text:
    No. 11,174.
    The State ex rel. David J. Powers vs. The Recorder of Mortgages and City of New Orleans.
    1. It lias been definitely settled by repeated decisions of this court that privileges and mortgages securing municipal taxes of years antecedent to 1877 are imprescriptible, but those securing taxes subsequent to 1877 are prescriptible by the terms of different revenue laws — the one applicable to the city taxes in question being that of 1886, fixing the period of prescription at three years.
    2. Notwithstanding there is no recital in. the proees verbal of adjudication to the State, or in the act of sale from the auditor to her vendee, that taxes previously assessed against the property are assumed as part of the purchase price, the terms of the statute, on the authority of which the sales are made, must control, and charge the purchaser from the State with full knowledge that such assumption is a condition of the sale.
    3. It is axiomatic and well settled law that the sovereign, being owner of property, can sell same, fix the price and impose such conditions of sale upon purchasers as she deems fit and proper; and, in'thc absence of any interfering constitutional prohibition, the General Assembly may provide for such property being subjected.to municipal taxation during the time of her proprietorship.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Benjamin Ory for the Relator, Appellant:
    1. All public property and property belonging to the State shall be exempt from taxation. Constitution, Article 207; Revised Statutes, See. 3233.
    2. The purchase by the State of property sold on account of unpaid taxes extinguishes the debt and all liens arising from taxes. Lands belonging to the State are exempt from taxation, and hence one who purchases land from the State takes it free from all liens and obligations springing from taxation. Bradford vs. Lafargue, 30 An. 432.
    3. When the privileges by which taxes are secured are prescribed, such taxes become mere personal claims against the tax debtor. They cease to be “ taxes due on property” within the meaning of Section 3616 of the Revised Statutes, which must be construed in connection with other laws in pari materia. Scholefield, Goodman & Co. vs. West, 44 An. 277.

      •#. That an assumption of a debt may be judicially enforced, it must be clear, explicit and certain. The plaintiffs not having assumed the debt and not having acknowledged the lien and privilege are not estopped. Leeds & Co. vs. Hardy crt al.,44 An. 556.
    5. After property has been adjudicated to the State, in default of a bidder, the ‘•'sime shall bo continued to be assessed in the name of the person to whom it belonged at the date of the sale, for the lapse of one year thereafter only. Sec. w» of Act 96 of 1888.
    o. The liens lor city taxes from 1877 to 1884, inclusive, are prescribed by three years. See Secs. 36 and 102 of Act 96 of 1877 and Succession Stewart, 41 An. 127.
    7. Tax liens for city taxes for the years 18S5 and 1886 arc prescribed by three years uinder Sees. 36 and 102 of Act 96 of 1877; or by five years under Sec. 34 of Act n of 1882.
    8. Tax liens for city taxes for 18S7 and 1888 are prescribed by three years under ^ec. 1 of Act 26 of 1886.
    9. Section 2 of Act 80 of 1888 provides: That the property shall be adjudicated to ihe Iasi and the highest bidder for cash, payable in current money of the FniUul States, at the time of the adjudication; provided, no bid shall be Accepted or sale made for a less amount than the total amount for which the ■property was adjudicated to the State, together with 20 per cent, thereon and all costs of enforcing this act. All money realized from the enforcement of this act shall he included in the first return of the Tax Collector to the Auditor <n£ Public Accounts made after receiving the same, and paid into the State treasury, to the credit of the general fund. See Sec. 2 of Act 80 of 1888.
    2.0. Action 3 of Act 80 of 1888 provides: That when any property sold to the State for unpaid taxes has been once advertised and offered for sale in accordance with the provisions of this act, and has failed to sell, then the Auditor of Fublic Accounts shall be authorized to receive bids for all such unsold property and sell the same and execute a deed thereto; provided, no sale shall be made for a less amount than is provided for in the foregoing section. See Sec. 3 of 1887.
    31. Section 5 ot Act 80 of 1888 pi*ovides: That all the sales made under this act «hall vest in the purchaser “an absolute and perfect *' title to the property conveyed in the deed of sale, without any claim thereto by any former owner, and free of all mortgages, liens, privileges and encumbrances whatsoever, except all city and municipal taxes. See Sec. 5 of Act 80 of 1888.
    12. Section 6 of Act 80 of 1888 provides: That the price bid and paid for said property shall be in full and final payment and satisfaction of all State taxes, together with all costs thereon due and exigible at the time the property was adjudicated to the State, and the purchaser shall take said property subject to all subsequent taxes, State, parish and municipal. See Sec. 6 of Act 80 of 1888.
    £3. Selling land as subject to a mortgage or privilege does not make the purchaser personally liable. Balfour vs. Chew, 4 N. S. 154; Massey vs. tfineh, 24 An. 29.
    £4. A third possessor is he who has acquired property subject to a mortgage or privilege without having assumed payment thereof. O. I\ 41, 68, 69, 71.
    35. A third person to a contract or obligation is a person who was not a party to ,«txch contract or obligation. O. O. 8556, No. .32; YanLoau vs. Heffner, 30 An. 1213.
    30. The promise to pay the debt of a third person is in the nature of an obligation of suretyship. Itcan be enforced only by written evidence signed by theparty; and is to be restrained within the limits intended by the contract. O. O. 2278 and 3039.

