Concurring Opinion.
Fenner, J.The most perplexing problem that has confronted this Court has been the adjustment of the rights and obligations of the city of New Orleans and her creditors under the State Constitution of 1879.
That constitution contained the broad provision : “ No parish or municipal tax for all purposes whatsoever shall exceed ten mills on the dollar of valuation.”
At the-time of its passage the city owed debts exceeding twenty millions of dollars, arising mainly out of antecedent contracts, provision for which, in accordance with their stipulations would, at the time, have required an annual tax far exceeding the limitation fixed, leaving not a cent for the necessary support or alimony of the city.
Considering that the Constitution did not terminate the corporate existence of the city of New Orleans, but obviously contemplated its continuance as a going municipal corporation, the conclusion was irresistible that the ten mills tax authorized therein was designed, primarily and to the extent necessary, to be applicable to the support or alimony of the city, and that no creditor or other person could interfere with its appropriation to such purpose.
On the other hand, the State Constitution was utterly incompetent *410to impair the obligations of antecedent contracts protected by the Constitution of the United States or to withdraw the powers of taxation applicable to their satisfaction at the dates of said contracts, which powers, under the settled jurisprudence of the United States Supreme Court, were read into and formed part of the contracts.
We, therefore, held that the powers of taxation possessed by the city was derived from two sources, viz:
1. From the State Constitution to the extent of ten mills, which was primarily applicable, so far as necessary, to the alimony of the city.
2. From valid legislative authority existing at the date of valid prior contracts, forming part thereof, irrepealable because protected by the Constitution of the United States, and, therefore, continuing to exist until the contracts shall be discharged. Saloy vs. City, 33 Ann. 1879.
We held, further, however, that the constitutional limitation was absolutely destructive of the rights of every creditor to exact a higher rate of taxation for the satisfaction of his debt, unless his right was founded on antecedent contract protected from impairment by the Constitution of the United States.
Hence, where a judgment creditor, on a cause of action founded in tort, and not in contract, sought to invoke a higher rate of taxation possessed by the city at the date of his judgment, we denied his claim ; and this decision was affirmed by the Supreme Court of the United States. State ex rel. Folsom vs. Mayor, 32 Ann. 709.
The foregoing have been the germinal principles, according to which we have determined the rights of all classes of the city’s creditors, guided throughout by a close adherence to the decisions of the Supreme Court of the United States. State ex rel. Moore vs. City, 32 Ann. 736; Taxpayers vs. City, 33 Ann. 79; State ex rel. DeLeon vs. City, 34 Ann. 477; Rivet vs. City, 35 Anm. 134; Carriere vs. City, 36 Ann. 687; Marchand vs. City, 37 Ann. 14; N. O. Gas Light Co. vs. City, 37 Ann. 436; Thorn vs. City, 37 Ann. 528; Labatt vs. City, 38 Ann. 283.
The sole question presented for our determination in the present case is the validity of the section 4 of act No. 67 of 1884, which directs the application of drawn premium bonds in the possession of the city to the redemption of bonds issued under the same act in taking up the floating debt of the city.
In view of the provisions of the premium bond act, dedicating the entire tax levied thereunder to the then existing bonded debt, whether *411funded into premiums or not so funded, and absolutely requiring said tax to be employed exclusively “ in the execution of the provisions of this act” (section 11); in view of the unequivocal provisions of act 58 of 1882, devoteing the entire surplus of the said tax to the payment of the interest and principal of the bonds issued thereunder in exchange for the unfunded bonds; and in view of the consistent jurisprudence of this court that the premium bond tax could not be evaded, diminished or diverted from the purposes to which it was devoted by the act itself — the question presented would hardly possess the slightest seriousness, but for the inferences drawn by plaintiff from a decision of the Supreme Court of the United States in the case of Hart vs. Board, 118 U. S. 136.
The chief opinion just read demonstrates very satisfactorily that the Supreme Court did not consider or deal with this particular question, and had not the slightest intention of thus overturning the jurisprudence of the State, destroying the vested rights of the bonded creditors and deranging and undermining the entire settlement of the city’s bonded debt.
In the cases of Moore and Rivet, 32 Ann. 736, and 35 Ann. 134, we exhaustively analyzed the premium bond act, and we held that while those features thereof which impaired the contract rights of non-funding bondholders were absolutely null and void, yet that the rights of funding bondholders who had accepted the proposition and had exchanged their bonds for premiums were equally entitled to protection. We maintained the validity of the act as a contract with the funding bondholders entitling them, under all circumstances, to require the city to levy the entire tax provided therein and to apply it as directed by the act; but we held, at the same time, that the rights of non-funding bondholders were not affected thereby, but remained intact, as if the premium bond act had never been passed.
