Dissenting Opinion.
Manning, J.The plaintiff alleges that the assessors of property for taxation in 1877 omitted to list and assess in that year a certain part of the capital or capital stock of the defendant Company, and that pursuant to authority given by several Acts of the legislature, the Common Council of the City on October 31, 1878, adopted an ordinance directing the assessment of this omitted capital or capital stock for taxes of 1878, and to place it on the rolls of 1877, which was done at a valuation of five hundred and fifty-five thousand two hundred and fifty dollars, and the tax thereon being $8,328.75, the City prays judgment for that sum with ten per centum per annum interest from Dec. 1, 1878.
The defendant denies the legality of the assessment, and avers that the Company had no money capital in 1877, and nothing that is comprehended in the term “ capital,” either in its legal or popular meaning j and that all its property which was liable to taxation that year, i. e., its real estate, track, cars, and draft animals,' wras assessed and the tax thereon has been paid.
There was judgment below for the defendant and the City appealed.
The assessment of 1877 was controlled by the Act of that year, which directs that it shall be completed by the first day of July, and the rolls shall be exposed until September, during which time any person may complain of over-assessment, and provides his remedy. Sess. Acts 1877, p. 136.
The 17th Section is relied on to justify the supplemental assessment of the omitted property, but that manifestly relates to property outside of New Orleans, and by its terms has reference to State and parish taxes alone. Secs. 82 et seq. provide the mode of assessment for the" City. The 87th Sec. contains the same provisions for- the completion, exposition, and correction of the rolls that are made for the country parishes by the 17th Section. There is not anywhere in this elaborate law of 105 Sections any provision for other correction or amendment of the rolls than that allowed in the manner, and at the time prescribed by the 17th and 87th Sections, and neither of those direct or authorize such amendment of the rolls as was made by the City against the defendant Company.
Another Act upon which the City relies is that of 1872, which directs if the assessment made by its authority shall be declared, or shall be*690come void and without effect, by reason of non-compliance with any ■formality, then the Council shall have authority to make a new assessment and collect the taxes thereon, it being the true intent and meaning of this law that the City shall not lose the right to collect annual taxes by reason of any legal informality. Sess. Acts 1872, p. 125, Sec. 8.
The intention of this law is expressed, and its meaning is emphasised by the words of the Act. Its evident purpose was to provide for the contingency of the entire assessment roll being declared null for informality, in which event a new assessment roll is authorized in express terms, so as to preserve the City’s right to realize her annual revenues.
In the case at bar there is not an entire assessment void for non.complianee with form, but an omission of a particular assessment. The defect is not of form but of substance.
The absence of provision for the case of an omission to assess in the Act of 1877 attracted attention, and this defect was corrected by the legislation of the following year. Sess. Acts 1878, p. 234. The 18th Section of the law of that year supplies the omission, and Sec. 19 attempts to apply this mode of repairing defects to the assessment of ■1877 by legislative instructions to the City assessors to revise and correct the roll of that year to make it conform to the law of 1878.
Under this law of 1878 the assessors listed for taxes of. 1877 the property of the defendant Company not then assessed—or rather property alleged to belong to the Company—and the collection of the taxes thereon is resisted on the ground inter alios that the law of 1878, quoad this provision, is retroactive and as such is prohibited by the Constitution of 1868.
The leading case on the question is Municipality vs. Wheeler, 10 Ann. ,745, wherein the defendants contended that the Act of 1850, empowering each of municipalities of New Orleans to lery taxes on capital on the assessment rolls of 1848 and 1849, and aD ordinance of one of the municipalities in pursuance thereof, approved in 1850, were unconstitutional and void because retroactive in operation. The Court say: The statute is not an ex post facto law, as it has no relation to crimes and penalties. However repugnant to logic and sound policy they may be, retrospective laws in civil matters do not violate the Constitution unless they tend to divest vested rights or to impair the obligation of contracts, neither of which can be predicated of the Act in question. * * * But the law under consideration does not seem to be obnoxious to severe censure. It is not strictly speaking a retrospective law. It authorizes the future imposition and collection of a tax according to a past assessment. This was within the legislative power.
*691There was a dissent, but the decision was followed by New Orleans vs. Cordeville, 13 Ann. 268; New Orleans vs. Poutz, 14 Ann. 853; New Orleans vs. Locke, Idem, 854, in all of which discussion was pretermitted, and Wheeler’s case cited as conclusive. The case of Locke was appealed to the U. S. Supreme Court, where it was said in affirming the judgment, “ the Act was not subject to the imputation of being retrospective. It did not operate upon the past, or deprive the party of any vested rights. It simply authorized the imposition of a tax according to a previous assessment,” repeating the language of this Court in deciding the case appealed. N. O. vs. Locke, 4 Wall. 173.
In New Orleans vs. Southern Bank, 15 Ann. 89, the same objection to a supplemental, assessment was made as in the case at bar, and the Court said the authorities cited are not applicable because the law, under which the assessment was made, provided that if any property be omitted in the assessment of one or more years, the same when discovered shall be-assessed for the years during which it was omitted. It is inferrible that but for such provision, the supplemental assessment would have been held illegal.
