author: Nici-iolls, O. J.

text:
    No. 13,283.
    State of Louisiana vs. Ed. Jones.
    Syllabus.
    1. Kindred offenses, generic in kind, growing out ot tlie same transaction, may ■ be charged in the' same indictment when incorporated in different counts. (State vs. wren, 48 Ann., S03.)
    2. \\ here in an ind!ctment so found, the offense charged in the first count is broader and covers and includes that charged in the second, and the jury renders a general verdict of “Guilty as charged’’, the district attorney was legally authorized to enter, and properly entered a nolle-proseequi upon this second count. (State vs. Louis, 46th Ann., 1249 ; State vs. Cook, 42nd Ann., 91.)
    3. The fact that the talesmen summoned after the regular panel was exhausted, were called and presented for acceptance from a list prepared by the sheriff, and in the order in which their names were written on the list, furnishes no legal ground for reversal, when the accused did not insist that the names of the talesmen should be placed in a box as required by law, and drawn therefrom; but permitted the jury to be empanelled in that manner without objection and challenged none of the talesmen.
    APPEAL from the Eighteenth Judicial District Court for the Parish of Terrebonne. Caillouet, J.

      M. J. Cunningham,, Attorney General, and L. C. Moise, District Attorney, for Plaintiff and Appellee.

      Suthon & Wallis for Defendant and Appellant.
   The opinion of the court was delivered by

Nici-iolls, O. J.

The defendant in this case, sentenced to imprisonment at hard labor in the penitentiary for two years, has appealed.

The sentence was based upon the verdict of a jury, returned upon an information filed by the District Attorney, which contained two. counts:

In the first count he was charged, under Section 851 of the Revised Statutes, with having, with force and arms, in the night time, broken and entered into the dwelling house of one A. ITaekel, with intent to commit larceny.

The second count, under Section 956 of the Revised Statutes, charges that, at the same time and place, he was found in the said dwelling house of A. Hackel with the felonious and probable intent to steal the goods and chattels of the said A. Hackel.

The verdict returned was a general one; “Guilty as charged.”

Defendant, after an unsuccessful effort to obtain a new trial, submitted a motion in arrest of judgment, which being overruled, he filed a bill of exceptions to the following effect:

Be it known, that after verdict in this case, before sentence, the accused filed a motion in arrest of judgment on the ground, substantially, that the verdict was insensible, and no valid or legal judgment could be based thereon, for the reason that accused was found guilty on two counts, in the same indictment, for separate and distinct offences growing out of one and the same transaction; that for the same act he was convicted of being a burglar, under 'Section 851 of the Revised Statutes, and, also, of being a vagabond, under Section 905 of the Revised Statutes; that the transaction being one and the same, accused could not be both a burglar and a vagabond, and hence the verdict was insensible; that, pending argument, when attorneys for accused rose to reply to the argument of the District Attorney, the District Attorney entered a nolle prosequi to the second count, and the court, thereupon, overruled the motion in arrest of judgment, to which action, of the District Attorney and the court in overruling' the motion, the accused objected and reserved this bill, of exceptions.

We understand the action of the District Attorney in entering a nolle prosequi, and that of the court in overruling the motion in arrest, to be both submitted to us.

The defendant urged no objection to the information prior to pleading, or to verdict.

The exception to the information for duplicity, is not well taken.

The case falls under, and is controlled and governed by our decisions in State vs. Malloy, 30th Ann., 61; State vs. DePass & Baptiste, 31st Ann., 487; State vs. Johns, 32nd Ann., 812; State vs. Gilke, 35th Ann., 53; State vs. Green, 37th Ann., 382; State vs. Pierre, 38th Ann., 93; State vs. McDonald, 39th Ann., 960; State vs. Cook, 42nd Ann., 90; State vs. Wren, 48th Ann., 803.

The verdict returned of “Guilty as charged,” found the accused guilty on both counts, but the finding' on the first count being broader and covering and including' the lesser offense charged in the second, the District Attorney was legally authorized to enter, and he properly entered, the nolle prosqni which he did. State vs. Louis, 46th Ann., 1249; State vs. Cook, 42nd Ann., 91.

Judgment was rightly entered upon the charge made in the first count.

Defendant, as we have said, made an unsuccessful effort to procure a new trial.

The. ground assigned was, that a fatal error was committed to his prejudice, in this, that after the regular panel had been exhausted, and tales jurors were summoned, the names of the tales jurors were not put in the box and drawn therefrom, one at a time, as required by law, and in order that the element of chance and impartiality might govern in the selection of the jury, but the tales jurors were called one at a time by the sheriff from a list prepared by him, and the order in which their names were written, and thus really the jurors presented for selection, was dictated by the sheriff; that this was a fatal irregularity and worked a great wrong and injustice to the accused.

The course pursued may have been a departure from the provisions of the law, and an irregularity, but it was adopted and followed in the presence of the accused and his counsel, without objection.

The record shows no challenge to any of the jurors presented, they were all accepted as satisfactory.

If the defendant conceived that he was being prejudiced, or would be prejudiced in any way, the time for him to complain was when the list was handed in and the talesmen were called in order therefrom.

It can not, with any propriety, be said that the sheriff “dictated" the selection of jurors.

Finding no grounds for reversal, it is hereby ordered, adjudged and decreed, that the judgment appealed from be, and the same is, hereby affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 13,124.
    Andrew Low Green vs. Samuel J. Hart and Mrs. Maurice J. Hart.
    Svllabus.
    1. An averment in a petition of the solidarity of an obligation which is joint in fact, and a prayer for a judgment in solido against several defendants, does not constitute an estoppel against the plaintiff's recovery against some of the deferdants because he made a compromise with another defendant after issue joined.

      2. The obligation oí two or more persons who intervene in an act of sale to a corporation, and give their personal guarantee that for a period of years its shares of preferred stock shall annually earn and pay a dividend of ten per cent., is joint as to the obligors and not in solido.

    3. Such a covenant evidences an independent stipulation pour antrui and not a contract of suretyship ; and the obligation of the intervenor is different and distinct from that of the corporation. Consequently, the insolvency of the corporation, judicially declared, did not have the effect of precipitating the maturity of the installments of the intervenor’s indebtedness not yet run to maturity on the face of the contract, notwithstanding- it had that effect as to its own debts not yet due. The principles announced in Ilawkes vs. Bright, 51st Ann., 79, are affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Omar Villere (Bernard McOloshey, Guy M. TLornor and Dmhclspiel & Hart, of counsel) for Plaintiff, Appellee.

      Clegg & Quintero for Defendants, Appellants.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff alleges that he is the owner of one hundred and ninety (190) shares of the preferred capital stock of the New Consumers Ice Company, Limited, of one hundred ($100) dollars’ each, and he seeks to recover of the defendants, Samuel J. Hart and Mrs. Helen H. Hart, as the heirs of Judah Hart, the sum of $6,650, as one-half of a dividend of ten per cent, per annum for a period of ten years on the par value of said stock, payable semi-annually on the first of May and November of each year.

This suit is based on an obligation of Judah Hart and R. T. McDonald, contained in act of sale, which is fully described in the opinion of this court, in the case of Mrs. Harriet A. Horner vs. R. T. McDonald et als., No. 13,119, this day decided.

The judge a quo was of the opinion that the obligation of Hart and McDonald was joint, and not in solido, as will appear from the following extract from his reasons for judgment, to-wit:

“But I do not think further comment is needed. The covenant is “to me plainly that of a joint obligation, and as there were two obli- “ gors, the law prescribes the liability of each of them to be for one- “ half of the undertaking.”

But,‘ notwithstanding the view he thus expressed, he inadvertently Tendered judgment against the defendants, Hart, for the full amount of the entire ten xter cent, semi-annual dividends' of nine hundred and fifty dollars, each — fourteen in number — the whole aggregating $13,300, principal, double the amount for which petitioner prayed judgment; and, notwithstanding, no interest is claimed in the prayer of the petition, he gave judgment for five per cent, per annum for each semi-annual instalment from the date of the maturity thereof.

The issues raised in this case are identical with those in the case of Mrs. Harriet A. Horner vs. R. T. McDonald et als., No. 13,119, this day decided; and for the reasons therein assigned, we are of opinion that judgment should have been rendered in favor of the plaintiff for only one-half of each of the semi-annual dividends which matured and became due on the 1st of May and November of 1897; on the 1st of May and November of 1898, and the 1st of May, 1899, this suit having been filed on the 1st of June, 1899 — and that a judgment of non-suit should have been entered with respect to the remaining dividends claimed for the year 1899 and subsequent years.

