Dissenting Opinion.
Watkins, J.It is my deliberate conviction that this court has no jurisdiction of this cause, rations materias, and that the respondent’s mo* t-ion to dismiss the relators’ ax>poal should prevail.
*160The Executive, joined by the Attorney General, appears as relator, and, under the provisions of Article 72 of the Constitution, which directs that “ Ho shall take care that the laws be faithfully executed,” requests a peremptory mandamus against the Mayor of the City of New Orleans, to compel him to execute and enforce Act 63 of 1888, it being an “Act creating a Police Board for the City of New Orleans, and defining its powers.”
This enactment was approved and became a law on the 11th of July, 1888. It does not impose any duty, whatsoever, on the Executive, or Attorney General, nor confer upon either any power or emolument.
It provides “that the powers and duties connected with, and incident to the police department, and police discipline of the City of New Orleans * * shall be vested in and exercised by a board consisting of six commissioners and the Mayor of the city * * and such officers * * as may be appointed by said board. That said commissioners shall be elected by the common council of New Orleans * * The Mayor of the City of New Orleans shall be the presiding officer of said board, but shall have only a casting vote thereon.” Secs. 1, 2, 3.
There is no compensation, salary or perquisite provided by this statute in favor of the Mayor or iiolice commissioners. The only provision contained in the act, touching the collection, or disbursement of money, is in Section 20. It directs that the said Police Board shall * make up a financial estimate of the sums required for the expenses, during the ensuing year, of the police force, less expenses and disbursements of the Police Board.”
It further directs that the “ common council shall set aside, in the budget of expenses, a sum equal to that required, according to the estimate aforesaid, by the Police Board; provided, that said council shall have the right to reduce said estimate to a sum of not less than $150,000 for the police department, etc.”
Then, what is “ the matter hi dispute,” which confers jurisdiction on the court? Art. 81 Const.
This proceeding is not taken agaipst a police board, organized under this statute, to compel it to “make up a financial estimate;” or taken against the common council to compel it “ to set aside, in the budget of expenses, a sum equal to that required by the Police Board.”
If the mandamus had for its object, either of said purposes, there would bo no occasion for action by the Governor to compel the execution of this statute, because the organization of the Board of Police Commissioners, would, of itself, be an execution of the law. Evidently, the question involved — the only one — is the abstract right of the Gover*161nor to compel, by mandamus, tlie chief executive officer of the City of New Orleans to enforce this police law. The relator has no ajqmalable interest which can be affected by the decision of this suit in an amount in excess of $2000. No judgment could bo rendered by this court which could involve a gain, or a loss of $2000 to either the relator or the respondent. This court has no jurisdiction to determino abstract questions of law, unaccompanied by any monied demand.
Whether a statute is legal, constitutional, or enforceable, can only be determined in a court of justice, when the litigants, seeking its enforcement, have a monied, or property interest at stake, and their right to which depends upon the enforcement thereof.
In my Anew, the oqfinion of this court, as expressed in State ex rel. Crean et al vs. P. L. Bouny, State Tax Collector et al, 32 Ann. 1188, is conclusive on the question of the jurisdiction of this court, ratione materia, in this case. It is so clear-cut, so concise, and judicially accurate that I will append an extract from it, as the most efficient mode of enforcing the view I entertain. It says:
“When we disposed of the motion to dismiss this appeal, we expressly reserved our right to sustain that motion, if on the trial of the merits an appealable interest should not be proven.
“ In view of the public interest involved in the decision of the alleged unconstitutionality of an important legislative enactment, regulating matters of vast legal and pecuniary interest to the State, we had hoped that a hearing of the cause on the merits would develop that the matter in dispute between the parties to this suit did not exceed $1000.
“ But after hearing the oral argument of counsel on both sides, and carefully considering their able briefs submitted on this point, we are reluctantly constrained to recognize .that we are deprived of jurisdiction of the cause. With the exception of suits for divorce and separation from bed and board, and of cases involving the legality or constitutionality of any tax, toll or impost, or of any fine, forfeiture or penalty imposed by a municipal corporation, our civil appellate jurisdiction must be tested by the pecuniary amount involved in the controversy, as between the parties thereto. The magnitude of public interest awakened by the peculiar litigation, the importance of the legal question involved, added to the dire consequences to flow from the execution of an allegpd unconstitutional act of the Legislature, cannot alone be invoked as the tost of our jurisdiction in any given case., and cannot bo strained so as to clothe the judicial department of the State with the power to interfere with, or arrest, the acts of the legislative department. To justify such an interference, which, in proper cases, is clearly sanctioned by the con*162stitution in all republican governments, tlie jurisdiction of the tribunal appealed to must appear unequivocally under some of the modes provided for in the organic law, in default of which court must decline their aid or interference.
“ Under such a test it is impossible to demonstrate in this case thattho appealable interest of any of these appollants individually, or all of them collectively, can bo affected by the decision of the cause in any amount exceeding $1000.
“ It must be conceded that the defendants, State officers, whose official acts alone can be affected, shaped or regulated by the decree, have no direct or personal pecuniary interest in contestation. And it appears to us equally clear that no judgment can be rendered under these pleadings which could involve a gain or a loss, exceeding $1000, to any or all of the plaintiffs in this case.”
