Dissenting Opinion.
Poché, J.I regret the necessity of dissenting from the opinion of the majority of the Court in this case, but I am impelled thereto by my solemn convictions. Plaintiffs, citizens and taxpayers of the State, invoke the aid of the judiciary power, created under the Constitution of 1879, to enforce a provision of that Constitution, defining a limit to the taxable power of the City of New Orleans as a municipal corporation.
In article 209 of the Constitution, it is provided that “ no parish or municipal tax, for all purposes whatsoever, shall exceed ten mills on the dollar of valuation.” The City of New Orleans having levied, and haviDg attempted to collect, for the year 1880, a tax of fifteen mills on the dollar, plaintiffs pray that she be enjoined and limited to collect a tax of only ten mills.
The city, thus summoned to obey the mandate of the paramount law of the State, answers that the rate of taxation limited by the Constitution curtails her revenue to unreasonable proportions; that the proceeds of the ten mill tax is barely sufficient to meet her current expenses, and that she is warranted in raising an additional tax of at least five mills to meet the payment of her contract debts and interests on her bonded indebtedness. In this case no contract creditor asks the enforcement of obligations for which the city refuses to make adequate pro*93visions by taxation or otherwise. And, in my opinion, the theory, resting on the adjudications of the Federal and other Courts, annihilating all State action or legislation tending to impair the obligation of contracts, has no application to this cause under the pleadings and between the present parties. I find no cases either in the Federal or State jurisprudence where the power of a court has been exercised for compulsory taxation by a municipal corporation to meet the payment of its contract debts in general. All adjudications in such cases have been predicated on the complaint of a particular creditor after unsuccessful efforts to obtain relief froni the municipal taxing power or authority.
I respectfully differ with my learned brothers in their position that the City of New Orleans derives her taxing power from any other source than the present Constitution of the State, and I hold that any Act of the Legislature, either antecedent or subsequent to the Constitution, granting a more extensive taxing power than that conferred and circumscribed by the Constitution, is either inconsistent with, or violative of, the organic law, and therefore null and void.
If, therefore, under an isolated issue, as presented by the pleadings in this case, this Court attempts to authorize a levy of greater taxes than limited in the Constitution, it inaugurates judicial legislation, which practically ignores the very power which created us, and whose authority and sovereignty is omnipotent in the State, in so far as it does not conflict with the Constitution of the United States.
When a proper, case is presented by a contract creditor of any municipal corporation in the State, who is refused a compliance with its obligations by the corporation, claiming immunity under the constitutional limitation, the Court should then interpret the alleged impairing of the obligation of the contract by the constitutional limitation to municipal taxes; but no such issue is presented in this case, and should not be injected into it. Citizens of the State invoke our aid to enforce a constitutional inhibition enacted for their protection, and it is our bounden constitutional duty to come to their relief, especially as no creditor of the city could be concluded in any contract right which he may have, and which is protected by the Federal Constitution.
In my humble opinion, the error committed by the majority consists in treating this case as though all the contract creditors of the city were before us, judicially urging their vested right to the proposed tax, and requiring a decree avoiding a legislative or constitutional provision impairing the obligation of their contracts, when, under the pleadings, the issue is confined to the taxing power on the one hand and the taxpayer on the other, and the sole question presented for solution is the interpretation and enforcement of a Constitutional safeguard.
For these reasons, which the press of official labors does not per*94mit meto elaborate,I think that the judgment of the lower court should have been affirmed.