The opinion of the Court was delivered by
Fenner, J.
The above two cases are presented to us in one record, ■and to be decided together.
The issues will be stated as briefly as possible :
Lucas E. Moore, plaintiff in one and relator in the other case, substantially avers that he is the owner of certain bonds of the city of New Orleans (commonly known as Premium BondsJ issued under the provisions of an act of the Legislature of the State, being Act No. 31 of 1876, and of certain ordinances of the city of New Orleans referred to in said 'act; that by the provisions of said act it is made the duty of the City Council, in the month of December of each year, in its budget annually adopted for the ensuing year, to include an amount sufficient to pay interest, principal, and premiums accruing annually under the operation of the act for the redemption of said bonds, and to levy a tax sufficient to provide the amount included in the budget as aforesaid, and to place the proceeds of said tax to the credit of an account to be called the Premium-Bond Account, to be used for no other purpose than the payment of said bonds, interest, and premiums ; and that by the provisions -of said act the Council is further required to levy annually a tax of at least one half of one per cent for the purpose aforesaid.
He further avers that, on the 24th of December, 1879, the Council •adopted its annual budget for the year 1880, and included therein an estimate and appropriation of three hundred thousand dollars for interest ■and redemption of the Premium Bonds, and on the same day adopted an ordinance levying a tax of fifteen mills on the dollar, of which five mills were for the purpose contemplated in the legislative act aforesaid.
[735]*735He further avers that under the pretended authority of an act of the Legislature, No. 78 of 1880, and of article 209 of the Constitution of 1879, the City Council was about to repeal the ordinances above mentioned, and to adopt other ordinances limiting the tax to be levied to ten mills on the dollar, and requiring the entire revenue derived therefrom to be applied to current governmental expenses, and making no pi'ovision whatever for the Premium Bonds ; that such ordinances had actually been passed by the Council, but had not, as yet, received the signature of the Mayor.
He alleges sundry other acts and purposes of the City Council in contravention of the duties imposed by the act of 1876 and of the rights of holders of Premium Bonds.
He avers that the provisions of the Act No. 31 of 1876 constitute a valid contract between the city of New Orleans and the holders of Premium Bonds, and that the duties therein imposed on the city, and the taxation therein directed,' are elements of said contract; that article 209 of the Constitution of 1879 and Act No. 78 of 1880 cannot operate to impair the obligations of said contract, and that so far as they do so operate, and to the extent of such operation, as against the holders of said bonds, they are null and void, because of their repugnancy to section ten, article one, of the Constitution of the United States.
The petitions contain other appropriate allegations, and pray for writs of injunction and mandamus restraining the city from acts inconsistent with their duties under act 31 of 1876, and commanding them to perform and carry out said duties ; and for decrees recognizing the validity of the contract between the city and the Premium-Bond holders under the act 31 of 1876 ; declaring that the duties imposed on the city and the taxation directed by said act are essential elements of said contracts ; that in so far as article 209 of the Constitution of 1879 and act 78 of 1880 operate, or are intended to operate, to disable or prevent the city from complying with any of the obligations of said contract, they are null and void; and, finally, that the writs of injunction and mandamus be made peremptory and perpetual.
The city does not dispute any of the allegations of fact set up in the petitions, and, indeed, the parties entered into a complete statement of facts.
The defense of the city rests purely upon questions of law, which may be summarized as follows :
First. That Act No. 31 of 1876 establishes a gambling or lottery scheme, in violation of exclusive privileges of the Louisiana Lottery Company, and now prohibited by article 167 of the Constitution of 1879.
Second. That said act is void as a “reference” law under articles 115 and 116 of Constitution of 1868.
[736]*736Third. That it violates the constitutional amendment of 1874, forbidding the increase of the debt of the city of New Orleans.
Fourth. That said act is unconstitutional and void, because it wa® intended to impair, and does impair, the obligation of contracts made-prior to its' enactment and to divest all remedies therein against the-city, and was passed with the unlawful purpose of creating preferences in favor of certain creditors, and of coercing the acceptance of said act. by the city’s creditors.
Fifth. Although not set up by the city in her pleadings, it has been-contended in argument by amici curiae appearing in support of the defense, that the article 20,9 of the Constitution of 1879, limiting the rate of municipal taxation to ten mills, must have effect as against all persons and all rights.
We shall discuss these several questions of law in the order named:
I.
