1. Act No. 3 of 1874, Act No. 58 of 1877, (Reg. Sess.,) and Act No. 77 of 1877 (Ex. Sess.) were not repealed by the adoption of the constitution of 1879, and the debt ordinance thereto appended.

2. The constitutional amendment of 1874 embodies the purport and substance of the legislative enactment of that year, and declares that the tax required for the payment of the principal and interest of the bonds shall be assessed and collected every year, until the bonds shall be paid, principal and interest; and the debt ordinance declares that there shall be levied an annual tax sufficient for the full payment of the interest on the bonds.

3. There is no essential difference in the phraseology of the two constitutional enactments.

4. The legislative enactments of 1877 provide that any surplus that may remain after the payment of interest coupons shall be deposited with the fiscal agent at credit of a specific and distinct fund, to be called and known as the "Redemption of the Public Debt Fund," and shall be used exclusively, under directions of the board of liquidation, for the retirement and sinking of the consolidated bonds and pastdue coupons.

5. The act of 1877 (Ex. Sess.) makes it the duty of the treasurer to keep separate accounts of the income and expenditures of each year; and, after setting apart or paying out an amount thereof equal to the appropriations and warrants lawfully made against each of said funds, the surplus, if any remain, shall be immediately deposited by the treasurer at the credit of the redemption of the public debt fund.

6. The debt ordinance deals exclusively with the interest, and not the principal, of the bonds, leaving the latter in statu quo; and the fact that the bondholders were given an option to surrender their holdings, and receive other bonds in exchange, on the terms proposed thereim, did not impair their force or validity.

7. All statutes enacted since the adoption of the debt ordinance of 1879 must be construed in conformity therewith. In point of fact, all subsequent statutes deal with an existing fund an interest tax surplus-already collected under existing laws, and, at most, same could only lead to the supposition that the laws of 1874 and 1877 were not operative; and, had it been intended by the legislature to repeal any of said laws, same would have been nugatory and void.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Thomas C. W. Ellis, Judge.

Action, at the relation of the board of liquidation, against John Pickett, state treasurer, for mandamus. There was judgment for relator, and defendant appeals. Affirmed.

John Pickett, in pro. per. M. J. Cunningham, Atty. Gen., for relator.

WATKINS, J. The board of liquidation represents that, from the funds set aside from year to year-that is to say, from 1880 to 1882-to pay the interest on the consolidated bonds of the state, there has accumulated a surplus in said interest fund exceeding $400,000; that, under the provisions of Act No. 3 of 1874 and Act No. 58 of 1877, it is the duty of the board of liquidation to have such surplus invested in bonds and coupons attached, by purchasing same at public auction from the lowest bidder, after due advertisement and under the conditions and with the restrictions imposed by law. The further averment of the board is that said surplus interest fund has been segregated from the funds and revenues of the state, and dedicated and consecrated to the bonded debt, and duly and legally appropriated to be employed by said board for the purpose of buying bonds and coupons, as aforesaid; that said board has passed a resolution directing advertisements for bids, as it was its plain duty to do; that, under the act of 1877, and other laws of the state, it is the plain ministerial duty of the state treasurer to pay for all bonds so redeemed and retired or brought under the direction of the board on the order of the board, but that, notwithstanding his said duty, said treasurer has refused to pay, and declared that he will not pay, for said bonds, upon the order of the board or on the warrant of the auditor; and said board believes it would be a vain and useless thing to advertise for bids, in the face of such declaration and refusal, and hence a mandamus is necessary to compel the performance of duty on the part of the treasurer. The prayer of the board is that the treasurer be ordered to pay for any bonds that may be bought under its direction, as provided by law, or show cause to the contrary.

The following is the return of the treasurer, or at least the substance of same, as exhibited by printed extracts we have selected from his brief, to wit: "Now comes respondent, and for answer and cause why the mandamus herein sued out should not be made peremptory, and why he should not pay for bonds as demanded, shows as follows: That an investment of the kind proposed could not legally be made by the board of liquidation, and the necessary funds therefor disbursed by respondent, for the following reasons: That while the constitution of 1879 does not curtail or abolish the duties of the board of liquidation, so far as they relate to the issuance of consolidated bonds, it has revoked and withdrawn from the auditor and treasurer all of the powers conferred by Act No. 3 of 1874; that continuing appropriations for interest and redemption of bonds made by the act of 1874