We have never allowed the premium bond act to affect in the slightest degree the rights of non-funding bondholders, or of any other antecedent contract creditors. Thus, in De Leon’s case, 34 Ann. 477, where a holder of other bonds issued at a time when the city’s power of taxation for general purposes was fifteen mills, we allowed the necessary tax, saying: ‘‘Although the city may levy ten mills for its alimony and five mills for the premium bonds, the latter is not to the prejudice of the right of relator to have a tax levied within five mills to the extent necessary to satisfy his contract.”
We applied the same principle in the cases of Carriére, Marchand and Thorn (36 Ann. 687; 37 Ann. 14, and 37 Ann. 528), all of which *412were proceedings for the enforcement of contracts other than bonds, or part of the floating debt, passed prior to the constitutional amendment of 1874.
In Rivet’s case we said in analyzing the premium bond act: “It imposed on the Council the duty to levy annually a tax, * * which, after the year 1881, was to be at least one-half of one per cent; it provided that the tax so levied should constitute a special fund to be used for no other purpose than the carrying out of the plan; * * it provided that any surplus arising above the requirements of the plan and all drawn series of premiums falling to the city should be used in the retirement of outstamding bonds not funded into premiums.”
In another part of the same opinion we said : “ Under the law as it exists the city is required to invest the part coming to her in retiring unfunded bonds. If it be desired that such portion should be applied to the payment of interest on bonds other than premiums, and thus reducing the tax necessary to pay such interest, application should be made to the Legislature — certainly not to tho judiciary.’?
Erom the foregoing, it conclusively appears that the premium bond tax was a special tax intended to create a special fund, dedicated and applicable, ab origine, exclusively to the then existing bonded debt of the city, so dedicated asa stipulation of a valid contract which neither the State nor city could impair; that its imposition and application affected in no manner the rights of other creditors, which remained precisely as if the act had never been passed; and that the unbonded creditors had not and could not acquire any right to, interest in, or control over the special fund arising from this special tax, because irrevocably dedicated exclusively to the bonded debt.
Now the Act 58 of 1882 was an exercise of the legislative power in exact accord with the suggestion made by us in the Rivet case above quoted, at least in so far as it dealt witli the surplus of the premium bond tax and the drawn premiums held by the city. These special funds were applicable exclusively to the unfunded bonds, and nobody but the bondholders had any right or interest in them.
Any voluntary agreements between the city and the bondholders as to the disposition and application of these funds in accordance with their destination would be valid and binding, because they were the sole parties in interest and the only ones whose rights could be affected.
The Act 58 of 1882 is fully analyzed in the chief opinion just read, and it exhibits a contract between the city and her bondholders perfectly binding as to the application of the premium surplus and *413drawn bonds, of which nobody can complain except non-consenting bondholders, who raise no voice against it, and wliicb neither the city nor State can impair.
The attempt of the State, in the subsequent act of 1884, to divert these special funds to the satisfaction of the city’s unbonded debt is a flagrant attempt to impair the obligations of antecedent valid contracts, wliicb, we are very certain, the Supreme Court of the United States, with a proper understanding of the case, would never sanction, and which our duty, under both the State and Federal Constitutions, forbids us to countenance
The floating debt of the city of New Orleans is divided into two classes : 1. That originating prior to the constitutional amendment of 1874. 2. That originating after said amendment.
The first class, so far as founded on contract, can suffer nothing by our decision herein, because it is entitled to satisfaction by taxation. Carrière’s case, 36 Ann. 687; Marchand’s case, 37 Ann. 14; Thorn’s case, Id. 528.
The second class is not a debt of the city, at all, but a mere claim on the uncollected revenues of the years in which they were incurred, and entitled to satisfaction from no other source. Taxpayers’ case, 33 Ann. 79; Gas Light Company’s case, 37 Ann. 436.
It is, to say the least, doubtful whether the word indebtedness, as used in Art. 254 of the Constitution, embraces these claims, and whether, under Art. 45, the General Assembly lias power to fasten such claim upon the city as debts. See Labatt’s case, 38 Ann. 283.
But it is not necessary to consider these questions in this case, and they are only referred to for the purpose of showing that the major portion of the so-called floating debt dealt with in the act of 1884 is far from being equally meritorious with the bonded debt, or even equally binding in law.
All the judges concur in this opinion as well as in the chief opinion.