author: Pochk, J. Manning, J.

text:
    No. 8010.
    Mrs. S. D. A. Werges vs. The St. Louis, Chicago & New Orleans Railroad Company.
    la an action for damages alleged to have been oansed to plaintiff’s property by the running of a railroad company’s traius, which, are alleged to injure his property and to be a nuisance, by jarring and shaking his house, by making insupportable noises and emitting noxious smells and smoke, prescription cannot avail as a means of defense, because the acts charged are continuous, and because the causes and effects are renewed de die in diem.

    When the petition charges that the defendant is doing certain acts, such as running trains through certain streets of a city, without warrant of law*or sanction of authority, the defendant, under the plea of general denial, will be allowed to introduce in evidence private acts of the legislature and city ordinances purporting to authorize the acts complained of. As such acts are introduced for the purpose of rebutting the assertion of illegality, they need not be specially pleaded.
    The legislature has the power to authorize the building of a railroad, using steam engines on a street of a city, provided the road be so constructed as not to exclude the public from any part of the street.
    A railroad compauy which has laid a track on a street in a city, and runs steam trains thereon, under such authority, and with a substantial compliance with city ordinances regulating such use of the street, is entitled to the protection of the law which exonerates a party in pursuit of a legal right from any responsibility for damages, not shown to have resulted from his gross carelessness or culpable negligence.
    Contraventions of city ordinances by the railroad company cannot be a cause of action by private parties, unless they allege and. show damages resulting therefrom. The power to correct such abuses is vested in the city under its police power.
    In an action for damages, the nuisance charged must be proved to be the legitimate result of the alleged cause, and not the result of other artificial causes.
    In case of doubt the benefit thereof must be given to the defendant, if his trade is a lawful
    APPEAL from the Sixth District Court for the Parish of Orleans. Bightor, J.
    ■ Tuelcer & Kellogg, B. J. Ker and A. A. Ker for Plaintiff and Appellee:
    1. The general denial and plea'of confession and avoidance are inconsistent defenses. 23 An. 109, 239 ? 31 An. 84; G. P. 419, 420.
    2. The charter of a railroad company is a special law. It is a private statute requiring plea and proof to be noticed judicially. 33 An. 956.
    3. An answer cannotbe amended after the plaintiff has closed his evidence; nor after defendant has gone to trial. 14 An. 355; 19 L. 547-8; 22 An. 350-1, and cases cited in brief; G. P. 419, -420.
    4. The courts will not permit defendants to introduce evidence not responsive to the issue joined.
    5. G-rants to corporations are construed most strongly against them. Every reasonable doubt is resolved against the corporation, nothing is to be taken as conceded but what is given in unmistakable terms, or by implication equally clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim. It is a principle universally recognized, that laws in derogation of common riglit are to be strictly construed. This doctrine is vital to the public welfare. It is axiomatic in the jurisprudence of the Supreme Court of Louisiana and of the United States. 7 Otto, 666 ; 10 Otto, 561; 11 Otto, 540; 33 An. 68, 76; 3 English Law and Equity Reports, 64.
    6. The City of New Orleans had the power to make Ordinance No. 1031, of August 16th, 1871, regulating the proper government of locomotive, passenger and freight cars which run within the limits of the City. The defendant having accepted the terms of said Ordinance is bound thereby. 32 An. 917; 6 Otto, 528; Rev. Statutes 1870, Sec. 689.
    7. Ownership gives the right to use, to enjoy one’s property in the most unlimited manner not prohibited by law. C. C. 491, 450. If you deprive one of the use and enjoyment of his property it amounts to confiscation. If you impair its permanent use, it is to that extent a takiDg. There need not be an exclusive appropriation of the property, but such an interference with the beneficial use thereof as operates as an essential abridgement of the owner’s rights, incident to and an essential part of the estate. A serious interruption to the common and necessary use of property maybe equivalent to the taking of it, and under the constitutional provision it is not necessary that the land should be absolutely taken. Cooley’s Const. Limitations, 4 ed. 680; "Woods on Nuisances, pages 796, 797; 13 Wallace, 166, 175 to 182; 13 Reporter, 370, December, 1881.
    8. Every act, whatever, of man that causes damage to another, obliges him by whose fault it happened to repair it. C. C. 2315, 2316. The liability extends to employees and things in their custody. C. C. 2317.
    9. No one can be deprived of his property without an equitable and previous indemnity, and in a manner previously prescribed by law. By an equitable indemnity is understood not only payment for the value of the thing of which the owner is deprived, but a remuneration for the damages caused thereby. O. C. 497; Fourteenth Amendment to Const, of United States; Const, of Louisiana 1868, Arts. 110-11.
    10. It is immaterial whether the fee to Euphrosine street is in the State, City, plaintiff or defendant. 4 Otto, 340; C. C. 667, 668.
    11. “ Pure air and the comfortable enjoyment of property are as much rights belonging to it, as the right of possession and occupancy.” A charter cannot protect a nuisance. 7 Otto, 669, 667; C. C. 449, 450; see p. 21 of brief.
    12. The plaintiff is entitled to recover for loss of profits in business. 4 English Law and Equity Reports, 20 to 23; 1 Addison on Torts, Banks&Bro. ed. 242; Woods onNuisances, 890-2-3, 688; 1 Sedgwick on Damages, 7th ed. 274, notes 130 to 133; notes 134-7-8,143.
    13. The plaintiff is entitled to the injunction prayed for. 2 Story Equity Juris., 6th ed. 264-9; 1 Addison on Torts, 188; 4 English Law and Equity Reports, 20 to 23.
    14. Prescription cannot be set up against a continuing nuisance or injury. 2 Addison on Torts, 1163 ; 7 Otto? 668-9; Woods on Nuisances, 823.
    15. On measures of damages. See 8 Otto, 407 to 410; Sherman and Redfield on Negligence, 3ded.p. 677; C. C. 1934, part 3d; Revised Statutes 3870, Sec. 1482.
    16. The plaintiff dehors the Ordinance 1031 of August 16¡ 1871, is entitled to recover the amount of damages proved under her prayer for amendment of the judgment appealed from.

      J. A. Campbell for Defendant and Appellant:
    The defendant is a corporation of this State in possession of a railroad, and is invested hy statute with rights, privileges, franchises and powers under laws promulgated according to law. Session Act of1878, No. 89 p. 141. This corporation is a successor of corporations created hy statute and recognized in public statutes, judicial decisions, and have their obligations defined in the Constitution of the State. These acts are public acts and are laws of which none can plead ignorance. C. C. Arts. 7, 429, 432; Field on Corp. § 388.
    The Act No. .78, approved 21st March, 1870, has for its object the promotion of the prosperity of the State and commands a -public service upon the highways and streets of New Orleans. This aot is a public act.
    The plaintiff claims consequential damages for acts done hy the defendant in the regular performance of daily duties. This claim contests the law and the fact of the defendant’s performance of this duty and impeaches the validity of the defendant’s right, power and privilege. The general denial is the proper and sufficient answer. Kellar vs. Parrish, 11 An. Ill; Reynolds vs. Mayor, 13 An. 426; Bennett vs. New Orleans, 14 An. 120; Stewart vs. New Orleans, 9 An. 463; 3 Burrow, 1353; 1 Wilson, 45; 1 Chitty, Plead. 491, 139, 140.
    The defendants have established that their tracks have been constructed with care and skill; that their engines are of the best description after the best model; that there is no disorderly, indiscreet, reckless management, but an orderly, regular and considerate fulfilment of public duties for the public advantage; and that their railroad is neither a public nor private nuisance, and that their denial is true, in law and in matter of fact. Sedgwick on Damages, 207; 1 Redf. on Railways, 345; 15 Hum. 63; 10 Cush. 385; 103 Mass. 1, 6, 7 ; Pearce on Railroads, 276, 277.
    The plea of prescription is available to exclude all claim for damage not occasioned by tortious acts done within the time not affected by the plea. C. C. 3501; 2 An 400; 25 An. 414.

      1.1. Srnonds and James Fentress on the same side.
   The opinion of the Court was delivered by

Pochk, J.

Plaintiff has recovered in the District Coart a judgment in her favor for damages in the sum of $3,500, and for au injunction restraining the defendant Company from running freight trains and steam engines in front of her property situated on the corner of Euphrosine and Liberty streets in this city; by which trains, running from the defendant’s freight depot in the rear of the city to the Mississippi river front, she had alleged to have been damaged in the sum of ten thousand dollars, for injuries eaused to her house, which she used as a dwelling and as a store for dealing in liquors, and for injuries caused to her business as a liquor dealer. Defendant appeals, and plaintiff prays that the judgment be amended and increased to the full amount of damages claimed by ber.

In an amended answer, defendant pleaded the prescription of one ^ and two years. As the damages claimed are predicated on alleged continuous wrongful acts, causes which are supposed to oceur daily, and to produee effects daily repeated, we are of opinion that the plea cannot he sustained in law, and it must therefore be overruled. In sueh eases, prescription, whatever the length of time, has no application.” 7 Otto, 668, Fertilizing Company vs. Hyde Park.

In sneh cases, when “ the injury is of a continuing nature, the cause of action continues and is renewed de die in diem, as long as the cause of the continuing damage is allowed to continue.” Addison on Torts, ^ p. 1163.