It is therefore ordered, adjudged and decreed, that the judgment appealed from bo amended and reduced, and that the plaintiff, Andrew Low Green, do have and recover of the defendants, Samuel J. Hart and Mrs. Helen H. Hart, one-half of the amount of each of the semiannual dividends claimed for the years 1897, 1898, and the first instalment of 1899, of four hundred and seventy-five dollars ($475) each, with five per cent, per annum interest from judicial demand. And that, in all other respects, the judgment be reversed, the demand in respect to other dividends enumerated being dismissed as of non-suit, and that the. costs of appeal be taxed against the plaintiff and aiDpellee.


author: WatkiNS, J.

text:
    No. 13,141.
    Frank Roder vs. Succession of Judah Hart et als.
    Syllabus.
    1. An averment in a petition of the solidarity of an obligation which is joint in fact, and a prayer for a judgment in solido against several defendants, does not constitute an estoppel against the plaintiff’s recovery against some of the defendants because he made a compromise with another defendant after issue joined.

      2. The obligation oí two or more persons who intervene in an act of sale to a corporation, and give their personal guarantee that for a period of years its shares of preferred stock shall annually earn and pay a dividend of ten per cent., is joint as to the obligors and not in solido.

    3. Such a covenant evidences an independent stipulation pour autrm and not a contract of suretyship; and the obligation of the intervenor is different and distinct from that of the corporation. Consequently, the insolvency of the corporation, judicially declared, did not have the effect of precipitating the maturity of the installments of the intervenor’s indebtedness not yet run to maturity on the face of the contract, notwithstanding it had that effect as to its own debts not yet due. The principles announced in Hawkes vs. Bright, «list Ann., 70, are affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Dinhelspiel & Hari (Omer Villere, Bernard McGloskey and Guy M. Ilorner, of counsel) for Plaintiff, Appellee.

      Olegg & Quintero for Defendants, Appellants.
   The opinion of the court was delivered by

WatkiNS, J.

The plaintiff alleges that he is the owner -of sixty (00) shares of the preferred capital stock of the New Consumers Ice Company, Limited, of one hundred dollars each, and he seeks to recover of the defendants, Samuel J. Hart and Helen II. Hart, as the heirs of Judah Hart, the sum of twenty-one hundred dollars ($2100), with legal interest from judicial demand, as one-half of a dividend of ten per cent, per annum for a period of ten years on the par value of said stock, payable semi-annually on the 1st of May and November of each year.

This suit is based on an obligation of Judah Hart and R. T. McDonald, contained in an act of sale, which is fully described in the opinion of this court in the case of Mrs. Harriet A. Ilorner vs. R. T. McDonald el als., No. 13,119, this day decided.

The issues raised in this case are identical with those of the aforesaid case, this day decided, and for the reasons therein assigned, we are of the opinion that judgment should have been rendered in favor of the plaintiff for one-half of each of the semi-annual dividends which matured and became due on the 1st of May and November of 1897, and the 1st of May, 1898, with five per cent, per annum interest from judicial demand; this suit having been filed on July 18th, 1898— and that a judgment of non-suit should have been entered with respect to the remaining dividends claimed for the year 1898 and subsequent years.

It is therefore ordered, adjudged and decreed, that the plaintiff, Frank Rodér, do have and recover of the defendants, Samuel J. Iiart and Helen IT. TIart, one-half of the amount of the semi-annual dividends claimed for the year 1897, and the first instalment of 1898, of one hundred and fifty dollars ($150) each, with five per cent, per annum interest from judicial demand, and that, in all other respects, the judgment appealed from should be reversed; the demands in respect to other dividends enumerated are dismissed as of non-suit.

And, that the costs of. appeal be taxed against the plaintiff and appellee.


text:
    No. 13,242.
    Joseph Solomon vs. E. S. Gardiner et als.
    Syllabus.
    Two defendants having been adjudged, in solido, to pay a note, one as principal and the other as surety, and both having prosecuted appeals to the Court of Appeals from said judgment, and the principal having prosecuted an appeal to the Supreme Court from a judgment dismissing his reconventional demand, a change of the jurisdiction of the former court pendente lite so as to empower it to decide all the issues in the case, necessarily resulted in a complete consolidation of the two appeals, so as to make one cause, as when it was at first decided in the District Court. The moment of time when the constitutional provision went into effect, the jurisdiction of the Supreme Court in said cause ceased, and it became fully vested in the Court of Appeals and gave it the power to decide all the issues therein raised just as though they had not been separated ; except in so far as the Supreme Court should have adjudged the matters at issue while it had appellate jurisdiction thereof.
    IN RE Peter Doerr applying for certiorari or writ of review to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Charles Louque for Peter Doerr, Petitioner.
    Respondent judges for themselves.

      Dinhelspiel & Hart for Joseph Solomon, also Respondent.
   The opinion of the court was delivered by

WatkiNS, J.

Plaintiff, Solomon, brought suit against the defendants, Gardiner and Doerr, on a note for $1777.15, which was signed by the former and endorsed by the latter, and judgment was prayed for against them in solido.

The defendant, Gardiner, for answer, plead a failure of consideration of the note, stating the grounds quite circumstantially, and he then sot up a claim in reconvention, in the sum of $8000.00, for which he prayed judgment against the plaintiff.

The defendant, Doerr, set up, against his endorsement, defences that were personal to Gardiner gs principal, for whom he is surety, but he did not-demand damages of the plaintiff, nor join .the principal in his reconventional demand therefor.

There was a judgment rendered against both defendant in solido for the amount of the note, and a judgment dismissing Gardiner’s reconventional demand.

From the judgment on the note, both defendants prosecuted an appeal to the court of the respondents, and from the judgment dismissing the reconventional demand of the defendant, Gardiner, for damages, the latter, alone, prosecuted an appeal to this cpurt — such a course being the jurisdictional one under the Constitution of 1879.

This court reversed the judgment dismissing Gardiner’s reconven-tional demand, and remanded the cause to the District Court for a new trial, with instructions to admit and consider certain rejected testimony; and, at a trial subsequently had in that court, there was a judgment rejecting Gardiner’s reconventional demand and, therefrom, ho alone has prosecuted an -appeal to the court of the respondents — such a course being the jurisdictional one under the Constitution of 1898, which invests the court possessing appellate jurisdiction of the main demand, with like jurisdiction of a reconventional demand.

It thus ap>pears that there are now pending in the respondents’ court the two aforsaid appeals, and the complaint of the relator is that the respondents consolidated the two appeals, in so far as the appellant, Gardiner, is concerned, but rendered judgment against him for the amount of the note, and,, also, for five per cent, damages for a frivolous appeal, in utter disregard of his legal rights.

His contention is that, as he is only a surety of the appellant, Gardiner, and entitled to he discharged in case his principal is released from payment of the obligation sued on, the judgment of the respondents, pronounced against him, renders him bound, absolutely, and unconditionally, for the debt, notwithstanding his principal may be entirely relieved from liability; and that in so doing they have committed an error from which he is entitled to be relieved by this court in the exercise of its jurisdiction to review and revise their decrees.

That he is legally entitled to have the property of his principal discussed before execution is taken against him, and, therefore, judgment already pronounced against him in advance of the decision of Gar-diner’s appeal, may result very prejudicially to that right.

That, considering the relations of principal and surety existing between himself and Gardiner, he is entitled to avail himself of all the defences that Gardiner has set up in his answer; and, of that right, he is utterly deprived by the respondents’ judgment, of which he complains.

The relief that relator asks at our hands is that the judgment pronounced against him be annulled and set aside, and the respondents required to consolidate the two appeals, and give to the consolidated cause a like status as the one it had in the District Court when judg-: ment was first pronounced.

The respondents return; (1) that the application for the writ of review was not made within the time prescribed by Article 101 of the Constitution, and, hence, this court is without power or authority to act in the premises; (2) that this is not a proper case for the exercise of this court’s power of review and revision.

In answer to the certiorari, respondents have ’annexed the original records of their court, and also a copy of their opinion and decree, which relator desires this court to review and revise.

An examination of that opinion discloses that the respondent entertained the view, and decided, that the relator must “stand or fall by the record as made up in the appeal taken by him, which was from the judgment on the main demand,” and that, as he is “an appellee from the subsequent judgment oil the reconventional demand, * * he can take no relief therefrom, whether it be finally affirmed or reversed.”

And -upon that theory the argument of respondent opinion pro-needs.

In our opinion that view is somewhat inaccurate in the two particulars (1) that the relator is an appellant from the judgment of the District Court as it was originally rendered against him and Gardiner in solido for the amount of the note sued on, and the sole defense to which was failure of consideration, and from which Gardiner is, likewise, an appellant; (2) that the District Court had rejected and disallowed all evidence tending to support Gardiner’s plea of failure of consideration, in which the relator had a direct and immediate interest, and, therefore, the latter is not bound “to stand or fall by the record as made up in the appeal talcen by him,” it appearing from that record that both the relator and Gardiner excepted to the ruling of the District Court rejecting their testimony, and reserved a bill of exceptions thereto.

True it is that Gardiner alone prosecuted an appeal to this court from the judgment dismissing his reconveniional demand, but it is manifest that relator had no interest in that demand, as its sole purpose was the recovery of a judgment of $8000.00 in damages against the plaintiff, and he could have accomplished nothing by joining Gardiner in the prosecution of his appeal.

