The opinion of the Court was delivered by
Poché, J.
This case involves the constitutionality and legality of a special tax of twenty mills, levied by the Police Jury of Concordia, on the 25th of September, 1880, for the purpose of building a levee on the west and south sides of Lake Concordia in that parish.
■ Plaintiff complains that the levy of this tax violates the Constitution, limiting the power of municipal taxation for all purposes to ten mills on the dollar; that the Police Jury is inhibited by the Constitution from levying a special tax for the purpose of building, repairing or maintaining public levees, and that the action of the Police Jury, in submitting [837]*837the project of levying a tax for .said purpose, was not warranted by any law authorizing such an election or providing the manner of conducting the same, in cases where such special taxes are authorized by the Constitution, and he proceeded by injunction to restrain the enforcement of this special tax on taxable property which he owns in the parish of Concordia.
For answer, defendant urges the necessity of the work for which the tax was levied, the inability of the State for want of funds to build the required levee, and alleges that the election, and all other proceedings in the levy of the tax, were carried on in strict conformity with the Constitution and laws of the State.
Plaintiff has taken th e present appeal from the j udgment of the lower court, dissolving his injunction with damages, and recognizing the constitutionality and legality of the special tax.
From a statement, agreed upon by the parties, we gather the following salient facts, which bear upon the issues presented by the pleadings:
First — That in addition to the tax in controversy, the following taxes have been collected in the parish of Concordia for the year 1880, and paid by plaintiff:
1st. The general State tax of ten mills.
2d. The district levee tax of five mills.
3d. The general parish tax of ten mills.
4th. A special parish judgment tax of ten mills.
Second — That the construction of the “ Lake Concordia Levee ” had become necessary to protect the parish from overflow by reason of the caving in of the old levee; and that the building of the work and the levy of a twenty mill special tax had been recommended to the Police Jury by a mass meeting held on the 16th of August, J880, and numerously attended by taxpaying citizens of the parish, and that an election held for the purpose of authorizing the levy of such special tax had resulted in 634 votes for, and 174 votes against the ordinance; that said election was not predicated on a petition signed by one-third of the taxpayers of the parish, and that no such petition was published with the ordinance imposing such tax; and that the result of said election was promulgated by means of a subsequent ordinance of the Police Jury, who had not in the first ordinance provided for the means of returning of such election, or of showing that the ordinance had been carried by a majority in value as well as in number of taxpayers. It was finally admitted that the projected levee had been located by the State Engineers, constitutes a part of the public levee system, but that the State authorities declared ■that they were without funds to build such levee.
Defendant relies as authority in justification of the course of the Police Jury in this case, on the various acts of the Legislature, dated as far back as 1829, conferring to police juries full power, management and [838]*838control in the making and repairing of public levees. And he urges that the exercise of this power, in manner and form as was done in this case, is fully sanctioned by Art. 209 of our Constitution, which reads as follows:
Art. 209 — “ The State tax on property for all purposes whatever, including expenses of government, schools, levees and interest, shall not exceed in any one year six mills on the dollar of assessed valuation; * * * and no parish or municipal tax for all purposes whatsoever, shall exceed ten mills on the dollar of valuation ; provided, that for the-purpose of erecting and constructing public buildings, bridges and works-of public improvement in parishes and municipalities, the rate of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the property taxpayers of such parish or municipality entitled to vote under the election laws of the State, and a majority of same voting at such election shall have voted therefor.”
And he contends that this article being self-operative, no legislation was needed to put it in operation.
Previous to the legislation contained in Act No. 20 of 1866, and Act No. 115 of 1867, the police juries in this State were vested with all powers touching public levees. But from that time to the date of the adoption of the Constitution of 1879, this power was absolutely withdrawn from them, and was never restored to them, with the exception of the power to repair and protect completed levees. No greater powers on the subject are conferred by Act 88 of 1880, which contains the last legislation on public levees. The object of this act, as expressed in its title, and shown in its text, was to invest the police juries of the several parishes with the-management and control of all completed public levees in this State, and' to regulate the manner in which the same may be cut for rice flumes or other purposes.