It is urged that the act 81 of 1876 is void for violation of the exclusive privileges of the Louisiana Lottery Company. It has just been decided by the Supreme Court of the United States that such exclusive privileges are revocable,at the will of the Legislature; and, moreover, under the Constitution of 1879, they are voluntarily relinquished and no-longer exist.
But it is further said that the allotment feature of the act is abrogated by the article 167 of the Constitution of 1879.
There is nothing in the objection, and it is not necessary tq say more in answer thereto than that we do not regard the act 31 of 187(> as granting any lottery charter or privilege within the meaning of the Constitution; and, even if it did, the article referred to would not operate to revoke it. It only regulates future grants of such lottery charters or privileges.
II.
It is contended the act is void for repugnancy to articles 115 and 116 of the Constitution of 1868. Article 115 provides that “no law shall be revived or amended by reference to its title, but in such case the review or amended section shall be re-enacted and published at length.”'
This has no application to this act, which does not amend any preexisting law, or revive any repealed law.
Article 116 provides that “ the General Assembly shall never adopt any system or code of laws by general reference to such system or code-of laws ; but in all cases shall specify the several provisions of the law it may enact.” This article is peculiar to Louisiana Constitutions, and has been handed down from the Constitution of 1812 through every Constitution which the State has ever had. Its origin, object, and meaning [737]*737are explained by Chief Justice Eustis, in his opinion in Succession of Franklin, 7 A. 418, who says : “ At the commencement of the dominion •of the United States in Louisiana, some of the lawyers from the old States were disposed to introduce here the system of laws with which they were familiar. Efforts were not spared to introduce the common law, as it has been since introduced and prevails in other States whose territory formerly belonged to France and Spain. But of the members of the bar conversant with the common law, the most eminent did not favor its introduction as a general system, and the consequent exclusion of the civil law. The views of these distinguished men, reflecting the evident sense of the people, were impressed on the legislation of the State. The subject was deemed of such moment that it was not trusted to ordinary legislation ; and hence the provisions, in both the Constitutions of 1812 and 1845, which prohibited the introduction of any system •of laws by general reference,”
It is manifest that the act here in question does not adopt any “ system or code of laws” within the meaning of this article. The last phrase of the article, which reads: “but in all cases shall specify the several provisions of the law it may enact,” is directly connected with the previous principal provision, and the words “ in all cases” evidently ■mean “ in all such cases,” i. e. where a “ system or code of laws ” is •adopted. To treat it as an independent provision, declaring as a general proposition that “in all cases the General Assembly shall specify the several provisions of the law which it may enact,” without explanation ■as to what it means by “specifying,” would make it meaningless and absurd. Taken in connection with the context of the article, it is apt, appropriate, and unambiguous.
III.
It is urged that the act violates the provisions of the constitutional •amendment of 1874, limiting the debt of the city of New Orleans by increasing the debt $100,000 per annum in gratuitous premiums.
A simple arithmetical calculation will show that the amount of interest and premiums together to be paid annually under the Premium-Bond scheme is far less than the interest alone which would have been due on the bonds which were surrendered in exchange for Premium Bonds. The debt of the city, therefore, is not increased, and the constitutional amendment is not violated.
IV.
In discussing the fourth ground of objection touching the impairment of the obligation of antecedent contracts, the destruction of remedies thereon, and the unlawful preferences created in favor of • certain creditors over others, it is necessary that we should make some ireferences to anterior legislation concerning the indebtedness of the city [738]*738of New Orleans, in order that we may understand the condition of affairs-existing at the time of the adoption of the Premium-Bond plan. And we begin with the famous thirty-seventh section of the act of 1852, which is regarded by many as an avenue of escape from the burden of the subsequent indebtedness of the city.
The 37th section of the act of 1852 is unquestionably a contract, so far as ifimposes upon the city of New Orleans liability for the payment of the principal and interest of the consolidated bonds.
So far as the special provision made therein for taxation to pay the principal and interest of said bonds is concerned, that, also, is unquestionably a contract, provided the taxation directed therein is constiiu-tioncd. This question has been ruled by this Court adversely to its constitutionality ; but the case is pending on appeal in the Supreme Court of the United States ; and it is neither necessary nor appropriate for us to pass upon the question in this case.
The remaining provisions of the section, (1st) declaring null all ordinances, acts, etc. of the Council in any year, unless the ordinance imposing the consolidation-loan tax shall have been previously passed ; (2d) forbidding the city to issue any obligation or evidence of debts other than the consolidated bonds ; (3d) forbidding the contracting of any loan, unless authorized by a vote of the people ; (4th) declaring null any ordinance creating a debt or loan, without providing ways and means for their payment in principal and interest, are obviously intended as mere legislative restraints upon the powers of the corporation. Provisions of this nature, more or less stringent, are appropriate and common in all ■municipal charters.