The next subject of discussion presented to our minds is a question of practice, which overshadows the main feature of the defense. When the defendant proceeded to introduce its evidence, it offered Act No. 78 of 1870, entitled “ an Act relative to the New Orleans, Jackson & Great Northern Railroad Company,” Act No. 89 of 1878, entitled an Act “ ratifying the organization of the New Orleans, Jackson & Great Northern Railroad Company, etc., with the Chicago, St. Louis & New Orleans Railroad Company,” and sundry ordinances of the City of New Orleans, purporting to authorize the defendant to run its freight trains through certain streets of said city, so as to connect its freight depot with the Mississippi river.

The obvious intention in introducing that evidence was to show authority and sanction in law for the construction and use of the road complained of by plaintiff.

Plaintiff objected to, and the District Judge rejected, the evidence, on the ground that, the answer being a general denial, the Acts of the legislature, which were private Acts, and the ordinances of the city were not specially pleaded, and could not therefore be introduced in evidence under the pleadings.

The rule is firmly established, that private acts must be pleaded and proved, in order to be judicially noticed. We do not find it necessary to determine whether these Acts are necessarily private, as their relevancy in the cause can be disposed of on other grounds.

We shall now analyze the pleadings in the case with a view to determine their admissibility.

The gravamen of plaintiff’s complaint is, that the defendant Company, “ without any warrant of law or color of authority, has for, or during, the last twelve months, daily and at all hours of the day and night, * * run long trains of railroad cars heavily loaded with freight on a railroad track which said Company had previously constructed upon and along Euphrosine street, parallel with petitioner’s said property and within twenty-five feet of the base of her said dwelling house and store.” She then alleges that the injuries to her house and family and business resulted from the smoke, the smell, and the noise caused by the engines and trains, and from the jarring of her building caused by the speed and by the heavy weight of the trains, and she concludes with the sweeping allegation : “ That all their acts are in violation of law and of the rights of petitioner.”

Now, it is elementary in our practice that the general denial puts at issue all the facts and the law alleged by plaintiff. Hence, it seems clear to us, that the general denial in this case specially putat issue the charge that the defendant had no authority or sanction in law to run its trains as averred in the petition. It was, therefore, competent for the defendant to rebut the charge of illegally running its trains through certain streets of the City of New Orleans, as one of the elements of defense against the damages claimed, and in resistance of the injunction prayed for, with a view to impede the exercise of its legal rights.

This conclusion is in close harmony with the letter and spirit of our rules of practice, as expounded on this point in several opinions of this Court.

In Kellar vs. Parrish, 11 An. 113, under the plea of general denial, the defendant was allowed to introduce titles in evidence for the purpose of rebutting the assertion that he was in illegal possession of immovable property. Similar rulings were made in several other cases. Pontchartrain R. R. Co. vs. Heirne, 2 An. 130; Reynolds vs. Shreveport, 13 An. 426; Bennett vs. New Orleans, 14 An. 120.

The same doctrine prevails under the common law practice. “In an action on the case, under the plea of not guilty, the defendant might not only put the plaintiff on the proof of the whole charge, contained in the declaration, or show the before mentioned matters which operated in discharge of the cause of action, hut might give in evidence any excuse or justification.” Chitty on Pleading, vol. 1, p. 491.

The evidence offered by the defendant was, therefore, erroneously excluded, and as it comes up with the bill of exception, it will he judicially noticed as part of the defense.

■ Under the terms of the Act of 1870, the New Orleans, Jackson & Great Northern Railroad Company was not only authorized and empowered, hut was specially required, to extend their track from its then depot to the Mississippi river, through the streets of New Orleans. And the legislature thus acted, because it was considered “ essential to the commercial prosperity of Louisiana, that the cost of transportation of freight should be reduced to the lowest point practicable,” and because it was considered that one of the most efficient means of accomplishing that object was by filling the gap which then separated that railroad, “ the great land avenue of trade and travel,” from the Mississippi river, “ the great highway to the West and to the Ocean.” (See preamble of the Act.)

By ordinances of the city, adopted in furtherance of this legislation, the railroad company was authorized to lay a track, connecting its depot with the river, which track runs mainly on Euphrosine and St. Joseph streets, on which freight trains have been continuously run since 1870. _ .

Under the provisions of Act No. 89 of 1878, the defendant Company was invested with the right or privilege thus acquired by the former Jackson & Great Northern Railroad Company.

We know of no provision of the Constitution of the United States or of our own State, under which the Act of the legislature conferring that right eould be invalidated, or its power to authorize the extension of the railroad track through the City of New Orleans questioned or even doubted.

The authorities cited on this point by plaintiff’s counsel do not impress us as being applicable. The reverse of the doctrine which they contend for is recognized in one of the cases quoted by them on this point. In the case of Story vs. New York Elevated Railway Company, Reporter, No. 14, p. 596, in which the New York Court of Appeals held, that the use granted of a public street to an elevated railway company, with the right of using nearly all the street, including a portion of the sidewalk, together with the right of shutting out light from the house of the proprietor of an abutting lot, was really an expropriation without compensation, we find language which expressly excepts from that ruling cases of such a grant when applied to “ railroads built upou the surface of the street without change of grade, and where the road is so constructed that the public is not excluded from any part of the street.”

But the question is not new in our jurisprudence; it was recently examined by us in an exhaustive manner, involving a thorough review of the mostrecent and respectable authorities on the subject. In the case of Harrison et al. vs. The N. O. Pacific Railway Company, we emphatically recognized and enforced the doctrine, “ that the legislature has the power to authorize the building of a railroad on a street of a city, and may directly exercise this power or devolve it upon the local or municipal authorities.” The doctrine of that case, and the reasons which support it, are a complete refutation of the argument made on this point by plaintiff’s counsel.

Having thus shown its unquestionable authority in law to extend its track and to run its trains thereon, the defendant Company is entitled to the protection of the rule which exonerates a party from any responsibility in damages for injury done to another in the pursuit of a legal right or in the performance of a lawful act, when such injury is not traced to, or caused by, his gross negligence or culpable carelessness. Hamilton vs. Railroad Company, 34 An. 974; Weeks, Absque Injuria, pars. 48, 49; 10 Cushing, 385.

We have read the evidence with attention, and we fail to find any element of damages proved against this defendant.

The free passage of the street is not impeded by the track, which is shown to have been laid with great care, from the best material, all combined with a view to facilitate the motion of all sorts of vehicles along or across the streets on which the track is laid, and that the best quality of coal, the Anthracite, is used as fuel. As to the loss of custoiners, alleged by plaintiff to Lave been driven from the store by the consequent difficulty of access to her place, the evidence is simply overwhelming against-her theory on that element of damages.

It is shown that, in years past, the railroad company had large and extensive car works in that vicinity, employing numerous laborers, and that when the freight was delivered attliedepot, then afew blocks from her liquor store, numerous customers patronized her establishment. But after the removal of the car works to McComb City, and after the extension of the railroad track to the river, where the bulk of the freight has since been delivered and received, the laborers were gone, and the draymen ceased to flock at the depot. And with both departed plaintiff’s main run of custom.» Hence, the Company cannot be made to repair her losses in that particular.

The plaintiff next charges that the jarring caused by the heavy freight trains has shaken her house, has caused cracks in its walls, and seriously affected its security and materially impaired its value. •

On this point the evidence is conflicting and clashing.

Several cracks are shown to exist in the walls of plaintiff’s house, which are attributed by some of the witnesses to the action of the trains, and by others to the action of time, the soft nature of the soil, and to the shrinkage of the lumber used in the openings. Some of these cracks are shown to have existed long previous to the extension of defendant’s track, and the weight of evidence supports the theory that the damage cannot be attributed to the action of the trains. A brick house, immediately in the rear of plaintiff’s, subject to the same action of trains, and of older construction, is entirely free of such cracks, as is the case with many other houses similarly situated on the extended track, while, on the other hand, such cracks have taken place in numerous other houses in this city not in proximity to the passage of steam trains.

Plaintiff contends that defendant’s only authority to run its trains on the extended track is derived from Ordinance 1031 of the City of New Orleans, adopted August 16,1871., and she charges numerous and frequent violations of the conditions of the permission by the defendant and its employees. The ordinance reads as follows:

The New Orleans, Jackson & Great Northern Railroad Company are hereby permitted to run their trains on their track on St. Joseph street, to and from their present depot and to the river, by steam, under the following restrictions.”

“ To-wit: That the engine shall be a smokeless dummy, and shall always be kept in front of the train while in motion; that a watchman with a red lantern or signal flag shall be placed at each street crossing while the train is in motion, and similar lights shall be attached to each side of the train when run during the night; that there shall be no blowing of whistles or ringing of bells, and that the trains shall not move at a greater speed than four miles per hour.”

This permission shall be subject to revocation at the pleasure of the Council.”

All damages to life and property, resulting from running of trains as herein provided, shall be at the risk and responsibility of said railroad company.”

“ For each and every contravention of this ordinance the said railroad company shall be liable to a fine of one hundred dollars.”

The weight of evidence shows a substantial compliance, by the defendant, with the conditions of the ordinance; but it appears that some of the conditions have been frequently violated, for instance, in using smoking engines, blowing of whistles and ringing of bells.

But it is very clear that plaintiff can avail herself of none of these violations, unless she shows special damages accruing therefrom to her or to her property. The city alone could and should take steps to enforce the conditions of its regulations, by the use of its police power, as provided for in the fourth section of the ordinance, or by the exercise of the reserved right to revoke the permission. But plaintiff has entirely failed to show any cause of action on her part growing out of the contraventions shown to have occurred.

