On the Merits.
McEnery, J.The nature of this suit and the facts of the case and the objects and purposes of Act 63 of 1888, have been fully stated in the opinion of the court on the motion to dismiss.
Respondents allege in their return to the alternative writ, that there is no cause of action disclosed in the petition for mandamus. This was disposed of in the motion to dismiss. In argument it is alleged that the relators offered no evidence in the trial below to show the necessity for the issuance of the writ, and the record contains no evidence to justify a peremptory mandamus. The alternative writ issued on the affidavit of relators. The respondents' answered alleging their excuse. The case was tried on the traverse made to the alternative writ. The answer to the alternative writ shows conclusively that the Mayor and City Council of New Orleans have refused to obey and execute Act 69 of 1888. It was not neeessaiy that the respondents should have been notified of the. intention to apply for the. writ, and a demand made upon them to carry into effect said writ. An absolute and unqualified refusal to execute said writ has been shown by the inaction and silence of the Mayor and council.
It is alleged that a writ of quo warranto, and not a mandamus, is the proper proceeding to be employed by relators. The distinction between the objects, purposes and functions of these wilts is well defined. It is not necessary to state them. Relators are not attempting to recover any office or franchise from the city, or any forfeiture of, or any right to any corporate office or franchise, or the- usurpation of any franchise on the part of the Mayor and Council, nor is there any inquiry as to any right, exercised by the Mayor and council in the discharge of their official duties,
*166Relators apply for a mandamus to compel the Mayor and council to do an act which pertains to their office. A mandamus is the appropriate remedy. 3 Bla. Com. 110.
It will lie to compel a corporation to perform any specific act within the scope of its duties. 25 Ann. Rep. 461.
■ It is also alleged that the writ cannot issue because it will interfere with the discretion vested in the Mayor and council by the act.
The general rule is that if the inferior tribunal or corporation has a discretion and acts and exercises it, tills discretion cannot be controlled by mandamus. But if the inferior body refuses to act when the law requires it to act, and there is no other legal remedy, a mandamus will lie to compel action, and the court will settle the legal question, which shall govern, but without controling the discretion of the subordinate jurisdiction. Dillon Mun. Corp., par. 665.
In the instant case there is no question relating to the exercise of any discretion by the Mayor and council in the execution of the act.
Wo are asked to compel them to cany into effect an act of the General Assembly relating to the City of New Orleans. In all matters relating to their discretion, where it is vested in them by said act, they are left to themselves, and we are not asked by relators to grant any order directing in what maimer the Mayor and council shall perform the. duties imposed upon them by the law which they seek to have enforced.
Respondents, in their return, excuse themselves, because the Act No. 63 of 1838 is unconstitutional, null and void, and was enacted in violation of the'-Constitution of 1870, and particularly of Article 256 of said Constitution, and it was the duty of the Mayor and council to refuse to obey and carry into execution said act. In this they have erred.
A government whose laws can be ignored by those whose duty it is to execute them is feeble, weak and inert, and is wanting in that vigor, strength and energy that will insure its perpetuity. The Mayor and council of the City of New Orleans are the officers of a subordinate political corporation, not only charged with municipal duties, but as a constituent part of the State government they owe allegience and obedience to their sovereign, the State of Louisiana, whose majesty, dignity and power they must uphold and whose mandates they must obey. They cannot defy the law, constitute themselves the judges of its constitutionality, and pronounce upon its validity when they are charged with its execution, in advance of the judicial tribunal, whose sole prerogative it is to pass upon its constitutionality. It is their duty to obey the law until the law has been declared null and void by the judicial department of the government.
*167The presumption is always in favor of the constitutionality of the law, to that extent that the case must be so clear that no reasonable doubt can exists as to its constitutionality.. Courts are cautions in deal-' ihg with constitutional questions, and they will not pronounce on the constitutionality of a law on collatteral questions unless it is essential to the determination of the point in controversy.
There are instances where courts have refused to pass on a constitutional question unless by a full bench; and where they would not pronounce an act void if within the scope of legislative powers, although contrary to natural justice, or violative of some fundamental principle of Republican government, or because they conflict with some supposed spirit of the Constitution. Officers acting under an unconstitutional law have been held to be do facto officers, and officers executing an unconstitutional law have been protected. Therefore, when the judiciary, whose duties are to pass upon the constitutionality of an act is so careful and conservative in its deliberations before passing judgment as to its validity, it seems' but reasonable to require, in a well constituted government, obedience to it by officers who are to execute it, until its constitutionality is passed upon by the judiciary. Bassett vs. Sheriff, 11 Ann. 672.