and supplementary acts of 1877 (Act No. 58, Reg. Sess., and Act No. 77, Ex. Sess.) were inconsistent with article 43 of the new constitution, which prohibits money from being taken out of the state treasury except in pursuance of a specific appropriation, and the legislature from making an appropriation for a greater length of time than two years. He refers to State ex rel. Gras v. Jumel, 35 La. Ann. 537, and State ex rel. St. Cyr v. Jumel, 34 La. Ann. 201, as adjudications of this court sanctioning his view; also, State v. Burke, 33 La. Ann. 498, to the same purport. He also cites Elliott v. Wiltz, 107 U. S. 711, 2 Sup. Ct. 128, for the purpose of demonstrating the correctness of his view, to the effect that the state had, through the instrumentality of the debt ordinance of 1879, withdrawn from its officers the powers conferred by the constitutional amendment of 1874. The extract from that opinion which is relied upon is the following, viz.: The supreme court of the United States said: "It is equally manifest that the object of the state in adopting the debt ordinance of 1879 was to stop the further levy of the promised tax, and to prevent the disbursing officers from using the revenue from previous levies to pay interest falling due in January, 1880, as well as the principal and interest maturing thereafter;" and "that the constitution of 1879, on its face, takes away the power of the executive officers to comply with the act of 1874, cannot be denied. As against everything but the outstanding bonds and coupons, this constitution is the fundamental law of the state, and it is only invalid so far as it impairs the obligation of the contract on the faith of which the bonds and coupons were taken by their respective holders."

The respondent then summarizes the legislation of the state since the adoption of the constitution and debt ordinance of 1879, for the purpose of showing contemporaneous legislative construction of their provisions favorable to his theory, as follows: "The new constitution limits taxation to six (6) mills, and makes no provision for a sinking fund, and the legislature has failed to do so, either by an appropriation or reservation of surplus or other money. That in Act No. 75 of 1882, and section 89 of Act No. 85 of 1888, transferring all surplus interest money to the general fund, we have legislative constructions of the debt ordinance. The legislature has declared all funds continuing funds, and made it the duty of the treasurer to transfer surplus interest money to the general fund of the same year without waiting for legislative action. That Act No. 75 of 1882 transferred the surplus interest fund for the years 1880, 1881, 1882, 1883, and 1884, collected or collectible, and appropriated to pay the interest on the consolidated and constitutional bonds of the state, to the general funds of said years. That Act No. 107 of 1884, in section 5, p. 139, provides that the surplus

of the interest tax shall be applied to the general fund tax, and in section 12 repeals all laws or parts of laws in conflict with said act. That Act No. 98 of 1886 (section 92, p. 161) applies all surplus in excess of $480,000 to the general fund, and by section 95 repealed all laws or parts of laws in conflict with said act. That Act No. 85 of 1888, in the first paragraph of section 89, applied to the general fund all the surplus of the interest tax fund, and in the same section makes it the duty of the state treasurer, without legislative action, to make transfers of any and all balances after providing for the payment of all warrants drawn against the several funds, to the credit of the same funds for the succeeding years, except as otherwise provided for, and by section 92 repeals 'all those parts of laws on the subject of levy, assessment and collection of state taxes heretofore enacted which are in conflict with the constitution of the state, or are inconsistent with, or superseded by, or in conflict with the provisions of said act.' That Acts No. 3 of 1874 and No. 58 of 1877 have been repealed by the acts of 1882, 1884, 1886, and 1888, above quoted. That all surplus to the credit of any and all funds being, under the provisions of said acts of 1882, 1884, 1886, and 1888, transferred to the credit of the same funds for the ensuing years, except the surplus to the credit of the interest fund, which is specially transferred to the credit of the general fund, the same can now only be withdrawn from the treasury in pursuance of specific legislative appropriation.

** Respondent further shows that the construction of article 43 of the constitution, which would prevent the proposed investment, is the same that has been adopted by the treasurer since 1880, under the advice of the attorney generals, as will appear from the following extracts from opinions on file in this office: "The prohibition in article 43 of the constitution against drawing money from the treasury, except in pursuance of a specific appropriation made by law, applies to and covers all money in the treasury, whether deposited or paid in before or after the adoption of the constitution of 1879. It is also an elementary and fundamental principle of free government. And, even in the absence of a specific constitutional prohibition, money could not be drawn out of the treasury, directly or indirectly, without legislative authority.'" The treasurer then conIcludes his return as follows, viz.: "That by no act of theirs have the legislature or state officers or members of the board of liquidation recognized the acts of 1874 and 1877, relating to a redemption fund, as having been in force since the adoption of the constitution of 1879, and no transfer made or even suggested to be made to the redemption of the public debt fund for investment in bonds and coupons in the manner originally provided for in the acts of 1874 and 1877. While respondent admits that he favors the

policy of retiring state bonds and past-due coupons with the interest tax surplus, he respectfully submits to the court that for the reasons herein stated the board of liquidation has no authority to make the proposed purchase of bonds and coupons, and respondent no authority to make the necessary disbursement therefor."