      17. Privileges become extinct: 1. By the destruction of the thing subject to the privilege. 2. By the creditor acquiring the thing subject to it. 3. By the extinction of the debt which gave birth to it. 4. By prescription. C. O. 3277.
    18. Prescription runs against all persons, unless they are included in some exeej)tion established by law. C. O. 3521.
    19. There are two modes of interrupting prescription — that is, by a natural interruption or by a legal interruption. C. O. 3516.
    20. A legal interruption takes place when, the possessor has been cited to appear before a court of justice, on account either of the ownersnip or of the possession. C. C. 3518.
    21. Prescription ceases likewise to run whenever the debtor or possessor makes acknowledgment of the right or claim. O. C. 3520.
    22. All taxes, tax'privileges and tax mortgages are prescribed by three or live years, and this prescription is suspended or interrupted only by an injunction which prevents the collection. See Act 96 of 1877, Secs. 36 and 102; Act 77 of 1880, Sec. 24; Act 96 of 1882, Sec. 24; Act 98 of 1886, Sec. 34: Act 26 of 1886, Sec. 1; Act 85 of 1368, Sec. 33.
    L. O’Donnell and G. W. Flynn, Assistant City Attorneys, contra.

   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by mandamus to compel the recorder of mortgages of the parish of Orleans to cancel and erase from the books of his office each and every one of the tax inscriptions named and listed in his petition, as registered against or bearing upon the property in controversy.

The city of New Orleans is made a party respondent, and the mayor is duly cited, and relator’s prayer is that all of the within named inscriptions of city taxes be likewise canceled and erased.

The ahswer is practically a general denial. The claim of relator is that the property involved in this suit was adjudicated to the State of Louisiana at a tax sale made on the 27th of December, 1884, in pursuance of and in conformity to the provisions of Act 96 of 1883, and that this acquisition is evidenced by two deeds of sale executed by the tax collector before a notary public on the 4th of February, 1885. That Benjamin Ory acquired said property from the State of Louisiana, as adjudicated, at a public judicial sale of said property, on the 16th of May, 1872, made in presence of and in conformity with the provisions of See. 3 of Act 80 of 1888, and that same is evidenced by a deed executed in his favor by the Auditor of Public Accounts.

That the relator purchased the property from said Ory, as per notarial act of sale of date July 5, 1892.

The specific averment of relator’s petition is, that in the deed of sale from the State to Ory there was.no assumption on the part of the latter to pay any city taxes whatsoever that might be claimed against the property; and that in the deed of sale 'from Ory to the relator the latter made no such assumption.

As ancillary to the relief demanded, the latter pleads the prescription of three and five years against all the liens, privileges and mortgages securing the city taxes that were assessed against the property during the years 1877 to 1889, inclusive; and further pleads in the alternative the extinguishment, by virtue of the tax sales to the State in December. 1884, of all city taxes assessed against same during the years 1870 to 1884, inclusive.

His further averment is, that there was no warrant in law for the levy and assessment against said property during the years 1884 to 1892, inclusive; on the theory, doubtless, that no taxes could lawfully be assessed against the property in favor of the State while she was invested with title thereto.

The respondent’s contention per contra is that the relator claims title through Ory’s acquisition from the State, to whom the property was adjudicated under and in pursuance of the terms, conditions and provisions of Act 80 of 1888, and that he is, therefore, bound and conclusively barred thereby from urging any such defence; and, further, that an adjudication made under that statute vested the State with an absolute title to the property, in as far as the claims or demands of any former owner are concerned; and free of all mortgages, liens or incumbrances whatsoever, though remaining subject to all subsequent taxes, State, parish and municipal. And that, inasmuch as the payment of all city and municipal taxes is made one of the conditions on which such adjudication is made, the relator is without legal right to the relief he has demanded; and that he is not entitled, for that reason, to have the mandamus made peremptory, notwithstanding the act of sale and proces verbal contain no assumption of the taxes existing at that date.