The great changes which were wrought on the condition of the country by the civil war, imperiously required the repeal of the legislation, under which the control of public levees had been lodged in the police juries, and the burden of building and maintaining the same had been imposed on the riparian owners on the Mississippi River, and other streams subject to overflows.
The legislation creating the Louisiana Levee Company and the various Boards of State Engineers, to whom were successively confided the control and management of these important public works, and by whom immense'amounts of the State revenues were lavishly spent in the construction of levees, is a salient feature in the recent history of this State, and leaves no room to doubt the legislative intention on this subject.
Act No. 33 of 1879, which regulated the system at the time of the adoption of the Constitution, placed the control of levees in the hands of [839]*839a Board oí Engineers, wb o had the power to locate and survey the works; of district commissioners, who levied the tax; and of the Governor, who had the power to let out the work. Under that law, police juries had no power to build levees, but were entrusted with the care and preservation of completed levees.
Eor the same reasons that policy was adopted by the framers of the. Constitution, who are known, as a matter of history, to have handled this subject with great caution and with great misgivings, in view of the extravagance which had previously characterized the administration of the system, and of the conflicting interests growing out of the differences between the highland and the alluvial portions of the State.
By Art. 213 they required the establishment of a levee system in the State, and authorized a levy of an annual tax of one mill on all taxable property, to be applied exclusively to the maintenance and repairs of levees.
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The opinion of the Court was delivered by
Poché, J.
This case involves the constitutionality and legality of a special tax of twenty mills, levied by the Police Jury of Concordia, on the 25th of September, 1880, for the purpose of building a levee on the west and south sides of Lake Concordia in that parish.
■ Plaintiff complains that the levy of this tax violates the Constitution, limiting the power of municipal taxation for all purposes to ten mills on the dollar; that the Police Jury is inhibited by the Constitution from levying a special tax for the purpose of building, repairing or maintaining public levees, and that the action of the Police Jury, in submitting [837]*837the project of levying a tax for .said purpose, was not warranted by any law authorizing such an election or providing the manner of conducting the same, in cases where such special taxes are authorized by the Constitution, and he proceeded by injunction to restrain the enforcement of this special tax on taxable property which he owns in the parish of Concordia.
For answer, defendant urges the necessity of the work for which the tax was levied, the inability of the State for want of funds to build the required levee, and alleges that the election, and all other proceedings in the levy of the tax, were carried on in strict conformity with the Constitution and laws of the State.
Plaintiff has taken th e present appeal from the j udgment of the lower court, dissolving his injunction with damages, and recognizing the constitutionality and legality of the special tax.
From a statement, agreed upon by the parties, we gather the following salient facts, which bear upon the issues presented by the pleadings:
First — That in addition to the tax in controversy, the following taxes have been collected in the parish of Concordia for the year 1880, and paid by plaintiff:
1st. The general State tax of ten mills.
2d. The district levee tax of five mills.
3d. The general parish tax of ten mills.
4th. A special parish judgment tax of ten mills.
Second — That the construction of the “ Lake Concordia Levee ” had become necessary to protect the parish from overflow by reason of the caving in of the old levee; and that the building of the work and the levy of a twenty mill special tax had been recommended to the Police Jury by a mass meeting held on the 16th of August, J880, and numerously attended by taxpaying citizens of the parish, and that an election held for the purpose of authorizing the levy of such special tax had resulted in 634 votes for, and 174 votes against the ordinance; that said election was not predicated on a petition signed by one-third of the taxpayers of the parish, and that no such petition was published with the ordinance imposing such tax; and that the result of said election was promulgated by means of a subsequent ordinance of the Police Jury, who had not in the first ordinance provided for the means of returning of such election, or of showing that the ordinance had been carried by a majority in value as well as in number of taxpayers. It was finally admitted that the projected levee had been located by the State Engineers, constitutes a part of the public levee system, but that the State authorities declared ■that they were without funds to build such levee.