Such charters are not contracts within the sense of the constitutional provisions prohibiting the impairing of the obligations of contracts.
Cooley on Const. Lim. 193.
“ The Legislature retains lull powers to amend such charters, and to enlarge or diminish the powers granted thereby.” Id. 192, 276.
"Restraints on the legislative power of control must be found in the Constitution of the State, or they must rest alone in the legislative discretion.” Id. 193.
“Legislatures cannot trammel the powers of their successors by passing irrepealable laws.” Id. 125, et seq.
“ The framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions adopted for internal government.” Dartm. Col. case, 4 Wh. 629.
“ They may, therefore, discontinue offices and abolish or change the organization of municipal corporations at any time, according to the existing legislative review of State policy.” Cooley, 276.
[739]*739The proposition, that because a Legislature, in framing the charter of a municipal corporation, has authorized the creation of a certain debt, and has provided means for securing the payment of principal and interest thereof, it can, in the same act, destroy the power of future-Legislatures to extend the powers of the corporation so as to enable it to contract other debts and provide for their payments, is utterly untenable. The effect would be to enable a Legislature to pass irrepealable laws, to impose restraints upon future legislative power not found in the Constitution, and to barter away the legislative right and power to regulate the civil institutions of the State, and to contract and direct their administration in accordance with the exigencies of the times.
But for the existence in the charter of 1852 of the provisions for the creation and payment of the consolidated bonds, no one would have questioned the right of future Legislatures to alter, diminish, or enlarge the powers of the corporation. We cannot admit that the mere concurrence of such provisions has the effect to make all or any of the other provisions of the charter irrepealable, unless, by such repeal, the obligation of those bonds is impaired, or the provisions directed for their redemption are taken away. There is a notable absence, in the act of 1852, of any declaration that these provisions under discussion form part of the contract with the bondholders ; and while we think even such a declaration would have been inoperative, its absence serves to weaken the supposition that such was even the intention of the Legislature.
The decision in Smith vs. Appleton, 19 Wisconsin, 495, is certainly • adverse to the views here expressed. We cannot recognize its authority. It is extremely brief and dogmatical. It does not discuss, or dispose of, any of the patent objections suggested by the very statement of its doctrine. The authorities referred to give it not the slightest support.
The California eases referred to (7 Cal. 579, and 10 Cal. 563), are cases where, in the act providing for the funding of the indebtedness of the city of San Francisco, it was provided that a tax should be assessed and collected annually, sufficient in amount to pay the interest on the funded debt, and in addition thereto, to furnish a sum of $50,000 as a sinking fund for the ultimate redemption of the bonds ; this tax to be assessed and collected by the taxing officers of the city upon a written statement of the amount necessary to be furnished by a Board of Commissioners of the funded debt established by the act, to whom, after collection, the proceeds of the tax were to be paid over for the purposes specified. The amount was assessed and collected, and the part thereof attributable to the interest of the bonds was paid over to the Commissioners ; but the Treasurer refused to pay over the amount of $50,000 due to the sinking fund, on the ground that, by a subsequent act of the [740]*740■Legislature, it had been otherwise appropriated and diverted to a ♦different purpose. The Court, after holding that the funding-law was a contract, said: “ The effect of the later act would be to withdraw from ■the hands of the Commissioners of the funded debt a large amount of -money, which they are authorized to loan for the benefit of the bondholders, and the direct consequence is to diminish the fund out of which they are entitled to be paid. Such legislation is obnoxious to that provision of the State and Federal Constitutions which forbids the Legislature (from passing laws impairing the obligation of contracts.”
No one can question the correctness of these decisions, but, evidently, they do not touch the questions involved in the case of Smith ~vs. Appleton.