• We shall now deal with the three remaining subjects of complaint urged by plaintiff: the damages attributed to the smoke, the noise, and the offensive smells proceeding from the defendant’s trains.

In making these investigations, courts are usually guided by the following wise rules:

“ The injury must be clear, direct and positive. It must be the legitimate and natural result of the nuisance charged, and .in no essential degree the result of other artificial causes.” * * * If there is

a reasonable doubt as to the causes of the injury, the benefit of the doubt will be given to the defendant, if his trade is a lawful one.” * * Wood’s Law of Nuisances, Sec. 472.

Again, “ The production of mere inconvenience, resulting from the exercise of a trade, is not sufficient to constitute that trade a nuisance; * * but the injury must be real and substantial, and such as impairs the ordinary enjoyment, physically, of the property within its sphere, not measured by the standard incident to a dainty and luxurious mode of living, but according to plain and simple inodes and habits incident to persons of ordinary tastes and sensibilities.” Wood’s Law of Nuisances, Sec. 792; Walter vs. Selfe, 4 Eng. Law, 1 Eq. p. 20.

In applying these rules to the ease at bar, we practically recognize the most liberal construction in favor of plaintiff, and yet her ease fails under the evidence.

The reeord shows that in the busiest season of the year the highest number of trains run is five per day each way, and that the average time used by all trains, in passing any particular house, is twenty minutes for the whole day, and the number of drays or other vehicles which would be required to haul the same volume and weight of freight would be twelve hundred a day.

It further appears that the noise and jarring caused by a procession of vehicles, known in this city as “floats," are greater than the same caused by a train of an even number of cars. Hence, the location of the track near plaintiff’s property has not increased her inconvenience on those points, without considering the dust whieh would be raised by the teams on a dirty street like Euphrosine.

The record further shows that the neighborhood is not in the least desirable for a residence.

It shows that plaintiff’s house is situated on Liberty street, on the corner of Euphrosine, and is surrounded as follows:

In its front is located an immense steam planing mill and lumber yard, in whieh the whirl of the wheel and the hissing of steam are heard from early morn to 11 o’clock at night; and where the fuel burned is the refuse trash of the yard. In its rear and on its left side Is a huge lumber yard, in whieh lumber is piled a score of feet high, and for its next door neighbor is a large blacksmith shop, run every day and all day; on the right side comes Euphrosine street, and an empty space used as a “ steamer’s landing,” on the New Canal and New Basin, where two steamers, burning (like the blacksmith neighbor) soft eoal, are tied up a couple of days every week. And in the face of such a surrounding, plaintiff wishes us to adopt her theory that all the Inconveniences and discomforts of her house, the lower story of which is used for a dram shop, known in this city as a “ barrel house,” are to be exclusively attributed to the action of the steam railroad trains, whieh are in her neighborhood, at most, twenty minutes per day.

In a celebrated case in England, the complainant, who declared against a colliery, whose black smoke was a nuisance to his dwelling house and surrounding garden, was defeated, owing to the fact that in Ms neighborhood a pure atmosphere could not be expected, even if the obnoxious colliery could be removed. Woods on Nuisances, Seotion 473.

This reasoning is strikingly applicable to plaintiff’s condition.

Our conclusion is, that she has utterly failed to make out a case for damages, and much less for an injunction against the defendant’s legally established right to run its trains on its extended track to the river.

Many other points have been made and numerous other questions have been ably discussed by counsel on both sides, but the foregoing views are deemed sufficient for a proper adjudication of this controversy.

The judgment of the lower court, with the exception of the ruling on the plea of prescription, is, therefore, annulled, avoided and reversed j and it is now ordered that plaintiff’s demand be rejected and her action dismissed at her cost in both Courts.

Manning, J.

The recital of the evidence in the opinion of the Court abundantly demonstrates that the damage suffered by the plaintiff is due to other causes than the running of the trains of the defendant Company. I do not doubt her legal right to recover whatever sum she could have proved as damages from that cause. No Act of the legislature, nor ordinance of the City Council, nor both combined, authorizing a railroad to run its trains through the streets of a city, can protect it against the claims for damages of those whose property is injured thereby.


source: Caselaw Access Project

author: Eenner, J.

license: Public Domain

text:
    No. 8617.
    The City of New Orleans vs. The New Orleans & Carrollton Railroad Co.
    Although the tax bill sued on incorrectly describes the property on which the tax sued for was levied, this defect is cured by evidence, received without objection, establishing that the property was correctly described on the assessment roll, or that, if not, the defendant, by its action while the rolls were open, acquiesced in the description as made and waived objections thereto.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      J. Ward Gurley, Jr. for Plaintiff and Appellant.

      Jj. JG. Simonds for Defendant and Appellee.
   The opinion of the Court was delivered by

Eenner, J.


author: Fenner, J. Bermudez, C. J. Todd, J.

text:
    No. 8884.
    The State of Louisiana ex rel. L. B. DaPonte vs. The Board of Assessors et al.
    The mandate of the Constitution, that “all property shall be taxed, etc.” is a substantial repetition of the language employed in the former Constitutions of 1864 and 1868. Under those Constitutions this mandate was always construed and executed as not applying to State or municipal bonds; and we are bound to assume that the Convention of 1879 employed the same language with a like intent.
    in the absence of express language in the Constitution, or law subjecting such securities to taxation, the action of the assessors in listing them, to be taxed is an attempt to impose a tax without legislative or constitutional authority.
    4 PPEAL from the Civil District Court for the Parish of Orleans. ii BigMor, J.

      Blanc & Butler for the Relator and Appellant:
    1. The means and instruments whereby a government conducts its affairs, or performs its functions, are not objects of taxation for and on behalf of such government. Cooley, Taxation, pp. 130, 131; Burroughs, Taxation, p. 505; Cooley, Const. Lim. p. 482.
    2. They are not within the grasp of the intent of laws designating the objects of taxation. Supra, Ibid. Cooley, Taxation, 13Í ; 17 Wall. 329.
    3. So a law directing the taxation of all property will not, for this reason, include public property, nor any of the means, appliances or instruments of the government. Cooley, Taxation, 131; 17 Wall. 329; DiUon, Mun. Corp. 3d Ed. §§ 773, 774; 1 Swan. 269.
    4. Government bonds or contracts for the payment of money is an exercise of the borrowing power, and is a use of the public credit. Credit, contracts to pay money, bonds, the exercise of the borrowing power, are one. 27 N. Y. 400; 30 Mo. 138; 39 Barb. 427; 23 Ind. Ml; 18 Wis. 140; 18 Ind. 467; 1 Yev. 271; 39 Yt. 48; 52 Penn. 9; 38 Mo. 458; Bump’s Notes on Constitutional Decisions, p. 25.
    5. And these constitute a great aud most important means or instrument of government. Ibid.
    (5. These bonds—this borrowing power—this credit—are not, therefore, within the grasp of the intent of any general law of taxation. 50 Georgia, 387, City of Augusta vs. Dunbar; Cooley, Taxation, pp. 130,131.
    7. Taxation of government bonds in the hands of private persons, under the pretext of taxing private property, is the taxation of public credit, and a burden on the borrowing power. 17 WaU. 329; Murray vs, Charleston, 6 Otto, 446; Weston vs. Cliarleston, 2 Peters, 464.
    8. The laws regarding the objects of taxation refer not to public but to private concerns. Dillon, Mun. Corp., 3d. Ed., §§ 773, 774; 34 Cal. 43; 1 Swan. 269.
    9. Prom the above has resulted the rule that, admitting the power of a state to tax its own bonds and those of its municipalities, such intent must be expressed and specified. 50 Ga. 387; DiUon, Mun. Corp. § 773, 3d Ed.
    10. Therefore, he who wishes to include government bonds or credit among the objects of taxation, is seeking to establish an exception to the rule or law in relation thereto, and must point to an express and specific statute so ordering.
    11. The statute and law pointed out by the defendant not only contains no such expression, but in enumerated bonds generally, as objects of taxation, is careful to limit the designar tionto “ bonds liable to taxation; ” therefore, instead of there being any implied direction to include government credit, here is a clear exclusion by implication. Acts 1882, No. 96, Sec. 1.

