Concurring Opinion.
Poché, J.Under my understanding of the pleadings, the vital issues in this case involve the discussion of the legal effect of the judgment of this court, in the case of New Orleans vs. Waterworks Company, 36 Ann. 432, on the contract between the city and the company, under date of October 3, 1884; on ordinance 909, in obedience to which the contract was entered into, and on Act 56 of the Legislature of 1884, on which the ordinance was predicated; and finally the alleged unconstitutionality of that act of the Legislature.
The main contention on the first branch of the discussion is that the judgment in question was a bar by estoppel of res judicata to the execution of the contract between the city and the Waterworks Company herein sought to be annulled and set aside, and incidentally to the operation of Act 56, which is invoked as authority for the contract.
Without yielding, but adhering to, the views expressed in my dissenting opinion in the case reported in the 36th of Annuals, p. 432, I fully recognize the effect of the judgment rendered by the majority of the court in that cause; and hence I do not propose, as duty enjoins me, to ignore or avoid its absolute authority.
From the pleadings in that case it appears that the action of the city was simply and exclusively to recover its taxes for the year 1881, from the Waterworks Company, without any reference to the contract contained in section 11 of act 33 of 1877, or to any contractual relations existing between the parties to the suit.
*930The prayer of the petition reads: “Wherefore petitioner prays that the New Orleans Waterworks Company, for account of its shareholders, be duly cited to answer this petition, and after due course of law that defendant bo condemned to pay petitioner the sum of $11,484 87, with ten per cent per annum interest from March 31, 1881, till paid, with lien privilege and right of pledge on the property heroin described,” etc.
For defense the company urged its exemption from municipal taxa tion, under the provisions of act 33 of 1877, and in case it should behold liable for the taxes claimed, it pleaded in reconvention the value of the water furnished to the city during the year for which the taxes were sought to bo enforced.
The prayer of the amended answer wa,s in the following words:
“Wherefore this respondent waiving no part of their original answer, except as hereby amended, prays that it have judgment in its favor, declaring valid and enforcing said exemption from the taxes of the city of New Orleans of 1881, in this suit sought to be recovered, and rejecting plaintiff’s demand, and if this be refused, then that repondent have judgment condemning the city of New Orleans to pay unto it the sum of $40,281 87, with legal interest from December 31, 1881,” etc.
The judgment of the'lower court was in favor of the city for $11,484 87, and iu favor of the company for $40,281 87, and interests. ,
The decree of this court was as follows:
“It is therefore ordered adjudged and decreed, that the judgment appealed from be amended by reducing the principal of the amount allowed defendant on its reconventional demand from $40,281 87 to $11,484 87, and that, as thus amended, the .same 'be now affirmed, defendant to pay costs of this appeal.”
As grounds for its decree, the court held in substance that the exemption from taxation provided for in the act of 1877 was null, and “ that to the extent that this subjection to taxation destroys or impairs the consideration upon which rests the contract of the defendant to supply free water to the. city, defendant is entitled to relief, but to that extent only.”
From the consideration of these premises it must appear very clearly that the court, in its decision, was dealing with a well defined and restricted issue, which it disposed of by interpreting the contested contract as it stood at the time, and that the court did liot, as it could not, attempt to fix the contract for the future and for all time to come. Such a pretention would have involved the court into judicial, legislation of the most reprehensible character.
Wlnle the judgment thus rendered could not have been pleaded tech*931nically as res judicata in a suit between the same parties for taxes of a subsequent year, met by the defense of exemption under the charter of the company, it is undeniable, tinder well established jurisprudence, that the defense could have been successfully met by the plea of estoppel by res judicata, predicated on the decision now under discussion, and that the result would have been a similar judgment, allowing- the city its taxes in the amount according to the assessment and the rate of taxes for that particular year, and allowing a judgment in reconvention and for the same amount to the defendant company.
Hence it follows that if the company was before the court in this case seeking to enforce the provisions of the contract created by act 33 of 1877, it would be amenable to the same plea. But is that the ease before us? By no means. From plaintiffs’ own pleadings it appears that since the rendition of the judgment in question, a new contract has been entered into between the city and the company, touching the supply of water by the latter to the city, and the very object of this action is to annul the contract, on the ground of its alleged illegality-
Assimilating- this suit to an action by the company for the enforcement of its contract, which is correct, plaintiffs contend that the previous judgment of tliis court is a bar by estoppel of res judieata to the right of the company “to recover a judgment for the full value of its water supply, irrespective of the amount of taxesor in other words to seek judicial enforcement of the new contract executed in October, 1881.