The only later case to which we are referred by counsel for defendant is Mayor vs. Magruder, 34 Md. 384; but this case also rests upon ;an entirely different principle! It involved no question of contract or -of constitution at all. The charter of the city of Cumberland prohibited the issue of bonds for any sum exceeding f10,000 without the previous ■assent of a majority of its legal voters. A subsequent law was passed ■authorizing the buildiDg of a bridge and the issuing of bonds in payment. The city entered into contracts for building the bridge, and was •■about to issue bonds exceeding $10,000, without the previous popular ■assent, when it was enjoined by taxpayers. The Court said : “ There -is nothing on the face of the law, or in the nature and character of the work to be done, from which an inference can be drawn that the Legislature supposed it would cost a sum exceeding $10,000, or, if it did, that the sanction of the citizens should not be first obtained. On the -contrary, the failure to name or limit any sum for which bonds might 'be issued * * * may well warrant the assumption that the 'Legislature intended that if a site was fixed upon and contracts made involving an expenditure beyond $10,000;' the provision of the charter ■■should be observed by submitting the Question to a vote of the citizens.” :it is clear the Court here is interpreting merely the intention, and not the ;jpower of the Legislature, and it is, therefore, inapplicable.
We consider Smith vs. Appleton as standing alone and entirely un-vsupported.
On the contrary, the Supreme Court of the United States, in Amey -vs. Mayor, 24 How. 373, held that a legislative limitation upon the powers of a corporation to issue bonds was operative only on the power of -the city, and not on the power of the Legislature. In the case of Board of Liquidators vs. McComb, 2 Otto, 535, the same Court said: “ We are not prepared to say that the Legislature can bind itself without the said of a constitutional provision, not to create further debt, or not to issue any more bonds. Such an engagement could hardly be enforced [741]*741■against an individual; and when made on the part oí the State, it involves, if binding, a surrender of a prerogative which, might seriously ■affect the public safety.”
The powers oí municipal government are simply a delegation of the powers of State government; and both are, in the same manner, and the same extent, subjects of legislative control and discretion.
Finally, in the case of So.uthern Bank vs. Pilsbury, 31 An. 16, the late Supreme Court has fully discussed this very 37th section of the act of 1852, and has distinctly hold these limitations not to constitute part of the contract, and not to be irrepealable.
Our first conclusion, therefore, is that the Legislature retained the right to authorize the city of New Orleans to create new debts and issue new bonds, notwithstanding the 37th section, provided only it did not affect the validity of the consolidated bonds, or interfere with the duty of the city to levy the tax there directed, if constitutional.
Now, all the bonds in existence at the date of the adoption of the Premium-Bond plan, were issued under the authority of special acts of the Legislature, which did not, in any manner, attack the consolidated bonds or interfere with the levy of the tax directed for their protection.
We have examined with care the acts of 1854,18C8-9-70-1 and 2, ■and find nothing in them derogatory to the rights of consolidated bondholders.
We can conceive of no other grounds upon which the city of New Orleans could successfully remit the payment of these bonds.
No doubt, they represent the results of great extravagance and fraud; so, doubtless, did the consolidated bonds ; so do the bonds of the State ; so do the bonds of the United States; so, to greater or less extent, do the bonds of every government and of every corporation; but, under the decisions of the Supreme Court of the United States, those questions have passed beyond the reach of investigation. Such bonds,'issued inpursuance of legitimate authority, negotiable inform, and in the hands of bona fide holders, cannot be questioned as to their consideration.
Thus, in 1875, the city of New Orleans owed about $22,000,000 in bonds, the validity of which she could not successfully question.
Under the constitutional amendment of 1874, she had the right expressly reserved to her of issuing “new bonds in exchange for other bonds, provided the city debt be not thereby increased.”
When, therefore, in 1875, she passed her ordinances Nos. 3130/3140, 3233, adopting and providing for the carrying out of the Premium-Bond" plan, she did that only, which, without express legislative authority, she had a right to do. Those ordinances contained nothing derogatory to the rights of the consolidated bondholders. They merely invited the [742]*742exchange of old bonds for new bonds, and contained nothing minatory to those who did not desire to do so. They certainly did not thereby increase the debt of the city. If the legislative act of 1876 had never-been passed at all, we think the holders of Premium Bonds issued under these ordinances would have been holders, for valuable consideration, of perfectly valid obligations of the city.
Prior to the exchange, the city had the right, and it was her legal, duty, to levy and collect a sufficient tax to pay the interest on ker-bonded debt; and after the exchange, it would have been her legal duty to exercise the same taxation to an extent sufficient to carry out, the contract under which the exchange had been effected.
It was thought, however, desirable to procure express legislative sanction for the plan adopted. Accordingly, the act of 1876-, known as-the Premium-Bond Act, was passed.
It ratified and confirmed the action of the City Council; it authorized and directed the exchange of bonds in accordance therewith ; it made sundry appropriate regulations for the administration of the scheme; it directed and required the levying of a specific tax not exceeding five mills on the dollar for the purpose of paying the principa® and interest maturing annually under the scheme. Thus far it certainly contains nothing obnoxious to censure.
