Dissenting Opinion.
Poché, J.Eight members of the council of the city of New Orleans, in an application for relief by certiorari, complain that they have been illegally held for contempt for having voted a'nay” on a contemplated ordinance of the council, the passage of which had been ordered ■by the court through a peremptory writ of mandamus. Their complaint embraces two points of alleged error ; one of which is sufficient to entitle them to relief at the hands of this Court.
As the writ of mandamus had been directed to the city of New Orleans and the council thereof, the court was without power or legal authority to direct its process for contempt against eight individuals forming part of a council composed of thirty members.
The fact that eight negative votes were sufficient to defeat the passage of the ordinance shows conclusively that several members of the council were absent; for if all the members had been present and had voted, the result would have showed twenty-two affirmative votes, .and the ordinance would thus have been passed, and the relator in the mandamus case would have had no right to- complain. Under that ■state of the case, the court would have been powerless to proceed against the members who have cast negative votes. The purpose of its mandate would have been accomplished, and its power over the •subject-matter would have been exhausted.
Whence does the judiciary department derive its power to single out & few' comiionent parts of a legislative functionary, and to hold them *48in contempt for their votes'? Conceding the power of courts to punish a board of commissioners or a municipal council for disobedience of' the mandates of a competent tribunal, it is plain that the proceeding or mandamus cannot be directed to the i>ersous composing the board or council, but the process must be addressed to the body as a unit. Such was the course pursued in this case in reference to the mandamus.. But when the court was met with a disobedience of its mandate, the rule for contempt was not levelled at the disobedient body, the only defendant or respondent in the mandamus proceeding, but was taken against a component or fractional part of the body only. This was-manifestly error, and it involved the court in the exercise of a power not conferred by law and not inherent in the court.
This proposition is not met or answered by the argument that the error complained of is at most one of form. It involves a question of right, and puts at issue the assumed power of the court to proceed against individuals for acts of alleged disobedience of a body corporate.
Under a correct proceeding, the absent members might have been found as much in contempt as the members present who had voted in the negative on the contemplated ordinance; and the obedient members of the body, the true and only respondent, could easily have purged themselves of the alleged contempt of the authority of the court.
These views are supported not only by reason and logic, but by most respectable authority. State of Iowa ex rel. Rice vs. Smith, 19 Iowa, Reports, p. 334; Board of County Commissioners of Leavenworth Co. vs. Sellow, U. S. 624.
The absolute illegality of the process for contempt against the relators herein, is further demonstrated by the following consideration : the rule is settled that courts cannot take judicial cognizance of municipal ordinances, which must be alleged and proved in order to be judicially considered or enforced, a fortiori courts cannot take judicial notice of the particular votes cast in a council meeting by each individual member of the body. The manner of their voting can only be proved or considered in contradictory proceedings, and not ex parte.
Hence the process must of necessity issue against the whole body, as the only mode by which the individual members who have refused obedience to the mandamus, can be reached and properly dealt with.
In this very case the writ was directed against nine members and, on investigation, it was discovered that only eight had cast negative votes.
I therefore dissent from the opinion and decree of the majority.