Dissenting Opinion.
Fenner, J.This is a suit by taxpayers to procure the judicial annulment of a contract passed between the authorities of the city of New Orleans and the New Orleans Waterworks Company, by which the city was obligated to pay $68,340 per annum for her water supply for public purposes, during the period of forty-three years from the date of the contract.
The grounds of nullity alleged are that the contract was fraudulent, ultra vires and null, as involving a practical donation in disguise to the company, by payment to it of $68,340 per annum for a- water supply which, under its charter contract, the company was legally bound to furnish for a sum not exceeding the annual taxes levied on it by the city. When this suit was brought, the city, being then represented by the same authorities which passed the contract, joined the defendants; but the persouel of the city administration having subsequently changed, the city now joins the plaintiffs in invoking the nullity of the contract.
*941The New Orleans Waterworks Company was incorporated by an act of the General Assembly of the State, No. 33 of 1877, amended before acceptance by Act 43 of 1878.
The charter conferred upon the corporation extensive privileges, including the exclusive privilege, or monopoly, of supplying the city of New Orleans and its inhabitants with water, by means of pipes and conduits, for the term of fifty years from the passage of the act.
The lltli section of the charter (as amended) is as follows:
“That the city of New Orleans shall be allowed to use water from the pipes and plugs of said company now laid, or hereafter to be laid, free of any charge, for the extinguishment of fires, cleansing the streets, and for the use of all public buildings, public markets and charitable institutions ; and that the said company shall place, free of any charge whatever, two hydrants of the most improved construction, in front of each square where a main pipe shall be laid, at a suitable distance from each other, from which a sufficient quantity of water may be conveniently drawn for the extinguishment of fires, for watering the streets and cleansing the gutters, and for any other public purpose; that on the squares which do not front the river, the hydrants shall be placed on opposite sides of the streets, at an equal distance from each other and the corners. It shall be the duty of said company, whenever main pipes shall be laid, to supply water for all purposes herein mentioned at all times during the continuance of this charter; and in consideration thereof the franchises and property of said New Orleans Waterworks Company, used in accordance with this act, shall be exempt from taxation, municipal and parochial.”
The act was duly accepted by the city and by the Waterworks Company, and was executed without complaint or question for several years.
Under the State constitution of 1868, in force at the date of the charter, it was repeatedly held by this court that the legislative department could not validly exempt any x>roperty from taxation, either by commutation or in any other manner, unless the property was “ actually used for church, school or charitable purposes.” 28 Ann. 756; 31 Ann. 440, 827; 27 Ann. 376, 646, 648; 28 Ann. 498, 512; 31 Ann. 292, 637, 519.
Availing themselves of these adjudications, the city authorities then in power undertook, in 1881, to levy taxes on the property of the Waterworks Company, and brought suit to collect .said taxes amounting to the sum of $11,484 87. In that suit the Waterworks Company answered, pleading the statutory exemption as a bar to the city’s action, averring that the exemption was the sole consideration of its obligation to furnish free water to the city; and that, if the exemption was denied, it *942was entitled to recover from tlie city tlie value of the water supplied during the year, viz : the sum of $40,000, for which it prayed judgment in reconvention.
In the court of first instance, there was judgment in favor of the city for the tax, and in favor of the Waterworks Company for the whole amount of its reconventional demand.
The case was then appealed to this, and our decision therein is reported in 36th Ann. 432.
There was and could be no doubt as to the nullity of the legislative exemption from taxation. As to that even the dissenting judge declared that there could be “ but one opinion.” It had, indeed, been placed beyond controversy under the doctrine of stare decisis.
The fight was on the question of tlie effect of that nullity upon the obligation of tlie defendant to furnish free water.
To place beyond dispute the nature of the question involved, and the sharpness and clearness with which it was presented, it is well to quote from the opinions in the case. In the leading opinion it is said: “ The position of the defendant is that the exemption from taxation was the solé consideration of defendant’s obligation to furnish the city with free water, and that when the city elected to claim its taxes, it released the defendant from its entire obligation to furnish free water, and became bound to pay for all the water used, even though exceeding, as it does, three-fold the taxes.”
Another opinion was rendered on an application for rehearing, in which it was said : “The argument resolves itself into the single proposition, i. o., that the lltli section of the act distinctly and in terms declares the water supply to be the consideration of the exemption from taxation, which declaration the court can neither enlarge, restrict, nor otherwise alter, and- the inevitable consequence is that the exemption having become inoperative, there can no longer be a free water supply of any quantity whatever.” This was the proposition discussed and overruled.