At the incipiency of this litigation, the city was in fact and in law a party-.defendant. Hence the suit did not embrace the same parties, either in fact or in the same character and capacity. But in the progress of the litigation the city shifted her position, and now she has practically made herself a party-plaintiff, and it may be conceded that the parties are the same in the two suits. But the cause of action and the subject matter are not the same.
In the previous suit the subject matter'of the litigation was the contract created for the parties, by the act of 1877; in the present case the subject matter is the contract made by the parties for themselves, on the 3rd of October, 1881, and which had been voluntarily executed by both from that day, at least up to the date that the city shifted her position.
In the previous suit the cause of action on the part of the city was the enforcement of her taxes, and on the part of the company, its alleged exemption from taxation under the contract as then existing, or in the alternative, the payment of the value of the water supplied to the city during the year for which the taxes were claimed. In the present case the cause of action on the part of plaintiffs is the alleged nullity of the *932contract of October 3, 1884. And the defense rests on its alleged validity and binding force. And in this case the question of taxation or exemption has entirely ceased to bo a factor.
If the suit in the case of tlie 36th Annual had' been between natural persons, involving the construction of an existing contract between them, and had resulted in a judgment annulling or materially modifying the contract, 'there certainly could have existed no legal impediment in the way of the same parties to have made a new contract on the same subject-matter. Now, if subsequent litigation had arisen between the same parties touching the construction or validity of the new contract executed by them, it is surely as clear that neither of them could have been met by a plea in bar of estoppel by res judicata, as to matters in the new contract not discussed or judicially determined in the previous litigation between the same parties.
I have taken the pains to examine the authorities relied on in support of the application of the idea of estoppel by res judicata to the defense urged in the present case, but I have found none which militate against the views which I have hereinabove expressed. They all tend to establish the familiar principle that a question once judicially determined, will estop the further agitation between the same parties of the same question ; but they do not extend the rule to the point heroin contended for by plaintiffs.
In our jurisprudence the rule has been promulgated thus:
“It matters not under what form, whether by petition, exception, rule or intervention, the question be presented, whenever the same question recurs between the same parties, even under a different form of procedure, the exception of 'res judicata estops.” Plicque vs. Peret, 19 La. 318; Sewell vs. Scott, 35 Ann. 553.
The main reliance seems to be in the case of Beloit vs. Morgan, 7 Wall. 621.
On that point the court said:
“On the 9th of January, 1861, the appellee recovered a judgment at law against tlie appellant upon another portion of these securities, though not the same with those in question in this case. The parties were identical, and the title involved was the same. All obligations taken in this case might have been taken in that. The judgment of the court could have been invoked upon each of them, and if it were adverse to the appellant, he might have brought the decision here for review. The court had full jurisdiction over the parties and the subject. Under such circumstances, a judgment is conclusive not only as to the res of that case, but as to all other litigation between the same parties *933touching the same subject-matter, though the res may be different.” (Italics are mine.)
It takes no effort to show that the present case entirely lacks one of the essential elements: the same subject-matter, which is necessary to support the plea.
The same remark applies to all the cases which I have examined, and particularly to those which are the most in point. 7 Wall. 82; Aurora vs. West. 39 Ann. 690; Adams vs. Board, 34 Ann. 815; Herroman vs. Institute (and eight Louisiana cases cited in the last decision).
No language used in the decision under discussion, either in the decree or elsewhere, can justify the inference that under its effect, the city was compelled to thereafter exact taxes from the Water Works Company, or in other words that she was thereby coerced to abide by the letter of that decision.
To ascertain the scope and legal effect of a judgment of the Supreme Court, reference must be made to the decree whose terms must predominate as the safest guide. “The decretal part of a judgment rendered by the Supreme Court, and not the opinion or the reasons afford the proper test to ascertain the matters which become res adjudicates under the decree.” Succession of Hoggate 36, Ann. 327. Plicque vs. Peret, 19 La. 324.