But, relator had an interest in the evidence which was rejected, as its tendency was to show a failure of consideration of the note, with respect to Gardiner as principal; for if it established that fact it would, necessarily, have resulted in his relief, also.

This is shown by the opinion of respondents, from which we make the following extract, viz:

“We fully appreciate the fact that defendants’ evidence in support of their defence and of Gardiner’s reconventional demand was only administered after the appeal on the main demand had been perfected, and the record thereof lodged in this court, as under the circumstances stated it could only have been so taken; and that that evidence can only bo found in the record of appeal on the reconven-tional demand, which is not yet before us for consideration. Nor are we unmindful of the fact that it would be eminently unjust, under the peculiar circumstances of this case, brought about by no fault of the parties to this cause, but occasioned as a result of the change in the jurisdiction of the appellate courts, not to afford opportunity to the defendants to have their evidence, administered in support of their defence, considered, if they otherwise have complied with the requirements of the law by which that evidence may be considered, and their cause heard.

“To afford this opportunity, it is not necessary to remand the cause. “ A more regular and orderly course is to consolidate the two appeals “ and to so advance the latter appeal on our docket, that no unneees- sary delay may be occasioned in the hearing' of the entire case.”

Consequently, when this court reversed the judgment and remanded the cause to the District Court, with instructions to receive and consider the rejected evidence, the effect of that decree was to benefit the relator as well as Gardiner with relation to the plea of failure of consideration ; that question being' involved in the merits of the cause in respondents’ court on the joint appeal of both defendants.

Respondents seem to have overlooked the fact that the reconven-tional demand of Gardiner was an entirely independent matter of dispute from the plea of failure of consideration.

That the failure of consideration was a matter in dispute on behalf of both defendants, whilst the reconventional demand, in damages, was a matter in dispute on behalf of Gardiner alone.

It seems clear, to our minds, that there were.two palpable effects of the judgment of this court that respondents overlooked in their decision; (1) that in remanding the reconventional demand, with instructions to the District Court to receive the rejected evidence, it necessarily benefitted both defendants, who were both, likewise, appellants from the judgment as originally, rendered in the District Court; (2) that the appellate jurisdiction of respondents’ court having-been changed pendente lite, the appeal pending in their court at the time of the adoption of the Constitution, was necessarily impressed with'the decision of this court pro hac vice; that is to say, the cause when remanded to the District Court became a necessary ingredient of the appeal then pending in the respondents’ court, as, under the Constitution, the principal and reconventional demand became incorporated into one cause for the purpose of an appeal, as they were originally in the District Court.

In other words, the effect of the constitutional provision was to unite the appeals and make them one, just as though they, had not been severed at all. This being the case at the time of the rendition of the judgment complained of, the two appeals in respondents’ court were really one and the same; and the proceedings had, and evidence taken, in the cause when it was last tried and decided by the District Court, constituted as much a part of the first appeal as if the whole case had been taken to the respondents’ court originally.

The respondents recognized this principle in part, by consolidating the two appeals that Gardiner had taken, but declined to recognize it in respect to the relator’s appeal.

This does not appear to us to be either logical or consistent; for if the pending appeal of Gardiner could be supplemented by the second judgment and appeal, that of relator could, likewise; as the first appeal was in all respect identical as to both of them. If it is permissible for the second appeal to be examined and considered for the proper determination of the issues raised in the first appeal, with respect to Gar-diner, it is equally so in respect to Doerr.

The Constitution of 1898 had fully invested the respondents’ court with jurisdiction of the reconventional demand, as well as of the original demand, and, hence, it was just as competent for it to try and decide at one time all the issues raised on the two appeals as it was for the District Court to have done so, originally.

It can not be supposed that the framers of the organic law intended, by the change in the appellate jurisdiction of the Court of Appeals, to endanger, or abridge, the rights of litigants situated as are those of the relator.

As this court was of opinion, and decided, that the District Court erroneously excluded the defendants’ evidence over their objection and joint exception, the relator is quite as much entitled to the benefit of same, when administered, as Gardiner is, in so far as it-relates to the plea of failure of consideration.

The objection urged by the respondents to the effect that the thirty days, prescribed by the Constitution, within which an application for a writ of review may be made, are to be computed -from the date of the rendition of the judgment by the Court of Appeals, and not from the date when a rehearing has been refused, has. been thoughtfully considered by this couit without being able to sustain it. The language employed in the article referred to, technically construed, would lead to the construction that is contended for, but we do not see how this court could be expected, or reasonably required, to take jurisdiction of a cause still pending and undisposed of in the respondents’ court; for non constat, that they might not grant the rehearing and render a different decree. We can not, therefore, maintain respondents’ exception.

For the reasons assigned in the foregoing opinion, it is ordered and decreed that the judgment which was rendered against the relator be ¿mulled and set aside; and it is further ordered and decreed that the two appeals in the case of Joseph Solomon vs. E. G. Gardiner at al., now pending in respondents’ court, be consolidated as to all parties, and tried and determined as one cause, and that the cost of this proceeding be taxed against respondents.


author: Miller, J. Breaux, J.

text:
    No. 12,892.
    State of Louisiana ex rel. M. J. Cunningham, Attorney General, et als. vs. The Board of Assessors of the Parish of Orleans.
    Syllabus.
    1. Proviso of the Constitution of 1898. — The amount claimed for taxes for ISOS is not due. The proviso of the article of the Constitution of 1898 regarding exemptions has not taken “Colleges” and “Schools” out of the general exempting clause of the article.
    2. The old proviso, with words "or used”, dumped in that respect. The amount claimed_ for taxes for years preceding the year 1898 is not due for the reason that it was too late in the history of exemptions, under the Constitution of 1879, to change contemporaneous construction and the rules and decisions of the courts of dates prior to the present Constitution.
    3. Under contemporaneous construction property was exempt from taxation. All persons should bear the burthens of taxation alike. Only a few (under the Constitution of 1879) would be made to bear them, as relates to educational institutions, if this court were'to change the judgment previously rendered.
    4. Organized for purposes of charity. Institutions ■ organized execlusively for charitable purposes are exempt from taxation, provided they are conducted to relieve the worthy, helpless and infirm. The moment amounts are collected to provide revenues to pay large salaries or wages to favored employees or to conduct a business for income, the exemption ceases.
    The evidence, as relates to the institutions heretofore decreed exempt from taxation, does not show anything of the kind, therefore the former judgment of the court remains in force as relates to the present condition of the institutions as shown by the testimony of record.
    5. Costs. The State is not liable for costs in her own courts.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      M. J. Cunningham, Attorney General, Samuel L. Gilmore, City Attorney, Frank C. Zachame and Ambrose Smith, for Belators, Appellants.

      Farrar & Lemle and I. D. Moore, for Hebrew Benevolent and Touro Infirmary, Intervenors, Appellees.

      Richardson & Soule for George Soule, Intervenor and Appellee.

      R. II. Browne for Leland University and the Young Men’s Christian. Association, Intervenors, Appellees.

      Leovy & Leovy for Christian Woman’s Exchange, Intervening Defendant, Appellee.

      Bernard McCloslcey for Society of Daughters of St. Vincent de Paul, Conducting the Hotel Dieu and Louisiana Betreat, Intervenors, Appellees.
    TV. TV. Howe and II. II. Hall for Ohrist Church Cathedral, Inter-venor, Appellee.
   The opinion of the court was delivered by Miller, J'.

On the rehearing by Breaux, J.

Miller, J.

The relators, the State of Louisiana and the City of New Orleans, apply for a writ of mandamus to, compel the Board of Assessors to assess for taxation the property of a number of corporations, and of individuals, who claim the property is exempted from taxation because devoted part to schools, part to charitable uses, and another portion to a cemetery. The board has placed all the property on the rolls, but as exempt, and the answer of the board avers the exemptions. The owners of the property have intervened, asserting the exemptions they respectively claim. From the judgment of the lower court, in favor of the board and intervenors, the relators take this appeal. Yielding to the request of the relators for a speedy trial, the case has been heard since our adjournment by the justices of this court not absent on their vacation.

It is the duty of the Board of Assessors to put Oil the assessment rolls for taxation all property liable to taxation not within the exemptions stated in the Constitution. The question whether or not the property is exempt is not submitted to the final determination of the board. It is supposed that the exemptions are clearly stated, so that the board can have no difficulty in performing their function to assess all property not exempt. But if the assessors omit to place on the rolls for taxation property they may deem exempt, their omission is to be viewed as a failure to perform a ministerial duty. We, therefore, pass from the contention of the defendants that the determination of the board not to assess the property involved in this controversy is conclusive. The State and City, in our opinion, are clearly entitled to the remedy given by the law to compel official performance of mere ministerial duty. Revenue Act No. 106 of 1896, Section 7, ei seq., Code of Practice, Art. 829 et seq.

The other preliminary contention is as to the right of the property owners to interfere in this proceeding. They have been heard on. the interventions. Whether or not they are bound by the judgment now to be rendered after that hearing, requires no determination; that will be in order if the questions áre hereafter ever raised by the inter-venors.