The following are the substantial facts as they appear of record, to-wit:

On the 4th of February, 1885, the State tax collector executed to the State of Louisiana a notarial act of sale of the property in controversy for the price of $8.54 in cash, (and the assumption of the State taxes of the year 1882, and all costs and fees due thereon, same having been made in pursuance of an adjudication made thereof on the 27th of December, 1884, in conformity to the provisions of Act 96 of 1882, in the collection of the State taxes of 1892.

On the same date said tax collector executed a similar act of sale of the same property to the -State for the price of $8.44 in cash, and the assumption of the State taxes of 1888, and all costs and fees due thereon, in pursuance of a like adjudication under the aforesaid law.

On the 16th of May, 1892, the Auditor of Public Accounts executed an act of sale of said property, in pursuance of the provisions of Sec. 8 of Act 80 of 1888, to Benjamin Ory, as that which had been previously adjudicated to the State in December, 1884, for the expressed consideration of $49.44, the receipt whereof is duly acknowledged.

This act makes the following specific imputation of the purchase price, to-wit:

First — State and City taxes for the years 188:1, 1882 and 1883, aggregating ...................................................................;....... $17 01
Second — Damages or interest of 20 per cent.................................... 3 10
Third — State taxes for tile vear 1881 .................................................. 12 93
Fourth — Surplus to cover costs............................................... 10 19
$13 S3

On the 5th of July, 1892, Ory conveyed, by a quit-claim title, to the relator, the property as that he had previously acquired from the State — reciting in the act his chain of title as above described.

The certificate of mortgages shows State taxes recorded against the property in the name of one Gammaek, for and during the years 1875 to 1891 inclusive, and city taxes for and during the years 1870 to 1876 inclusive. It also shows State taxes assessed against it in the name of Seholtz, for and during the years 1880 to 1891 inclusive, and city taxes from 1877 to 1891 inclusive.

In the first place it must be observed that this contestation is exclusively confined to liens, privileges and mortgages securing city taxes, and that none of same are covered by or are included in the sales and adjudications above referred, in specific terms.

In Davidson vs. Lindop, 86 An. 765, we held that the privileges securing municipal taxes antecedent to 1877 were practically imprescriptible, but in Succession of Stewart, 41 An. 127, we held that the provisions of Act 96 of 1877 regulated the prescription of municipal taxes and privileges, securing the payment of taxes assessed in the years 1880, 1882 and 1888, as well as of those assessed in 1877, 1878 and 1879.

The principles announced in those cases have been repeatedly affirmed since, and same may be considered as finally and firmly settled.

Accepting this theory, we must necessarily maintain the imprescriptibility of the privileges securing city taxes that were assessed against the property in the name of Cammack during the years' 1870 to 1876 inclusive; and likewise maintain the prescriptibility of those assessed in the name of Scholtz during the years 1877 to 1891 inclusive.

Taking the date of the service of the writ of mandamus, November 30, 1892, as that from which the computation of time is to be made, and we find that all tax mortgages and tax privileges securing the payment of municipal taxes of the years antecedent to 1889 are prescribed by the terms of the revenue laws of 1886, which are as follows, viz.:

“All taxes, tax mortgages and tax privileges shall be prescribed by three years from the date of the filing of the tax roll” — winch the law requires to be filed before the first day of September. Sec. 34 of Act 98 of 1886. And by the periods of three and five years’ prescription under prior revenue laws.

Consequently, we find that all the inscriptions of liens or mortgages securing city taxes, assessed against the property for and during' the years 1877 to 1888, inclusive should be canceled and erased from the mortgage records of the parish; those prior to 1877 being imprescriptible and remaining in full force.

The remaining question is, whether the two tax sales of the property made to the State in December, 1884, rendered it exempt from taxation during the period of time it was property of the sovereign, and consequently operated the nullity of the tax liens and mortgages securing the taxes of the years 1889, 1890 and 1891, not covered by the prescription urged.

We take it to be clear that, notwithstanding the fact that there is in the acts of sale to Ory and relator no specific assumption of taxes assessed previously, the terms of the statute, on the authority of which the conveyance was made, must control; and they are to the effect “that all sales under this act shall vest in the purchaser an absolute and perfect title to the property conveyed in the deed of sale, without any claim thereto by any former owner, and free, if any, mortgages, liens, privileges or ineumbranees whatsoever, except all city and municipal taxes.” Sec. 5 of Act 80 of 1888.

It likewise appears to be clear that it was the definite purpose of the Legislature to make property purchased by the State liable to subsequent taxation, State, parish and municipal, as will appear from the following, viz.:

“Be it further enacted, that the price bid and/paid for said property shall be in full and final payment and satisfaction of all State taxes, together with all costs thereon, due and exigible at the time the property was adjudicated to the State, and the purchaser shall take said property subject to all subsequent taxes, State, parish and municipal.” Id., Sec. 6.

