
    Egerton v. The Third Municipality of New Orleans.
    Taxes due to a municipal corporation cannot bo seized under execution by a creditor of the corporation. Such a right would involve the power to destroy the corporation itself, and be repugnant to the letter and spirit of the constitution, authorizing the creation of such corporations for the preservation of public order.
    Where positive enactments of the Civil Code are at variance with the definitions which it contains, the latter must be considered as modified by the clear intent of the former.
    Article 637 of the Code of Practice, which authorizes the seizure under execution of " all sums of money which may be due to the debtor in whatsoever right,” must be understood as referring exclusively to that class of rights defined and protected by the constitution as the rights of property. Taxes imposed for the protection of those rights, form no part of them.
    APPEAL from the Third District Court of New Orleans, Kennedy, J'.
    
      Mott, for the appellant.
    A municipal corporation is a private corporation. Civil Code, arts. 421, 422. Judgment against a State may be executed by seizing taxes due to it. Const. U. S. art. 3, sec. 2. Bank of U. S. v. Hal-stead, 1 Wheaton, 50, 51, 66. The right to seize the taxes cannot defeat the object contemplated by the constitution in creating the corporation; the seizure of taxes cannot destroy the corporation — it can only create a necessity for additional taxation. Whenever a judgment orders the payment of a sum of money, the property, real and personal, and rights and credits of the debtor may be seized and sold to satisfy the same (Code of Pract. arts. 641, 642); and a third person may be cited to answer under oath what sum he owes the defendant, and be compelled to pay over the amount in satisfaction of the execution. •Statute 20th March, 1839.
    
      Barthe, Buisson and Carter, on the same side.
    
      Grailhe, for the defendants.
    The Third Municipality of. New Orleans is a political corporation. Civil Code, art. 420. The taxes imposed by the Municipality are public imposts. The essential characteristics of a public impost are: 1st. Its being imposed by public authority. 2d. Its having for its exclusive object, the security and protection of the property and social rights of the community. “Les revenus de Vétat sont une portion que chaqué citoyen dome de son bien pour avoir la sureté de Vautre, on pour en jouir agréablement. Montesquieu, Espr. des Lois, b. 13, ch. 1. The municipal taxes cannot be seized under execution — they are inviolable. The product of such taxes is not susceptible of private ownership, having been consecrated .in advance to public uses. The legislature, in creating the Municipality, intended to secure to it the essential conditions of its existence. The power of taxation is the most essential of these conditions. The product of the taxes is the principle of life, indispensable to the existence of the municipal administration. The sovereign alone has authority to dissolve a political corporation. The revenues of the three Municipalities of New Orleans, are the pledge of the creditor’s of the former city corporation, and cannot, for this reason, be seized. Statute of 1836. Articles 642, 647 of the Code of Practice authorize only the seizure of civil rights — not rights of sovereignty. The provision of art. 647 authorizing the seizure of “ all sums of money which may be due to the debtor, in whatsoever right,” must be understood as confined to sums due in virtue of a civil contract, or in consequence of some fact giving rise to a civil obligation. The tax-payer is not the debtor of the Municipality, for he receives an equivalent for the tax Protection &c. afforded to him by the municipal government;' nor is the Municipality a creditor, since it receives the amount only to expend for the pub-jjc |jene(}(:) anij not £0 appropriate for its own use. The municipal authorities are but administrators of the public funds. The relation existing between the corporation and the tax-payer not being that of creditor and debtor, the sum representing the lax is not one subjected to seizure by art. 647 of the Code of Practice ; nor does the 13th sect, of the act of 1839 authorize its seizure. See the case of Claiborne v. Police Jury, 7 Martin, 4.
   The judgment of the court was pronounced by

Rost. J.

The plaintiff, who is a judgment creditor of Municipality No. 3, availing himself of the provisions of the act of 1839, made many of the taxpayers of the Municipality garnishees under his execution, and propounded interrogatories to them to ascertain the extent of their indebtedness for city taxes. The defendants obtained an injunction, on the ground that taxes are not liable to seizure under execution. The plaintiff joined issue on that allegation, and judgment having been rendered against Mm in the court below, he appealed.

