*938Dissenting Opinion.
Bermudez, C. J.This suit is brought by citizens and taxpayers for the avowed purpose of preventing an increase of the burden of taxation, by an unauthorized and illegal disbursement of a fabulous sum of money by the city of New Orleans, in favor of the Waterworks Company.
They claim that, in a controversy between those two corporations, in which each had a demand against the other, the city claiming taxes from the company, and the company claiming the value of water supplied to the city, for the year 1881, this court interpreted the contract between them, under act 33 of 1877, and declared that the company had no right to recover from the city, in any year, any sum for the water supply which it was bound to furnish, greater than the amount of city taxes for that year; and they complain that, in derogation of the judgment thus rendered, an act, No. 56 of 1884, was passed by the Legislature, under which a contract was entered into by the city of New Orleans and the Waterworks Company, the effect of which would be to have the city of New Orleans to pay to the company, as the value of the water furnished, an enormous amount, over and above that which, under the legislative contract of 1877, as interpreted by this court, it would have otherwise to pay.
They charge that the act of the Legislature is unconstitutional, and that the contract under it is illegal and void; and that, in the absence of such act, the city would be powerless to enter into such an agreement.
The defence set up, naturally, is the constitutionality of the act, and the validity of the contract under it or without it.
The city of New Orleans is a party to these proceedings.
There is no plea of res judicata filed, to operate as such in this suit. The plaintiffs and the city claim simply, that the judgment in question could not be annulled, abandoned and disregarded, so as to justify the act and contract attacked.
In the suit mentioned, the city claimed taxes as due for 1881. The defence was that, under the terms of its charter, in consideration of its supplying the city with water, all the property of the company which would otherwise be liable to taxation, had been exempted formally from municipal taxation, the condition having been fulfilled; but that if the exemption was unconstitutional, the contract was broken, lacked consideration, and became null, and that, if the city has the right to demand her taxes, the company is entitled to exact payment of the value of the water it furnished the city.
*939After a consideration of the facts and of the law having a bearing on the controversy, the court in a main and unanimous opinion which remained undisturbed, notwithstanding an application for a rehearing, reached the conclusion, for the reasons assigned, that the city could recover her taxes, and the company the value of the water supplied, provided it did not exceed the amount of the taxes.
It is not essential for the purpose of the present controversy, to consider the language used in both opinions, as, whatever it he, it is binding on the parties, only so far as it may conduce to the justification of the judgment rendered, and is not absolutely exclusive of other determining motives tending in the same direction.
A review of the whole matter irresistibly impresses the mind that the judgment rendered is made to rest on the consideration, plausible, just, honest and proper, that in the legislative intent, the price or value of the water furnished was to fluctuate according to circumstances, hut so as never to exceed the amount of the taxes which might become due on the property of the company for any subsequent year whatever.
That judgment settled forever the question of the respective liability of both corporations, the one for the water supplied, the other for the taxes deman dable. Its effect, as is that of all judgments, was to close the door, for all time, to those litigants, on the subject of such reciprocal liability, the one to the other.
The moment that judgment was rendered it became the property of each party who then acquired the right of "using it as an effectual shield for protection against any demand for more than it allowed to each party.
It was not a judgment intended merely to settle the question of amounts due for 1881, for taxes and water supply, but one designed to establish firmly, for the future, during the term of existence of the company, that, iii no case, would it ever claim from the city for water supply any amount in excess of that which the city would have the right to demand for taxes due her.
Tile title of ownership which vested to that judgment in the two corporations, was one which could not he divested, unless by a mutual legal consent ¡ but, as such consent was a legal impossibility, it follows that the judgment which was thus rendered lias never ceased to have its binding force and effect, ahd that it is fatally destructive of both the act of 1884 and of the contract under it.
It is a recognized principle that, although parties may renounce the benefit of the authority of the thing adjudged, the courts have the prerogative, when such renunciation has taken place, and after ascertaining *940tliat the judgment abandoned would be conclusive of the new litigation before them, to refuse to try the issue de novo.
Interest reipublicm, ui sit finis liiimn.
It is perfectly true that the city of New Orleans is a State functionary, created by the sovereign, vested with necessary inherent and other expressly delegated rights, powers and faculties, but it does not follow that, on that account, the sovereign can divest her of her property, appropriate it to his own use, or give it away, or impair the obligations of contracts in her favor.
From that standpoint, the Legislature was incompetent to deprive the city of her right of ownership to the judgment rendered in her favor, whereby she was to be relieved from all amount exceeding the taxes due her by the Waterworks Company, and which she might have had to pay, had not the judgment expounding the contract been rendered.
Surely, if the city could not, with legislative sanction, enter validly into the contract assailed, it was ultra vires for her to do so, jprojprio motu, under the circumstances of this case, for the plain reason that she was thereby abdicating arbitrarily advantageous privileges and rights, belonging to the public, over which she had no control, replacing them by dearly ruinous and crushing obligations.
Those considerations suffice in my opinion to affirm tho finding of the lower court refusing to apply, or enforce the act attacked, and avoiding the contract leveled against.