The price of adjudication to the State is to be in full and final paj?menc of “ all taxes due and exigible at the time the property is adjudicated to the State;” and the further specific requirement of the law is that “ the purchaser (from the State) shall take said property subject to all subsequent taxes, State, parish and municipal.”

Having the precept of that statute before him, relator’s vendor, Ory, became the purchaser of the property charged with the payment of municipal taxes that were assessed subsequently to the adjudication thereof to the State, and he thus voluntarily assumed responsibility for their payment.

But if this statute fixed upon Ory full responsibility for the payment of the taxes themselves, his vendee, not having made any assumption thereof, is not responsible therefor; and in any event is entitled to have the inscriptions erased.

It is claimed, however, that such taxes are illegal and violative of the provisions of the Constitution — citing Art. 297 thereof, and also R. S., Sec. 3233.

The provisions of Art. 203 is that “all property shall be taxed,” wnile those of Art. 207 are that “the following property shall be exempt from taxation, and no other, viz.: all public property,” etc., thus showing that the terms of the exemption do not exempt, specifically,- lands or property of the State, and that the Legislature was not inhibited from providing for their taxation.

The phraseology of the section of the Revised Statutes referred to is much more comprehensive, for it declares, to-wit:

" The following property shall be exempt from taxation:
“First. All lands and lots of ground with their buildings, improvements and structures, and all other ¿property belonging to the United States, to the State, or any parish in this State.”

That enactment was undoubtedly justified by the terms of the Constitution at the time in force, and which declared that “ all property shall be taxed in proportion to its value,” and conferred upon the General Assembly “power to exempt from taxation property actually used for church, school or charitable purposes” — and no other. Art. 118 of 1868.-

The decision relied upon by the relator — Bradford vs. Lafargue, 30 An. 432 — was predicated upon a statute of 1874, of similar import, and which authorized the State, as the adjudicatee of property sold for taxes, to sell same to any one who shall tender and pay said collector the amount of the State and parish taxes due on said property. ” It imposed on the purchaser from the State no other condition than the payment therefor of the State and parish taxes then due; and the court says that “ these words can only refer, therefore, to taxes levied before the State bought.” Consequently the court correctly expressed the opinion in that case that property of the State is exempt from taxation,” and the Legislature properly authorized the sale of the property to any one who will pay the State and parish taxes due when the adjudication to the State was made.

We are clearly of the opinion that the law in question is neither unconstitutional nor illegal, and the municipal taxes assessed against the propertv in controversy for the years 1889, 1890 and 1891 are legal, and the inscriptions thereof in the book of mortgage is legal and valid.

In State ex rel. Martinez vs. Tax Collector, 42 An. 678, we said, on a question germane to this, that “ no reasons are urged or can be urged why the State, being the owner of the property, could not sell the same and fix the price, and impose such conditions on the sale as she deemed fit and proper.”

The judgment of the lower court must be reversed. It is therefore ordered, adjudged and decreed that the judgment in favor of the respondents be annulled and reversed; and it is further ordered and decreed that there be judgment in favor of the relator and against the respondent, the city of New Orleans, decreeing all the liens, privileges and mortgages securing the municipal taxes assessed against the property in controversy for and during the years 1877 to 1888 inclusive barred and extinguished by prescription, and against the respondent, the recorder of mortgages, to like extent, only making the mandamus peremptory in respect to said prescribed tax liens, privileges and mortgages, commanding and compelling him to cancel and erase them from the book of mortgages of the parish of Orleans.

It is finally ordered and decreed that the respondents pay the costs ratably of both courts.


source: Caselaw Access Project

author: McEnery, J. Fenner, J.

license: Public Domain

text:
    No. 11,169.
    J. Menelas Webre vs. Lutcher & Moore.
    An unknown owner of assessed immovable property is one who has no agent to represent him, and whoso place of business, residence and postoffice address are not known to the tax collector.
    Lands purchased from the State and described on the tax rolls in subdivisions, according to United States survey, are sufficiently described.
    The description by subdivisions will control the number of acres alleged to exist on the tax roll and the tax deed.
    APPEAL from the Eighteenth District Oourt, Parish of Lafourche. Gaillouet, J.

      N. R. Roberts and L. F. Suthon for Plaintiff and Appellee:
    Notice by publication to a tax debtor, who is known, who resides in the State, hut whose postoffice is unknown, is no notice at all. Const. 1879, Art. 210.
    The tax collector or assessor in this case should have ascertained the name and address of the tax debtor at Baton Rouge. R. S. of 1870, Art. 2922; 43 An. 987-. Want of notice in the manner pointed out by law in proceedings to enforce taxes is not a mere formal defect, but is a radical one, and is not cured by the prescription of throe years, or of live years. 43 An. 437; 32 An. 297.