      12. It is conceded that the State cannot tax her own bonds nor the city those issued by or for it, but it is said the State may tax the bonds issued by its municipalities. The foregoing principles and authorities are entirely opposed to such a view.
    13. In truth, a city bond is a contract for which the State is herself responsible. The city is only an agency of the State, organized to govern in a particular locality for the State, with no powers but those given by the State, and which powers may at any time be withdrawn by the State. Bump’s Notes on Constitutional Decisions, p. 205; 15 B. Mon. 642, Louisville vs University; 17 "Wall. 622, 328; 11 Wall. 113; Cooley, Taxation, 331.
    14. The contracts of an agent are those of the principal. City bonds are contracts solely entered into by authority and direction of the State, for purely public purposes, on behalf of the people and for their good; their terms are prescribed by the State, their purposes designated by the law, their amount, interest and terms alike arranged by the State, and their payment provided for by the State by an exercise of the sovereign power of taxation. It was unnecessary for the law to say in words that they are contracts of the State, though this truth is proclaimed in the Act of 1882, p. 68, Sec. 10, Ibid; 5 Cal. 288; Cooley, Taxation, p. 102.
    15. Therefore, the rules which defeat an attempt to tax a bond issued directly by the State, are alike applicable to the public contracts made through its auxiliary governments.
    16. If it is intended that public contracts, public credit or public bonds shall he taxed, it must be expressed in the act authorizing such contracts or bonds; otherwise, the bonds are taken under the rule that they are not of the objects of taxation. To make the contracts, and thon tax them, is to impair the obligation, to make an .unconditional payment of a fixed and absolute sum of money, principal and interest.
    17. The taxation of bonds is a tax on the contract itself, imposes a burden thereon, affects their value. Weston vs. Charleston, 2 Pet. 468; Murray vs. Chaileston, 6 Otto, 445; 12 Otto, Hartman vs. Greenhow.
    18. Any measure which affects the value of a contract or in any manner changes or burdens it, impairs the obligation and violates the Constitutions of the United States and of the State of Louisiana. 8 Wheat. 1; 13 Mass. 1; 2 How. 608; 12 Miss. 439; 10 Ga. 190; 10 Cal. 563 ; 9 Cal. 81.
    19. A contract is not to b© impaired at all. There is no question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force. 6 How. 301; 12 Miss. 28; 16 Wall. 314; 43 Ga. 547; 3 Wash. 333; 4 Hall, L. J. 502; 11 Mo. 344.
    20. The power to tax includes the power to destroy. Taxation is a subtle and favorite mod© of attempting to violate contracts; and is particularly violative of the government’s promise to pay money, since, by such a promise, not only is the power to tax notreserved, but“i/ie contract should he regarded as an assurance that such power will not he exercised.” Murray vs. Charleston, 6 Otto, p. 445; 2 Pet. 468; 4 Wheat. 432.
    21. The true rule is, that until the government has complied with its promise, and paid the money, reduced it into the possession of the public creditor, and so mingled it again with the general mass of private property, which it is the office of government to protect, no taxation can bo imposed. Murray vs. Charleston, 6 Otto, 446; Hamilton’s Works, vol. 3, p. 514.
    The “ railroad and consolidated bonds ” of New Orleans are specially declared to be exempt from taxation. Acts 3856, No. 164; Acts 1860, No. 3. This is a special or particular enactment, which has not been repealed by the general law cited by the defendant, or any general enactment on the subject of taxation. General do not repeal special statutes. Sedgwick, Construction of Laws, 19; New Orleans vs. Poydras Asylum, 33 An. 854, and authorities there cited; Blaine vs. Baily, 25 Ind. 165; 44 An. 114.
    The exemption of the Acts of 1860 and 1856 enter into and form part of the contracts. No particular acceptance of said acts was necessary. All holders and purchasers of the contract hold or buy on the faith of the laws relating to the contracts.

      J. C. Fgan, Attorney General, for Respondents and Appellees:
    1. Bonds issued "by the City of 17ew Orleans are properly. 30 An. 876; Burroughs on Taxation, p. 51.
    2. All property shall he taxed in proportion to its ralne. Art. 203 of the Constitution.

      Chas. F. Bucle, City Attorney, on tlie.same side.-
   The opinion of the Court was delivered by

Fenner, J.

The important question presented in this case is: whether the municipal bonds of the City of New Orleans are subject to taxation by the State and City, or by either.

The Constitution of 1879, Art. 203, declares that “ all property shall be taxed in proportion to its value,” and Art. 207 provides: “ The following property shall be exempt from taxation, and no other,” etc., not mentioning municipal bonds, nor State bonds.

The Revenue Act No. 96 of 1882 directs, in general terms, all property, not exempted by the Constitution, to be taxed, and then, proceeding to enumerate the objects, mentions, among other things, “rights, credits, bonds liable io taxation, etc."

Acting under this authority, the assessors have listed for taxation municipal bonds of the City of New Orleans held by relator.

The argument of defendants in snpport of the assessment is reducible to a simple syllogism, in these terms : The Constitution directs that all property, not specially exempted, shall be taxed; municipal bonds are property and are not specially exempted ; ergo they must be taxed.

The relator concedes that such bonds are, in a general sense, property ; but he resists their subjection to taxation on various grounds, of which the two following are the most prominent:

1st. That they do not fall within the intent and meaning of the word property, as employed in Articles 203 and 207 of the Constitution, or of the same word, or of the words, “ bonds liable to taxation,” in the Revenue Act of 1882. 1

2d. That such taxation would impair the obligation of the contracts evidenced by the bonds, and thus violate the Constitution of the United States.

I.

This is the first time in the history of Louisiana that, an attempt has . ever been made to subject municipal bonds to taxation. If they are liable to taxation to-day, they have been so liable from the foundation of the State. From 1864 to the present time, our successive Constitutions have contained the mandatory provision: “ ATI property shall be taxed in proportion to its value, to be ascertained as directed by law. The general assembly shall have power fco exempt from, taxation property actually used for church, school, or charitable purposes.” Constitution 1864, Article 124; Constitution 1868, Article 118.

It was held repeatedly by this Court, that the legislative power of exemption was confined and limited within the cases enumerated.

Thus, if municipal bonds were included within the terms, “ all property,” as used in those Articles of the Constitution, it was not merely within the power, but it was the absolute duty of the legislature to tax them. More than this, various revenue laws passed under those Constitutions contained general terms defining the objects of taxation, quite as capable of including such bonds as those-of the existing Act. If these bonds had been included within such terms, it would have been the duty of the assessors to assess them and of the tax collectors to collect taxes on them.

Even since the adoption of the Constitution of 1879, under the Revenue Law of 1880, passed immediately after its adoption, which provided for the taxation of " all property situated in the State of Louisiana, except such as is expressly exempted from taxation by the Constitution,” neither the legislative nor executive departments of the government considered that municipal bonds were subjects of taxation or made any attempt to assess them for that purpose.

Thus it appears, that from 1864 to 1883, under a state of Constitution and law substantially identical with that prevailing to-day, it has never been considered that municipal bonds were included withiu the subjects of taxation, or withiu the scope of the general constitutional and legal provisions which directed, that “ all property,” not expressly exempted, should be taxed.

We find nothing in the Revenue Law of 1882 indicating the legislative intent to tax such bonds, more strongly than was exhibited in the terms of prior legislative Acts. The reference to the enumeration among objeets of taxation of " bonds liable to taxation,” is of no avail; for it is evident that if municipal bonds are not included within the terms of prior revenue laws, taxing" all property, except such as is expressly exempted by the Constitution,” they are not covered by the words, “ bonds liable to taxation.” Indeed, in view of the consistent treatment of such bonds as not “ liable to taxation,” the use of those words might well be construed as intended to exclude them.

If, therefore, the defeudant assessors should be permitted, of their own free will, and for the first time in the history of the State, to list municipal bonds for taxation, it may he seriously questioned whether the tax imposed in pursuance thereof would not be essentially a tax levied by the assessors, and not one levied by tbe legislative will or in-pursuance of constitutional direction.

Is it reasonable oy possible to suppose that the framers of the Constitution of 1879, in directing all property ” to be taxed, in terms exactly equivalent to those which had been used in two prior Constitutions, intended or expected that the language should have a broader meaning or receive a different interpretation from that which had been uniformly attached to like words in th e latter ? We think n ot. We are bound to assume that they knew that the legislative and executive departments of the State, under those precedent Constitutions, acting under their solemn oaths to obey them had uniformly construed the mandate, that all property shall be taxed,” as not covering the public securities of the City and State, and had always exempted them from taxation. Nor can we avoid the conclusion that, had they intended their own like command to subject such securities to taxation, they would have expressed such intention in special and unequivocal terms.

It is obvious that no proposition could have been submitted to the convention which would have excited deeper agitation or would have been more novel, momentous and startling, than an open proposal to tax such securities. Yet we are asked to believe that, without in the slightest degree awakening public attention, and without a word of discussion, the convention has adopted such a measure under the equivocal guise of general provisions touching taxation, repeated substantially in the language of prior Constitutions under which they had never borne any such import.

The demand is equally repugnant to common sense and to sound principles of interpretation.

No maxim of statutory construction is better settled than this: “ Where terms, or modes of expression, are employed in a new statute, which had acquired a definite meaning and application in a previous statute on the same subject, or one analogous to it, they are generally supposed to be used in the same sense; and in settling the construction of such new Statute, regard should be had to theknown and established interpretation of the former.” Maxims and Rules of Construction, in Blackw'ell on Tax Titles, p. 702; 20 Vermont, 49; 3 Zabriskie, 143.

It was a rule of the Roman law, si de interpretations legisquceratur, imprimis inspieiendum est quo jure eivitas retro in ejus-modi easibus usa fuisset; optima enim est legum interpres consuetude. Dig. 13,37. Legis interpretatio legis vim habet.

It has been frequently affirmed by this Court, that “ the common interpretation of statutes which has existed for a length of time will be considered, as it generally is, the correct interpretation,” and that the usage under a statute, is its best interpreter. Beck vs. Brady, 7 An. 1; Hubgh vs. N. O. & C. R. R., 6 An. 496; Waldo vs. Bell, 13 An. 329.

A remarkable, instance of the application of the foregoing rules is found in the construction of the extremely general provision of Art. 2294 of the Code of 1825, declaring, that “ every aet whatever of man that causes damage to another, obliges him by whose fault it occurred to repair it;” but this Court applied to these exhaustive words the limitations which had been imposed on them in prior systems of law from which they were taken, saying: “The dispositions of Art. 2294 are found in the Roman and Spanish laws; so far from being new legislation, that Article embodies a general principle as old as the science of jurisprudence itself, and it must still be understood with the limitations affixed to it by the jurisprudence of Rome and Spain.” Hubgh vs. N. O. & C. R. R., 6 An. 496.