On the application for rehearing a dissenting opinion was read, in which itwas said: “There is, and can be, but one opinion as to the nullity of the exemption from taxation * * ; but the very reasoning which leads to that conclusion should, in my opinion, carry with it a declaration a completo nullity of the contract of which the tax exemption was one of the considerations, unless in can be made to appear that the act contemplates or provides for other and distinct considerations for the stipulated free supply of water.” The learned judge, after further discussion, says: “The (lltli) section must have been intended to and did, *943beyond doubt, create a complete and independent contract between the city and the company. The contract as thus shaped and created, has reference to no other portion of the act, which is complete as an act without the contract contained in the section — as complete as the contract itself stands without reference to any or to all of the provisions of the act. Hence follows, in my opinion, the irresistible conclusion that the consideration furnished by one of the parties, having failed, the entire contract must fall.”
These quotations suffice to show the question directly involved in that case, that it was a necessary and the main question, and that it was a question propounded by the Waterworks Company itself as the basis of its reconventional demand.
Havingthus exhibited the rem decidendam, let us next inquire what wore the res decisce.
Abstainingfrom further quotations, a reference to the decisions themselves will show, beyond doubt, that the court held and decided as follows:
1st. That the exeemption of the Waterworks from taxation was unconstitutional .
2nd. That this exemption was not the sole consideration of the obligation to furnish free water, but that additional considerations existed in all the valuable privileges conferred by the act. - .
3rd. That the failure of the stipulated exemption from taxation was, therefore, only a partial failure of the consideration for the water supply.
4th. That the extent of the failure of the consideration was exactly the amount of the taxes levied by the city.
5th. That the city could not be held to pay a greater amount for her water supply for the year than the amount of the taxes collected from the Waterworks in that year.
6th. (On rehearing.) That all the privileges granted by the charter, including the exemption from taxation, being considerations on one side for the free water supply on the other, and only a part of one consideration being withdrawn, equity required that only an exact equivalent' should be withdrawn on the other. »
Hence, while giving the city judgment for her taxes, we at the same time gave judgment in favor of the company against the.city for precisely the same amount in payment for water, saying, “it would be perfect equity that the one judgment should compensate the other, but the law interposes and declares taxes not compensable.”
*944Every proposition above stated was necessarily involved in tlie issues between the parties, and the decision thereof could not have been reached without considering and determining them.
A construction of this decision, which confines attention to the particular claims and counter-claims then involved, "and ignores the construction of the contract then authoritatively made, is narrow and unwarranted; and, under the plain terms of the decision, it is extraordinary that any one should claim that it annulled and wiped out the entire section 11, which was the very thing claimed by the company, and expressly denied by the court.
It-is impossible to formulate any expression of the doctrine of estopped by res judicata sustained by any judicial or doctrinal authority, which would not forever bar the city of New Orleans, the New Oilcans Waterworks Company, and their privies, from questioning the conclusiveness of this decision and from ever again agitating the questions therein decided.
All systems of law and all judges and jurists are unanimous in the firm maintenance of this estoppel as essential to any reasonable or consistent administration of justice.
It was formulated in the Digest of Justinian, where it is written, lies ad judicata pro vertíate accipitur, and again, Exceptionem res judieatw ob-stare quoiies eadem quwstio inter easdem personas revoeainr.
It was imbedded in the common law of England and has been sacredly respected by this court as well as bjr the Supreme Courts of the United States and of the other States.
The estoppel of res judicata operates in two ways: 1st. If the second suit is based on the same cause of action, is between the same parties, and is for the same object or thing, then the first judgment is a conclusive bar to the whole suit. 2nd. But where the res or thing claimed is different, the cause of action and parties being the same, the first judgment is not a bar to the suit, but, none the less, it operates as a conclusive estoppel as to all questions of law and fact which were necesarily involved and determined in the former controversy.