      Clay Knobloeh contra.

   The opinion of the court was delivered by

McEnery, J.

This is a suit to annul a tax sale made in pursuance of Act 96 of 1882.

The facts are that the plaintiff, in 1854, bought certain swamp lands from the State situated in the parish of Lafourche.

In 1882-83 the lauds were assessed on the tax rolls to J. M. Webre on the list of known owners of taxable property. Although not placed on a separate tax roll, in pursuance of Sec. 8 of said act, the tax collector, after having given notice by publication, sold these lands at tax sale as the property of an unknown owner. W, H. Ragan purchased them and sold them to the defendants.

The lauds were vacant, unoccupied and uncultivated. The plaintiff had never, until the year 1891, when he instituted this suit, recorded his title to said lands.

He had no agent to represent him in the parish of Lafourche. He resided in the parish of St. James. The tax collector did not know whether he lived in or out of the State. He did not know the post-office address of plaintiff. The first time the tax collector saw him was pn the trial of this case. He knew that he was anon-resident— that is, that he did not live or have a domicil in the parish of Lafourche.

The plaintiff never saw the lands, or authorized any one to take possession of them. He received no written or printed notice, through the mail or otherwise, that he was a delinquent tax-payer. He never paid any tax assessed against the property.

The assessment and the act of sale do not contain a full description of all the property claimed by plaintiff, but they contain a correct description of the property assessed and sold at tax sale.

The lands were described by subdivision pursuant to the United States surveys.

Plaintiff alleges that the tax sale to Ragan is null and void because no notice was served on him as required by Secs. 49, 50 of Act 96 of 1882, and by Article 210 of the Constitution of the State, and for the further reason that the description of the property, both on the assessment roll and in the act of sale, is not correct.

The answer of defendants is a general denial, except that they admit the tax sale — the sale by Ragan to defendants, Lutcher and Moore, and they aver that the sale was preceded by all due and legal requisite notices and advertisements, and that the description of the property in the assessment roll, advertisement and tax deed was correct. There was judgment for the plaintiff and defendants appealed.

Article 210 of the Constitution provides that the collector shall, without suit and after giving notice to the delinquent in the manner to be provided by law (which shall not be by publication except in case of unknown owners), advertise for sale the property on which the taxes are due. * * *

Section 49 of Act 96 of 1882 provides for a written or printed notice to be served on the delinquent to pay the taxes assessed against the immovable property within twenty days after the service or mailing of said notice. Section 50 of the act provides that the above notice shall be delivered to each tax-payer in person or shall be left at his residence or place of business, or shall be mailed to him by postal card addressed to the postoffice of said tax-payer. Section 51 of said act provides by publication for notice to unknown owners of assessed immovable property.

The question presented is whether or not the plaintiff was an unknown owner of assessed immovable property? If so, it is not.pretended that the notice by publication is not legal and valid.

Section 8 of Act 96 of 1882 provides the duties of the assessor in listing property belonging to absent unknown owners, and he is required to make a separate list describing each tract of land belonging to any absent owner whose name is unknown. He is directed by said section to examine the records of the office of mortgages and conveyances, and the abstract of land entries, and shall otherwise make faithful inquiry and investigation to ascertain what taxable property in his district or parish belongs to residents and absent owners and to unknown owners.

By this section the assessor is directed to make an inquiry for property belonging to three classes of owners: (1) resident owners, (2) absent owners, (8) unknown owners; and corresponding to the inquiries he is required to make two lists: (1) resident and absent owners whose names are known; (2) unknown owners.

It is the duty of the owner of property, whether an absentee or resident tax-payer, to aid and assist the assessor by giving him correct information as to the ownership, description and valuation of the property.

When the title to the property is not of record, the investigations of the assessor must of necessity be limited, and his description of ownership to a great degree conjectural. If the tax-payer fails in his duty in furnishing information as to his residence, he has himself to blame if he finds himself in the list of unknown owners of property.

The law absolutely requires this duty on the part of the owner of property.

The property in this case had been assessed to J. M. Webre. H.e was in fact the owner of the property. But he had never placed his title on record, nor had he given the assessor as required by law the description of his property, nor had he appointed any agent to represent him in the parish of Lafourche, where the property was situated.

The tax rolls went to thé tax collector, with property described on it which was not to be found in the records of the parish as belonging to the party to whom it was assessed. It was vacant, unoccupied property, with no indications of ownership.

Under these circumstances what was he to do? He was charged with the tax roll and held to a rigid responsibility for the collection of the tax.