In considering the question as to the constitutionality of the Act No. 63 we will only inquire into the authority of the Legislature to enact it, as no particular clause is attacked. We fully concur with the City Attorney in the statement that the right of self government lies'at the foundation of our institutions, commencing with the humblest political subdivision and reaching to. the height of the State and National governments ; and that the rights of these several local subdivisions are to be carefully guarded by every department of the government.
There can be no doubt but that the surest and earliest bulwarks against despotic power, the preservation of order, the protection of life and property, in fact, the very foundations of modern liberty, owe, in a great degree, their origin to the elective governments of cities which grew in power and influence alter the fall of the Roman Empire. But they owed their origin and derived their existence from a superior power as in this country all public corporations derive their existence from legislative will. They are controlled as to what they may do, and in the manner in which they may do it, by their charter or acts of incorporation which are the laws of their being and which they cannot dispense with, alter or change. The scope of legislative authority over a municipal corporation is limited only by the terms of the State and Federal *168Constitutions and the necessary implications derived therefrom. 21 Mich. 14.
As a principle of constitutional law it is now well settled that the police powers of the State for the protection of the public health, public safety and public morals are inalienable.
Act 63 of 1888 comes under the police powers of the State, aud the Police Board therein created is empowered to regulate, as provided for in said Act, the public safety, public health and public morals. All these matters of police are embraced in the Act.
Art 253 of the Constitution of 1879, which it is alleged is violated by Act 63, is as follows :
“The citizens of the City of New Orleans, or any political corporation which may be created within its limits, shall have the right of appointing the several public officers necessary for the administration of the police of said city pursuant to the mode, of election which shall be provided by the General Assembly.”
The definition of appointment is “ the designation of a person by the person or persons having authority therefor to discharge the duties of some office or trustand election moans, as employed in said article, “choice” or ‘ selection,” as defined in Ronvier’s Law Dictionary.
Section 1 of Act 63 provides that the Police Board shall be elected by the City Council. Their term of office is for twelve years. The Police Board is thus created by the Act. There can be no doubt but that it was within the authority of the Legislature to create the Police Board. The objection is to the mode of selection. The City Council undoubtedly has a legal existence. There can be no doubt of the right of the Legislature to confer upon said council the authority to elect. The council, by virtue of the city charter granted in pursuance of Acts 253, 254 of the Constitution, elects and appoints certain officers’ The Legislature, when it granted that charter, did not exhaust its authority. It can still cancel or alter or change it, or give the several departments of the city government additional, powers. It can authorize the City Council to choose other officers than those whom it was authorized to elect in the first instance. Therefore the City Council, by legislative grant, has the authority to designate the person or persons to discharge the duties of some office or trust. And as the Constitution authorized the Legislature to provide the mode of “election” or “choice,” it had the right to exercise that authority, as it has done in Act 63. The mode of election is discretionary with the General Assembly, and the manner in which it iias exercised this discretion cannot be questioned.
The corporation of the City of New Orleans was created by the State *169for political purposes, having subordinate and local powers of legislation. Those matters which are of concern to the State at large, although exercised within defined limits, such as the administration of justice, the preservation of the public health, and the regulation of public morals, are still under legislative control, while the enforcement of municipal by-laws are matters for purely local legislation and control. In its public capacity, as a part of the State machinery, the corporation of the City of New Orleans owes a responsibility to the State government in the performance of acts for the public benefit, and in the regulation of tliis responsibility — the manner in which these acts shall be done, and by whom, the authority of the State is supreme. Dillon Mun. Corp. § 66.
Under Act 63 no right or franchise, no act of self government, has been taken away from the City of New Orleans. All the officers chosen by virtue of said Act are citizens of the city, and the objects of the Act are entirely within the administration of its corporate authority.