It is conceded by plaintiff’s that the city could have given her tax receipts to the company in exchange for the latter’s receipts for water supply. Hence it follows that the city could have entered into a contract different in some terms from the previous contract as interpreted by this court. Heneé I conclude that the judgment in that case was not an absolute bar to the contract now sued on. And the inference is fairly deducible from the whole contention that Plaintiff’s would not have complained if the contract, which they resist, had contained the terms ■fixing the price for the annual supply of water a,t some $21,000, which is the average of the annual taxes .paid by the company since 1884. 1 therefore feel convinced that the pith of the complaint is levelled at the axtravagance of the contract more than at. the power of the city to make the same.
But conceding for the sake of argument that the decision was a legal impediment to the city’s action, without special legislative mandate; that authority is not lacking, because it flows directly from the provi sions of Act No. 56, of 1884.
It surely cannot be seriously urged that the legislature is stripped of its power to-authorize a contract to have effect in the future, by a judicial interpretation of a contract, which at the time.had reference to the *934present and to the past only. A very large proportion of the legislation in all the States, is prompted by the decison of courts, and is intended to remedy some mischief pointed out by, or resulting from, the utterances of courts of the country.
Examples are indeed too numerous to warrant an enumeration of such instances. Now in dealing with the subject in hand the legislature must have been impressed with the thought that, through her action, the city had been instrumental in procuring a judicial declaration of the partial failure of the considerations of a contract made by the law-making-power itself.
The city’s demand for taxes was the first attempt made against the autonomy of the contract as framed by the General Assembly, and the judgment of this court operated the first breach into it. The judiciary power interposed then no obiection to the right of the city to ask a change or a modification of the solemn contract emanating from legislative will, and the judiciary cannot now consistently abridge the unlimited power of the Legislature to provide a mode to mend the breach.
The law-maker had full warrant to consider that the contract which he had made for the parties came out of the hands of this court in a maimed and mutilated condition.
As a result of the judgment rendered, the Waterworks Company was held liable for taxes exigible in cash without the right of compensating therefor the value of its water supplied for the uses of the city.
All it could obtain in satisfaction of its annual water supply was a judgment not executory, and not collectable within any fixed or determined length of time.
Avowedly the judgment did not do absolute, even handed justice. In the leading- opinion, which was unanimous when rendered, it was said: “But for the nature of the city’s claim being- for taxes, compensation would preserve the exact status quo.”
“We regret that the city’s financial condition prevents the judgment against her from being the immediate equivalent.”
On the application for rehearing, the opinion of the majority contains the following significant language :
“ Contingencies of this kind were foreseen, but the princiqde was stamped in the act that however unequal arithmetically these two sums, might be, they should be equal in the contemplation of the statute, and that the one should be the exact equivalent of the other.” * * * “It would be perfect equity that the one should compensate the other, but the law interposes and declares a tax not compensable.”
These considerations naturally had great'weight on the legislative *935mind, and tliey doubtless prompted the enactment of act No. 56 of 1884, whose mission was to remove the legal interposition to the administration of absolute justice, and to restore “perfect equity ” between the parties. A better and purer motive of legislation could hardly be presented.
Hence the object of the statute, as expressed in the title, was: “To provide tiie supply of water to the city of New Orleans by the New Orleans Waterworks Company, in cases of municipal taxation of said company; to authorize provision to be made for the payment of water supplied and to be supjilied; to provide for obtaining a supply of clear or Altered water by the New Orleans Waterworks, and to enable the city of New Orleans to contract for the same ;• to regulate the payment of taxes imposed on said company contrary to the exemption given in its charter, and to put into effect section 11 oi act 33 of acts of 1877, E. S., in instances of refusing, or contrary to, the exemption therein.”
An examination of the provisions contained in the body of the act must satisfy the legal mind that they each and all tend directly and exclusively to the primary object as foreshadowed in the title of the statute, which is practically to restore the “perfect equity” between the parties, which had been disturbed by the city’s attack on the contract made by the Legislature for the parties in the act of 1877, and by the judgment of this court rendered in that case.
The act does not purport to amend or modify the charter of the Waterworks Company, or to provide for, or confer any advantage in favor of the company. The latter’s power to enter into a contract with the city of New Orleans or any other person for water-supply derives from its charter, and it did not need any enabling legislation to that end. But it was considered that the city was in need of legislative permission or authoritjr to mend the breach which she had made or procured to be made in the original contract, hence the authority is therein given. But the mandate was not compulsory; it was simply optional and permissive.
Tinder its authority the city was at full liberty to return to the original contract, by ceasing to exact municipal taxes from the company, or to do what is suggested by plaintiffs themselves, who say :
“ All that the city had to do to make the equity perfect, was to pass an ordinance directing the Treasurer annually to receive the water bill of the Waterworks in payment of its tax bill.”