We think his duty was clearly indicated and pointed out in Secs. 49, 50 and 51 of Act 96. The sections to which we have referred have reference to the duties of the assessor; 49, 50 and 51 are directed to the tax collector.

See. 50 requires the tax collector to deliver the written or printed notice designated in Sec. 49 to the delinquent in person, or at his residence, or mail it to him by postal card addressed to his postoffice. Sec. 51 requires one general notice by publication to all unknown owners of assessed immovable property situated in his parish.

He could not comply with Sec. 50 because he did not know the absent owner. He did not live in the parish and had no agent there, therefore he could not make either a personal or domiciliary service. He could not serve notice by mail because he did not know the absent owner’s address.

There was but one mode of making service, which was by publication, as prescribed in Art. 210 of the Constitution and Sec. 51 of Act 96, for service on unknown owner of assessed immovable property.

The plaintiff was to all intents and purposes and within the meaning of Art. 210 of the Constitution and Act 96 of 1882 an unknown owner of the property assessed to J. M. Webre.

The plaintiff’s counsel refer to case of McWilliams vs. Michel, 43 An. 984, and Sec. 2922, Rev. Stat., to sustain their position that the tax collector or assessor should have ascertained the address of the plaintiff at Baton Rouge. In the case of McWilliams vs. Michel we said “ the State had notice of the title to the property in Thomas Mills. She can not ignore this fact and assess the property to a person not the owner,- sell it and acquire title to it.” The facts in that ease were that the patent to the land had issued from the State Land Office to Thomas Mills. The property was assessed to Garandi, who never owned it, and under this assessment it was sold at tax sale. The case has no bearing on the issues involved in this, as the facts are not the same.

Section 2922, Revised Statutes, provides that “it shall be the duty of the Register of the State Land Office to furnish annually, on the first Monday of January, the Auditor of Public Accounts with a list of all the lands which may have been entered the preceding year, and the names of the persons entering the same, and the respective parishes in which they may be situated; and it shall be the duty of the Auditor of Public Accounts to transmit as soon thereafter as possible, to the various State collectors in whose parishes any of said land may be situated, a list of the lands and the names of the persons by whom they were entered, in order that they be assessed for taxes.”

This section is an additional means resorted to in order to place the land sold by the State on the tax roll. The omission of the State officers to do their duty can not relieve the plaintiff from his as a tax-payer*. The Auditor may have performed his duty in 1882, and forwarded the list at that late day to the tax collector, with the name of plaintiff who entered the land. But this fact alone does not contradict the fact that he was not a resident of the parish, had no agent there, and his postoffiee was unknown to the tax collector, that the land was vacant and unoccupied and apparently abandoned.

It was competent for the Legislature under Art. 210 of the Constitution to declare who were unknown owners, and how notices should be served on them. We think the Legislature has practically done so in Sees. 50 and 51 of Act 96. Section 50 provides for notice to the tax-payer whose postoffiee is known, and who resides in the parish. Section 51 provides for all “unknown owners of assessed immovable property” whose residence is not in the parish and whose postoffiee is unknown. It can not be contended that the Legislature intended to omit any class of owners. Therefore, those who did not have a residence in the parish, or agents there, or whose postoffiee was unknown, must necessarily be included in the class of unknown owners of assessed immovable property mentioned in See. 51.

The property was not known by any particular name. Its description by subdivision was sufficient and in strict compliance with Sec. 7 of Act 96.

The plaintiff certainly had no cause to complain that a portion of his property was omitted from the assessment roll. This omission is no cause for annulling the assessment of that which was properly assessed.

The variance between the acreage in the assessment, advertisement and deed can make no. difference, as the purchaser could only get title to the amount of land contained in the several subdivisions.

There is no equity whatever in the demand of plaintiff. To permit a party to take ad\antage of a state of facts which he has created; to avoid recording title to his property for thirty-seven years in order to escape taxation, and await the increased valuation of his property, and when his property is eventually assessed and sold at a tax sale, to come forward and record his title and to demand the nullity of the tax sale, and for these reasons to annul the sale, would be to give a premium to any owner of property to secrete his title, conceal his identity, place of residence and postoffice, in order to escape the taxation of his property and reap the fruits of its speculative value.

The revenue laws never intended such a result.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that there be judgment in favor of defendants, and that plaintiff’s suit be dismissed with costs of both courts.

On Application por Rehearing.

Fenner, J.