It is then manifest that Wheeler’s case and those that follow it held the Act then under construction not retrospective, because the tax was imposed upon an assessment already made, and the Southern Bank case justified a supplemental assessment under a law expressly authorizing it, passed antecedent to making such assessment. But the vital point is that the Constitutions in force at the date of each, of these decisions did not prohibit retroactive legislation. The Constitutions of 1845 and 1852 read :
No ex post facto law, nor any law impairing the obligation of contracts, shall be passed; nor vested rights be divested, unless for purposes of public utility, and for adequate compensation previously made.
The significant change in that Article made by the Constitution of 1868 was directed to the prevention of legislation, not included in the term ex post facto, and not covered by such retrospective laws as do not impair the obligation of contracts nor divest vested rights. Its language is: .
No ex post facto, or retroactive Imo, nor any law impairing the obligation of contracts, shall be passed; nor vested rights be divested, unless for purposes of public utility and for adequate compensation made.Art. 110.
■ The Act of 1878, which alone authorizes the amendment of the assessment of 1877, was passed under the domination of that inhibition.
The earlier Constitutions of the different States, following the Constitution of the United States, confined their prohibitions to two kinds *692of laws only, viz., ex post facto laws, and those impairing the obligation of contracts; and the decisions of their courts and of the federal court are based upon these restricted prohibitions, the term ex post facto having a settled technical meaning, which includes only such laws as relate to crimes and their penalties. As an illustration, it was held in California, whose Constitution has not any prohibition' of retroactive laws, “ as a general rule of statutory interpretation it is undoubtedly true that a statute should be construed to operate on the future and not on the past, but with the exception of those cases which come within the purview of prohibitory clauses in State Constitutions, or in the Constitution of the United States, we know of no case in which it is not competent for a State legislature to give a statute a retroactive effect.” Von Schmidt vs. Huntington; 1 Cal. 65.
Even this constructive enlargement of legislative power has been deplored, and one of the wisest of our Courts has said: “ all ex post facto laws are arbitrary, and it is to be regretted that constitutional prohibition of them has been restricted to laws for penalties and punishments. In a moral or political aspect an invasion of the right of property is as unjust as an invasion of the right of personal security. But retroactive legislation began and has been continued, because the judiciary has thought itself too weak, because it has- neither the patronage nor the prestige necessary to sustain it against the antagonism of the legislature and the bar. Yet had it taken its stand on the rampart of the Constitution at the outset, there is some reason to think it might have held its ground. Greenough vs. Greenough, 11 Penn. 495.
No doubt the inclusion in our constitutional prohibition of retroactive laws by designation had for its object the stemming of this current of legislation and judicial construction thus feelingly deplored.
Frellsen vs. Mahan, 21 Ann. 79, arose under the enlarged prohibition, and was an injunction to restrain the collection of taxes levied under an Act of September, 1868, on the assessment of 1867, the Court holding the law not retroactive and therefore not prohibited, saying: It has no retrospective effect. It does not operate upon any contract, or right, or subject in the past, but provides simply that a tax shall be levied upon the cash assessed value of the immovable property in the State according to the assessment rolls for 1867, the last assessment which at that time had been made, p. 103.
Here again the pivot of the decision is the existence of the assessment before- the legislative imposition of the tax, but even with this feature in the case likening it in some sort to the ease of Wheeler and its successors, it may be well questioned if the ruling does not betray that succumbing to legislative encroachment which the Pennsylvania *693Court stigmatised as too prevalent. It is worthy of remark that the Justice who read the opinion of the Court in the Wheeler case was one of the counsel in Erellsen’s case, and in his brief for the plaintiff, commenting on the innovation, made by the Constitution of 1868 upon those anterior to it, in the enumeration of prohibited laws, he said: the change was obviously made to prevent the possibility of any more such decisions as the Court was compelled to make in Wheeler’s case. If this provision had existed in the Constitution of 1845, that case would certainly have been decided the other way.
However this may be, the present case is distinguished from all the others by the circumstance that the assessment was not in existence— had not been made—and the law attempted to order that one should be made mi ne pro tune, thus retroaeting upon the subject matter of the legislation.
A local tax differs from the general or State tax in this, that the latter may be said to be levied when the tax roll is completed, while the former depends upon an annual municipal or parochial ordinance for its existence. It is the ordinance that levies the tax, and hence it was held that a person who had removed with his property out of the State, after the assessment of the State tax, but before any local tax 'was assessed, was not indebted for such local tax. Templeton vs. Board Lev. Com., 16 Ann. 118. In the case at bar the ordinance of the City was not adopted until after the year for which these taxes are demanded, and after the stock of the defendant Company had presumably gone in part into other hands.
• I think the case is clearly with the defendant. I know of no instance of a court sustaining an assessment, made as was this, unless an express Statutory provision for the case of omitted property existed, and to that effect is the quotation from Burroughs in the opinion of the Court.
All our revenue laws, except that of 1877, contain an express provision for putting on the rolls property, the assessment of which has been omitted. The Act of 1878 prevents the loss of revenue in the future from that cause, but cannot, in my judgment, cure the defect of the casus omissus in the law of the previous year. The Constitution of 1879 omits the words, “ or retroactive law,” inserted in that of 1868, and is identical in this respect with those of 1845 and 1852.
Rehearing refused.