Thus much the Legislature had clearly a right to do — thus much it evidently intended to do; and by the plain terms of the law, it did actually do. But, proceeding further, it embodied in the seventh sectioa of the act a provision prohibiting the levy of any tax whatever to pay-interest on any other bonds except the Premium Bonds, and repealing all laws authorizing or directing the levy of any tax for such purpose^ This provision, and all others in the act of like character, were palpably and baldly unconstitutional. By reason of these provisions, we are asked to declare the whole statute unconstitutional and void.
Nothing is better settled than that the unconstitutionality of part of a statute does not necessarily invalidate the whole. The same statute, and even the same section of a statute, may contain some unconstitutional provisions, and may contain other salutary and useful provisions not obnoxious to any constitutional exception. “ To the extent of the collision and repugnancy,” said Chief Justice Shaw, “the law of the-State must yield ; and to that extent and no further it is rendered, by such repugnancy, inoperative and void.”
Commonwealth vs. Kimball, 24 Pick. 361.
In treating this principle two tests are commonly applied :
First — If, when the unconstitutional portion is stricken out, that, which remains is complete in itself and capable of being executed ha. [743]*743accordance with the legislative intent, wholly independent of that which was rejected, it must be sustained.
Cooley, Const. Lim. 178.
Such is evidently the case here. You may strike out the seventh section entirely, and every other phrase in the act directly or indirectly affecting the rights of bondholders who do not exchange for premiums, and there yet remains a consistent and complete statute for the other legitimate purposes of the act.
Second — Examination must be made to determine whether all the provisions are so dependent on each other, and otherwise so connected together in meaning, that it cannot be presumed the Legislature would have passed the one without the other. We cannot think that such a presumption arises here. It cannot be doubted that, even without the unconstitutional provisions referred to, the scheme embodied in the act was one greatly to the advantage of the city of New Orleans and of the taxpayers thereof. Wo see no reason to suppose that the Legislature would not have passed the act, even had it been fully aware that the obnoxious section could not be enforced.
The application of both these tests, therefore, leaves the constitutional portions of the act entitled to have full force and effect.
The unconstitutional portions are as iE not written. In legal contemplation, they are eliminated and eviscerated from the act; and they are equally eliminated from the contract declared in the fifteenth section of the act. The law and the contract remain perfectly legitimate; confined in their scope and effect to a legislative ratification and authorization of. the Premium-Bond scheme as embodied in the city ordinances, requiring the issuance of Premium Bonds in exchange for all outstanding bonds, the holders of which were willing’ to accept the exchange, imposing upon the city the obligation of levying a tax as provided for the exclusive purpose of carrying out this scheme, and leaving the holders of bonds unwilling to accept the exchange to enforce their legal rights as guaranteed by other laws.
But it is said that the provisions of the seventh section formed pait of the consideration of the contract, and that the elimination thereof destroys so much of the consideration. In whose favor was this consideration, and who is entitled to complain of the failure thereof? Certainly not the city of New Orleans. She had already proposed, and to some extent entered into, her contract prior to the passage of this law and independent of any such provision ; and if she held out this unconstitutional provision, afterward, as an inducement to her ci editors to contract, she cannot be heard to complain if they have been deceived. Surely the bondholders who have not accepted have nothing to complain of in the annulment of this provision, which is annulled solely [744]*744because it invaded their rights. If anybody could complain, it would be the present holders of Premium Bonds, who may have been led into the ■exchange by this false inducement and vain threat, and who now find that they have been deceived and lose the exclusive rights which they might have fancied would be assured to them. But they do not complain. On the contrary, they stand before the Court admitting the nullity of ■these stipulations, and waiving all pretebse of claim to their enforcement.
An extraordinary attempt is made to convert these Premium-Bond ordinances and law into a conspiracy between the -Citj', the State, and, strange to say, the Premium-Bond holders, for the purpose of defrauding, delaying, and hindering other creditors. If there was such a •conspiracy, surely the present holders of Premium Bonds were not parties to it. When it was inaugurated they were holders of other •bonds of the city, and the conspiracy, if such existed, was directed as •much against their rights as against those of any other creditors. If they have gained any advantage by accepting the terms proposed, the ■same advantage has always been and still remains open to any other ■creditor. If, on the contrary, they are victims of the conspiracy, and have lost rights which the other creditors retain, they cannot be j ustly .accused of being authors of a conspiracy against themselves.