We adhere to our decision in this case, but wish to say that it is based upon and confined to. the particular facts fully stated in the opinion, and is not intended to give a license to tax collectors to dispense with notice to absent owners whose names are known, but whose residence is unknown, without exhausting the means provided by law for ascertaining the latter. If. plaintiff’s title had been of record, or if the land had been in possession of any one, resort to the records or to the possessor might have suggested means of tracing his residence. But the act under which the tax was levied made no provision for appointment of curators ad hoc and provided only three modes of notice: (1) personal or domiciliary notice to residents; (2) mailing to non-residents; (3) publication. This party was a non-resident; the mailing of notice, unless addressed to bis proper postoffice, would have been ineffective and null, and as the collector did not know and had no means of ascertaining his postoffice, resulting from the tax-payer’s own fault and negligence, the collector must either have given notice by publication or abstained from proceedings to collect the tax. Such a contingency could not have been contemplated by the law, and the collector was justified in treating him as, to all intents and purposes, an unknown owner, and giving the only notice possible — i. e., by publication.

Rehearing refused.


author: Breaux, J. Breaux, J.

text:
    No. 11,108.
    Oswald Stieree vs. Joseph Kaiser.
    Interrogatories should be filed with the affidavits for a commission to examine witnesses out of the State, or the materiality of the testimony sought should be shown by the oath required.
    Parol is inadmissible to prove that the person whose name appears in the deed was only the agent and not the purchaser.
    Interrogatories on facts and articles are the safer method of securing a confession against the vendee, establishing the transfer of immovable property.
    The testimony of witnesses, admitted by the district judge, is considered, without regard to this rule, to probe the conscience of a vendor or vendee o£ real estate; its preponderance supports the written deed.
    The title was recorded several years ago. Upon parol testimony it can not be decreed that the owner named in the deed is not the owner, but a creditor for the amount of the purchase price.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Frank Zvngel and Henry P. Dart for Plaintiff and Appellee:
    1. Parol evidence is not admissible for the purpose of proving that a third person was interposed to receive or to be invested with the title to the real estate, for the use of and instead of the intended vendee. C. C. 2440, 2275; 42 An. 449 ; 32 An. 166; 30 An. 898; 4 La. 166; 2 La. 598; 15 An. 540; 5 An. 132; 12 An. 213; 44 An. 600.
    When a commission is obtained to take parol evidence, and the pleadings and issues show that parol evidence is not admissible, the ruling of the lower court rescinding the order will be sustained.

      Albert Voorhies, Simeon Belden aud Louis P. Paquet for Defendant and Appellant:
    1. Petitory and possessory actions can not be cumulated and joined together. O. P„ Art. 55.
    2. If ■ so, then the plaintiff “shall be considered as having renounced the possessory, in order to resort to the petitory action.” C. P., Art. 54.

      3. Defendant lias a right to his commission to take testimony of witnesses, upon affidavit of materiality, and where commission has been so allowed the court is without power to withdraw the commission, and to rule the party to trial.

      i. Parol testimony as to transfer of immovables is admissible when delivery has been made and the transferee possesses as owner
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, alleging that he is the owner of certain real estate in New Orleans, which he acquired from F. H-. Stierle on February 8, 1892, by public act duly recorded, and of which the defendant is in possession without title, prays that his title be recognized and that the defendant be made to remove from it and deliver him possession, or in default of his so doing, that he be ejected by process of court.

The defendant pleads the general denial and especially avers that he is the owner of the property. That he bought it from the succession of Abraham Yan Dyne on March 1, 1890; that the title was made in the name of Gottlieb H. Striebe, as his trustee and agent, m order to secure the payment of the sum of §4000 advanced to him to pay the purchase price of the property from the succession above named.

That he has been in possession of this property since January, 1872; that the plaintiff was aware, prior to his purchase, that his father,-Gottlieb H. Striebe, held the property as agent and trustee.

This suit was filed May 3,1892. In due time the defendant moved for a commission to take the testimony of l witnesses residing in Illinois and New Jersey, and in the motion averred that the testimony sought was material to the defence.

There were no interrogatories presented with the motion.

On plaintiff suggesting that the materiality of the testimony to be obtained by commission was not shown by accompanying interrogatories, or by any document showing its materiality; that the pleadings and issues did not admit oral testimony, and that three days had elapsed since the order had been granted, the court rescinded the order and directed the trial of the case.

On appeal, the first ground of objection is to the court’s ruling in rescinding this order to receive the testimony of witnesses.

The statement in the motion that the testimony sought is material, without further allegation or the least statement of anything it is intended to prove, and without reference to interrogatories and in the absence of all interrogatories, is not sufficient to obtain a commission to examine witnesses not residing in this State.

We do not rest our ruling exclusively upon this failure to file interrogatories in time.