Applying these principles to the construction of the Articles of our Constitution under consideration, the conclusion is inevitable that the general terms thereof employed with reference to the known and established interpretation of like terms, as employed in prior Constitutions, as evidenced by the consistent usage of the State in the application thereof, and according to the universal understanding of all concerned therein—which interpretation, usage and common understanding, all concurred in excluding municipal bonds and other public securities of the State from their operation.

Nor can it be successfully opposed to this view that the words, “ all property shall be taxed,” are too clear and unambiguous to leave room for construction. On the contrary, sueli general terms and expressions are constantly subjected to construction, and it may be said that they are never allowed their full literal import.

To do so would be to extend their intent to subjects which the State has clearly no power to tax, such as bonds of the United States, and other means and instruments for the exercise of the powers delegated to the federal government; and to other subjects, such as the salaries of judges, publie property, (though this is expressly exempted) and the like, which, though it is within the power of the State to tax, are yet considered on fundamental principles to be non-fcaxable. It is, therefore, laid down as a general principle by Judge Cooley, that “ some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the legislature in adopting them. * * * * It is always to be assumed, that the general language of statutes is made use of with reference to taxable subjects.” He concludes, that the property of municipalities is not, in any proper sense, taxable. It is, therefore, by clear implication, excluded. It is not like government agencies, excluded from the power of tax laws, but it is beyond the grasp of their intent.” Cooley on Taxation, pp. 130, 131; 30 N. J. Eq. Rep. 667.

Again, says Cooley, “ it is a general rule, that where the public are to be charged with a burden, the intention of the legislature to impose that burden must be explicitly shown.” Cooley on Tax. p. 201.

We quote these passages for the purpose of showing that, however broad and general be the expressions of tax laws, they are to be construed so as to give effect to the intent of the legislator.

We consider that the reasons heretofore given establish that municipal bonds have never been considered as properly taxable in this State; that they have always been considered as “ presumptively exempted from the operation of general tax laws,” and that, even if not excluded from thepower of the taxing provisions of the Constitution, they are beyond the grasp of their intent.”

The Supremo Court of Pennsylvania had occasion to construe the words “ all property ” as used in a tax law. The case was this: An Act of 1844 declared that debts due from solvent debtors shall be taxable for State and county purposes ; an Act of 1850 declared that such debts shall not be taxed for borough or township purposes; an Act of 1851 declared that all property subjected to taxation for county purposes shall be for borough purposes.” The Court admitted that the words all property ” might include “ debts due from solvent debtors ; ” but, in view of the general exemption in the former Act of such debts from borough taxation, it held, that it would not hold the words all property” in the later Act as evidencing the legislative intent to include them, in absence of express designation. Gaepp vs. Bethlehem, 4 Casey (Penn.) 254.

And in a later case, the same Court, referring to the above decision, said: “ We need not repeat the argument in support of the construction given to the words all property as found in the Act. Itis sufficient to say that it must have expressed the legislative intent and the will of the people, or the Act, as thus interpreted, would not have remained unchanged for so long a period. The construction given to it has become fixed and settled, and it is now too late to attempt to change it.” Mifflintown vs. Jacobs, 69 Penn. 151.

The Supreme Court of Georgia held, that the power granted to a • municipal corporation to tax property generally, could not be considered as including authority to tax State bonds, in absence of “ express words so declaring,” even if such taxation were within the legislative power. City of Augusta vs. Dunbar, 50 Ga. 387.

The first Article of our Civil Code declares, that “ law is the solemn expression of the legislative wilV This Article, though often and justly citic-ised as a definition of law, nevertheless consecrates the principle that the vital element of statutory or constitutional law is the “ legislative will.” The ascertainment of this will or intention is the sole purpose of judicial interpretation or construction.

Rules and maxims of interpretation have no other purpose except as aids to the accomplishment of this prime object. Many of these rules are apparently contradictory of, and inconsistent with each other. We have quoted some which favor and support the construction which we have placed upon the provisions of law under consideration. It would not be difficult to quote others which oppose it. But, after all, the judicial mind reverts to the fundamental question, what is “ the legislative will ” When it has reached a firm, secure, confident conviction on that point, such it must announce to be the law.

Thus, although the Revised Code of Practice explicitly provided, that the party applying for an attachment must give bond in & sum “ exceeding one-half that which he claims,” this Court, convinced by the circumstances, history and prior interpretation of the legislation on that subject, that such was the undoubted “ legislative will ” held, that the Article meant “ exceeding by one-half.” Yale vs. Cole, 31 An. 687.

The same doctrine was carried by this Court to the very verge of discretion in holding that Article 128 of the Constitution, which conferred upon the Courts of Appeal for the Parish of Orleans jurisdiction where “ the amount in dispute exceeds two hundred dollars, and is less than one thousand dollars,” gave jurisdiction of an amount in dispute of exactly one thousand dollars, being satisfied that such was “the legislative will.” La. Ice Co. vs. State National Bank, 32 An. 597.

We cite these cases as extreme examples of the length to which courts will go in giving effect “ to the legislative will,” when fully satisfied thereof.

Such examples are, and should be rare. We do not conceive that, in our instant decision, we are adding to their number. On the contrary, our construction of the laws under consideration is natural and supported by sound principles and frequent precedents. At all events, we do not hesitate to declare that our conviction that State and municipal bonds were not within the grasp of the legislative intent, in the general provisions of the laws relative to the taxation of property, is quite as fixed and certain as if they had been expressly excepted.

Although it is not necessary for us so to hold, yet, when analyzed, it is doubtful whether the values here sought to be taxed do not fall within the express exemption accorded to public property. A bond of the City of New Orleans is negotiable and imports consideration. It represents no intrinsic value except the consideration which passed to the City upon her promise to return a stipulated equivalent. When the value of that consideration passed from private ownership into that of the City, it ceased to be private and became public property, and, therefore, non-taxable. When the City shall return this value or its stipulated equivalent to private ownership, by payment of her bond, it will become again private and taxable property ; but for the City to retain the value and, at the same time, to tax it through the holder of her bond, is certainly shocking to justice and common sense.

The same remark is equally applicable to the State, whose creature and agent the City is, and under whose authority and direction the bond was created and issued.

These views seem to harmonize substantially with those expressed by the Supreme Court of the United States in Murray vs. Charleston, 96 U. S.

Taxation, thus doubtful in power, indefensible in morals, wanting in explicit legislative sanction, irrational in policy, and barren of results, because incapable of practical enforcement, needs a stronger title to judicial recognition than mere quibbling on the literal meaning of words which, by long use and interpretation, have acquired in their present connection a restricted import exclusive of that now sought to be attached to them by mere executive officers of the State.

It is a satisfaction to us thus to be able to acquit the convention and the legislature of the design to make this,most insidious and dangerous of all forms of assault upon public credit. Good faith and justice, as they are the ornaments of States, are also indispensable conditions of their prosperity and advancement. To use the famous metaphor of Junius, public honor is security; the feather that adorns the royal bird supports his flight; strip him of his plumage and you fix him to the earth.”

II.

The conclusion above announced relieves us from the duty of determining whether taxation of State or municipal bonds by the State, or by any municipal corporation thereof, would have effect to impair the obligations of the contracts, in violation of the Constitution of the United States.

In homely phrase, that is a bridge which we will cross when we come to it.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled avoided and reversed, and it is ordered and decreed that alternative writs of mandamus originally issued herein be made peremptory at cost of defendants in both Courts.

Dissenting Opinion.

Bermudez, C. J.

The real question at issue is simply : whether the property owned by the relator and represented by bonds, which are promises to pay, is exempt from taxation.

The bonds possess themselves no intrinsic value. They are nothing but paper evidencing an indebtedness on the part of the State and City, a claim of the holder, for the payment of money which is property. If the bonds were destroyed by accident, the right of the owner to recover the money would not perish with them.

The principle is too familiar to necessitate a reference to authorities, that the State and her functionaries vested with delegated authority have the right and power to tax within constitutional limits, where any exist, all properly which is not exempt expressly or impliedly, and that when an exemption from taxation is claimed, the burden of establishing clearly the exoneration rests upon the party averring. See, however, Burroughs on Tax. p. 3; Cooley on Tax. pp. 65, 130, 152; Dillon on Mun. Cor. p. 151 ; 4 Wh. 429, (435).

Exemptions result from provisions to be found in the organic law or in some statute passed with authority conceding the privilege. Exemptions are formal or virtual, express or implied.

There is no pretense here that the property of the relator represented by bonds, within the limits of the City and State, are, in as many words, exempt from taxation, for that pretension could not be established. Whatever constitutional provisions and statutory enactments exist, they are, on the contrary, obnoxious to the pretension, and they challenge the whole power of the relator to show their inapplicability to his case.

The relator relies upon an implied exemption.

No one denies that there are “ tilings,” (that is, property) which are always presumptively exempted from the operation of general laws, because it is assumed that they were not within the grasp of the legislature in adopting them, not, however, because the lawgiver could not tax them.

Those things are nothing but.the property belonging to the State or the City, or to some other functionary, and which constitute the means necessary and used for governmental purposes. They do not consist of property belonging to individuals, within the territorial jurisdiction of the taxing power.