We concur with the plaintiff’s counsel that, the issue in this case is exclusively a question of law. We dismiss, therefore, from our consideration all questions of expediency, which it may be supposed to present.

In the case of M’Culloch v. The State of Maryland, Judge Marshall, said : “ A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal Code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that, only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” From the peculiar relation of the government of the United States towards the State government, much diversity of opinion may exist with regard to the application of those principles in the construction of the constitution of the United States ; but there can be no difference of opinion on the subject in question, involving the consideration of the constitution and government of a State, where no question is involved of positive or implied constitutional inhibition. The light thrown upon the theory of government by the opinion of the court in that case, will guide us in this inquhy.

Constitutions are but the frame of social organization; they define the objects of government, and establish the great powers which the people intend to be permanent; but the establishment of the subordinate powers, which it is expedient to alter, modify or change, according to the varying necessities of each epoch, as well as the best means of carrying into effect, at different times, many of the permanent powers established, are left to the wisdom and discretion of the legislative department. The institution which provides for the police of neighborhoods, for facilities of transportation and of travel, and for the local government of towns, are instances of the exercise of one class of those subsidiary powers by the legislature. The paternal power, the marital power, the power of the master over the apprentice or the slave, may be viewed as instances of another class. These institutions and many others are essential to the preservation of the rights of life, liberty and property, for which constitutions purport to be established; and the legislative enactments by which they are created and brought into action, constitute a part of those laws for the preservation of public order, from the force and obligation of which individuals cannot derogate f , . . „ _ , 8 „ „ B by their conventions. Civil Code, art. 11. The institution of town corporations for government purposes, is as ancient as civilization itself. “ De quelque maniere qu’un état ait eu son origine et qu’on ait commence de b&tir des villes,” says Domat, “ ceux qui s’y sont assembles n’ont pu le faire, qu’en s’unissant par une police réglát toutes les commodités publiques.” Domat, L. C. p. 106.

But it is a remarkable fact, and one that belongs to the cause, that the people of Louisiana, in convention assembled, have twice considered the local government of this great metropolis as too important to be placed among those subordinate institutions, and have recognized the city of New Orleans, in its corporate capacity, as entitled to peculiar political powers and privileges. The right of the citizens of the city of New Orleans to appoint the several public officers necessary for the administration of the police of the said city, pursuant to the mode of election which shall he prescribed by the legislature, and the right of the officers thus appointed to be commissioned as justices of the peace, and to exercise such criminal jurisdiction for the punishment of minor crimes and offen-ces as the legislature may vest in them, are secured and rendered permanent by art. 128 of the State constitution. Those political franchises stand upon the same ground as any other constitutional power, and the city of New Orleans and its officers are, for purposes of police and good order and for the punishment of minor crimes and offences, permanent functionaries of government.

The counsel for the plaintiff derides the idea that the defendants are invested with sovereign powers. Names cannot alter things. Under our form of polity, no department of the government exercises the powers of sovereignty in its own right. The constitutional powers of the State are all trusts. The powers of the legislature, of this court, and of the city of New Orleans, differ in degree and object, but they all derive their binding force from the suprome law of the State. The only difference in relation to them is, that , the legislature cannot change or modify the organization of the Supreme Court, or its own, and that it may change or modify the charter of the city, the provision in the constitution going no farther than to recognize as permanent: 1st. Its corporate organization : 2d. The right of the citizens thereof to elect the officers of the corporation : 3d. The right of those officers to be commissioned as justices of the peace, and to exercise the criminal jurisdiction already adverted to. It has been argued that the defendants are not a civil or political corporation, under the definition given by the Civil Code. We have already shown that the constitution vests them with that character. The definition relied on from the English side of one of the articles of the Code, proves nothing but the ignorance of the person who translated it from the French. Definitions are, at best, unsafe guides in the administration of justice ; and their frequent recurrence in the Louisiana Code, is the greatest defect in that body of laws. In the case of .Ellis v. Prevost and others, 13 La. 230, the former Supreme Court said that, the statutory provisions of the Code were often at variance with the definitions it contains, and that, in those cases, it was a sound rule of interpretation to consider the definitions as limited or modified by the clear intent of the positive enactments. This case shows the necessity of the rule.