A close analysis of respondent's return discloses the following to be his defenses, viz.: First. Tat the constitution of 1879 has revoked and withdrawn from the auditor and the treasurer all the powers conferred by Act No. 3 of 1874. Second. That the continuing appropriations for interest and the redemption of bonds provided by said act, and those supplementary thereto, were and are inconsistent with article 43 of the constitution of 1879. Third. That the constitution of 1879 limits taxation to six mills, and makes no provision for a sinking fund, and that no legislative enactment, since its adoption, has made any such provision. Fourth. That, by various legislative acts since 1880, the surplus of the interest collected has been given an altogether different destination, inconsistent with the provisions of the acts of 1874 and 1877. Fifth. That all the foregoing precepts of constitutional and statute law favor his theory, and are diametrically opposed to those advanced by the relator. On the trial there was judgment in favor of the relator, and the respondent has appealed.

1. It is important that the various provisions of the legislative enactments, and those of the constitution of 1879, and the debt ordinances of 1879 and 1882, should be reproduced and collated, for the purposes of comparison and careful analysis, as upon such comparison and analysis must depend a proper decision of the questions that are propounded in the respondent's return. We have therefore collated and reproduced them in the order of their dates, viz.:

Section 7 of act 3 of 1874 (the funding law) provides: "That a tax of five and a half mills on the dollar of the assessed value of all real and personal property in the state is hereby annually levied, and shall be collected for the purpose of paying the interest and principal of the consolidated bonds herein authorized, and the revenue derived therefrom is hereby set apart and appropriated to that purpose, and no other. And that it shall be deemed a felony for the fiscal agent or any officer of the state or board of liquidators to divert the said fund from its legitimate channel as provided, and upon conviction the said party shall be liable to imprisonment for not more than ten years nor less than two, at the discretion of the court. If there shall, during any year, be a surplus arising from said tax after paying all interest falling due in that year, such surplus shall be used for the purchase and retirement of bonds authorized by this act, said purchases to be made by said board of liquidation, from the lowest offers, after due

notice; provided, that the total tax for interest and all other state purposes, except the support of public schools, shall never hereafter exceed twelve and a half mills on the dollar. The interest tax aforesaid shall be a continuing annual tax until the said consolidated bonds shall be paid or redeemed, principal and interest; and the said appropriation shall be a continuing annual appropriation during the same period, and this levy and appropriation shall authorize and make it the duty of the auditor and treasurer, and the said board, respectively, to collect said tax annually, and pay said interest and redeem the said bonds until the same shall be fully discharged." This act was, at the same session of the legislature, given the shape of a proposed constitutional amendment, and it was subsequently submitted to and adopted by the people as a part of the organic law. "The issue of consolidated bonds authorized by the general assembly of the state, at its regular session in the year 1874, is hereby declared to create a valid contract between the state and each and every holder of said bonds, which the state shall by no means and in no wise impair. The said bonds shall be a valid obligation of the state in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof, or the levy and collection of the tax therefor; to secure such levy, collection and payment, the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the state to the holders of said bonds, as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury. Whenever the debt of the state shall have been reduced below twenty-five million dollars, the constitutional limit shall remain at the lowest point reached, beyond which the public debt shall not thereafter be increased; and this rule continue in operation until the debt is reduced to fifteen million dollars, beyond which it shall not be increased. Nor shall taxation for all state purposes, excepting the support of public schools, ever exceed twelve and a half mills on the dollar of the assessed valuation of the real and personal property in the state, except in case of war or invasion. The revenue of each year derived from taxation upon real, personal and mixed property, or from licenses, shall be devoted solely to the expenses of the said year for which it shall be raised, excepting any surplus remain, which shall be directed to sinking the public debt. All appropriations and claims in excess of revenue shall be null and void, and the state shall in no manner provide for their payment."

