On Application eor Rehearing.
Fenner, J.Attempt is made, in the brief in support of this application, to show that our decision herein is in conflict with the principles enunciated by the Supreme Court of the United States in the ease of Meriweather, Receiver of Memphis, vs. Garrett et al., recently decided.
We have made it our duty to study, with great care and particularity, the utterances of the Court in that case, including the conclusions^ of the Court as announced by the Chief Justice, the opinion in support' thereof read by Mr. Justice Field, and concurred in by Justices Miller and Bradley, and the dissenting opinion of Mr. Justice Strong, concurred in by Mr. Justice Harlan.
The 149th article of the Constitution of the State required us, in common with all other officers, before entering upon the discharge of our duties, to take an oath to “ support the Constitution and laws of the-United States and the Constitution and laws of this State.”
Where the two Constitutions conflict, it is impossible to give effect to both.
No one questions that, in case of such conflict, the Constitution of the United States is the paramount law, and must prevail.
The idea, advanced by some, that, in denying effect to a provision of' the State Constitution, where, in a particular case, it conflicts with the Federal Constitution, we are violating the mandate of the power which created us, is, therefore, utterly without foundation, because the most solemn expression contained in that mandate binds us, by oath, to support the Constitution of the United States.
It is essential to the preservation of any constituted order of government that some final arbiter should be established for the settlement of' legal controversies, especially of those fundamental questions involving-the meaning and effect of the organic law.
Under our system, the Supreme Court of the United States is established as such arbiter, in all cases involving the construction of the Federal Constitution, as to which it is vested with appellate jurisdiction over • this and every other Court.
In our original opinion we indicated, and shall not now recapitulate,, the reasons why we felt bound to adopt the settled construction placed upon the Federal Constitution by the highest Federal Court — at least. where that construction is not so manifestly usurpative that we could not follow’it without violating conscience.
In'no doubtful case, however, would we refuse effect to a provision; *95of our own Constitution on the ground of repugnancy to the Federal Constitution.
Certainly, in no case, where the U. S. Supreme Court had so construed the Federal Constitution as to make it consistent with the State provision, would we hesitate to adopt such construction and maintain the latter.
No candid lawyer will dispute that, in construing that provision of the Federal Constitution forbidding States from passing any law impairing the obligation of contracts, the Supreme Court of the United States has, in repeated decisions, announced and settled the following doctrine, which we state, as nearly as brevity will permit, in the very words of the Court, viz: That where a statute authorized a municipal corporation to issue bonds, and to exercise the power of local taxation in order to pay them, and persons bought and paid value for bonds issued accordingly, this power of taxation is part of the contract, and cannot be withdrawn until the bonds are satisfied; that an attempt to repeal or restrict it by State law is void; and that unless the corporation imposes and collects the tax in all respects as if the subsequent law had not been passed, it will be compelled to do so by mandamus. See Van Hoffman vs. Quincy, 4 Wall. 535, and subsequent cases.
Cooley, Const. Lim., p. 292.
We did not originate or create this interpretation. . We accepted it from the hands of the highest expounder of the Federal Constitution, vested with appellate jurisdiction over this Court on such questions, and thus rendering opposition on our part, even had we been disposed to offer it, foolish, because utterly vain.
This is no new interpretation, sprung, as a surprise, upon the State and city. It existed as a settled and universally recognized constitutional doctrine at the moment when the Star.e delegated to the city the taxing power now under consideration, as the inducement to the contracts predicated thereon.
It so existed at the moment when the sovereign will of the State, as expressed in its Constitution, required its judiciary to take an oath to support the Constitution of the United States.
The arguments against this doctrine, though now attractively and impressively formulated by skillful advocates, have in them nothing in the slightest degree new. They were considered and disposed of when the doctrine was adopted, and so often since that it was not supposed they could be the subject of further controversy.