The inequitable results of declaring this statute wholly void powerfully reinforce the reluctance with which enlightened courts habitually •assume the duty of annulling the acts of a co-ordinate branch of the .government.
Under the invitation of this statute, holders of more than §13,000,000 -of the bonds of the city have surrendered them in exchange for these Premium Bonds. The city has received them, and has actually canceled them ; so that she is incapable of executing a re-exchange, or replacing the parties in the position in which they were.
The doctrine of estoppel is unquestionably subject to some important restraints and qualifications in its application to public corporations ; but such juridical persons are not emancipated from those great •duties imposed by the law of nature, recognized in every system of morals and religion, and consecrated in universal jurisprudence, among which those most elementary are the injunctions, honeste vivere, suum cuique tribuere,. and that no one shall be permitted to enrich himself at the expense of his neighbor. Whatever vice or turpitude, if any, may exist in this law, lies exclusively at the door of the State and City, and .it is manifest that the Premium-Bond holders are in no manner responsible for it. The objectionable provisions of the law originated independently of the will of these bondholders, and their submission to the .terms dictated did not, in any degree, tend to give greater force and -.efficacy to the obnoxious portions of the law than they would have had, [745]*745if they had refused to submit. The turpitude alleged by the city, if there be any, is exclusively that of the city and State, and not in any degree of these bondholders, who do not claim these provisions as part of tlieir contract, and do not ask their enforcement. They simply ask that the city shall perform those stipulations of her contract with them which are clearly just and lawful, and in consideration of which they have surrendered to her, and she has actually canceled, $13,000,000 of her bonds. It is impossible to conceive of any technical doctrine-under which the city, having received and canceled these bonds, in execution pf this contract, can be listened to in asking a court of justice to relieve her from performing her correlative obligations, while she retains, does not restore, and does not offer to restore, the immensely valuable consideration which she has received.
The contrary argument and authorities of the ingenious special counsel of the city find complete answer in the fact that the alleged illegalities and violations of prohibitory laws contained in the Premium-Bond Act do not originate in, and are not" the subjects of, the contract sought to be enforced. They originated and existed before and entirely independent of the contract with these bondholders. The latter took no part in procuring their passage. They did not derive the least additional force or sanction from the subsequent submission of these, bondholders to the exchange proposed. The bondholders are, therefore, entirely innocent of any participation in, or responsibility for, the ■ obnoxious provisions of this statute; and it is only as between partners-in guilt that one can be allowed to set up his own turpitude against the ■ other. Against an innocent party, the maxim holds, nemo suam tur--pituclinem aU'egans audiendus est. And it is equally true that against such innocent party the other party, even to an illegal contract, cannot invoke its nullity as a- defense against his obligation, without restoring,, or offering to restore, the consideration which he has received. Such, an estoppel was enforced by the Supreme Court of the United States..
Pendleton Co. vs. Amy, 13 Wall. 297.
Having reached the conclusion that the contract was valid, we do-not find it necessary to discuss further the doctrine of estoppel.
There are, however, other conclusive considerations which disable-the city of New Orleans from maintaining this defense of unconstitu--tionality:
1. A law unconstitutional, because it impairs the obligation of contracts, is , only null so far as the rights of those persons are concerned, the obligations of whose contracts are thereby impaired. As to alt other rights and all other persons, it is entitled to full force and effect.
Mandry vs. Monroe, 1 Mich. 68. Cargill vs. Power, 1 Mich. 369t Baker vs. Braman, 6 Hill, 47.
[746]*7462. There are cases in which a law, though unconstitutional, must be sustained, because the party who makes objection has, by prior action, precluded himself from being heard against it.
Baker vs. Braman, 6 Hill, 47.
Embury vs. Conner, 3 N. Y. 511.
People vs. Murray, 5 Hill, 468.
3. Only a person having a right and interest to invoke the unconstitutionality of a law, as affecting himself, his property, and his rights, can present such a defense.
Wellington Petr. 16 Pick. 96. ,
The complaint of the city of New Orleans here is, not that the provisions complained of in this statute invade or destroy any of her rights, but that they seek to relieve her from some of her obligations.
The pretense of the city that she represents the interest of the taxpayers, who are her corporators, in this defense, is not reasonable.
We cannot possibly understand how it can be the interest of the taxpayers to destroy the settlement, actually made under this act., of more than two thirds of her bonded debt, the effect of which is greatly to extend the term of payment, to make an enormous reduction in the rate of interest, and to reduce the rate of taxation required to meet the same by nearly one half.