In pursuance of the funding statute and the constitutional amendment of 1874, the legislature of 1877 passed the following act, to wit: "In addition to the duties already prescribed, it shall be the duty of the treasurer to set apart annually out of the proIceeds of the five and a half mills tax, an amount equal to the interest coupons maturing on the first day of July of said year and the first day of January next following, and the surplus, if any, remaining after said amounts shall have been collected and set aside, as well as the surplus, if any, resulting from the provisions of the third amendment to the constitution of the state, proposed January twenty-fourth, eighteen hundred and seventy-four, and ratified at the general election held on the second of November, eighteen hundred and seventy-four, shall be deposited with the fiscal agent at credit of a separate and distinct fund, to be called and known as the 'Redemption of the Public Debt Fund,' and shall be used exclusively, under the direction of said board of liquidation, for the retirement and sinking of consolidated bonds and past due interest coupons to be purchased from bidders offering the same at the lowest price, after thirty days' notice in the official journal of the state, and such other papers as may be selected by the board which notice shall be given whenever said redemption fund shall amount to one hundred thousand dollars." Extract from section 9, Act No. 58 of 1887, (Reg. Sess.) "That section two of said act amending and re-enacting section nine of the original act number three shall be and is hereby amended and re-enacted so that that portion of section nine as amended in said act number fifty-eight beginning from the title 'treasurer' to and including the word 'president,' preceding the word 'auditor,' shall read as follows, to-wit: "Treasurer-First: In addition to the duties already prescribed, it shall be the duty of the treasurer to set apart annually, out of the proceeds of the five and a half mills tax, an amount equal to the interest coupons maturing on the first day of July of said year and the first day of January next following, and the surplus, if any, remaining after said amounts shall have been collected and set aside, as well as the surplus, if any, resulting from the provisions of third amendment of the constitution of the state proposed January twenty-four, eighteen hundred and seventy-four, and ratified at the general election held on the second of November, eighteen hundred and seventy-four, shall be deposited with the fiscal agent at credit of a separate and distinct fund, to be called and known as the "Redemption of the Public Debt Fund," and such amount as may remain at credit of the said redemption fund after deducting therefrom the sum necessary to cover matured coupons remaining in arrear shall be used exclusively, under the direction of said board of liquidation, for the retirement and sinking

of consolidated bonds to be purchased from bidders offering the same at the lowest price, after thirty days' notice in the official journal of the state and such other papers as may be selected by the board, which notice shall be given whenever said redemption fund shall amount to one hundred thousand dollars. If any deficit occur in the collection of the five and a half mills interest tax of any year, leaving interest coupons of said year unpaid, then, and only then, that portion of the surplus revenue deposited in conformity to this act at credit of the redemption of the public debt fund which may be derived from sources other than the said five and a half mills tax may be applied by the board of liquidation to the payment of such unpaid coupons with a view of maintaining the credit of the state. In conformity to the constitutional amendment number three, of one thousand eight hundred and seventyfour, it is hereby made the duty of the treasurer to keep separate accounts of the income and expenditures of each fund in each year, and after setting apart or paying out an amount thereof equal to the appropriations and warrants lawfully made against each of said funds, the surplus, if any remain, shall be immediately deposited by the treasurer at the credit of the "redemption of the public debt fund," and the board of liquidation is hereby authorized to require from the treasurer or fiscal agent at any time a statement of the condition of any such fund or funds. No bid shall be entertained for any bond to an amount exceeding par; and the board shall always have reserved to itself the right and privilege of rejecting any and all bids, but shall publish in the official journal the result of its proceedings concerning such redemption or refusal to accept any of the bids made. If bids are offered in excess of the surplus on hand, they shall be reduced to correspond with such surplus, and the award be made in favor of the lowest bidder or bidders. For all bonds redeemed and retired in conformity to law payment shall be made by the state treasurer on the order of the board, attested by its president and secretary.' Section 1 of Act No. 77 of 1877, (Ex. Sess.) The following is an exact reproduction of the debt ordinance of 1879, viz.:

"State Debt.

