serious one. He has not verified by proof his averments of fact, and has no foundation upon which to stand. The constitutional prohibition against the passage of laws impairing the obligations of contracts is no protection for him. He has shown no contract, no interest in any contract; has shown no impairment of the obligations of any contract in which he may claim to be concerned. If warrants have been issued by a municipal corporation, or otherwise, under a State law, which is pronounced by the State judiciary as unconstitutional under the State Constitution, parties who have dealt in such securities have done so at their risk and expense, and must stand the consequences of their acts.
To declare otherwise than we have, would be to eliminate the constitutional safeguards which were so providently secured, against improper legislation, for the administration of law, justice, and equity, for the protection of the rights and prerogatives of the people against oppression by the few. We think that we have discharged our duty, and we are unwilling to change our views and our decree. Acting otherwise, would be doing an arbitrary act.
Rehearing refused.