If it be supposed that the annulling of the Premium Bonds could possibly be effected without reviving the bonds for which they were taken in exchange, or at least the obligations thereof, it is a gross delusion, repugnant to every idea of law or justice.
If it be supposed that advantage would be gained by letting in defenses to these former bonds on the grounds of fraudulent consideration and irregularities in their issue, it is apparent that these defenses could and would be submitted to the determination of the Federal tribunals, and no student of Federal jurisprudence can evade the conclusion that such defenses would not receive the slightest consideration.
No principle is better settled than that bonds issued by municipal corporations, in pursuance of legislative authority, and negotiable in form, have the qualities and incidents of negotiability; that the only defense thereto is the want of poiver to issue them; and that, in the hands of bona fide holders, they are not subject to equities as to consideration or otherwise.
See numerous cases cited in Dillon on Munic. Corp. 405, 415, 416; Dillon on Mun. Bonds, gs 5 and 7; Daniell on Negó. Instr. g 1500.
The effect, therefore, would be to plunge the city into profitless litigation, and to transfer the administration of the power of municipal taxation from the city government to the Federal courts. Instead of having the burden of taxation lightened by distribution in every year, [747]*747it would accumulate in volume as the years were consumed in litigation, sand would then fall upon property with crushing and destructive weight.
The unconstitutional portions of the Premium-Bond Act invade no ■rights of the city of New Orleans. They attempt to invade the rights' •of her creditors, and to relieve her from the performance of corresponding- duties. This does not give her the right to complain.
Y.
It is contended that article 209 of the Constitution of 1879 and Act 'No. 78 of 1880 absolutely confine the power of municipal taxation within the limit of ten mills on the dollar, and that even the rights of preexisting contract creditors must find their satisfaction within that limit.
We have, heretofore, in the recent case of Folsom Bros. vs. City, had •occasion to consider the effect of this article of the Constitution ; and we now repeat that the article must have a rigid enforcement with regard to all creditors whose rights are not protected by the Constitution -of the United States, and with regard to all future operations of the •city government of every kind whatever. But it is perfectly clear that "the rights of antecedent contract creditors are protected by the Constitution of the United States, and they are entitled to have them enforced "“in all respects as if” this provision of the Constitution “had not been passed.”
Yon HoffMan vs. City, 4 Wall. 535.
The fact that the act of the State is a constitutional provision in.stead of a mere legislative act does not affect the case.
R. R. Co. vs. McClure, 10 Wall. 515.
It is apparent, therefore, that whatever percentage of taxation may be required to meet the maturing obligations in interest or principal of antecedent contract creditors, must, in any and all events, be levied.
It is apparent on the face of this record that, but for the adoption -of the Premium-Bond plan, the interest on the existing bonded debt of ■the city would alone have required an annual tax of more than ten mills; ■and if the result of success in the city’s present defense should be to ■are-instate the surrendered bonds, the same rate of taxation would be •again immediately required. Even if*the Premium-Bond plan be maintained, this reeord shows that mandamuses from the Federal Court are in course of actual execution requiring a special tax of more than two mills. We cannot ignore the fact that numerous similar mandamus ■proceedings are ripening in the courts ; and that the case of the consoli.-dated-bond holders now pending in the United States Supreme Court, if ■decided in their favor, would immediately necessitate a tax far exceeding ten mills. If, therefore, it shall be assumed to have been the inten--Aion of the Constitution that the city should have nothing for its support [748]*748and administration except what may remain after discharging its annual contract obligations, the-contingency is quite possible, if not imminent,, that absolutely nothing may be left for that purpose, and, even then, it may be compelled to exceed the limitation. Such a construction is too absurd for serious consideration.
As was said by the Supreme Court of the United States with regard' to our own city : “In a city, even of small extent, the authorities have to provide for the preservation of peace, good order, and health, and the execution of such measures as conduce to the general good of its-citizens, such as the' opening and repairing of streets, the construction of sidewalks, sewers, and drains, the introduction of water, and the establishment of a fire and police department. In a city like New Orleans, situated on a navigable stream, their powers are usually enlarged so as to embrace the building of wharves and docks or levees for the benefit of commerce. The number and variety of works which may be authorized, having a general regard to the welfare of a city and of its people, are mere matters of legislative discretion. All of them require for their execution considerable expenditures of money. Their authorization, without providing the means for such expenditures, would be an idle and' futile proceeding. Their authorization, therefore, implies and-carries with it the power to adopt the ordinary means employed by such, bodies to raise funds for their execution, unless such funds are otherwise provided. The ordinary means in such cases is taxation. A municipality without the power of taxation would be a body without life,, incapable of acting, and serving no useful purpose.”
