Dissenting Opinion.
Fenner, J.The Governor and Attorney General of the State allego that the Mayor and Common Council of the City of New Orleans refuse to perform the duties imposed upon them by the terms of the Act 63 of 1888 “ creating a Police Board,” that the performance of those duties is essential to the execution of said law, and they pray for a mandamus compelling them to execute said law.
The respondents except to the proceeding on the grounds: first, that relators have no standing in court to prosecute the suit; second, that, if they have, tlioir remedy is not by mandamus hut by yuo war*172rcmto. As well said by the judge a quo, the law is one of public character, and the Constitution Art. 72, makes it the duty of the Governor to see that such laws are faithfully executed. This gives him the right to invoke .the judicial aid when proper and necessary for the performance of this duty.
Mandamus is expressly recognized by the Code of Practice as the proper remedy to compel “public officers to fulfil any of the duties attached to their office, or which may be legally required of them.” Art. 832. There is no merit in these grounds of exception, and they were properly overruled. Respondents then deny the allegations of the petition and aver that the Act in question is unconstitutional.
This presents the serious issue in the case. The relators carry the burden of establishing that the duties of which they demand performance are imposed on the respondents by law and may bo “ legally required of them.” If the Act of which enforcement is claimed is unconstitutional, it is not a law, and no dirties can arise under it.
The Act, the enforcement of which is sought in this sirit, is entitled “ An Act creating a Police Board for the City of New Orleans, and defining its powers.”
By its terms it declares that “ the powers and duties connected with and incident to the police department and police discipline of the City of Now Orleans and the parish of Orleans (the city and parish being identical and co-extensive in territory) shall be vested in' and exercised by aboard consisting of six commissioners and of the Mayor of the city, and by such officers, patrolmen, etc., as may be appointed by said board.”
This board is to be elected by the Common Council of New Orleans, “ two for the term of four years, two for the term of eight years and two for the term of twelve years.” Vacancies in the board arising in the board from death, resignation or removal from office are to be filled for the unexpired term by the Board. At the expiration of the respective terms the Council is to elect successors for the term of twelve years. The Mayor is made the presiding'officer of the Board but has no vote except when there is a tie, in which case he has a casting vote.
The appointment of the whole police force is confided to the Board and they are to hold during good behavior and are removable only by the Board.
Although the Mayor is made the nominal commander-in-chief of the police force, no power whatever is conferred upon liim to enforce obedience to his orders, all powers of discipline, punishment and removal being vested exclusively in the Board.
*173Tlie members of tlie Board are removable by tlie Mayor for certain crimes, misdemeanors and specified acts of gross misconduct, on due proof before liim, but the vacancy thus created is to be filled by the Board.
The powers vested in the police force are recited in tlie seventeenth section and are of the most exhaustive scope, viz :
“ It is hereby made the duty of the police force at all time of day and night, and the members of such force arehereby thereunto empowered to especially preserve the public peace, to prevent crimes, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages -which obstruct the free passage of public streets, sidewalks, parks, squares and places; protect the rights of persons and property, guard the public health, preserve order at elections and all public meeting's and assemblages, prevent and regulate the movement of teams and vehicles in streets, and remove all nuisances in public streets, parks and highways; arrest all street mendicants, beggars and vagrants; provide proper attendance at fires; advise and protect immigrants, strangers and travelers in public streets, at steamboat and ship landings, and at railroad stations; carefully observe and inspect all places of public amusement, all places of business having licenses to cany on any business; all houses of ill-fame or prostitution, and houses -where common prostitutes reside or resort; all lottery offices authorized by law, policy or bucket shops; all gambling houses or houses where keno, lotto and other games are played; all cock-pits, rat-pits and public dance houses; and to repress and restrain all unlawful and disorderly conduct or practices therein; enforce and prevent the violations of all law's and ordinances in force in said city.”
The financial estimate of the police expenses is to be made exclusively by the commissioners, and the Common Council is bound to accept such estimate and provide for it in its budget, at least to an extent not exceeding $150,000 per aiuvwm.
Such are the salient features of the Act.
The respondents resist the demand for its execution, on the ground that it violates Art. 253 of the Constitution, which provides :
“The citizens of the City of New Orleans, or any political,corporation which may be created wfitMn 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.”
This article, or its equivalent, has existed in all the Constitutions cf this State with the exception of that of 1868. Its omission from the lat*174ter instalment was tlie ground upon which the Metropolitan Police Act was sustained. Diamond vs. Cain, 21 Ann. 319.
This Court has frequently had occasion to refer to this provision.