The controversy arises under that part of Article 207 of the Constitution of 1879 that exempts from taxation all buildings and property used exclusively for colleges or other school purposes; places of religious worship or burial, and all charitable institutions, the article closing with the proviso that the property so exempted be not used or leased for purposes of private or corporate profit or income. Included in the property the relators claim should be assessed and asserted by the owners to be exempt, under the exemptions of schools and colleges, is the property known as Soule’s College, the Lel’and University, the Farrell School, Mrs. Seaman’s School, the Sacred Heart Convent and the Jesuit College, all owned by the corporations, or individuals, conducting these educational institutions. It is insisted these institutions are not exempt because of the provision of the Constitution. It is not claimed that any of the property is leased, but it is conceded the property is owned by those who conduct the schools or colleges sought to be taxed. The argument is that the property is to be deemed used for private profit or income, because the scholars or students are charged for the education they receive. It was known to the framers of the Constitution that in all schools and colleges, except the free schools, a charge is made for the instruction. Free schools established by the city or State, usually on public property, required no special exemption. If, therefore, it had been intended by the proviso to exclude from the exemption all colleges and schools that received pay for the education afforded, the exemption provision in the body of the article served no purpose. It might be that a proviso, under certain circumstances, would so modify the provision to which it applies as to make the provision meaningless. The current of authority and reason favor that interpretation which will not make the proviso sweep away in its entirety the provision; it is the usual province of the proviso only to qualify (Dwarris on Construction, p. 119; notes at foot). We pause on that construction of this proviso that practically does away with the exemption of schools and colleges the body of the article so plainly announces.

We have been referred to our decision in Lichtentag vs. Tax Collector, 46th Ann. p. 572. There the exemption was claimed for a school teaching shorthand and gymnastic exercises. In the course of the opinion allusion was made to an allegation in the petition that the school was conducted for the profit of the owner, and the court added that fact excluded the exemption, but the substantial ground of the decision, i. e., the character of the school, was that on which the court denied exemption. In Indiana, we presume, the constitutional provision or legislation on this subject is similar to the article in our Constitution, and there it has been 'held that the schoolhouse property exemption is not excluded because the earnings of the school accrued to the owner conducting the institution (34th Indiana, cited in the United States Digest, p. 822, No. 676.). In the earnest contention in this court, in reference to the exemption from taxation claimed by the Tulane University, it is true the taxability of the university was not asserted, but it is impressive that, although all know the students of the unversity pay for the instruction they obtain, it never suggested itself that the charge for instruction subjected the university to taxation (State ex rel. Tulane Educational Board vs. Board of Assessors, 35th Ann., p. 666; Tulane Educational Fund vs. Board of Assessors, 38th Ann., p. 295). We find ample scope for the proviso without giving it that construction sought at our hands by the relators. If the owner leases or grants the use of his property for school or college purpioses, thereby deriving income or profit, there is no reason why he should enjoy an exemption from taxation. There is abundant authority that such lease excludes the exemption conferred on school or college property (43rd Minn. p. —, cited in the U. S. Digest for 1890, p. 3S38, No. 82; 32nd Hun., N. Y., cited in the U. S. Digest for 1894, p. 706; Cooley on Taxation, Ed. 1886, p. 203). There is no feature of a lease in this case. In our present Constitution, we perceive the word “used” in the similar provino contained in that instrument is discarded, doubtless considered redundant (Constitution 1898, Art. 230). We are not advised of any purpose of the recent convention to restrict or change in any material respect the exemption of schools and colleges conferred by the' Constitution of 1879, and it seems to us the exemption, as expressed in our present Constitution, is all ever intended by the Constitution of 1879. 1 At any rate we find reasonable scope for the proviso under discussion, without giving it the effect of annihilating practically, the exemption in the body of the article announcing by the plainest import language can convey the exemption of schools and colleges, though charges for the education are made by the institutions. Our interpretation, that excludes all property used for schools and colleges when the owner derives income or profit from the lease or right of use granted by him, assigns to the proviso all the force we think it is entitled to exert, and gives due effect to the exemption as it is written “of all buildings or propeprty used exclusively for school or college purposes.”

The argument further insists that a part of the Jesuits’ College is used for purposes other than the college. It appears, from the testimony, that the priests officiating in the Jesuits’ church, adjoining, occupy apartments in the college building. This use, we are clear, can not be deemed at all incidental to the college. When property, exempted from taxation for one purpose, is used also for another, it has been claimed the entire exemption is lost. It is not of ready appreciation that when the main use of property carries that exemption, it should be entirely lost because a part, in this case inconsiderable, is used for another purpose. In our view, in such'a case, the part used for the purpose disconnected from that for which the exemption is conferred, should be assessed at a value proportioned to that of the entire building (Burroughs on Taxation, S. 71; Grand Lodge of Masons vs. City, 44th Ann., 659). We are reluctant to recognize implied exemptions.

Tlie aphorism that exemptions are to be strictly construed is consistent with that reasonable construction that embraces incidents purely within the spirit, if not the terms, of the exception.

The use of apartments in the college by the teachers may be deemed contributory to the discipline and efficiency of the institution. The fact that they pay no rent, and-reside in the college only because they are employed in it, aids the view that such residence is the incident of the purpose of the college, and hence a circumstance not prejudicial to the exemption. This is the conclusion reached by decisions of other States with legislative and constitutional restriction like ours on this subject. We find a decision of that character cited in the United States Digest, from New Jersey; another from New York, U. S. Digest, p. 823, No. 684; U. S. Digest for 1890, p. 3538, No. 90. Our predecessors held this view. Blackman vs. Tax Collector et als. 39th Ann., p. 592. All this, and mainly because our predecessors have so held, has led us-to the conclusion that the partial use of the college building by the teachers employed in the college is not fatal to the college exemption. We feel called on to state that our decision on this point is to be deemed strictly confined to the facts of this case as presented in the record. We are not inclined to strain college and school exemptions so as to embrace property substantially devoted to residences.

The property known as the Hotel Dieu, the Touro Infirmary, the Louisiana Retreat; the two first prominent hospitals, and the last devoted to the care of the insane; the property of the Young Men’s Christian Association; that of the Woman’s Exchange and the property of the Firemen’s Charitable Association, the relators claim, should be assessed-;.and, on the other hand, it is asserted that all this property is exempt, part because a cemetery, and the residue being-charitable institutions. While it is true the use of the property, and not the character of the corporation or the owner, is the test of the right to the exemption, still, in determining the uses of this property the fact can not but exert appropriate influence that the Hotel Dieu, and the Retreat for the insane, are owned and conduced by the Society of the Daughters of St. Vincent de Paul, devoted solely to charity, and it is not without pertinence to this controversy that the Infirmary is administered by the Hebrew Benevolent Association, the title of the corporation being suggestive of the purpose for which the infirmary was established. In the charter of the Hebrew Association the corporate purpose is stated to be “to afEord relief to the poor deserving aid,” and to that end the. charter conferred authority to erect and maintain the infirmary. In the charter of the Sisters the corporate object was avowed “that the sisters might more widely diffuse their usefulness to the fatherless, the sick and the poor,” and to that end the Sisters were provided the Retreat and the Hotel Dieu. Those charters manifest the legislative appreciation of the purposes to which the institutions were to be devoted, and to maintain the relators’ contention we must hold that the institutions have become diverted to uses other than those contemplated by the charters. That the institutions have been operated with a view to profit, is in marked contrast with the fact placed before us by the testimony, that contributions are annually required from the philanthropic to defray the expenses for lihysieians, nurses, food and medicine, the institution furnishes those unable to pay, or, at least, not able to pay the usual charges incident to medical treatment. We gather from the record that the Retreat opens its doors annually to numbers of the afflicted without a dollar of compensation beyond a charge that does not cover the actual expense for the patient, and this charge is often paid because the patient has neither purse of his own, nor that of friends to respond. It is also in evidence that the Retreat takes care for a time, at least, of the indigent insane east on the city, making only a charge that excludes any possibility of profit, if, indeed, it covers the burden the Retreat assumes. We find from the record that the Hotel Dieu devotes a part of its space to beds for the indigent sick; for these beds, food, medicines, and the services of the physician the institution furnishes, a charge is made, often not responded to, nominal in amount .and not enough to defray expenses. We find that the Touro Infirmary sets aside a large portion of its space for beds to accomodate the destitute sick from whom no pay is expected or received; that they are provided by the institution with medicines, food, and tbe services of a physician; that the aged.and infirm, without charge, find shelter and care in a part of the institution; that the management assigns some of the wards of the institution for the destitute to be provided for by the city authorities, and that the Infirmary derives its main support from the contributions of the charitable. The argument addressed to us insists that these three institutions, notwithstanding the large amount of charity they annually extend, are not charitable institutions, because they receive pay from a class of patients able to pay, and desire to avail themselves of well-equipped institutions where the sick can receive proper attention. It strikes us as a narrow construction to hold that these institutions are not to be deemed charitable, because unable to bear the whole expense of taking care of the indigent needing medical attention, and of those whose straightened circumstances render them helpless to obtain the attention and medicines they need, the institutions make a moderate charge of those able to make return in some small degree for the shelter, medical treatment, medicines and food they receive. Nor can we see our way clear to hold that institutions established for charitable purposes, and serving the purposes to the extent shown by the record, are not to be decreed charitable, because they derive some revenue from the class called “pay patients.”