United States ex rel. Ranger vs. New Orleans.
All the powers referred to in the foregoing are conferred, in large measure, upon the city of New Orleans by its charter. ¥e are bound to assume that the power of taxation conferred was intended to be employed to the extent necessary in executing those powers; that it is the first duty of the corporation, essential to its very existence, to provide, out of its revenues, for the necessary expenses of its government; that only the excess above these necessary expenses can possibly be devoted to the payment of its anterior debts; and that if this excess is. not sufficient to discharge the just demands of antecedent contract creditors, the latter, as against whose rights posterior legislative and even constitutional limitations are without effect, have the right to require, and it is the duty of the city to enforce, additional taxation to a sufficient amount.
In this case it is asserted by the city, and is admitted by the relators,, that the whole of the ten-mills tax authorized by the Constitution is required for the necessary expenses of administering the government, and has actually been appropriated to those purposes. If the amount [749]*749required for the necessary expenses of the city government were a question submitted to judicial cognizance and determination, we should be disposed, in the interest of the taxpayers, to disregard this admission, and to remand the cause for further and complete evidence to satisfy us-of the fact. But it is manifest that this is a legislative, and not a judicial, function. We are not vested with power to frame a budget for the city of New Orleans ; to assume the administration of its affairs; to constitute ourselves, in effect, the Mayor and Administrators of the city of New Orleans, for the purpose of determining what are, and what are not, proper or desirable municipal functions to be performed, and what-are, or are not, reasonable allowances for the performance thereof. These matters are confided by the law to the discretion and control of the corpoi’ate authorities. They have actually framed their estimate and budget of revenues and expenditures, and have appropriated the whole of the ten-mills tax to administrative purposes. If these are excessive or extravagant, the remedy lies not with the Judiciary, but with the Legislature. The Legislature has the perfect right to limit the administrative expenditures of the city. That is a subject within the absolute control of legislative power. It has not done so, except within the limit of the ten-mills tax. Holding, first, that the necessary expenses of the city'must first be paid out of the proceeds of that tax; and, second, that the determination of what are necessary expenses is not a judicial function, but a function of the municipal government, we find ourselves-unable to give relief against any excessive appropriations, within ten. mills, made for that purpose.
Holding that relators and the other holders of Premium Bonds are-entitled by virtue of their valid contract with the city to a special tax of five mills, and the city having exercised its legislative function by levying- the tax and making the appropriation at the proper time and in the proper manner, the rights of these bondholders are vested and complete, and they are entitled to invoke, as they have done, the remedies of mandamus and injunction, to compel the city officers to proceed in the performance of their ministerial duties in collecting and applying the tax as required by law, and to abstain from action inconsistent, therewith.
We wish it distinctly understood that the injunctions and mandamus herein are not to be interpreted as interfering with the power of the city to remodel her budget and tax-ordinances, to reduce her estimate of necessary expenses and the rate of taxation required to meet the same, provided, only7, she maintain the appropriation for the Premium Bonds and the special tax of five mills required by the Premium-Bond Act. The mandamus only requires the defendants to include in every tax-bill one half of one per cent, to be applied to Premium [750]*750Bonds as required by the law; and to collect the same, and to carry the same to the Premium-Bond account.
The injunctions are confined to apprehended acts of the city in conflict with those duties. In other respects they do not interfere with the power and discretion of the city functionaries.
We have already evinced our determination to enforce the limitation of article 209 of the Constitution as to all rights not protected by the Constitution of the United States. The over-burdened taxpayers may rely upon it as a secure shield against the imposition of excessive taxation for any future indebtedness of the corporation, and, within its limit, against future extravagance of administration. If they can justly claim that the power of the city in fixing the expenses of administration may and should be reduced within further limits, they may look for such restraint to the only power capable of imposing it, the Legislature of the State.
Inexorable necessity, entirely beyond our control, requires them to bear, with patience, the burdens of antecedent contract obligations, relics of evil days, legacies in great part of extravagance and fraud, but now shaped into such forms of contract as to preclude investigation of their origin and consideration, and so protected by the paramount law of the land that neither State Constitutions, State Legislatures, nor State Courts can give relief against them ; and all attempts to do so can end in nothing but failure and additional disaster.
It is therefore ordered, adjudged, and decreed that the judgment herein appealed from be affirmed, at costs of appellants, in both courts.