And she ivas also given the option, in case she chose to enforce payment of her taxes, to obtain her water supply by paying therefor in another mode.
*936Iu passing ordinance No. 90!), the city elected to adopt the last mentioned option, and the contract, which she now seeks to rescind, was the result.
The foregoing analysis of the object and provisions of act 56 is of' itself an answer to all the objections urged against it on constitutional grounds.
As it is shown to embrace but one object, it does not violate article 29 of the constitution, as charged by plaintiffs.
As it gives an option to the City of New Orleans to abide by the original contract for its water supply, or otherwise to provide for the payment thereof, it is not in conflict with Article 15, which forbids the General Assembly “to authorize any parish or municipal authority to grant any extra compensation fee or allowance to any public officer, servant or contractor.” * * * (Italics are mine.)
Nor does it violate paragraph 13, of Article 46, which prohibits the General Assembly from passing any local or special 1‘aw. * * “ Creating corporations, or amending, renewing, extending or explaining the charter thereof;” as already shown, the statute does not purport in the least to amend, renew or explain the charter of the Waterworks Company. Its only reference to the charter is to authorize, or almost to invite, the city to abide by the terms of its contract as therein stipulated. It must be considered as a local or special law concerning a corporation, but as New Orleans is that corporation, the prohibition does not apply under the terms of the proviso contained in the paragraph which says: “provided this shall not apply to the corporation of the City of New Orleans.” * * * The only amendment ever made to the charter of the defendant company as such, resulted from the j udgmen t of this court, in so far as it modified the provisions of Act 33, of 1877, Section 11, which was the contract regulating the water supply to the city. In passing Act 56, of 1884, the legislature dealt with the charter as it found it then, altered from its original form, and its avowed object was to authorize the city, at its option, to do such acts as were necessary to restore the status qtto of the parties, disturbed as above set forth. The interpretation placed on the statute by the parties to the contract which it authorizes is not the criterion of its constitutionality. To test the constitutionality of a law by the mode in which the act is executed, is surely a novel canon of construction which courts will be slow to adopt.
As the statute does not propose to release the defendant company “ from any indebtedness, liability or obligation to this State, or to any parish or municipal corporation therein,” it is not amenable to the charge of being violative of Article 57, of the constitution. It on the *937contrary seeks to enforce tlie obligation of the company to supply the city with water either for exemption from taxation, or for adequate compensation otherwise qwovided for.
It is finally charged that the statute is violative of Article 234 which reads:
‘‘ The General Assembly shall not remit the forfeiture of the charter of any corporation now existing, nor renew, alter or amend the same, nor pass any general or special law for the benefit of such corporation, except on the condition that such corporation shall thereafter hold its charter subject to die provisions, of this constitution.”
As the statute contains no reference to the charter of the Waterworks Company, coupled with tlie purpose of renewing, altering or amending the same, it is very clear that tlie company is not in a condition to be affected by any of the terms of the article.
I therefore conclude that the statute under discussion is constitutional, just and proper, and that under its provisions the city had ample authority to enter into a contract with the defendant company for its water supply. •
Having reached that conclusion, the court is powerless to control the city as to the details of the contract. *
■ This proposition is fully sustained by the reasons, and by the authorities contained in the opinion prepared by Mr. Justice McEnery.
The price for water supply agreed upon may be excessive, but the contract is not attacked as fraudulent or inspired by corrupt motives, and it is not in fairness amenable to the charge of being a donation, or to .tlie charge of being over two millions of dollars for water supplied in forty-three years instead of wliat it should reasonably have been.
It is in proof that the average amount of taxes paid annually to the city by the company is $21,009, and that she receives an annual average, as dividends for her stock in the company, about '$14,000 — footing up her receipts from that source at $35,000 annually. Deducting that sum from the cost of water under the contract, $68,340, it appears that the disbursements of the city for' her water supply would be $33,340 each year, a sum much less than the value of a year’s water supply as found by the district judge in the suit of the 36th Annual. It also appears that under the present contract the water supply of the city would cost annually more tliau $50,000 less than is shown by the record to have cost her when she owned and operated tlie works herself.
The contract is therefore not fraudulent or outrageously onerous and unreasonable so as to warrant judicial interference with its continued existence or execution.
I therefore concur in the decree herein made and to be rendered.