The city of New Orleans is a public corporation, clothed by the constitution with many important powers of government; and, as the revenue is the essential engine by which the means .of answering its exigencies must be procured, the power of procuring that article in its full extent must necessarily be com-Prehen<3ed in that of providing for those exigencies. “ Money is with propriety considered as the vital principle of the body politic; as that which sustains j(.g j¡fe an(j m0ti0n, an(j enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution.” Federalist, p. 112,117, od. 1845.

Under this view of the subject, the legislature, carrying out the intention of the framers of the constitution, has enabled the defendants to procure a permanent and regular supply of money by taxation. This power to tax must therefore be considered as if derived from, the constitution.

The counsel for the plaintiff argues that this is immaterial; that the State itself may be sued in the United States courts, and, if condemned, is liable to execution ; that the marshal, in executing the judgment, has a right to seize in the hands of individuals, the amounts due by them for State taxes. We were not prepared to hear such an argument seriously urged at this bar. If the facts upon which it rests were true, it would be a sufficient answer that, the finances of a State form no part of its public domain. Taxes and national subsidies of all kinds do not originate in the right of property; they are all essentially attached to sovereignty, and cannot be be separated from public power; they form part of the eminent domain of the sovereign. 3 Toullier, p. 17.

“ L’empire, qui est le partage du souverain, ne renferme aucune idée de dó-mame proprement dit. II consiste uniquement dans la puissance de gouverner. 11 ne donne ¡L l’Etat sur les biens des citoyens que le droit de régler l’usage de ces biens, le pouvoir de disposer de ces biens pour des objets d’utilité publique, la faculté de lever des impósts sur les mémes biens. Ces différents droits reunís formont ce que Grotius, Puífendorf, et autres appellent le domains eminent du souverain, mots dont le vrai sens, développé par ces auteurs, ne suppose aucun droit de propriété, et n’est relatif qu’á des prerogatives inseparables de la puissunce publique. Nous convenons que l’Etat ne pourrait subsister s’il n’avait les moyens de pourvoir aux frais de son gouvernement; mais, en se procurant ces moyens par la levée des subsides, le souverain n’exerce point un droit de propriété; il n’exerce qu’un simple pouvoir d’administration.” Por-talis, Exposé des Motifs, in Locré, vol. 8, p. 153, 155.

The taxes of the State are inherent to its sovereignty, and never can bo seized.

Another counsel has argued that, admitting that the State taxes are not liable to seizure, it is otherwise with respect to those imposed by the Municipalities of this city; but the reasons alleged in support of the distinction, have failed to convince us. There is no difference in the nature of the two taxes. “ Public order and the common good of a State require two kinds of expenses : the first is that which concerns the whole State, and the second, the expenses necessary lor the police and good government of cities. It is for these two kinds of expenses, that there are two kinds of public contributions. The first is imposed and collected by the sovereign and his officers ; the second, by the officers of town corporations.” Domat, 2 pt. tit. 5, sect. 1, no. 5. Domat makes no distinction between the two, and as the taxing power of the Municipalities is derived from as high an authority as that of the corporations of which he speaks, no distinction can be made here.