From a mass of authorities sustaining the latter principle, the following may be referred to: Aurora City vs. West, 7 Wall. 96; Cromwell vs. County of Sac, 94 U. S. 353; Doty vs. Brown, 4 Comstock 71; Outram vs. Morewood, 3 East. 346; Burt vs. Sternburg, 4 Cowen, 559; Bouchard vs. Dias, 3 Denio, 243; Gardner vs. Buckbee, 3 Cowen, 120; Lumber Co. vs. Buchtel. 101 U. S. 638; Gould vs. Railroad Co., 91 U. S. 526; Beloit vs. Morgan, 7 Wall. 623; Merriam vs. Whittemore, 5 Gray, 317; Norton vs. Huxley, 13 Gray, 290; Burlen vs. Shannon, 99 Mass. *945203; Tams vs. Lewis, 42 Penn. St. 402; Chamberlain vs. Gaillard, 26 Ala. 504; Perkins vs. Walker, 19 Vt. 144; Hayes vs. Gudykunst, 11 Penn. St. 221; Peterson vs. Lothrop, 34 Penn. St. 223; Jackson vs. Lodge, 36 Cal. 28; Danaher vs. Prentiss, 22 Wis. 311; Barrs vs. Jackson, 1 Younge and Col. C. C. 585; Canjolle vs. Ferrié, 13 Wall. 469.
The estoppel apifiies, whether the issue was one of law or of fact. Bouchard vs. Dias, 3 Denio, 243; Ferrer’s Case, 6 Coke, 7 Ann.; Aurora City vs. West, 7 Wall. 84.
The rule of the civil law is the same. Thévenin et al. vs. Dufour et al., Sirey 31, p. 41; St. Léonnard et al. vs. Bal J. du P., 1843, vol. 2, p. 247; Gleize vs. Héritiers Gleize, J. du P., 1859, p. 514; Cass, 13 fév. 1860 (Giudicelli), Sirey, vol. 60, 1, 545; Cass, 26 août, 1873 (Commune de Chaucevigney), Sirey, vol. 74, 1, 294.
After discussing all the authorities, the compilers of Smith’s leading-cases announce the rule as follows: “It results from the authorities that an adjudication by a competent court is conclusive, not only in the proceedings in which it is announced, but in every other where the right or title is the same, although the cause of action (meaning, of course, the res) is different. 2nd Smith’s Lead. C. 943.
Lord Kenyon laid down the rule as follows: “ If an action be brought, and the merits of a question be discussed bewteen the parties, and a final judgment, be obtained, the parties are concluded and cannot canvass the same question again in another action, although, perhaps, some objection might have been urged upon the first trial, which could have led to a different judgment.” Greathead vs. Bromley, 7 T. R. 456.
Mr. Bigelow makes the following statement of the rule: “A point once adjudicated by a court of competent jurisdiction may be relied on as an estoppel in any subsequent collateral suit in the same or any any other com-t, when either party, or the privies of either, allege anything inconsistent with it, and this, too, whether the subsequent suit be on the same or another cause of action.” Bigelow on Est. p. 45.
The foregoing was very recently quoted and approved by this court. Adams vs. Board, 39 Ann. 693.
Mr. Wells, in liis work on res adjudicate, after an exhaustive discussion of authority, says: “ By the overwhelming weight of authority, the rule is, that while the issue must be precisely the same, yet the object, subject and causes of action do not require to be identical; so that if the precise issue of the former suit, necessary to the determination of the controversy therein, be again brought between the parties in the latter action, even though collaterally, yet relevantly and mate*946rially, the former decision .must conclude the matter from further dispute.” Wells’ Ees. Ad. sec. 304.
The Supreme Court of the United States sustains the same doctrine, saying: “The parties were identical and the title involved was the the same. * * The court had full jurisdiction over the parties and the subject. Under such circumstances a judgment is conclusive, not only as the res of that case, but as to all further litigation between the same parties touching the same subject matter, though the res itself may bo different.” Beloit vs. Morgan, 7 Wall. 622.
We upheld the same doctrine very emphatically in Heroman vs. Institute, 34 Ann, 815, saying: “ The estoppel extends to every material allegation or statement, which, having been made on one side, denied on the other, was at issue in the cause and determined therein.”
Further quotations from authorities are needless, and those made were perhaps superfluous.
They place it beyond dispute, that the decision in the 36th Ann. case forever concluded and estopped the parties thereto from again agitating the question therein determined in any subsequent action. In any subsequent suit by the city for the taxes of succeding years, the Waterworks would have been estopped to set up the exemption of its charter. In any subsequent suit by the Waterworks Company for the, value of wafer furnished, it would have been estopped from claiming more than the amount of the taxes levied during the year in which the water was supplied, and the city would have been legally estopped to deny that she owed the value of the amount of such taxes.
Thus the legal status of the rights and obligations of the parties under the legislative contract embodied in the charter of the Waterworks Company was definitely and irrevocably fixed. The city was irrefragably entitled to receive annually the supply of water stipulated in the act, and was bound to pay therefor precisely the amount of taxes levied by it on the property of the company during the same year; and not a cent more could be claimed by the company.