Thus in one case it said : “ It is a remarkable fact that the people of Louisiana, in convention assembled, have twice considered the local government of this great metropolis as too important to^ be placed among those subordinate institutions, and have recognized the City of New Orleans, in its corporate capacity, as entitled to peculiar political powers and privileges. The right of the citizens of New Orleans to appoint the several public officers necessary for the administration of the police of said city, pursuant to the mode of election which shall be prescribed by the Legislature is secured and rendered permanent by the Constitution. Those political franchises stand upon the same ground as any other constitutional power, and the City of New Orleans and its officers are, for the purpose of police and good order and for the punishment of minor crimes and offenses, permanent functionaries of the Government. The counsel for the plaintiff derides the idea that the defendants are invested with sovereign powers. Names cannot alter things. Under our form of policy, no department of government exercises powers of sovereignty in its own right. The constitutional powers of the State are all trusts. The powers of the Legislature, of this Court, and of the City of New Orleans, differ in degree and object, but they all derive their binding force from the Supreme law of the State.” Egerton vs. Muny, 1 Ann. 437; see also Bank vs. Nav’n Co., 3 Ann. 295; Stewart vs. City, 9 Ann. 460; Draining Co. case, 11 Ann. 371; Andrews vs. Saucier, 13 Ann. 301.
The case of State vs. New Orleans, 15 Ann. 354, was decided by a divided court and all the judges rendered separate opinions. The leading opinion by Mr. Justice Land formulated the following interpretation of the constitutional provision. “ First, the word police used in said article of the Constitution signifies the laws and regulations enacted for the government of the City of New Orleans as a civil corporation; second, that those laws and regulations constituting the police of the city, form a distinct body or code of laws from those enacted for the internal regulation and government of the State of Louisiana; third, that the right of administration on the part of the city, through its officers, -is expressly limited by the Constitution to the laws which constitute the. police of the city or its municipal government.” And he adds: “ Then, the only remaining consideration is whether the Act of 1859, relative to elections in the City of New Orleans form a part of tlio police or government of the city as a civil corporation; or whether the Act per*175tains to .and forms a part of the body of laivs enacted for the internal regulation and government of the State.”
This was the point on which the court divided, and the inference is irresistible, that had the court found that the Act pertained to the “police and government of the city as a civil corporation ” it would have been unanimously held that it violated the Constitution.
The question on which that case hinged does not figure in the instant one at all. No one would be bold enough to deny that the commissioners composing the Board created by this Act, arc “public officers,” within-the meaning of the constitutional provision, or that the powers and duties with which they are clothed are “necessary for the administration of the police of said city.” Those powers not only pertain to, but actually absorb, the whole administration of the police powers which are included in the ywliee department of the municipal government.
Being such officers, charged with such powers, the Constitution unequivocally confers upon “ the citizens of the City of New Orleans,” “the right of appointing” them, “pursuant to the mode of election which shall be provided by the General Assembly.”
In the Charter of the city the Legislature had provided a form of government for the city, had designated therein the various officers who should be charged with the administration of its police, had fixed their term of office and had provided the mode of their election. “ The citizens of the City of New Orleans” have appointed these officers by an election duly hold, have confided to them these powers for the term limited in the law, and they have entered upon the discharge of their duties.
Now steps in the Legislature and strips these officers appointed by the citizens, of the powers conferred upon them, and requires them to elect a body of commissioners for terms of office much longer than their own, and to transfer to them the powers which were vested in them by the citizens for a strictly limited term.
How can such a proceeding be reconciled with the Constitution ? In what sense can these commissioners bo said to be appointed by the citizens of New Orleans-? The citizens have certainly' not directly appointed or elected them. They have not, expressly or by implication, authorized the Common Council, chosen by them, to appoint or elect such officers, because, at the time of the election, this statute had not been passed and no such officers existed, and because the powers of the. Council itself were limited to four years.
If these commissi oners should be chosen, it would be impossible to *176say that they derived their authority, directly or indirectly, from the citizens of Now Orleans, or from any expression of their will in any mode whatever.
Would any one contend that the Legislature could pass a law declaring that the Common Council, which has been elected by the citizens for the term of four years, should continue to hold the offices for twelve years ? Could it possibly he claimed that, in such a case, after the expiration of the term for which they had been elected, those officers would hold, in any manner, by appointment of the citizens of New Orleans
The irresistible negative which responds to the foregoing questions, utterly demolishes the proposition that such officers, elected for the term of four years, can, voluntarily or on compulsion, elect others and invest them with the essential powers of a municipal police and government for a term of twelve years.
Whatever latitude may be given to the authority secured to the General Assembly to provide the “mode of election,” it cannot blot out the affirmative guaranty that “the citizens of New Orleans shall have the right of appointing” their officers in the mode so provided. It is self evident that the mode to be provided is the mode pursuant to which the citizens are to appoint their officers, and that, after the mode is provided, the citizens must be consulted and must have the opportunity of appoint ing in such mode.