From our examination of the decisions of other States it would seem that the circumstance that the institution takes pay from those who can pay, does not exclude the exemption given charitable institutions, if the institution claiming the exemption affords material aid to the indigent. In Missouri it has been held that a hospital whose object is charity, and whose profit derived from pay patients is devoted exclusively to charitable purposes, is within the exemption from taxation of property used for purposes purely charitable (10th Missouri Appeals, 263, cited in U. S. Digest for 1882, p. 854, No. 25). To the same effect is the decision in 27th. Minn., p. 460, cited in the same Digest, p. 854, No. 29, and in 12 N. Y., 307, cited in the American Digest for 1891, p. 1475, No. 92. The exemption from taxation of charitable institutions is conferred in pursuance of an elevated public policy recognizing the obligations of humanity, as well as on the 'theory that such institutions relieve to some extent the State and city of caring for the indigent at the public expense (Cooley, p. 202, Con-sitution Art. 63). We must recognize’ in the light of the record that these institutions dispense a large measure of charity and fulfil, to a great extent, the duty of the city in respect to its poor. Our conclusion is the Infirmary, the Hotel Dieu, and the Retreat for the insane, are charitable .institutions within the exemption from taxation of the Constitution.

In our view the same line of argument sustains the exemption of the Christian Woman’s Exchange, of a character common to all large cities, we believe, and established to assist poor women. The institution furnishes meals to the indigent, receiving a moderate price from those who can pay, and the price of the meal is adjusted with no view to profit, but to provide for the expense of the meals which are prepared by the orphans the institution feeds. The institution provides a free library for those it is designed to aid, receives and sells articles made by the poor women to whom the proceeds accrue with the deduction of a small amount to defray the expenses of sale. Besides this, the institution provides rooms free of charge to the necessary employees, and to the young and unprotected females it affords a home at charges proportioned to actual expenses. The institution owns its building donated for the purpose, and it is used exclusively for that purpose. There is no leasing or use of the building for revenue, nor element of profit connected with it. In our view the exchange is purely charitable in its purpose and uses.

It is claimed by relators that the property owned by the Firemen's Charitable Association is liable to taxation. The argument is that the portion devoted to a cemetery is taxable, because burial lots are sold and fees are charged for opening graves and vaults. It is to be presumed that the framers of the Constitution were fully apprised that' such charges are made by all cemeteries. The exemption is granted in the plainest terms to “all burial places.” If the ground is leased for a burial place and revenues are derived by the owner, there is evident reason for the proviso. In that sense the proviso denies to the owner an exemption because of the "use another makes ,of the property for a sacred purpose. The subject of cemetery exemption received the fullest examination by our predecessors, and they maintained the exemption of the Metairie Association (Metairie Association vs. Assessors, 3Tth Ann., 33). It is suggested in the brief that part of the property claimed to be exempted of the Firemen’s Association is leased. We now deal'with that which we understand is owned and established as a cemetery by the association. We are clearly of opinion that it is exempt from taxation, but not that property the association holds for other purposes.

We have given close attention to the exemption claimed for the property of the Young Men’s Christian Association. The Legislature deemed the property worthy of the exemption, and undertook to grant it. The charter announces, as the corporate purpose, the improvement of the spiritual, social and intellectual condition of the young men of the city, and in consideration of the proposed work of establishing a public library, the property of the association was to be free from taxation (Acts of 1872, No. 79). It is claimed that the association having established a library, that the legislative act constitutes a contract entitling the association to exemption. The Constitution of 1868, under which this -charter was obtained, requiring all property to be taxed, gave the Legislature power to exempt property actually used for church, school or charitable purposes, and the real and personal estates of any library. It is claimed that the building owned by the association is exempt because it is to be deemed used for charitable purposes. The argument is that caring for the social, moral and spiritual condition of men is charity in the broadest sense, and that a place provided by the association where young men can assemble foj-religious exercises and be secluded from temptation, is a charity and a blessing. We wish we could yield to this reasoning. It demonstrates the capacity of the association to aid in the" intellectual improvement of young men, and the usefulness of the association in promoting religious purposes. But, in our opinion, the argument fails to bring the association and its rooms within the exemption granted in the Constitution to property actually used for charitable purposes. We are dealing with a question of exemption under the imperative rule so often affirmed of strict construction. If the property of the association is to be exempt because of the tendency of the association to advance the intellectual and moral condition of young men, it would be the beginning of a latitudinous construction that far exceeds the hounds tho Constitution imposes. The Constitution of 1879, like that of 1868, exempts “the real and personal estates of public libraries.” We gather from the record the association has established such a library. To the extent the building is used for that purpose, in our opinion the property is exempt from taxation.

Another phase of this controversy is, whether all the property claimed to be exempted from taxation is essential for the purposes in aid of which the exemptions were granted. Undoubtedly an exemption from taxation is to be fairly construed so as to embrace all property necessary for the purpose in view of which the exemption is conferred. The converse of the proposition equally to be conceded is that property not at all essential to that purpose is not included in the exemption. The record shows that the assessors omitted from the rolls five squares of ground as constituting the Louisiana Retreat for the Insane, The insane asylum occupies one square. The testimony is that two of the squares are used, or designed to be used, to afford the insane people the space for exercise, one of the squares for the women, and the other for the men. This seems favorable, but we are unable to perceive the basis on which the other squares are to be exempted, and we have given full attention to the testimony tending to show that the other squares are designed for raising vegetables and for pasturage for the uses of the Retreat. The Leland University, an educational institution, occupies two squares. The assessors have omitted two other squares as part of the institution. As we appreciate the testimony, the two squares are used for pasturing the cows of the institution and to afford the scholars the opportunity to learn gardening. There is authority in the decisions of other States that ground thus used is included in the exemption of the institution of learning. We are unable to reach that conclusion under our Constitution, and hold that land used to pasture cows and raise vegetables, though for the institution, or to afford scholars the means of acquiring a practical knowledge of gardening, can not be deemed included under the exemption of property used “exclusively” for schools and colleges under the scant terms of the exemption in our Constitution. On the same line of reasoning applied to a different subject, we are unable to appreciate that the exemption conferred on places of religious worship can “be held to include the bishop’s residence.” The Constitution did not use the word “church,” which might be deemed restrictive, but employed the expression “places of public worship” to take in all places used for the worship of God. There the exemption stops. We have no privilege Of construction to convert the residence of the pastor into a place of religious worship. We have given attention to testimony of the cloistered connection of the church, and the adjoining building in which the bishop and his family reside, and we have not overlooked the testimony that the vestry and associations connected with Christ Church hold their meetings in the building. We can not perceive that the use of the building for these meetings makes it a place of religious worship, nor that the cloisters or the term “see house,” used in the testimony, make the building part of the church. It is, in our view, no part of the church or place of religious worship. Its uses may be deemed convenient or desirable for church purposes, but that, in our opinion, is not enough to sustain the exemption. Detached from the church and used as a residence by the bishop, we are constrained to hold the building is subject to taxation, and indeed the question is, in effect, determined by the decision of our predecessors, that the parsonage or residence of the minister was not entitled to the exemption of places of religious worship (First Presbyterian Church vs. Tax Collector, 30th Ann., p. 259). The decisions of other States are to the same effect (Burroughs on Taxation, p. 136).

Another phase of this controversy is presented in the contention that the property of the St. Elizabeth Orphan Asylum, no part of the institution, but held for revenue applied for support of the asylum, as it is claimed, is omitted from the rolls, and relators assert all such property is liable to taxation. We understand the exemption relied on by the asylum is alleged to be conferred by the legislation prior to the Constitution of 1879, exempting all property of charitable institutions (Act No. 245 of 1850). That exemptions from taxation of the prc-perty of charitable institutions, not contained in the charters of the institutions, may be withdrawn at any time by legislative act or by constitutional provision, needs but the statement (Cooley on Taxation, Edition 1886, pp. 66-69, el seq.; Home of the Friendless vs. Rouse, 8th Wallace, 430; City of New Orleans vs. St. Anna’s Asylum. 31st Ann., p. 292; Asylum vs. New Orleans, 105th U. S., p. 362; Grand Lodge of Masons vs. City, 44th Ann., 665; Grand Lodge vs. New Orleans, 166 U. S., 143). It is conceded that the charter of the asylum contains no exemption of its property. The question then is simply whether the Constitution of 1879, with its unqualified direction that all property shall be taxed, enumerating, with other exceptions not pertinent to this controversy, charitable institutions, accompanied with the proviso denying the exemption when the property is used or leased for corporate profit or income, does not entirely sweep away all exemptions previously granted of property no part of the charitable institution, but leased or used to produce 'revenue for the institution. In our view, this question will not bear discussion. The purpose to exclude from exemption the property held by the charitable institution for revenue is as distinctly marked as the exemption of the institution itself, and that purpose was evinced in our legislation and jurisprudence before, as well as after, the adoption of the Constitution of 1879. Act of 1844; Act of 1850, already cited; Act No. 164 of 1856, p. 147, Sec. 4; New Orleans vs. Judah Congregation, 15th Ann., 390; City of New Orleans vs. St. Anna’s Asylum, 31st Ann., 292.