A great part of the majority opinions is taken up with arguments, to show that the plea of res judicata does not operate as a bar to the present suit. I do not understand any one to contend that it so operates. The principle of res judicata is invoked, not as a plea in bar in the present action, but as showing that the decision in 36 Ann. would have operated as res judicata in any subsequent suit between the parties touching the water supply and taxes for any subsequent year, arising under the 11th section of the charter, and that it, therefore, settled irrevocably the rights and obligations of the parties under the charter. This. I under*947stand to be conceded, at least in the opinion of Mr. Justice Poché. And this being so, the question is whether the radical change in those rights and obigations operated by the contract assailed, is valid and within the power confided to the officers of the city government.
Let us now turn to the contract assailed in the instant suit.
In September, 1884, a contract was entered into between the Mayor of the city (acting in virtue of an ordinance passed by the City Council) and the New Orleans Waterworks Company, whereby, as a consideration for the water supply therein stipulated, the city “ engage's and contracts to pay unto said company annually the sum of sixty, dollars for each and every fire-plug, fire-liydrant and fire-well, of which there are now 1139, and which number shall ever be the least measure of the annual sum to be paid to said company; and to • pay to said company annually sixty dollars for every additional hydrant, fire-well or fire-plug-exceeding said sum of 1139, and hereafter attached to said mains or pip^>s.” Thus it appears that the city bound itself to pay for its water supply the least sum of $68,340, annually, during the whole remaining term of the company’s charter, or for about forty-three years.
It appears that the taxes paid by the company to the city were, in 1885, $20,619 37; in 1886, $22,093 59; in 1887, $20,113 60; in 1888, $21,405 78. Under the charter of the company, as interpreted by the court, these sums fixed the limits 'of the city’s liability for the water-supply for the respective years which the company was bound to furnish under its charter. Nothing indicates that the taxes will ever'be greater, unless it results from the extension of the Waterworks, caused by the growth and expansion of the city, in which case the amount to be paid by the city for the necessary additional plugs and hydrants would correspondingly increase'.
Thus we find that while the city was legally entitled to have her water sui-iply under the charter for a price of about $20,000 'per armuih, this contract obliges her to x>ay a minimvm price of $68,340 per annum for the water supply stipulated in this co'ntract, being- a difference of more than $20,000 for the whole term of the contract.
The first question that inevitably arises under the foregoing statement is: What is the difference between the water supply required by the charter and that stipulated in the ordinance and contract?
A comparison of the terms of the charter provisions with those of the ordinance and contract shows conclusively that there is no substantial difference in the obligations imposed on the company by the respective instruments — certainly none that could serve as the slightest support for the enormous excess of price.
*948The evidence shows, with equal conclusiveness, that the water actually" supplied since the date of the contract has not materially differed, in quantity or quality, from the supply prior thereto.
No serious attempt is made to show any adequate or even approximate additional consideration for the immensely increased price. Indeed, the preamble of the ordinance conclusively shows that none such was contemplated or operated as an inducement to the contract. The preamble is as follows:
“ Whereas, the city of New Orleans has be.en, and is, and will be unable to allow the New Orleans Waterworks Company the fifty years exemption from taxation, being the consideration for a free supply of water contemplated by section 11 of Act 33 of the acts of 1877, and the .courts having decided that the exemption from municipal taxation granted in said act is not, and shall not be enjoyed, and therefore, as is also decided, that the city must pay for the water supplied by said company, and
“ Whereas, it is best to arrange for a fixed annual price for said water supply, rather than leave the city liable to an annual demand, the amount of which cannot be known in advance, and from which the city cannot be relieved, but it is specially authorized and required to provide for the payment therefor, and
“ Whereas, the said New Orleans Waterworks Company is willing to accept terms, arranging for a sum to be determined in advance of each year, and which amount can be readily and equitably fixed, according to a mode adopted in other cities, by reference to the member of fere hydrants, fere plugs, or fire wells, now numbering eleven hundred and thirty-nine (1139) in this city, therefore,” etc.
In the teeth of the decision of this court, the ordinance rests exclu sively on the false recital that the city was bound to pay the full value of the water supply, regardless of the amount of taxes, and the change in the terms of the prior contract is declared to be simply for the purpose of establishing a better mode of fixing the compensation.
