Southworth v. City of New Orleans

Wyly, J:, dissmtmg. The plaintiff seeks under the statute of the ninth March, 1870, to compel the city of New Orleans to pay his cost bills for recording the abstracts of the inventory of the property of minors, required to be recorded prior to the first of January, 1870, by ■act of the eighth of March, 1869. I think the law of the ninth of March, 1870, is unconstitutional, in so far as it compels the parishes to pay the cost bills already due by the minors, for whose benefit the abstracts were recorded prior to the first of January, 1870. At the time the statute in question wa3 passed, the debts for recording were already due ; they were the debts of private individuals; and debts which New Orleans had not contracted, and which in no wise enured to her benefit or advantage. To compel the city to pay such debts, would be practically tbe taking of private property for private purposes. New Orleans is a judicial person, and its property is protected by tbe constitution like that of any other individual. The State can not take private property for itself without indemnifying the owner thereof; it is not permitted to take it at all for .private purposes. It cannot take the property of A to give to B. Why, because the disposition of property belongs to tbe owner. And the State must become the owner before it can exercise the right of disposition, which is the main element of perfect ownership. And how is the State to get .the ownership of private property ? Alone by expropriating it for some public purpose, and in paying the owner its value. If New Orleans be compelled under the statute of 1870 to pay the debts already due the plaintiff by certain private persons for services inuring alone to their benefit, it will be divested of the ownership of its money, which is its private property, without its consent and without any consideration whatever. It will simply be despoiled of its property for the benefit of private individuals. If the city can thus be held to pay the debts of the individuals named *315 in the act, why can it not he compelled to pay the debts of every other individual ? And if it can be compelled by the Legislature to pay the debts of everybody, its private property is no longer the pledge of its individual creditors; it becomes the pledge of the creditors of everybody. In effect its property ceases to be private property; the ownership virtually passes to the Legislature, because the latter can freely exercise the right of disposition over it. And the city can scarcely be considered the owner of the money in its treasury if the Legislature can freely exercise the right of disposition over it. To take money from the treasury of New Orleans to give to the plaintiff because certain persons happen to owe him, is virtually an expropriation of thp property of the city for the benefit of a private individual. The principle involved in this case is one of great importance. On the solution thereof hangs the fate of the city so far as the right to possess property is concerned. If the Legislature can take money ad libitum, from the treasury of the city, it can take any other property it may see fit and bestow it on whom it may seem proper. The city will thus cease to be the owner of property, because the ■ownership is reposed in the person solely invested with the right of disposition. In my dissenting opinion in the case of the State ex rel. Hernandez vs. the City of New Orleans, lately delivered, I had occasion to express my views very fully on this subject, to wit: The right of the Legislature to compel New Orleans to pay a debt never contracted by her, and which in no wise inured to her benefit or advantage. I will not repeat the argument, nor cite the authorities upon which it was based, but will simply refer to it in support of the position I take in this case. For the reasons given, I feel bound to dissent from the opinion of the majority of the court. See Cooley on Constitutional Limitations, page 230; 10 Allen, 585; 13 TFis. 37 - 37 Barb. 440 . IIowell, I*, con curs.