The Constitution of 1868, Article 118, differed in reference to exemptions from that of 1879.

The provision in the Constitution of 1868 was that all property should he taxed, but gave the Legislature power to exempt property actually used for church, school, or charitable purposes. Our predecessors held in reference to taxes levied under that Constitution that it did not repeal exemptions to charitable institutions granted by previous legislation. These decisions, by a divided court, seem to be in conflict with previous decisions construing' the exemptions in the Constitution of 1868, and are accompanied with vigorous dissents maintaining that all previous exemptions conflicting with the Constitution of 1868, were completely repealed or withdrawn by the very explicit provision of that Constitution (City of New Orleans vs. Poydras Orphan Asylum, 33rd Ann., p. 850; Orphan Asylum vs. Tax Collector, 37th Ann., 68). We are not embarrassed by these decisions. The taxes claimed in this controversy are those of the past three years. The right to exact the taxes subsequent to 1879, must be tested by the Constitution of 1879. Tinder its language, entirely different from that of 1868, confining the exemption pertinent to this controversy to the charitable institution itself, excluding in peremptory terms all property of the institution leased or used for revenue, the conclusion to our minds is inevitable, that the relators’ contention in reference to this asylum property must prevail. The line of reasoning we deem persuasive in this ease, is, in effect, the same as that which guided this court in the case of the Grand Lodge of Masons vs. City, 44th Ann., 672, to which we refer.

It is, therefore, ordered, adjudged and decreed, that the Board of Assessors place on the rolls for taxation, as required by the relators, the following property — that known as the Jesuits’ College, in so far as it is used as a residence by the priests, not teachers in the college, the assessment of that part to be of the value thereof in proportion to the total value of the college building; all the squares adjoining the Louisiana Retreat, held by the Society of the Daughters of St. Vincent de Paul, save and except two of the said squares required for the exercise of the insane; .the squares adjoining the Leland University, held by that institution; the property adjoining Christ Church, known as the Bishop’s Residence, referred to in the petition; the property consisting of the row of frame houses on Magazine street, held by the Society of the Daughters of St. Vincent de Paul, no part of St. Elizabeth’s Asylum; the property of the Young Men’s Christian Association, except that portion used as a library, the value of that portion in proportion to the value of the whole building to be exempted, the residue of the value of the building to be assessed for taxation; and finally all the property of the Firemen’s Charitable Association, except that used as a'cemetery; and in other respects it is ordered and decreed that the judgment of the lower court be affirmed, with costs.

Mb Justice Watkins, Mr. Justice Breaux and Mr. Justice Buan-ciiard concur.

Nicholls, C. J., absent.

Per Curiam.

The judgment of this court having been reversed, touching the matter of the payment of the costs, it is ordered that the rehearing applied for in this case be granted with regard to the Hotel Dieu, the Tou.ro Infirmary, the Louisiana Retreat and the Christian -Women’s Exchange; in other respects the application is refused.

On Rehearing.

Breaux, J.

Relator originally alleged that all buildings and property used exclusively for colleges and other school purposes are subject to taxation for the year 1898, and for three years immediately preceding, to-wit: The years A. D. 1895, 1896, and 1897.

Our decision dwells exclusively upon the construction to be- placed on Article 207 of the Constitution of 1879. The reason and the logic of the decision are favorable to nearly all the exemptions claimed by respondents under that Constitution. Manifestly; an exemption from taxation for the year 1898 is to be construed by reference to the Constitution of 1898. .Under the Constitution of 1879 the proviso of the article relating to exemption, reads: “Provided the property so exempted be not used or leased for purposes of private or corporate profit or income.” Under that proviso there is much more to be said against the exemption claimed by the respondent than can be said in support of that position under the Constitution of 1898; that is, in support of the position that the enterprises here are exempt. The words “are used” were stricken out ex industria from the Constitution of 1898, and the provision we have quoted above now re'ads: “Provided the property so exempted be not leased for purposes of private or corporate profit pr income.” None of the properties to which the decree, ill our opinion, refers are leased for purposes of private or corporate profit or income. They are all owned by individuals or by corporations and arc used exclusively for colleges and other school purposes. The word “exclusively”, used in the article of the Constitution regarding exemption, has a particular meaning to which some attention has been given in our original opinion, and on which we desire to dwell for a moment. Unquestionably, if the property is not used exclusively for the purpose before mentioned, it is subject to taxation. It follows that all properties used for colleges are not exempt, but we have no reason to conclude; from the evidence before us, that Soule’s College, Mrs. Seaman’s School, and other educational institutions, are conducted in buildings and on property not “exclusively” used for colleges or schools.

We have already said, in substance, when the case was before us originally, if schools are conducted in properties substantially devoted to residences, they fall within the class of properties not occupied exclusively for schools, and should be taxed. This much regarding exemption under the Constitution of 1898.

We take up, for a moment, the question of exemption under Article 207 of the Constitution of 1879. We can add very little to that which has been said in our original opinion. It is a well known fact that institutions of learning in this State were not assessed and taxed under the Constitution of 1879. Before this suit was instituted, no attempt was over made to place such property upon the tax roll. For nearly two decades they were not taxed. The law under which'the tax is claimed has been repealed and some changes made, as we have before stated. Now that the old exemption law is changed in an important particular, it would require, we think, an unusually strong case to justify us in holding at the eleventh hour, as if were, in the history of that exemption under the Constitution of 1879, that a tax was due in all these years on all property exclusively used by schools and colleges, and that now only those here named as respondents and taxpayers are to be held to the payment of the tax for those years. The many years of silence, under the Constitution of 1879, is a contemporaneous exposition of the law. A contemporaneous is generally the best construction of a statute. It gives the understanding of a community of the terms made use of by a Legislature. If there is ambiguity in the language, the understanding and application of it when the statute first comes into operation, sanctioned by long acquiescence on the part of the Legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice. “A construction, under such circumstances, becomes established law, and, after it has been acted upon for a century, nothing but legislative power can, constitutionally, effect a change” (Sedwick on Statutory Construction, p. 213). In leaving- this branch of the subject, we quote the terse and admirable maxim of the Civil Law, “Contemporáneo expositio est fortissimo, in lege.”

Relators also complain of our decree because, under it, the Iiotel Dieu, Touro Infirmary, Louisiana Retreat, and Christian Woman’s Exchange are held exempt. Relators say, in their brief for a rehearing, that the use and character of each of these institutions are similar and may be treated together, but they dwell more particularly on the exemption of the Christian Woman’s Exchange. The record does not disclose that any of these institutions are carried on with a view to profit. The object, we are informed by the testimony in each ease, is charity. Their doors are open to the needy, and the amounts they collect from those patients who are amply able to pay arc expended exclusively for charitable purposes.

As relates to the Christian Woman’s Exchange, it is described in its charter as a charitable institution only and exclusively. It makes no profit of any kind. Every cent it collects is expended in carrying out the purposes of its organization. None of these enterprises are mercantile establishments, as we are informed, paying large revenues to favored employees. As relates to the Christian Woman’s Exchange, we insert here as apposite the syllabus of the ease in City of Philadelphia vs. Women’s Christian Association, 17 Atlantic Reporter, page 475. “The Women’s Christian Association of Philadelphia is exempt from taxation as an institution 'of purely public charity’ under the laws exempting the property of all institutions ‘founded,’ ‘endowed’ and ‘maintained’ by public or private charity. Notwithstanding its revenues are, to some extent, derived from payments for board and lodging by the young women for the benefit of whose temporal, moral and religious welfare the association exists, such revenues are not intended as a source of profit and being, in fact, insufficient to defray expenses, the annual deficit being made up by voluntary contributions.” The syllabus covers the principles laid down in the decision. We refer by quoting the syllabus only because it accords with the views expressed by us before we had read the opinion.

In course of time, it may be that enterprises organized only to carry out charitable purposes will extend their operations so as to become businesses in the interest of owners or employees. It will then become necessary to hold them bound for taxes.

With the evidence before us, we are not inclined to find that the institutions aic not charitable, the evidence showing- that they are charitable. All the testimony leads one to that conclusion. Every institution owes taxes, save those carried on exclusively for charity and the relief of those suffering. In order that there may not be any abuse in this respect, for we realize that it is an easy matter to extend the purposes of these institutions so as to get profit and benefit for owners and employees, we limit our decision as applying only to those years aforostated, and we intend that it shall be viewed and considered as exclusively sui generis.