It would be frivolous for a State, for a parish, for a city, to tax its own property, hut it has occurred and for reason, too, that a State has taxed the property of its functionaries. The authorities invoiced cover none but public property, which has always been exempt in this State, hnt they cannot he stretched one inch further.

The intangible property which individuals own, is represented in a multitude of ways which have no intrinsic value. It is not the form or shadow, bnt the snbstance, the reality, which forms the object of taxation.

It is claimed that the exemption is to be implied from the fact, that property represented by bonds has never been taxed, and that hence, it is to he irresistibly inferred that the State has willed it tobe exempt, that this abstention is a construction or interpretation which amounts to a formal or express recognition or declaration of exemption. This is a fallacy.

There exist two insuperable objections to the triumph of the proposition, wh ich is incorrect in law and in fact.

The taxing power is vital to the functions of government. It helps to sustain the social compact, and to give it efficacy.

It is intended to promote the general welfare. It reaches the interest of every member of the community. It may be restrained in special cases for public good, when there exists no prohibition ; hnt the exemption must he established, as there is no presumption in its favor. Eyery reasonable doubt is fatal and must be resolved against itr 'Vyhen the exemption is shown it must he rigidly scrutinized, and isrjoever permitted to extend, in scope or duration, beyond what the"'terms of the concession clearly require. It is in derogation of common and public right, and narrows a trust created for the good of all. (In this sense, on the question of exemption under contract, see 22 Wall. 575; 93 U. S. 597.)

Hence, it is, that property represented by State and municipal bonds is considered as proper subjects of taxation, whenever they are found in the same manner, unless it is clearly proved that it does not come within the rule.

The present Court has decided after mature deliberation, on a second consideration of the exemption invoked on an identical ground, that the omission of the officers to perform that which it was their duty to do, however long the suspension, could not he considered as justified by law or by the'State, where no law or authority is produced in support of the dereliction. * * * If the inaction of such officers could produce the effect claimed, the legal effect would be the lodging into their hands of the very power of exemption which the State alone can wield, and to confer on them effectual authority to amplify restricted immunities conceded by the law giver. 34 An. 958.

It is error also to assume as a fact that bonds eo nomine have never heretofore been expressly announced by law to be liable to taxation. The delaration was not required, as all non-exempt property was taxable.

The Constitutions in force at the various dates at which bonds have been issued by the State or by the City, emphatically required that all property should be taxed. That meant that everything which forms part of the wealth of an individual, and which is found within the territorial jurisdiction of the taxing power, shall be taxed unless it be exempt from taxation.

There cannot be found a revenue act since bonds were issued, which declares that personal property, such as capital, money loaned, credits, etc., shall not be taxed. They are all to the reverse. Our immediate predecessors have held, that bonds are property and are taxable. Even that where capital was invested in part in bonds exempt from taxation, the money invested could be taxed. 30 An. 876.

The previous Charters of the City, after providing that all real and personal property in the City of New Orleans, whether owned by individuals or by corporations, shall be liable to taxation, subject to the exemptions specified, declare that the term personal property ” shall be construed to include: capital, debts due, whether on account, contract, note, bond, mortgage, certificate, or any other obligation, * * * any property which is not real.” See Charter 1870, p. 37, Secs. 13 and 14; Amended Charter 1856, p. 146, Secs. 36 and 38.

The argument.to establish exemption has therefore no force, that the bonds of relator do not fall within the intent and meaning of property, as employed in Articles 203 and 207 of the Constitution, or of the same word, or of the words : “ bonds liable to taxation,” in the Revenue Act and in the City Charter. It is manifest, from the very words in the Constitutions and laws in force at the issuance of the bonds and since reiterated more plainly, that it did enter in the legislative intent and grasp to tax bonds. Conventions and legislatures and this Court have considered bonds as property, and included them in that generic term which, unrestricted and amplified as it is, embraces both State and municipal bonds.

The words liable to taxation ” are inocuous and practically cumbersome. They neither add to, nor detract from, the character of the bonds in contemplation.

The legislature could order, neither directly nor indirectly, the taxation of bonds which were previously exempt. The words were evidently inserted by inadvertence and are surplusage. They surely afford no just opportunity for a deduction of the exemption claimed.

If it be true that the words are not redundant, but are significant, then the unavoidable inference is that there are bonds which are taxable. As the relator has pointed to no law exempting his bonds, the conclusion would be that they are included among those described as liable to taxation.

If, as claimed, the legislature designed to exempt bonds of the character of those held by the relator, by using the words “ liable to taxation,” the double inquiry at once arises: where does the legislature derive its exempting power and what bonds did the legislature intend to tax Í The Constitution enumerates what property shall be exempt and distinctly announces that no other shall enjoy the immunity. The legislature is powerless to add too, or take an iota or dot from the organic law. To those inquiries, the only answer would be, that the law giver intended to tax judicial and official bonds. But is that in common sense a possibility 9 Assuredly not.

It is worthy of note, that in 1856 and particularly in 1870, the City of New Orleans had an immense amount of bonds outstanding, and that in the City Charter of 1870, in the enumeration of property exempt from taxation, conspicuously figure some of those bonds. P. 38, Secs. 15 and 17. The only bonds which ever were exempt from taxation are the City Railroad and Consolidated Bonds, under Acts of 1856, p. 164, and of 1860, No. 3.

Had not the legislature considered that those bonds, or the property of which they represent the capital, the money invested in them, were as a rule taxable, it must assuredly not have passed those exempting laws. It cannot be pretended that, in so doing, the legislature did a vain thing. The question now at issue is not one altogether novel. It was twice presented to the consideration of courts of last resort in sister States and to the attention of the highest tribunal of the country and the power and right of the State and of her functionaries was formally recognized. Champaign vs. Smith, 7 Ohio St. 42; People vs. Home Ins. Co., 29 Cal. 533.

In a celebrated case which went to the United States Supreme Court, the question was put: “Is property, which consists in the promise of a State or of a municipality of a State, beyond the reach of taxation Í

And the answer was: "

“A State may undoubtedly tax any of its creditors within its jurisdiction for the debt due him and regulate the amount of the tax by the rate of interest the debt bears, if its promise be left unchanged. A tax thus laid impairs no obligation assumed. It leaves the contract untouched.” Murray vs. Charleston, 96 U. S. 445.

In a more recent case, and no less important and interesting, the same Court said, in alluding to it:

* * * “It is urged that the bonds of every State are property iu the hands of its creditors, and as such that they should bear a due proportion of the public burdens. In the case of Murray vs. Charleston, (96 U. S. 432) there are many pertinent and just observations on this subject, which it is not material to repeat.” * * Hartman vs. Greenhorn, 102 U. S. 683.

It cannot therefore be questioned that the State could herself,-and through her functionary, tax property, the title to which is represented by bonds, and thus subject it to both State aud municipal taxation.

No one here claims that, previous to payment, or at the time of payment, the State or municipal corporation could satisfy the tax levied out of the amount duo and being paid the creditor; but there is no constitutional or other objection to realizing it from the same amount after it has been reduced to possession by the creditor, if it can be reached.

The Constitution in force, and the Revenue Act and City Charter declare what property shall be exempt, and expressly restrict the exemption to the described property and extends it to “no other." In this they only repeat the provisions of previous Constitutions aud laws on the subject.

The property of the relator, consisting in money loaned and invested in bonds within the territorial jurisdiction of the taxing power, is property which was taxable ab initio, when the State and City’issued their bonds for value, or in exchange, and has continued so ti> be.

In claiming an exemption the relator has placed himself within the exception of the rule, and assumed to prove his title to immunity.

He has shown no constitutional provision, no legislative enactment, no judicial adjudication, to support his position. All the authorities, Constitutions, laws and precedents are antagonistical to his pretension and unequivocally subject his property in that form to both State and municipal taxation.

With all due deference to the opinion of the majority of the Court, and uncontrolled by considerations of expediency and of consequences, I feel it my bounden duty to withhold my concurrence, as I consider it to be bold judicial legislation exempting, in the teeth of the Constitution, upwards of ten millions of property, the exemption to last for forty odd years to come.

Against such exemption I, therefore, enter my conscientious and solemn protest.

Dissenting Opinion.

Todd, J.

The power of taxation is one of the most important attributes of sovereignty. It is a cardinal principle relating to such power, that it inherently comprises all subjects over which the sovereignty extends. As said by an eminent law writer : The power of the State as to the mode, form-or extent of taxation is unlimited when the subjects to whieh it applies are within her jurisdiction.” Burroughs on Taxation, 3.

We find a recognition of this principle by the Supreme Court of the United States in the following language of that pre-eminent jurist, Chief Justice Marshall, in the case of McCullough vs. Maryland, 4 Wheaton, 434:

If we measure the power of taxation residing in a State by the extent of sovereignty which the people of a single State possess and can confer on its government, we have an intelligible standard applicable to every case to whieh the power may be applied. We have a principle which leaves the power of taxing the people and property of a State unimpaired—whieh leaves to the State the command of all its resources.”

This language, so terse and at the same time comprehensive, conveys graphically to the legal mind the nature and unlimited extent of this vast power.

Though, thus, an incident of sovereignty and co-extensivo with it, its scope and operation may be restricted and confined within designated barriers by constitutional or statutory limitations.

The authoritative declarations of our present State Constitution, on the subject of the taxing power, are as follows:

Article 203 provides, “ that taxation shall be equal and uniform, * * and all property shall be taxed in proportion to its value.”