Defendant relies as authority in justification of the course of the Police Jury in this case, on the various acts of the Legislature, dated as far back as 1829, conferring to police juries full power, management and [838]*838control in the making and repairing of public levees. And he urges that the exercise of this power, in manner and form as was done in this case, is fully sanctioned by Art. 209 of our Constitution, which reads as follows:
Art. 209 — “ The State tax on property for all purposes whatever, including expenses of government, schools, levees and interest, shall not exceed in any one year six mills on the dollar of assessed valuation; * * * and no parish or municipal tax for all purposes whatsoever, shall exceed ten mills on the dollar of valuation ; provided, that for the-purpose of erecting and constructing public buildings, bridges and works-of public improvement in parishes and municipalities, the rate of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the property taxpayers of such parish or municipality entitled to vote under the election laws of the State, and a majority of same voting at such election shall have voted therefor.”
And he contends that this article being self-operative, no legislation was needed to put it in operation.
Previous to the legislation contained in Act No. 20 of 1866, and Act No. 115 of 1867, the police juries in this State were vested with all powers touching public levees. But from that time to the date of the adoption of the Constitution of 1879, this power was absolutely withdrawn from them, and was never restored to them, with the exception of the power to repair and protect completed levees. No greater powers on the subject are conferred by Act 88 of 1880, which contains the last legislation on public levees. The object of this act, as expressed in its title, and shown in its text, was to invest the police juries of the several parishes with the-management and control of all completed public levees in this State, and' to regulate the manner in which the same may be cut for rice flumes or other purposes.
The great changes which were wrought on the condition of the country by the civil war, imperiously required the repeal of the legislation, under which the control of public levees had been lodged in the police juries, and the burden of building and maintaining the same had been imposed on the riparian owners on the Mississippi River, and other streams subject to overflows.
The legislation creating the Louisiana Levee Company and the various Boards of State Engineers, to whom were successively confided the control and management of these important public works, and by whom immense'amounts of the State revenues were lavishly spent in the construction of levees, is a salient feature in the recent history of this State, and leaves no room to doubt the legislative intention on this subject.
Act No. 33 of 1879, which regulated the system at the time of the adoption of the Constitution, placed the control of levees in the hands of [839]*839a Board oí Engineers, wb o had the power to locate and survey the works; of district commissioners, who levied the tax; and of the Governor, who had the power to let out the work. Under that law, police juries had no power to build levees, but were entrusted with the care and preservation of completed levees.
Eor the same reasons that policy was adopted by the framers of the. Constitution, who are known, as a matter of history, to have handled this subject with great caution and with great misgivings, in view of the extravagance which had previously characterized the administration of the system, and of the conflicting interests growing out of the differences between the highland and the alluvial portions of the State.
By Art. 213 they required the establishment of a levee system in the State, and authorized a levy of an annual tax of one mill on all taxable property, to be applied exclusively to the maintenance and repairs of levees.
Art. 214 provides for the division of the State into levee districts, and for the appointment or election of levee commissioners in each district, who shall have supervision of the erection and repairs and maintenance of the levees'in said districts, with authority to levy a tax not to exceed five mills on the taxable property situated within the alluvial portions of said district subject to overflow.
It requires no reasoning or authority to satisfy the legal mind that any legislation which would have attempted to confer to police juries the power to build public levees, and to levy special taxes for the costs of building levees, would be glaringly unconstitutional, and.could not be enforced by the courts, unless the authority be found in Art. 209 or Art. 242, on which point we express no opinion now.
Construing these two articles in connection with article 215, limiting the duration of this system to the time when the Federal government would, as was then expected, assume permanent control of the levees in this State, plaintiff’s counsel argue that no other taxes, but those provided • in these two articles, could be imposed by the State or by the parishes for levee purposes. But the view which we take of this case does not require solution of this important question.
It is admitted by the defendant, both in the pleadings and in the statement of facts, that the “ Lake Concordia Levee ” form part of the public levee system created under the power granted to the General Assembly by the Constitution, and that the levee was located by the State Engineers. It cannot, therefore, be denied that the duty and power of building the levee were vested exclusively in the State authorities, who are shown, however, to have had no funds for the purpose. Hence, the Police Jury, in view of the imminent danger, and in order to avert a great public calamity, resolved to assume the duty of building the re[840]*840quired levee, and to provide by levying this tax, for the means necessary thereto. In other words, the Police Jury levied this special tax in aid of a public improvement, originating with the State authorities, ordered and located by the State authorities, and required under the Constitution and the laws thereunder to be erected and maintained by the State authorities.