If it were true, as is now contended by counsel, that the Supreme Court of the United States, in its decision in the Memphis case, had abandoned or modified the foregoing doctrine and had adopted another consistent with the right of the State to withdraw from an existing *96municipal corporation the power of taxation, even though forming part of a contract, we should not hesitate a moment to follow it, and would reverse the decision herein rendered.
A close study of that case, however, convinces us that neither the Court, nor any member thereof, has even intimated the slightest intention of abandoning or modifying the settled doctrine now under consideration.
It is. to be borne in'mind, that the only propositions which are entitled to be considered as the expression of the Court, are the conclusions announced by Chief Justice Waite, as its organ, and in these nothing can be discovered having the slightest bearing upon the question now under consideration.
The opinion read by Justice Field in behalf of himself and his associates, Miller and Bradley — luminous, learned and thoroughly sound as we believe it to be — is yet but the expression of those three judges, and cannot be accepted as the opinion of the Court. ■ That opinion, however, does not, in the slightest degree, countenance the inferences sought here to be deduced from it. Those inferences can be supported only by isolating general expressions from their context and disconnecting them from the limitations expressly placed upon their import in the opinion itself.
Thus, in treating of the legislative right to alter, abridge, or withdraw powers of taxation and all other powers delegated to municipal corporations, Justice Field is careful to recognize the existence of exceptions ,to this general right. He uses these words : “We say, generally, ' for there are some exceptions, where the tax provided is so connected with a contract, as the inducement for its execution, that the courts will hold the repeal of the law invalid as impairing the obligation of contracts. It is not of such taxes, constituting the consideration of contracts, that we are speaking,” etc.
In another part of his opinion he says: “ The Federal judiciary has unhesitatingly brushed aside all legislation of the State impairing the obligation of contracts. When a tax has been authorized by law to meet them, it has compelled the officers of assessment to proceed and levy the tax, and the officers of collection to proceed and collect it, and apply the proceeds. In some instances, where the tax was the inducement and consideration of the contract, all attempts at its repeal have been held invalid.”
These extracts are surely sufficient to demonstrate that the learned participants in this opinion maintain, in full vigor, the settled doctrine that the power of taxation once conferred on a municipal corporation by competent legislative authority, as the inducement and consideration of .a contract, cannot be withdrawn or repealed by any subsequent legisla*97tion of the State, so long as the corporation exists and the contract remains unfulfilled.
But when, as in the Memphis case, the charter of the municipal corporation has been repealed, and its corporate officers have, thereby, been abolished and destroyed, entirely new and different questions present themselves, and it was with such questions that the Court was most engaged in the Memphis case. The opinions expressed and conclusions announced by the Court are confined, in their proper application, to the case of an extinct corporation, and are apt to mislead when extended to the entirely different ease of an existing corporation. The important questions involved had reference, not so much to the rights of contract creditors, as to their remedies.
The Court is unanimous on three of the propositions announced by the Chief Justice, viz.:
1st. Property held for public uses cannot be subjected to the payment of municipal debts.
2nd. Private property of individuals cannot be subjected to the payment of municipal debts except through taxation.
3rd. The power of taxation is legislative and cannot be exercised otherwise than under the authority of the Legislature.
The opinion of Justice Field fully explains what is meant by this last proposition as applied to municipal corporations. It means that taxes can only be levied, (1) in virtue of existing legislative authority, and (2) by officers constituted and authorized by law to levy taxes.
Courts have no power, in any case, to levy taxes. The limit of judicial power over the subject is to require and compel duly constituted taxing officers, amenable to process, to obey existing law by levying a tax required thereby.
If there is no law authorizing the tax, or if, there being a law, there are no officers amenable to judicial process to execute it, then, in the language of Justice Field, “there is nothing upon which the Courts can act.”
The legislative power of the State is powerless, as we have seen, and as emphatically recognized in this very opinion of Justice Field, to impair the obligation of a contract by repealing a tax-law entering into and forming part of such contract; and, therefore, such law necessarily continues to exist until the contract is fulfilled. As long as there are taxing officers, they owe obedience to such existing law, and the courts may, and, on proper application, must enforce such obedience.