It must be conceded that the right of the Municipalities to impose and collect taxes, is not derived from any right of ownership in the property taxed. If their title to the taxes does not originate in private right, it must necessarily be deduced from public power ; and, being so deduced, the taxes are a constituent part and a necessary ingredient of that power-, no more liable to seizure than the whole power itself would be. Article 647 of the Code of Practice, in authorizing the seizure of sums of money due the judgment debtor, in whatsoever right, must be understood as having exclusive reference to that class of rights, defined and protected by the constitution as rights of property. The taxes imposed for the protection of those rights, form no part of them. Any other interpretation of that article would be destructive of public order, and inconsistent with the very idea of government. The principle, that under the American constitutions, no power or individual possesses directly or indirectly such an overruling influence over other powers, as would enable it or him to stop their functions, and thus to disorganize the government, is an axiom — a self-evident proposition. Federalist, p. 199.

In the case of M'Culloch v. The State of Maryland, already cited, the court held that, the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; and that there would be a plain repugnance in conferring on one government a power to control the constitutional measures of another. We have nothing to do with the question, whether the establishment of a bank was a constitutional measure ; but, tailing the facts as stated by the court, their argument is unanswerable; and, by parity of reasoning, it is equally true that the power to seize the tax in this case, involves the power to destroy the corporation; that the power to destroy the corporation, may defeat and render useless the power to establish it; and that there would have been a plain repugnance in conferring on any individual the right to arrest, or impede, the action of a constitutional power, in the func-v tion of government.

The power to create the corporation of the city of New Orleans, for purposes of local government, involves the power to preserve and protect it; but that protection would be unavailing if it could be deprived of the regular supply of means, without which it cannot work its task. For all useful and practical purposes, the exercise of the right claimed would, in the present embarrassed condition of the Municipalities, as effectually abrogate their charters, as if they had been repealed by law. We conceive such a state of things to be repugnant to the letter and spirit of the constitution.

It is urged that the defendants cannot avail themselves of the privileges of public power', because they may be sued, and that sueing them would be doing a vain thing, if, in default of any other property, their taxes cannot be seized under the judgment obtained against them. We all know that judges and governors may also be sued notwithstanding the political powers they exercise, and, although their salaries may be their only means of paying their debts, those salaries are not liable to seizure. It is true that out of superabundant caution our Codes make special provision in relation to salaries of office, but the same rule prevailed before upon general principles.

The taxes iu this case were seized in the hands of the corporators, aftet* their assessment and before their collection. The attributes of the taxing power, as may be seen in every English statute on the subject of taxation, are, the imposing, levying, collecting, receiving and taking of the tax; the collecting and receiving are as much part of that power, as the levying and imposing. The power would be precarious otherwise; and, as the plaintiff admits that he had no Power impose and levy the tax, it necessarily follows that he could not lawfully colled and receive it ,* so that, if oven the tax was liable to seizure, it cou](j onjy j,e geized in the coffers of the treasurer after its collection; but, to put an end to litigation on this important subject, we have thought it best to give our opinion on the whole issue submitted to us, and to state at large the reasons on which it is founded.

It is contended that, if the Municipalities cannot pay their just debts they ought to be broken up, and their powers entrusted to safer hands. Whether it be an ascertained fact that, those corporations, as at present organized, cannot be safely trusted with power or with money, is a question we are not competent to determine. But it is very evident that the convention assembled last year thought otherwise. The acts of the Municipalities and their indebtedness were known to them, and, with that knowledge, the convention made no change in their organization, and gave their officers additional political powers. There is no warrant of law to justify the seizure in this case, and, as none existed at the time the debt sued on was contracted, the credit given to the defendants could not have rested upon the belief that their taxes were liable in execution.

It is not without much reflection that we have been able to concur in the decree about to be rendered in this case. On the first view of this question there is something very repugnant to the moral sense, in the idea that a municipal corporation should contract debts, and that, having no resources but the taxes which are due to it, these should not be subjected by legal process to the satisfaction of its creditors. This consideration, deduced from the principles of moral duty, has only given way to the more enlarged contemplation of the great and paramount interests of public order and the principles of government. Although the enforcement of payment may now be beyond the power of the judiciary, the subject will, no doubt, be deemed worthy of occupying the wisdom and sense of justice of the legislature. Judgment affirmed.  