It, therefore, follows, as urged by plaintiff, that the only possible authority which can be invoked in support of the Police Jury’s course in the premises must flow from the provisions of Art. 242 of the Constitution, which reads as follows:
Art. 242 — “ The General Assembly shall have power to enact general laws authorizing the parochial or municipal authorities of the State, under certain circumstances, by a vote of the majority of the property taxpayers in number and value, to levy special taxes in aid of public improvements or railway enterprises, provided that such tax shall not exceed tfie rate of five mills per annum, nor extend for a longer period than ten years.”
Now, as the project of levying this special tax is shown to have been submitted to the vote of the majority of the taxpaying electors of the parish, and not to the majority of taxpayers in number and value, as imperatively required by that article, and as the election ordered for this purpose was not held in pursuance of Act No. 84 of 1880, which is conceded to be the enabling act of said article of the Constitution, defendant cannot invoke the authority of that article, and in fact repudiates any sanction from that source.
Hence, he relies exclusively on the powers derived from article 209, quoted in the first part of this opinion, and contends that it is self-acting.
It is not only admitted, but argued by defendant that, as yet, no legislation has been enacted which can be construed as an enabling act to Art. 209. Although in some of its provisions Act 84 of 1880 apparently refers to that article, its title indicates no such object, but in plain language, it refers exclusively to Art. 242. If the act intended to refer to' Art. 209, it does not comply with the constitutional requisite, regulating the expression of the object of every act in its title, and such reference mpst in consequence be considered as unwritten. We, therefore, conclude that Art. 209, in so far as its proviso is concerned, has yet received no legislative interpretation, and stands without an enabling act.
In order to understand the intention of the Convention in framing this article, it must be construed in connection with Art. 202, which is the declaration of the fundamental policy of the whole instrument on the subject of taxation, and which is in the following words:
“ The taxing power may be exercised by the General Assembly for State purposes, and by the parishes and municipal corporations, under [841]*841authority granted to them by the General Assembly, for parish and municipal purposes.”
Under this article, we conclude that the Constitution vests the taxing power primarily and directly in the General Assembly, and that the taxing power, one of the highest attributes of sovereignty, can only reach the subordinate agents of the State, such as parishes and municipal corporations, through the channel and under the regulations of the Legislative department.
No words or language used in Art. 209 justifies the slightest suspicion that the Convention intended to depart from the sound general principle incorporated in Art. 202.
The article does not purport to be a grant of taxing power to either the State or municipal authorities, which grant is to be found in article 202, but it is, what it purports to be, a restriction of the taxing power in the General Assembly and in its grant of the taxing power to parishes and municipal corporations. And the exceptions contained in the proviso under which the limit of parish and municipal taxation can be increased in certain specified cases, must remain dormant and ineffective until rectified by legislative breath.
The conclusion that, if the powers therein conferred can be invoked as authority for the levy by the parish authorities of a special tax for the construction or building of a levee, as in the present instance, the power must be sanctioned by legislative action only, cannot be controverted.
It, therefore, follows that article 209 is not self-acting, and that the powers contemplated in its proviso having yet received no legislative sanction, cannot be exercised by the parish authorities, to whom they were not directly or primarily conferred.
We, therefore, conclude that the Police Jury, one of the subordinate agents of the State, had no legal mandate to proceed in the premises, and that its action and all the proceedings in its attempt to levy this tax, were without legal authority, clearly unconstitutional and, therefore, null and void.
It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the ordinance of the Police Jury of Concordia parish, levying a special tax of twenty mills for the construction of the Lake Concordia Levee, be declared unconstitutional, illegal, null and void, and that the defendant, as tax collector, be perpetually enjoined from collecting said tax, and that he be condemned to pay the costs of both courts.