The Act No. 20 of 1880, the present charter of the City of New Orleans, from which the Mayor and Council derive their powers of government, is as amenable to their complaint of unconstitutionality as Act No. 63. In that Act the City Council is authorized, to appoint and elect, and the several officers are authorized to appoint officers necessary to the administration of the police powers of the City of Now Orleans. It will not, we presume, be denied that the police powers of the city government comprehend everything necessary to be considered for its internal management and administration. The City Council, by said Act, is empowered toappoint a City Attorney, and to elect a City Surveyor; and whenever a vacancy occurs in the office of Comptroller, Treasurer, Commissioner of Public Works, Commissioner of Police and Public Buildings, it is’made the duty of the Council to elect a citizen to the position thus made vacant. The Commissioner of Police and Public Buildings is authorized to appoint a Superintendent of Fire Alarm, and Police Telegraph and telegraph operators. This is the charter granted to the city in pursuance of Acts 253 and 254 of the Constitution of 1879. The Legislature directed the mode and the manner of electing the officers of said city, by ballot at a general election, and by authorizing the City Council to appoint and elect, and by directing the Commissioner of Police to appoint.
In creating the Police Board for said city, the Legislature has only taken away certain duties which had been conferred upon the Council, and placed them in the Board. The Council has the right to elect the members of this Board, and the officers of police appointed by the *170Board and this is no greater stretch of power than was exercised in the Act No. 20 of 1882, creating the present city government.
Tiie twelve year term, fixed by the Act No. 63 of 1888, for the incumbency of the office, is not in conflict with any provision of the Constitution. The Constitution provides that the election for city officers shall take place every four years, and at the same time of the general State election. This applies to all officers who are to be voted for at a general election. The members of the Board of Police are not such officers. Its members are elected by the City Council to perform certain functions designated by the Legislature.
The Board is not a co-ordinate department of the city government, and its duties are purely ministerial. It is an adj unct of the already established departments of the city government, and in some respects is subordinate to and controlled by them.
The Police Board has to report to the Common Council the condition of the police force of the city, and the council makes an appropriation on the estimates furnished by the Police Board for the police force and has the right to reduce said estimate. The. City, Attorney is the adviser of the board, and the Treasurer of the City of New Orleans is, with the treasurer of said board, the trustee of the fund arising from fines imposed upon members of the police force. The Mayor of the city is ex-oi'licio president of the board, and can, at any time, remove the commissioners electeeted by the council, for high crimes, misdemeanors, malfeasance, etc.
Had the provisions of Act 63 of 1888 been incorporated into Act No. 20 of 1882, we are of the opinion that no complaint of the unconstitutionality of the act could have been urged.
And, after all, the question is narrowed to whether or not the Legislature has, by the Constitution, after granting certain powers of government to the city, been deprived of all power to interfere in the affairs of said city.
Act 254 of the Constitution of 1870, says :
“ The General Assembly, at its next session, after the adoption of this Constitution, shall enact such legislation as may be proper to liquidate the indebtedness of the City of New Orleans, and apply its assets to the liquidation thereof. It shall have authority to cancel the charter of said city and remit its inhabitants to another form of government.”
The sweeping power thus conferred upon the General Assembly to alter, change, or cancel the city charter and remit the inhabitants of Now Orleans to another form of government is only curtailed by the preceding article, 253, which provides that no matter what change may be, *171or to what form of government the citizens of Now Orleans may have imposed upon them, the citizens of New Orleans, either by ballot at a general election, or by selection or appointment by some legally constituted authority in the civil corporation, shall have the exclusive power to choose their own officers. The object of the ■constitutional proviso was to confer upon the citizens of New Orleans absolute control of their government in the exclusive choice of officers necessary for its administration, subject only to the mode of election provided by the General Assembly, free from interference, control or appintment by the Executive department of the State government, thus preventing a repetition of the sad experience through which the city passed during the era of reconstruction and under the Constitution of 1868.
This article is still in force. Its authority did not cease after the enactment of the law No. 20 of that session which created the present city government. There is nothing in the article which limits its operation to that session only.
The General Assembly did not, even in Act 68, change or alter the .form of government of the City of New Orleans.
The Board is composed of members elected by her common council, a body already in existence and having authority under the charter to elect certain municipal officers, and the Act only enlarges this authority by authorizing it to elect the Commissioner of the Police Board. The Board is under the control of the corporate power of the city.
We conclude that Act 63 of 1888 does not conflict with the Constitution of 1879, or Art. 353 of the said Constitution.
It is, therefore, ordered and adjudged and decreed that the judgment appealed from discharging the rule, he avoided and reversed, and that the rule he made absolute, and a peremptory mandamus issue as prayed for by relators.