Our decree heretofore condemned relators to pay costs. This must be changed, for the reason that the State pays no costs in her own courts, unless under special provision. The relator an,d the assessors, respondents, represented the 'State. Neither, as representing the State, can be held for the costs. The ease must be considered as one for which the State alone incurred costs, for which she can not be held.

It is now ordered, adjudged, and decreed, that the Board of Assessors place on the rolls for taxation only such property as heretofore was decreed should be taxed, and that in this respect, and in every other particular, our original decree remain unchanged, and be in full force and effect save as to the costs not due by any one from whom they can be collected under the law.

The application set out, on rehearing, is denied.

Blanchard, J., dissenting.


author: Breaux, J.

text:
    No. 12,986.
    Miss Julia Schwenck vs. Mrs. Wilhelmina C. Schwenck.
    Syllabus.
    1. Possessors m bail faith. Persons are in bad faith who impose upon the courts and, under false averments, have themselves put in posseession of property of which they are only part owners.

      2. Bents and Revenues. Possessors in bad faith must pay all the rents due up to the judgment and its execution against them.
    3. The heirs estopped and therefore affected by the. had faith. One who holds lands under a testamentary inheritance is bound by the estoppel that would stop the de cujus himself.
    4. Obligations not in solido. The testamentary heir is charged with rents and revenues due by the succession of the testator, but not with rents and rev-eenues due by one who was a joint possessor with the testator of an interest of which they were not owners, for as to him, they are not bound in, solido. Being part owners of the property, they were not trespassers bound im solido, though in bad faith.
    5. Taxes, Insurance, Mortgage. The possessors, though in bad faith, are entitled to taxes, insurance, and mortgages on the property paid by them. •
    PPEAL from the Civil District Court for the. Parish of Orleans. Tc Monroe, J.

      James B. Rosser, Jr., for Plaintiff, Appellee.

      Dart & Kernan for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, claiming to be the owner of a three-sixteenth interest in a lot and improvements, situated in New Orleans, brought a petitory action to recover her interest, together with an action for the partition of the property and for rents and revenues.

The property was bought by Jacob and John Schwenck in 1873.

John Schwenck died in June, 1874, intestate and unmarried, leaving as his heirs. Nicholas Schwenck, his father, Jacob Schwenck, his brother of the full blood, and Julia Schwenck, his sister of the half-blood, petitioner in this suit, who was a child (nine years old) of Nicholas Schwenck by a second marriage.

The succession of John 'Schwenck was opened in 1874 by Nicholas Schwenck, the father, and Jacob 'Schwenck, the brother, who chose to ignore that plaintiff was an heir. They alleged and swore that Jacob Schwenck left no other heirs than themselves, and obtained judgment putting them in possession.

In 1879, Nicholas Schwenck sold his interest, inherited as just stated, to Jacob Schwenck.

After the death of Jacob Schwenck, his widow and testamentary heir brought a suit against her co-heirs, children of Jacob Schwenck, claiming title to one-third of the property, and praying for a partition, and, under the sale made in accordance with the decree of court, she became the owner.

In her answer, defendant alleges that she has been in undisturbed possession of the entire property since her purchase, on — October, 1892, from the succession and the heirs of Jacob Schwenck; that the sale was made under a judgment of partition; that the deed to her was the confirmation of the sale at public auction; and that the proceeds of the sale were distributed among the heirs of Jacob Schwenck by an act of partition.

She also avers that the property had been in her husband’s possession for many years before his death, and no one ever questioned his title or disturbed his possession.

She charges that the plaintiff knew of those proceedings; that, if she had rights, she wilfully permitted respondent, the present owner, to make a purchase of the property and pay therefor, and that, in consequence, she is estopped.

The defendant, as executrix, sought to intervene in the suit, averring that John Schwenck died insolvent; that there was due on the property a mortgage placed thereon by the joint owners, Jacob and John 'Schwenck, amounting to six thousand, six hundred dollars, with 8 per cent, interest from November 9th, 1873, and which should be paid by the plaintiff, should there be judgment in her favor. The plaintiff objected to this intervention, and pleaded an estoppel on the ground that petitioner, in her answer, averred that the estate was partitioned, and that, in consequence, the duty of executrix was at an end, and that she could no longer have a standing in court. The estoppel was sustained and the intervention dismissed. Subsequently, the judgment condemned the plaintiff to refund her virile share of that debt as had been prayed for in the dismissed intervention.

The District Court, in its decree, recognized Julia Schwenck as the owner of an undivided three thirty-seconds interest in the property in ■common with Wilhelmina Schwenck as owner of an undivided twenty-nine thirty-seconds interest; ordered a sale of the property at public auction to effect a partition, fixed the rent of the property at sixty dollars ($60.00) per month from August 27th, 1874, to January 1st, 1880, and at forty dollars ($40.00) per month thereafter until a sale, as ordered, and on the other hand the decree condemned the plaintif.' to pay an amount due on the property which was paid by defendant or her authors.

From that judgment, defendant prosecutes this appeal.

The evidence shows that Julia Schwenek, the plaintiff, became the owner-, by inheritance from her brother John Schwenek, of a three-thirty-second interest in the property. This is not seriously contested by the defendant, whose defense is chiefly directed against plaintiff’s averment of her bad faith. She contends, in support of her good faith as an owner, that she was not aware of the defect in the title, but that, on the contrary, the sworn declaration of -her husband and of the father of the plaintiff, in their application for the opening of the succession of John Schwenek and its settlement, was enough to warrant her in the belief that the title offered, when the property was offered at public sale, was good and valid.

Mrs. Schwenek, the defendant, was not a third person, and is not protected as a third person would be by the sale at public auction to effect a partition. The funds, proceeds of the sale, were distributed among' the heirs of Jacob Schwenek. In this distribution, Mrs. Schwenek, the defendant, was included, and received her portion, viz: One-third.

Obviously, Nicholas Schwenek and Jacob Schwenek were not possessors in good faith. The former concealed the fact that Julia, the plaintiff here, was his daughter, and the latter concealed the fact that she was his sister, of the half blood, and together they sought to obtain a title which was null and void, in so far as she was concerned. These parties could not gain an advantage by such acts. “No man should derive any benefit from his own wrong,” is a familiar maxim. Nul prendra advantage de son tort demesne, 2 Just., Y13. We pass from the case of the two authors of the defendant’s title fully convinced that as to them there is not the ground upon which to base a decision sustaining the title in opposition to plaintiff’s claim.

This brings us to the claim of the defendant that she bad no knowledge of the heirship of plaintiff, and that she is protected by the proceedings of partition to which we have already referred, and in which she took part as a purchaser of property and as an heir.

She stands in the shoes of her ancestor in title.

She can not be heard to urge that he was in good faith, nor can she, in her defence, sustain the position that she can not be held for rent and revenues because she had no knowledge of the defect in the title. We must hold that she had cognizance of the action taken by one from whom she inherited, and that knowledge had the effect of rendering her possession one in bad iaitb from its inception. It lias always been held, as relates to the title to real' property and its possession, that heirs can not be heard when they set up in their own defence that which equity and good conscience would not permit the one from whom they inherit to set up as a defence. Armorer vs. Casé, 9th Ann., 242.

If one is estopped, those claiming under him as heirs are estopped. One to whom the defects of'title are known is not a 'bona fide possessor. Heirs of Dohan vs. Murdock, 41 Ann., 494; C. C., 503.

The following is laid down as correct: If the title discloses facts which show the person from whom it was acquired had no title, it can not form the basis of a right. Frique vs. Hopkins, 4 N. S., 221.

The de cujus was fully aware of the relation existing between his son, John Schwenck, and his daughter, the plaintiff, and of this fact we are bound to hold that defendant also had knowledge. This being the condition, it necessarily follows that the defendant was also a possessor in bad faith. She, it must be held, was a purchaser with notice, and she acquired only such right as her ancestor in title had.

There was no error of fact, in that the parties must be held to have been informed of all the facts. C. C., Art. 1821.

As relates to any question of law, it is not of such a character as to enable the defendant to avail herself of it.

The case is entirely within the principles laid down in one of the cases of this court.

“However much the commentators of the Roman law have differed, the one from the other, and the same person from himself, at different times, on the subject of mistakes of law, they seem to agree in this, that juris error is never a good foundation for acquiring property,” Francois vs. Delaronde, 8 M., 619.

In the case cited by the defendant in support of her defence, Hutchinson vs. Jamison, 38th Ann., 150, the court said: “As said before, there was sufficient reason for an honest belief on her part that she was the sole owner of the property.” It is different from the case here, we have seen, in which the defendant is estopped from recovering as owner.

This brings us to a consideration of the respective claims of the parties, not immediately growing out of the question of title to the property.

Mrs. Wilhelmina Schwenck sustained her contention by proof that her late husband, Jacob Schwenck, owner of the property at the time, as before stated, paid a mortgage of six, thousand dollars and interest bearing on the property in which plaintiff claims and owns an interest. Under her testamentary inheritance from her husband, the defendant is entitled, as a creditor, to three-thirty-seconds thereof, extent of her interest.