In State ex rel Newman vs. Hoyles, 32 Ann. 1130, this Coirrt, in the discussion of the same question, employed the following language, viz:
“ The appellate jurisdiction of this Court is limited, by the express terms of the Constitution, to cases where the matter in dispute exceeds $1000, exclusive of interest; to suits for divorce and separation from bed and board; to cases where the constitutionally or legality of my tax, toll, or impost, or fine, forfeiture, or penalty imposed by a municipal corporation, is in contestation, without regard to amount; and, to questions of law in certain criminal cases. This is the full extent of our appellate jurisdiction. Does the case at bar fall within the limits prescribed 9 The personal interest of the relator must be measured by the amount of salary involved in the contest, together with the damage claimed in the petition. These constitute the matter in dispute between the litigants.
“ The salary, or per diem, of a, police juror, for his entire term of office, is far below the prescribed amount; and the damage claimed, which is only $100, does not raise it to the sum required to invest this Court with jurisdiction.
It has been suggested, however, that the nature of the case, on account of its involving an important public interest, and the rights to an office in which the people of an entire parish are interested, is sufficient to give jurisdiction. ,
“We cannot recognize this doctrine. The matter in dispute — the in language of the Constitution — means, according to the plainest rule of construction, the pecuniary interest involved, and the question of jurisdiction must be tested and determined by the money value of what is claimed in the petition.
*163“ The jurisdiction of this court is limited and defined, in precise terms, by the Constitution —the instrument that created it — and it is not to be enlarged or extended by implication;' and we cannot go beyond these express limitations without usurpation.”
The plain and unambiguous meaning of these decisions is easily discerned from the phrases, “ the jurisdiction of this court is limited and defined, in precise terms, by the Constitution * * and we cannot go beyond these express limitations, without usiirpation;” and, “ the jurisdiction of the tribunal appealed to must appear unequivocally, under some of the modes provided for in the organic law, in default of which courts must decline their aid, or interference.”
Bufe I understand the theory of the opinion of the majority to be that the ultimate effect of a mandamus made peremptory, would be to transfer the control of the police department, from the City Council to the Board of Police Commissioners to be appointed under said police law; and that, as a consequence, the said board would have and enjoy the disbursement of the fund which is annually appropriated for the expenses of the police force, and the council would -cease to exercise dominion over it.. Hence the argument is deducted that, inasmuch as this fund can never be less than $150,000, this sum is involved in the controversy, and this court is thereby invested with jurisdiction, ratione materia.
Let me put this theory to a practical test.
There is no provision of said police law, other than those quoted supra, touching the approximation, or exx>enditure of funds axiplicable to the x>olice force. They are, substantially: 1. To confer upon the Board of Police Commissioners the power “ to make up a financial estimate ” of such exx>enses; and, second, to require the council to sot aside, in its budget, “a sum equal” to that estimate, and not to restrict it to a sum less $150,000.
The city charter confers on the council the power “to organize and provide an efficient x>olice.” Sec. 6, Act 20 of 1882.
. It makes it the duty of the council to organize each of the executive departments of the city government, to regulate the number of cmploycos therein, and to fix their salaries; but the chiefs of said departments were given the right to appoint such emxfioyees.
It provides that “ the council shall fix the compensation of any officer of the city * * whoso services are, by law, to -be paid by the city * * and the number and compensation of all persons on the pay roll of the city.” Sec. 40.
It confers upon the council the power to make ,up an estimate of the cxx>enses of the executive departments and to make appropriation there*164for. It also provides that “ no money shall be paid out of the treasury, unless authorized by an ordinance or resolution of the council, and upon a warrant signed by the comptroller.” Sec. 21.
These features of the city charter have been altered by this police law, in but two essential xiarticulars, viz :
1. So as to create a Board of Police Commissioners, who shall be appointed by the City Council.
2. So that this board shall select and appoint the police force, and estimate their expenses.
It does not confer upon this board the right to audit, or disburse the police («pense fund; nor does it limit the dominion of the council over it, as provided and directed in the quoted provisions of the city charter.
It does not deprive the council of the power of making an estimate o* police expenses, but simply declares that “ the council shall set aside, in the “ budget of expenses, a sum equal to the estimate of the police board.” The council is not bound to accept the estimate of the police board. They may increase it, or diminish it “to a sum not less than $150,000 * * including the amount to be received from the wharf lessees.” Sec. 20, Act 63 of 1888.
Thus, will it appear that, even the limit of the reduction which the council may make is not a fixed and invariable one. Eor if, in any year; a sufficient amount shall be received from the wharf lessees, to aggregate $150,000,'any estimate of police expenses, añade by the Board of Police Commissioners, could be totally ignored and rejected by the council in making up its budget.
Therefore, in my opinion, this police statute confers upon the Board of Police Commissioners no control over the police expense fund, and deprives the council of none.
If this court, having assumed jurisdiction, should make the mandamus peremptory, this decree would not have the effect of transferring the control of this fund from the council to the commissioners, and this argument in favor of jurisdiction fails.
But conceding this, arguendo, can such remote consequences constitute a jurisdictional element? I think not. The Board of Police Commissioners have not been appointed by the council, no estimate of police expenses has been made, and there is no police expense fund in esse.
I-Iow can any judgment this court may render affect the board not yet appointed; such officers and persons as this police board, and police force may displace; or a fund not yet created?
But 1 understand the contention of the Attorney General to be that it is the magnitude of the public interest involved which gives jurisdiction. *165If this were true, as a. general proposition — which I deny — it cannot he in this case, because the statute in controversy affects no part of the State excejit New Orleans, a municipal corporation. In any view that can be taken of this case, it must be borne in mind that the relator is appellant and it is Ms appeal that is sought to be dismissed; and that it is to be judged from the standpoint of Ms interest, as stated in his petition.
Such is the uniform and unvarying current of our jurisprudence, as I understand it.
Entertaining this view, I deem it my duty to dissent from the opinion of the majority.