Article 207 of the same Constitution declares the exemptions from this mandatory and sweeping provision in these words: The following property shall be exempt from taxation, and no other, viz: All public property, places of religious worship or burial, all charitable institutions, all buildings and property used exclusively for college or other school purposes, the real and personal estate of any public library and that of any other literary association used by or connected with such library, all books and philosophical apparatus, and all paintings and statuary of any company or association kept in a public' hall; provided, the property so exempted be not used or leased for purposes of private or corporate profit or income.”

Thus, we see that the constitutional command is substantially, in its terms, that no other property than that thus specifically named shall be exempt; all other must be taxed.

Act 96 of the General Assembly of 1882 is strictly in conformity to that requirement.

In the light of these constitutional and statutory requirements, and the principles adverted to, underlying this entire subject of taxation, the question arises, whether the City bonds before us are proper subjects of taxation, and were legally and properly assessed in this instance.

We have seen that there is no declared exemption for them. Then the question arises, are they property in the sense of the Constitution ? In my opinion they must be. Abbott defines property as “ anything which a person owns, the various subjects in which an individual may, by law, have exclusive dominion and enjoyment,” and cites, as supporting this definition, the following expressions from adjudicated cases:

“ Property, used alone, includes lands, tenements, hereditaments and commodities, whatever can be appraised or estimated in money.” People vs. Mayer, 7 Barb. 535.

Property, in a bequest, includes everything which may be the subject of ownership, as money and securities.” Ball vs. Ball, Spear’s Ch. 48.

“It includes stock in corporations owned by the testator.” Adams vs. Jones, 6 Jones Eq. 221.

And this Court, in the case of City vs. Insurance Company, 30 An. 876, declares:

“ The argument by which it is attempted to be shown that notes, bills, bonds, stocks, etc., are not property, is too sublimated and metaphysical to be practical in matters of legislation.”

It is conceded, however, in the majority opinion, and is not denied by the counsel for the relator, that the bonds in question are property.

Being property, and not being expressly exempted, it would seem difficult to escape the conclusion, in view of the imperative language of the Constitution, that they should be taxed.

Cooley lays down the rule on this point thus:

“ The intention to exempt must, in any case, be expressed in clear and unambiguous terms. Taxation is the rule; exemption the exception.” Cooley, Law of Taxation, p. 146.

In the face of the plain and unambiguous provisions of the Constitution and statute, and in the absence of any clause in the law or ordinances, under which these bonds were issued, exempting them from taxation, I find no room for implication in the matter, for it is by implication, and implication alone, that the conclusion is reached that these bonds are not taxable. It is implied that they are not within the “grasp of the legislative intent.” While I admit the force of the reasoning by which this proposition is supported, it seems to me that the rules of construction invoked, by which the conclusion is reached, are misapplied. All such aids to construction, to ascertain the legislative intent, can, in my opinion, only be legitimately applied where the language of the Constitution or statute to be construed is obscure or doubtful. Where there is no such obscurity or doubt, as I think is the case in this instance, then the only rule for our guidance is that plain and easy one laid down in our Code, which declares:

“ When a law is clear and free from ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.” C. C. Art. 13.

And as more directly in point on the subject before us, we find the rule laid down by Dillon thus:

As the burden of taxation ought to fall equally on all, statutes exempting persons or property are construed with strictness, (the italics are the author’s) and the exemption should be denied, unless so clearly granted as to be free from fair doubt.”

Apart from the plain inference to be derived from the language of the Constitution and statute referred to, we have high authority in support of the proposition that municipal bonds are proper subjects for taxation.

Burroughs, an eminent writer on the subject, declares :

“The State bonds and bonds of municipal bodies, and circulating notes of banks, which are treated as property where they are, and pass by delivery, are the subject of taxation wherever found, in the same manner as chattels. Such statutes will be construed most strongly against those claiming the exemption.” Burroughs on Taxation, p. 51; and refers to 4th Peters, 514; 11 Peters, 420; 10 How. 393; 1 Black, 436; see, also, Dillon, Mun. Cor., 151; 4 Keyes, 303; 29 Cal. 533; Murray vs. Charleston, 6 Otto, 445.

For these reasons, I can come to no other conclusion, than that the bonds in question are taxable and were properly assessed for taxation, and, therefore, dissent from the opinion of the majority.


author: Manning, J. Pociié, J.

text:
    No. 8889.
    The State of Louisiana ex rel. The Board of Administrators of the Tulane Education Fund vs. The Board of Assessors.
    Exemptions from taxation are always strictly construed against the exemption. Nothing can he supplied by intendment or inference.
    The exemption of buildings and property used exclusively for colleges, or other school purposes, means such buildings as are used for the habitation of a college or school, and such property as is used in and for college or school purposes, suchas chemical or philosophical apparatus, and such like.
    Neither buildings, nor property of any kind, that is used for revenue or profit, although the revenue is to be applied wholly to the support of a college or school, and the profit is to be expended solely for its benefit, is exempt from taxation under our present Constitution.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.
    J. McConnell, F. J). White and F. H. Farrar for Relators and Appellees:
    1. The prejudice resulting from numerous decisions under Article 118 of tbe Constitution of 1868 must be removed before the new and widely different provisions of Article 207 of the Constitution of 1879 can be fairly considered or interpreted.
    2. The exemption asked for maintained under the terms of Article 207:

      (a) Deductions from comparison of Article 207 with Article 118.

      (b) Similar comparison of Article 207 with the corresponding Article in the Constitution of Georgia, from which it was taken with modifications.

      (c) Both comparisons demonstrate that the changes were intended to enlarge the scope of exemption, favorable to educational purposes.
    3. Under the proviso to Article 207, property exempted from taxation for educational purposes may he leased, provided the benefit thereof shall accrue, not to private or corporate purposes, but exclusively for the educational purposes intended to be fostered by the Constitution.
    4. The right to exemption of this property, established from a consideration of the status of the institution claiming the exemption, and holding the property as quasi public property, to be first administered and then distributed for educational purposes only.
    5. Considerations stated, as showing why the exemption, if accorded in this case, cannot be invoked as a precedent by others.
    6. Principles stated, upon which, if the issue is fairly doubtful, the exemption nowprayed for should be granted in the public interest.

      T. J Semines and Banclall L. Gibson on1 the same side.

      Chas. F. Bucle, City Attorney, for Respondents and Appellants:
    1. Under the Constitution of 1879 all property, of every description whatever, is subject to taxation, unless it falls clearly within tbe terms of some one of tbe specified exemptions.
    2. Art. 207, of the Constitution of 1879, granting certain exemptions, must be interpreted according to the plain, literal and ordinarily accepted meaning of the words employed.
    3. When the meaning conveyed by the literal import of the words used is clear and unambiguous, the courts can do nothing but enforce the intention which the law-maker expressed. Sedgwick on the construction of Statutory and Constitutional Law, pp. 194, 195, 205, 206, 207—authorities examined; Potter’s Dwarris, p. 286—authorities examined.

      4. In matters of claim, for exemption, the rules of strict construction apply, under which the doubt must be given in favor of the sovereign. 93 U. S. 567.
    5. ITor are these núes to be relaxed in favor of charitable or educational institutions.
    6. Applying these rules to Art. 207, Constitution 1879, it must he held, under the proviso, which is in these words: “ Provided, the property so exempted be not used or leased for purposes of private or corporate profit or income”—that the property of religious, charitable or educational institutions, which is leased for revenue, without regard to the use made of such revenue, is excepted from the exemption accorded to such institutions, and when so leased is subject to taxation.
    7. The words “all buildings and property, used exclusively for colleges or other school purposes,” in Art. 207, mean actually used, and used for no other purpose.
    8. Property donated to individuals, or corporations as trustees, to be rented for revenue for a period of years, said revenues to be distributed, in the discretion of the trustees, for educational purposes, and after the lapse of the period fixed, to he sold and the proceeds similarly distributed, is not “buildings and property (or property) used exclusively for colleges or other school purposes,” and therefore not exempt under any construction of Art. 207.
   The opinion of the Court was delivered by

Manning, J.

Paul Tulaue gave to certain designated persons in New Orleans real estate situated therein for the purpose of using the income thereof for the promotion and encouragement of intellectual, moral, and industrial education of the white youth in that city. This property has been assessed for taxation in 1883 at $288,700.

The administrators of Mr. Tulane’s bounty claim that the property is exempt from taxation, and this proceeding presents that issue.

The provisions of the last two Constitutions for exemptions are nearly identical. The points of similarity and of difference, so far as concerns onr present inquiry, will appear more strikingly by juxtaposing them. The words used are :

1868. Property actually used for church, school, or charitable purposes.

1879. Buildings and property used exclusively for colleges or other school purposes.

The points of difference are that the word “ buildings” is introduced into the later instrument, and exclusively ” is substituted to actually.” In this second alteration the last Constitution is more stringent than its predecessor, for property or a building might be actually used for school purposes, and yet not used exclusively. If we are then to suppose that there was a design in discarding the word actually,” and employing “ exclusively,” the intent must have been to restrict the exemption within narrower limits than before.

The word “ buildings ” is redundant, and seems to have been injected in the instrument more from a desire to change the expression than to alter the meaning. Certainly property includes buildings. The only effect of it is to make “ property ” refer especially to whatever, other than buildings, is used exclusively for school purposes, such as chemical or philosophical apparatus and the like.