"Article 1. Be it ordained by the people of the state of Louisiana, in convention assembled, that the interest to be paid on the consolidated bonds of the state of Louisiana be and is hereby fixed at two per cent, per annum for five years from the first of January, 1880, three per cent. per annum for fifteen years, and four per cent. per annum thereafter, payable semi-annually; and there shall be levied an annual tax sufficient for the full payment of said interest, not exceeding three mills, the limit of all state tax being hereby fixed at six mills; provided, the holders of consolidated bonds may, at their option, demand in exchange for the

bonds held by them, bonds of the denomination of five dollars, one hundred dollars, five hundred dollars, one thousand dollars, to be issued at the rate of seventy-five cents on the dollar of bonds held and to be surrendered by such holders, the said new issue to bear interest at the rate of four per cent. per annum, payable semi-annually.

"Art. 2. The holders of the consolidated bonds may at any time present their bonds to the treasurer of the state, or to an agent to be appointed by the governor-one in the city of New York and the other in the city of London-and the said treasurer or agent, as the case may be, shall indorse or stamp thereon the words, 'Interest reduced to two per cent. per annum for five years from January 1, 1880, three per cent. per annum for fifteen years and four per cent. per annum thereafter;' provided, the holder or holders of said bonds may apply to the treasurer for an exchange of bonds, as provided in the preceding article.

"Art. 3. Be it further ordained, that the coupon of said consolidated bonds falling due the first of January, 1880, be and the same is hereby remitted, and any interest taxes collected to meet said coupon are hereby transferred to defray the expenses of the state government.

"Be it further ordained, and it is hereby ordained by this constitutional convention, that the foregoing provisions and articles relative to the consolidated debt shall not form a part of this constitution, except as hereinafter provided, as follows: At the election held for the ratification or rejection of this constitution, it shall be lawful for each voter to have written or printed on his ballot the words, 'For ordinance relative to state debt,' or the words, 'Against ordinance relative to state debt,' and in the event that a majority of the ballots so cast have indorsed on them the words 'For ordinance relative to state debt,' then the said foregoing provisions and articles of this ordinance shall form a part of the constitution submitted if the same is ratified; and if a majority of the votes so cast shall have indorsed on them the words, 'Against ordinance relative to state debt,' then said provisions and articles shall form no part of this constitution."

The following is from the debt ordinance as amended in 1882, viz.:

"Act No. 76 of 1882.

"State Debt.

"Article 1. Be it ordained by the people of the state of Louisiana, as provided by law, that the state debt ordinance be amended so as to read as follows: That the interest to be paid on the consolidated bonds of the state of Louisiana be and is hereby fixed at two per centum per annum for five years, from the first day of January, one thousand eight hundred and eighty (1880,) and four per centum per annum thereafter, payable semi-annually; and there shall be levied an

This amendment was regularly submitted to and adopted by the people, and became part of the constitution in 1884, and has remained unaltered to this time.

We append also the following summary of the legislative enactments since adopted, and upon which the treasurer principally relies. The selections are made from the brief of the respondent's counsel, viz.: "The legislature has frequently construed the debt ordinance as repealing the legislative provisions creating the redemption of public debt fund and providing for the purchase of bonds. The first act of this character is Act No. 77 of 1880, which, in the first paragraph of section 4, provides that 'the surplus of said tax shall be applied to the establishment, maintenance and support of the free public schools throughout the state." The next expression of the legislature upon this subject is to be found in joint resolution No. 75 of the session of 1882, which provides that 'the excess of interest in the treasury collected or collectible, and appropriated to pay the interest on the consolidated and constitutional bonds of the state, and general account fund, shall be turned over and credited to the general fund of 1880, 1881, 1882, 1883 and 1884, the excess of each year being credited to the general fund of said year.” The legislature, the same year, in Act No. 96 of 1882, in the first paragraph of section 87, ordained that 'the surplus of said tax should be applied to the general fund." Again in 1884, by Act No. 107, at pages 138 and 139, the surplus of the interest tax for 1884 was applied to the current school fund, and for 1885 and subsequent years to the general fund. Act No. 98 of 1886, treating of the disposition of the interest fund, contains the following provision: "That not more than $480,000 of the interest, so collected, shall be applied to the payment of the interest due on said consolidated bonds and the surplus of said tax to be applied to the general fund." The last expression of legislative construction of the state debt ordinance will befound in Act No. 85 of 1888, § 89, where the same disposition is made of the surplus as in the previous acts hereinabove quoted. It appears from the acts cited above that the uniform interpretation of all the legislatures that have acted upon the question is that the state debt ordinance of 1879 abolished the 'redemption of the public debt fund,' and authorized the levy of a tax for the payment of the interest only, the surplus, if any, arising from said tax to be under control of the legislature, and payable only in