The pretense that this ordinance was intended as authorizing a new contract, fixing an honest additional price for a fair additional consideration, has no foundation either in its terms or in the evidence in this case. By the effect of this contract, the Waterworks Company furnishes substantially the same supply of water which it was bound to furnish under the terms of its charter; it enjoys a perfect practical exemption from taxation, because the city is bound to furnish it, in advance, with the money to pay the taxes, and, in addition, the company receives a *949contribution of about $2,000,000, payable in annual instalments of over $40,000 for forty-tliree years.
If this is not a disguised donation, what shall it be called, unless we choose to term it an undisguised donation; for, indeed, the garniture of contract in which it is quoted, is too flimsy and transparent to serve as a disguise.
It is vain to point to the provisions of the city charter, authorizing the city council to provide itself and its inhabitants with pure and wholesome water and to make contracts for such purpose. No one would be bold enough to contend that those powers cover donations of the money exacted from the taxpayers.
Equally vain is it to appeal to the discretion vested in the political authorities of the city to judge as to the advisability of contracts and the reasonableness of considerations.
A donation placed in the form of a contract cannot find protection under any degree of respect due to such pretended discretion.
But it is said that this contract is a compromise of the conflicting rights claimed respectively by the city and the company. It is not, and it does not pretend to be a compromise. There were no conflicting rights. The rights of the parties had been finally settled by the decree of this court, which had not even been appealed from, and which nothing shows the company intended or threatened to appeal from. The appeal taken since the institution of this suit is too late to affect the status of the case.
The last ax>peal of the company is to Act 56 of the General Assembly of 1884, passed after the decision rendered by this court.
That act is ambiguous in its terms and it is needless to discuss its pro - ' visions and its phraseology.
It either authorized this contract, or it did not. If it did not, there is an end of its pertinency.
If it did, it clearly violates the following article of the Constitution, viz: Article 45, which declares: “ The General Assembly shall have no power to grant, or authorize any parish or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant or contractor.” And Article 57, which declares that “ the General Assembly shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or,in part, the indebtedness or liability of any corporation or individual to this State, or to any parish or municipal corporation thereof.”
The applicability of these two articles is too patent to need comment.
If, under ’its charter, ¡vs interpreted by this court, the Water Works *950Company was bound t.o furnish the water annually for a compensation not exceeding the. amount of its taxes, how could the Legislature authorize the'city to pay to such contractor an extra compensation of $45,000 per annum? And if such was the “ liability” of the Water Works Company, how could it bo released and extinguished by substituting therefor a different and vastly less onerous liability?
Moreover, if the act has this effect, it is clearly an amendment of tire charter of the company, because it changes the whole effect and operation of-section 11 thereof as interpreted by this court. This is a local and a special law, and the Constitution, Article 46, declares: “ The General Assembly shall not pass any local or special law creating corporations or amending, renewing, extending or explaining the charter thereof.”
If an act of the Legislature which has the effect of changing and radically diminishing the obligations imposed upon a corporation by its charter, is not, practically, an amendment or alteration of the charter, what would be such an amendment ?
Finally, Article 234 of the Constitution declares: “ The General Assembly shall not remit the forfeiture of the charter of any corporation now existing, or renew, alter or amend the same; nor pass any law for the benefit of said corporation, except on the condition that said corporation shall thereafter hold its charter subject to the provisions of this Constitution.”
The provisions last referred to are those which aim at monopolies and subject .the rights of corporations absolutely to the police power of the State to bo controlled thereby whenever deemed to infringe the general well-being of the State.”
The Water Works Company has never accepted this act, bxxt has declined to accept it. It has contrived to obtain a most important and radical amendment and alteration of its charter rights and obligations, without subjecting itself to these provisions and without imperilling its monopoly.
Having never had the slightest ground of complaint except the loss of its exemption from city taxation, it has secured an indemnity for this loss, which converts it into an enormous gain, because the city not only pays to it in advance the money with which to pay its taxes, but adds an annual gift of $45,000 per annum in addition.
Exemption from taxation lias no sentimental value — no pretmm ajfeclionis or honoris. It is a simple relief from the obligation to pay a certain amount - of money. If the city had made provision to take the water bill in dischai'ge of its taxes, or if it had appropriated and paid to the *951company the amount of the taxes, with which to pay them, the charter right of the company would have stood totus, teres atgite rotwnchis, without a shadow of infringement.
I have looked at this case from every point of view and confess my inability to discover any consideration of justice, equity or law to support this extraordinary contract.
I, therefore, dissent.