The foregoing considerations are amply sufficient to defeat the mandamus herein, inasmuch as it is addressed exclusively to the present Mayor and Council of the city who were elected before the passage of this law, and on whom the citizens have not, either expressly or impliedly, conferred any authority to act for them in the appointment of these officers.
But if we take a. larger view of the subject, are the constitution of this Board of Commissioners and the mode of their election consistent with the true meaning and intent of the Constitution ?
I take it to be very clear that the Constitution intended to confer upon the citizens the substantial rights of self-government, to secure to them the privilege of appointing the officers charged with the administration of the police of the city; to hold such officers subordinate and responsible to the will of the people ; and, to that end, to provide for recurring elections at which the people, if dissatisfied with their servants, may change them and confide these powers to different hands. It would hardly be claimed, that the Legislature could provide a .“mode of election,” under which the power of appointment by the citizens could be *177exhausted by a.single exercise thereof and the Council so elected should hold their offices permanently, and fill all vacancies which might occur in their body. Obviously such a mode, after the first election, would leave the city absolutely stripped of the right of appointing their officers guaranteed to them by the Constitution, not as a temporary, but as a permanent, right.
Now, under the constitution of this Board of Commissioners, the citizens of New Orleans are effectually deprived of the power of changing, at any time, the officers charged with the administration of the most important branch of municipal government. However unsatisfactory and insufficient the administration, however inconsistent with the public order and safety, the utmost power left in their hands or the hands of their elected representatives, would be, at intervals of four years, to change two out of six commissioners, still leaving the obnoxious majority in full control. If it bo said that at the end of eight years they would enjoy the right of changing two more, thus making a majority, non constat that the two last elected might not, in that time, have become as obnoxious as the first, or that they might not have passed out by death, resignation or removal and their places have been filled by the Board itself with persons of like ilk. It thus readily appears how under the operation of this Act, the citizens may be indefinitely deprived of the power of controlling, in any manner, the administration of their police.
Moreover, if the Legislature may thus take away this important block of police powers from the elected representatives of the people and confide them in perpetuity to such a commission, why may it not proceed to deal similarly with all the other powers of municipal government and apportion them among several like commissions, so that the citizens and their elected representatives would be left stripped of all effective power and reduced to the position of mere figure-heads and purveyors to these independent and controlling bodies.
I cannot believe, that such a condition would be consistent with the clear meaning and intent of the Constitution.
In a case before the Court of Appeals of New York, in which the Legislature sought, under certain colorable pretexts, to deprive the City of Troy of the control of its own police which was secured to it by the Constitution, that learned Court, after announcing its relucíanse to adjudge an act of the Legislature, to be unconstitutional, weightily said: “ A written Constitution must be interpreted and effect given to it as the paramount law of the land, equally obligatory on the Legislature as upon other departments of government and upon individual citizens, *178according to its spirit and the intent of its framers, as indicated by its terms. An act violating the true intent and meaning of the instrument, although not within the letter, is as much within the purview and effect of a prohibition, as if within its strict letter; and an act in evasion of the terms of the Constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose is as clearly void as if, in express terms, forbidden. A written Constitution would be of little avail as a practical and useful restraint upon the different departments of government, if a literal reading only was to be given to it, to the exclusion of all necessary implication, and the clear intent ignored, and acts palpably in evasion of its spirit should be sustained as not repugnant to it * * Usurpations of power, or the oxej ciso of power in disregard of the express provision or plain intent of the instrument, as necessarily implied from all its terms, cannot be sustained under the pretense, of a liberal interpretation, or in deference to the judgment of the Legislature or some supposed necessity, the result of a changed condition of affairs.” People vs. Albertson, 55 N. Y. 55.
Fully adopting these views, 1 am bound to hold this Act is inconsistent with the clear intent and meaning of Art. 253 of the Constitution and, therefore, the demand for its enforcement should bo denied.
Nothing in this opinion is designed to mitigate against the right of the Legislature to amend the charter of the city and to provide lor the appointment by the Council of subordinate administrative officers who may be charged with certain functions during the tenure of the Council itself.
Nor is intended to pass upon the right of the Council, under proper authority, to make contracts or even to establish commissions for the execution of public works and improvements, necessarily requiring a longer period, and to confer authority upon such contractors or commissioners extending beyond its own term of office.
What is meant is simply that the essential powers of police and municipal government cannot be impounded in commissions such as the one provided in this law, not originally appointed by the citizens, or by reprosenatatives of the citizens clothed with authority so to appoint them, having a perpetual organic existence, and placed beyond the reach and control of the people.
I, therefore, dissent.