Neither by its constitution, nor' by statute, has the legislative power of the State seen fit to repeal the charter of the City of New Orleans, or to abolish or destroy its taxing officers.
The law and the officers thus continuing to exist, no element is *98wanting for the application of appropriate judicial remedies, and the taxpayers of New Orleans are not in position to claim the relief extended or suggested in the case of Memphis.
We find nothing in the decision of that case to alter or affect the views expressed by us in our original opinion.
The suggestion that taxes levied under the mandamus of a court is judicial taxation, rests upon an entire misapprehension of the meaning of those terms.
Mr. Justice Field, in his ©pinion, explains this so clearly that no apology is left for further confusion of ideas on the subject. After explaining that taxes can only be levied by legislative authority, and that courts are powerless to levy them, he says: “The form of procedure cannot change their character. Nor are they different, when levied under writs of mandamus for the, payment of 'judgments, and when levied for the same purpose by statute. The levy in the one case is as much by legislative authority as in the other. The writs of mandamus only require the officers of assessment and collection to obey existing law.” The office of the writ of mandamus is to compel officers to perform duties imposed on them by law. It is no more judicial taxation to compel taxing officers to perform the taxing duties imposed by law, than it is judicial legislation to compel any other officer to perform any other legal duties.
In proceeding to lay down the general doctrine that,taxes “being levied by the authority of the Legislature, they can be altered, postponed or released at its pleasure,” Judge Field-is careful to except, from the operation of this general doctrine, the case where, he says, “ the tax provided is so connected with a contract that the courts will hold the repeal of the law to be invalid, as impairing the obligation of the contract.”
In article 299 of her Constitution the State of Louisiana has interposed, between the City of New Orleans and her contract creditors, only the shadow of the mighty shield of her sovereignty. Shadows are powerless to protect. The Memphis decision is a portentous reminder that the shadow is cast by the shield itself, which exists, massive and impenetrable.
Another ground assigned for rehearing is that there is error in the judgment on the reconventional demand of the city in condemning the plaintiffs to pay ten per cent interest, from March 31st, on the taxes due.
The rate of interest chargeable on delinquent taxes was fixed at ten per cent by section 9 of Act No. 48' of 1871, which same act fixed the date of exigibility as July 1st of the current year. The Act No. 41 of 1874 simply changed the date of exigibility to March 31st. It did not alter or affect the rate of interest theretoforb established, nor did it *99prevent that interest running, under the general law of the State, from the time when the taxes became due and exigible as therein fixed. Such, we believe to have been the intention of the law, and such has been the practicable operation given to it, from that day to the present time. This construction receives additional sanction from the references to “ existing laws as to the time when city taxes became due and as to the interest thereon ”, contained in section 97 of Act 96 of 1877, and section 14 of Act No. 9 of Ex. Sess. 1878.
Article 210 of the Constitution providing a summary remedy, without suit, for the enforcement of taxes “at the expiration of the year in which they are due,” cannot be construed as repealing existing laws fixing the period at which city taxes become due and allowing interest from that date. The article presents no inconsistency with those laws. Even if the remedy provided in the article were exclusive of all others, the postponement of the exercise of that remedy to the end of the year would not necessarily involve a like postponement of the time at which the taxes become due or of the interest penalty provided for nonpayment at that time. On the contrary, the postponement of the remedy would furnish additional reason for the exaction of the penalty, since the latter would then be the only motive to prevent delinquency.
We express no opinion as to whether the remedy provided in the article is exclusive or not, because the question was not raised or argued on the original hearing, and its decision is not necessary in this case.
To the city’s reconventional demand, no exception was taken in the lower court, and no objection was urged even in this Court until after judgment.
Such an exception should have been urged in limine. A party may not take the chances of a decision in his favor on a voluntary submission, of the merits of the cause, and then escape the effect of an adverse decision, upon such a plea.
The rehearing is refused.