The Journal of the Convention is not very luminous upon the matter, but some light is thrown upon it by the disposition made of an amendment, offered by the counsel who made the oral argument before this Court on behalf of"the administrators with such felicity of diction and earnestness of conviction. Mr. McConnell offered to amend by inserting, and the property thereof, so far as may be actually necessary for the use or support thereof.” It was lost. Journal, 189.

This very decidedly exhibits the animus of the Convention upon this matter of exemptions. Here was a distinct proposition to exempt, not only the property of an institution necessary for its use, but also such property as is necessary for its support. The opportunity was then given to disclose just what we are now seeking to find, viz., the meaning and intent of the body then formulating an organic law. If exemptions were intended to embrace property, the revenues of which were necessary to support an institution of any kind, here was an occasion when that principle could be stamped upon the instrument in characters so.sliarply defined that there could be no mistake in reading them. The principle was repudiated. The amendment was rejected.

Besides, the judicial interpretation of the exemption clause of the Constitution of 1868 was before the Convention. A series of decisions, familiar to every lawyer and to most business men in that body, had settled the meaning of the words used in that Constitution. They knew that an exemption from taxation of a building belonging to a society had been adjudged to have terminated when the building ceased to be used for the purposes of the society, but was leased for its profit, New Orleans vs. N. O. Mechanics’ Society, 27 An. 436, and that the parsonage of a church, used as a home for its minister, had been denied exemption. First Presb. Church vs. New Orleans, 30 An. 259. And in a case where all the Justices read opinions, the first opinion of the Court enlarging the exemption was reversed on rehearing, and the strictest construction of the exemption clause was maintained. La. Cotton Manuf. Co. vs. New Orleans, 31 An. 440.

The legislative interpretation of this clause accorded with the judicial, or rather the legislature compelled the practical enforcement of the judicial interpretation by passing a special law requiring assessors to assess “ all property not absolutely used for church, school, or charitable purposes.” Acts Ex. Sess. 1877, p. 121.

With this phraseology of the Constitution of 1868 before the eyes of those who were framing a new one, judicially construed uniformly to have one meaning, the last cited decision having been rendered at the instant of their assembling, the decisions of this Court forming as we know the subject of comment in their debates, it is not possible that they should have employed language so nearly alike that of the previous Constitution, if they had intended to introduce a different principle. They would rather have avoided the use of its terms, and have so shaped their language as to carve the different intention in bold relief. And this the more, since the accepted canon of construction is that exemptions are rigidly confined to the objects specially designated.

The proviso inserted in the present Constitution strengthens this view—provided the property so exempted be not used or leased for purposes of private or corporate profit or income. Even if the main clause were susceptible of the construction claimed, it is limited and controlled by this denegation of exemption when the property is either used or leased for corporate income. None of the property, for which exemption isnow claimed, is or can be used for college buildings. It can serve the purpose for which it has been given only by leasing it in order to derive income. Unless it yields corporate income, the Board of Administrators could not carry out the purpose for which it was given.

Nor is it without significance that the tendency of legislation, whether organic or ordinary, is to reduce and circumscribe exemptions from taxation to the narrowest possible limits, and even to totally abolish them. Each succeeding Constitution of the several States of our country gives evidence of this tendency of modern thought, and the Constitutions of the two States, which we are told had a marked influence in moulding our own, are conspicuous illustrations of the steady advance of this conception of public policy.

The inducements to swerve from the clearly cut path of judicial contraction are tempting. The munificent bounty of the donor, the admirable purpose to which he has consecrated it, the eminent men whom he has selected with rare good judgment to effectuate his purpose, the visions of the rich harvest of intelligence and culture which will spring up from the sterile fields of ignorance and brutality, when they have been irrigated by the stream of Paul Tulane’s beneficence—all invite a relaxation of judicial interpretation. But courts dare not permit sentiment to displace reason, nor policy to usurp the function of authority.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that the peremptory mandamus is refused at the relators’ costs in both Courts.

Fenner, J., recuses himself, being one of the administrators.

Dissenting Opinion.

Pociié, J.

Believing that the relators are justly and legally entitled to the exemption which they claim, I dissent from the opinion and decree rendered by the majority of the Court in this case.

With due deference, I suggest that there is a grievous error in the conclusion that the provisions of Art. 118 of the Constitution of 1868, and those of Art. 207 of our present Constitution, are nearly identical, and that the addition of words in the latter Article arose “ more from a desire to change the expression than to alter the meaning.”

Article 118 of the Constitution of 1868 reads as follows:

The general assembly shall have power to exempt from taxation property actually used for church, school or charitable purposes.”

The following are the provisions of Art. 207 of the present Constitution which have reference to the subject of our present inquiry:

“ The following property shall be exempt from taxation, and no other: All public property, places of religious worship or burial, all charitable institutions, all buildings and property used exclusively for colleges or other school purposes, the real and personal estate of any public library and that of any other literary association used by or connected with such library, all books and philosophical apparatus, and all paintings and statuary of auy company or association kept in a public hall; provided, the property so exempted be not used or leased for purposes of private or corporate profit or income.”

1. It will be noticed, in the first place, that in the previous Constitution the whole subject is relegated to the general assembly with the implied power to grant or deny the exemptions provided for. Hence, no exemption could be claimed without action on the part of the legislature. But in the present Constitution the exemptions are imperative and absolute; the Article is self-operative, and places the exemptions beyond the reach and action of the legislature.

This line of conduct of the convention was prompted by the state of uncertainty which had hitherto marked our legislation, and which prevailed in our jurisprudence on the subject of exemptions from taxation. The decisions quoted in the majority opinion were known to the framers of the Constitution, who aimed to place the advancement of education in this State beyond the reach of the principles therein enunciated. Hence, these decisions do not apply.

2. It appears, in the next place, that, under the Constitution of 1868, “ church, charitable and school purposes,” were placed on an equal footing on the score of exemption, and were provided for in the same sweeping clause, and that the language used clearly excluded the possibility of exempting from taxation any other property but that which was actually used, for either of the three enumerated purposes.

Hence, in accordance with the only legislation which could be framed under such restrictions, it was correctly held by courts that churches only, schoolhouses or college buildings only, and buildings and appurtenances occupied and used in the dispensation of charity only, were exempted from taxation. A reference to our present Article (207) makes it apparent that this restrictive exemption has been retained, in so far as places of religious worship or burial and charitable institutions are concerned. But the Article discloses an entirely different provision touching exemptions referring to college or school purposes; and it proposes to exempt “all buildings and property used exclusively for college or other school purposes ; * * * * provided the property so exempted be not used or leased for purposes of private or corporate profit or income.”

Now, is it correct, either in law or in fact, to argue that a building cannot be used for the purpose of a college, “ but as the habitation of a college?” Would not a building pertaining to a college, and used as apartments for the college professors, be understood as being used for college purposes ? The proposition admits of no doubt. Would not the farm, its working animals and implements, of an agricultural college be entitled to exemption, under the Article, equally with the college building ? Would the sale of the fruits of such farm", the proceeds being applied to the support of the school, justify the conclusion that the farm would be liable to taxation ? I imagine not.

To my mind it is clear that this language, “ provided the property so exempted be not used or leased for purposes of private or corporate profit or income,” is a negative proposition clearly pregnant with the affirmative idea that such property can be used or leased for other purposes but those of corporate or private profit or income.

If it be not so; if it be true, as held in the majority opinion, that such property can be used for no other purpose, but “ as the habitation of a college or school,” and that such property cannot be leased at all, for a lease necessarily implies profit or income, why would the convention have made use of the proviso at all ? It is hardly fair to suppose, as limited in the opinion, that the delegates were merely bent on a play of words. Under the well recognized canon of interpretation, full effect must be given to every word of an act, and every word must be understood under its common acceptation.

In my humble opinion, the correct construction of the clause is, that buildings and other property of colleges and schools may be used and leased for .income or profit, provided the same be used exclusively for tbe college or school, and not for the purpose of enriching the corporation owning the property, or persons connected therewith.

I have.carefully refreshed my memory on the debates of the convention on this subject, by an examination of the journal of that body, and I find no proceedings which justify tbe conclusion, that tbe spirit of tbe convention was adverse to tbe construction which I adopt.

The quotation made by my learned brothers from that journal, touching the amendment proposed by Mr. McConnell is not precisely accurate.

The journal shows that Mr. McConnell offered to amend by insetting after the word “institutions,” “ and the property thereof, so far as may he actually necessary for the use or support thereof,” whereupon Mr. King moved to amend the amendment, by inserting after '“ property ” the words “of charitable institutions,” and by striking out the word “ thereof.” It therefore appears that the amendment, which was voted down, actually read as follows í “ and the property of charitable institutions, so far as may be actually necessary for tbe use and support thereof.”

The amendment contemplated an exemption exclusively for the benefit of charitable institutions, and its rejection shows that the convention intended such an exclusive privilege to extend to school or college purposes only.

That action of the contention, as well as several amendments which were made to the original report of its committee on taxation, interpreted in the light of numerous otheT provisions in the Constitution, on the subject of education, should satisfy the most casual reader that the convention intended by all means in its power to foster education in the State ; and as far as the limited means of a pillaged and improverisbed State would justify, to spare no expense or to shrink from no sacrifice which would extend tbe benefits of education to all classes of our people.

I regret and deplore that the spirit which animated that body, and which would not hesitate to make cheerfully the sacrifice which is asked at our hands in this case, should have encountered a check from the Supreme Court of the State.

Rehearing refused.