On the other hand, as relates to the rental claimed by plaintiff, the defendant contends that she should not be held bound to pay one-third of the revenues for a period anteceding her marriage eight years. She, it follows, should be charged to the extent of her interest as a legatee with corresponding proportionate amount due by the succession of her late husband.

It appears that when J ohn Schwenck died, the property was encumbered by a mortgage of six thousand dollars ($6,000). As defendant represents the succession of Jacob Schwenck to the extent of one-third, plaintiff is liable to her in proportion to her interest for the said amount, also in the same proportion for taxes and premiums of insurance.

Defendant, though a possessor without title owing rents and revenues, is not, as we think, the debtor of the plaintiff for the rent paid revenues due by the late Nicholas Schwenck, who was the father of plaintiff.

Possessors in bad faith, under the circumstances, are not indebted in solido for rents and revenues, and, consequently, Jacob Schwenck is indebted for them only to the extent that he was the owner of the property. They, Nicholas and Jacob Schwenck, each had an interest in the property other than the interest of plaintiff. They were placed in possession by an order of court, and, after these many years, are not to be considered in the light of mere trespassers bound in solido for rents and revenues. It follows that the amount should be reduced to one-third of three-thirty-seconds of three-fourths of the revenue prior to 1879.

The question of intervention noted in our statement of the facts is no longer of any importance, as the intervenors were allowed, in the judgment, all the rights they would have received if the intervention had been filed. We, therefore, pass it over without further comment.

Defendant’s complaint regarding the interest allowed on the fruits found due, we think, is answered by citing Vincent vs. Phillips, 47th Ann., 1243.

To the extent indicated by the foregoing, the judgment is amended.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be and the same is hereby amended by allowing one-third of thiee-thirty-seconds of three-fourths of the Revenues prior to 1879, instead of one-third of three-thirty-seconds of the revenues prior to 1879, and, as thus amended, the judgment is affirmed at appellee’s cost.

MONROE, J., takes no part, having decided this case in the court of first instance.


author: Breaitx, J.

text:
    No. 13,080.
    John Ponsano vs. St. Charles Street Railroad Company.
    Syllabus.

      Crossing a trade. Those who drive across railroad tracks, unlike those who, as passengers, submit themselves to the control of the carrier and who are not called upon to do more than remain strictly in their places, must exercise some vigilence and they must not assume unnecessary danger. They must guard against the danger of thoughtlessness and pre-occupation and avoid driving recklessly in order to cross in advance of a coming car.

      Defendant's alleged negligence. The car was moving at a speed customary where there was no necessity to come to a stop. There was not such a crossing as required the stopping of the car nor the moderating of its speed. It appears that the usual alarm was sounded. The negligence charged is not sustained by the circumstances nor by the weight of the testimony of the witnesses who saw the accident.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      J. J. Prowell (Benjamin Rice Forman, of Counsel) for Plaintiff, Appellant.

      Harry Ji. Hall for Defendant, Appellee.
   The opinion of the court was delivered by

Breaitx, J.

The plaintiff sues for judgment to recover twenty thousand dollars ($20,000) damages for injuries received in a collision between a horse and wagon he was driving and a car of the defendant railroad company. By the effect of the blow struck by the car against plaintiff’s wagon, ho was thrown from the wagon and struck against. the stone pavement on the street. It was shown at the trial that the injuries were most painful, and that plaintiff will never recover his health. He was partially paralyzed, and the evidence indicated that the base of the skull was permanently affected. He had symptoms of locomotor abtaxia, which were traced to the wound received in the fall.

The plaintiff charges that the accident was due entirely to the negligence and carelessness of the motorneer of the car of the defendant company, who failed to give proper warning of his car, approaching’ at a high rate of speed, and who was, instead, at the time, looking hack through the car with his head turned in an opposite direction to that in which the car was moving.

Plaintiff avers that when he saw the perilous position in' which he was, he did all in his power to avert the collision, and that he was in no way at fault.

The defendant denies that the collision was in any manner caused by the negligence or carelessness of its motorneer. The defendant avers that plaintiff negligently and carelessly drove his wagon upon its tracks without “looking,” or “listening,” for the approaching car, or taking any of the usual precautions against accidents.

The facts are that plaintiff was driving his wagon (in March, 1898, at about 5:30 P. M.) over defendant’s tracks at the intersection of Toulouse and Royal streets. He was sitting in the front of the wagon with his feet on the dash board. The car was going' up Royal street toward Canal, and struck plaintiff’s spring wagon while it was crossing, the track on its way on Toulouse to Bourbon. When the wagon had nearly crossed the track, the car struck the' hub of the hind wheel and threw the wagon at right angles to Toulouse street, and in line with Royal street. It was then that plaintiff was thrown down from the wagon. There was another person in the wagon. He was sitting with plaintiff in the front part of the wagon.

The case was tried before the court without a jury. The judgment is against plaintiff, and from it he prosecutes this appeal.

The question arises as to whether it was possible for plaintiff to see the car of the defendant company before his horse stepped on the track, in time to stop and avert the accident.

We have noted that plaintiff and the one with him were in the front of the wagon. We gather from the evidence that it was possible, from that position, to see the car coming at a distance of at least one hundred feet. Ordinarily, one approaching a railroad track driving a bovse iu a wagon, at a walk, may ¿heck him up and stop when tlio distance between the two is that number of feet. No reason suggests itself to fake this ease out of the ordinary rule. It appears that there are nineteen feet measuring from the first line of vision (to the right or left), river corner of Toulouse and Royal streets, to the track. Taking into account the length of the horse and the distance between the horse and the driver, there yet remain a few feet within which a driver, coming to a track, could stop his horse if he saw a car coming in his direction. There is some difference between the testimony of the two, plaintiff and the other man who was with him in the wagon. Plaintiff testified that the car was fully three or four lengths of the car from Toulouse street, coming up, when his horse walked on defendant’s track, while the one with him testified that the car was only two lengths distance. They were sitting together, and had equal opportunity to see the ear. If it was as the last witness stated, that is', two car lengths, a distance of fifty-two feet, -it was not reasonable precaution on the part of the plaintiff to attempt to cross. He appears to us as one who took the chance of crossing, and in the attempt met with the severe accident of which he complains.

It is evident that if plaintiff did not see the car, it was.because he did not look in the direction in which it was coming.

As relates to the asserted negligence of the defendant, plaintiff contends, in the first place, that no alarm was given by the motorman by ringing' the gong as required. Witnesses testified that the usual alarm was not given. The motorman and the conductor both swear that the alarm was sounded. This evidence is corroborated by witnesses not in the employ of the company who were standing at the time near the place of the accident. This evidence is contradicted by as many, perhaps a larger number of witnesses for the plaintiff. When the evidence is of about equal weight, the authorities agree in holding that the affirmative carries with it a preponderance of proof. Moreover, it remains as a fact in this case that if there was failure to give the usual alarm, the car was plainly in view of plaintiff had he looked down Royal street, from which direction it was coming at the time. Those who undertake to cross railroad tracks in wagons have always been held bound to the exercise of ordinary precaution, and to look in the direction in which cars run, before attempting to cross. Counsel, in their brief, assert that failure of the motorneer to look ahead, and standing- with his back to the direction of motion, and head turned backward talking to some one in tlie car, without one hand on the brake and the other on or near the controller, ready to grasp it, is gross nogligence. In this we readily agree. A service much less improper would be gross negligence, but the weight of the testimony in this case does not sustain these charges.

We have noted that this accident occurred early in March, in the evening, when the front doors of street cars are kept closed. One of the witnesses testified that it was cold, rendering it very difficult to prove that one in charge as motorneer was engaged in conversation with the conductor, or with some one else in the car. The evidence to that end would have to be clear and conclusive, and not contradicted by surrounding circumstances and the testimony of witnesses.

As relates to the brakes and the absence of all attention to them, and the other acts of negligence charged by plaintiff, the judge of the District Court, who heard and saw the witnesses, did not conclude that they were supported by proof enough to sustain them.

We have read the testimony of the witnesses without finding that his conclusion regarding these charges is not correct. The motoneer and the conductor were old employees of the company, trained to their work, who, in an intelligent manner, referred to the rules and regulations by which they are always controlled and which, to one accustomed to them, are more easily complied with than disregarded and. violated.

The fact also that the car, after the collision, was stopped within the usual distance allowed for the stopping of a car is a corroborating circumstance.

We do not understand that there was any necessity to come to a stop at the place of the accident. Two streets intersected, but there was no crossing of another railroad at that point. Had we found that the conduct of defendant’s servant was wanton, wilful, or negligent, we would have held that defendant was responsible, without regard to whether plaintiff was cautious or not. It is not evident that the speed of the car was greater than usual.

For these reasons it is ordered, adjudged and decreed, that the judgment appealed from is affirmed.