The interrogatories filed several days after the order had been given to issue a commission, reads:

“ First interrogatory: Are you acquainted with parties to this suit? If yea, state how long you have known them and where at?”
“Second interrogatory: Are you acquainted with a square of ground in what is known as Rickerville, in the city of New Orleans, and State of Louisiana, bounded by Peters avenue, Leontine, Coliseum and Chestnut streets? If yea, how long have you known it and who has resided on it, whether it has been sold, by whom and to whom?”
“ Third interrogatory: If you say said property has been sold, then state when and who is the party that contracted for its purchase, the party who sold and the price paid in this particular; state fully all the facts within your knowledge, and any writing you may have bearing upon the subject matter of these interrogatories?”

The testimony sought by these questions is inadmissible.

Every transfer of immovable property must be in writing.

The defendant’s answer does not suggest, even inferentially, that he had written evidence establishing his title.

His testimony as a witness in the case is silent upon the subject.

The statements by the witnesses to whom the interrogatories were propounded, of “ all facts within their knowledge, and any writing you may have bearing upon the subject matter of these interrogatories,” are clearly inadmissible.

The defendant argues that though he could not establish title to real estate by parol, proof of the delivery of the property and of his possession as owner was admissible.

That he had the right to probe the conscience of plaintiff.

The question being one of title we will not discuss the characte of defendant’s possession, as it has no bearing upon the ease, there not being any title.

The plaintiff was not examined by propounding interrogatories to him on facts and articles.

He was called and examined during the trial as defendant’s witness.

The vendor to plaintiff was also examined as a witness.

This testimony and that of the defendant, as a witness in his own behalf, are the verbal testimony of the case.

A bill of exceptions was reserved to the court’s ruling in admitting it. The ground of objection is that it was inadmissible to prove title to immovable property.

In establishing title to real estate there is greater safety and certainty in propounding interrogatories- on facts and articles, and in adhering to the articles, upon the subject.

We have, nevertheless, examined the testimony and given consideration to it without regard to the objections urged.

The plaintiff’s author, testifying as a witness, called by the defendant, emphatically denies, under oath, that he bought the property as the agent of the defendant.

The following is a question propounded to the plaintiff’s author by defendant’s counsel:

“You advanced Mr. Kaiser the'money to purchase that property and took the title in your name, did you not?
“A. No, sir; no, sir.”

He testifies that he bought the property, and not the defendant.

That the latter promised to buy it from him and had never complied with his promise, though frequently-called upon.

The plaintiff, testifying as witness for defendant, says that there was an agreement between his author and the defendant whereby the latter was to pay rent or buy the propei’ty.

That after the time had elapsed the defendant was called upon to carry it out.

That he, on different occasions, promised to buy it, but never complied or took the least steps toward fulfilling his promises.

A number of letters are in evidence.calling upon the defendant to comply with an agreement, or promise, not clearly stated.

The witness states that they had reference to defendant’s promise to buy and were expressions of willingness to sell to him, of which he (defendant) at all times failed to avail himself.

We quote from his testimony in reference to the sale:

“ Q. Were you familiar with all the transactions between Mr. Kaiser and your father? ”
“A. No, sir; no, sir; not with all of them. I am familiar with some of them.”
“ Q,. Before you purchased that property from your father you were fully aware how that transaction stood? ”
“A. All I know was that my father had purchased the propertj from an outside party, and I bought the place from my father. I did not know Mr. Kaiser in the transaction at all as far as the property was concerned. He had no claim in the property — -no more than he had promised to purchase the place.”

The defendant testifies that he sold the property to a Mr. Van Dyne in 1872.

That this owner being dead in 1890, the legal representatives of his succession offered to sell to him, of which he availed himself, by obtaining the amount of the purchase price from the plaintiff’s author and by making the title in the latter’s name, until, says the witness, “I returned him everything that he loaned me.”

This is denied by his two witnesses. Bach says that the purchase was made by the plaintiff for his own account, and that the subsequent promise to sell to the defendant is independent of any agency or promise to represent him in the purchase from the heirs of Van Dyne.

The attempt is made to change the declaration of a deed of sale; to defeat the chain of title from the plaintiff to the defendant.

The weight of the testimony is against the defendant’s contention and does not sustain the allegations of his answer.

The public records are the repository of the intention of the parties and are conclusive of that intention until the contrary is established by sufficient evidence.

The district judge exercised certain discretion in admitting testimony not admissible under strict rules of evidence.

After giving consideration to this testimony he decided against the defendant.

We think the judgment is correct.

Judgment affirmed at appellant’s costs.

On Application roe a Rehearing.

Breaux, J.

The defendant defends on the ground that the title to the property was made in the name of plaintiff’s author, as his agents, to secure the payment of $4000, advanced to him to pay the purchase price.

He does not allege any written title, or directly or indirectly refer to any writing, which may have any bearing upon the subject.

The plaintiff, over his objections, was examined as a witness; though no interrogatories on facts and articles were propounded, he had every opportunity to examine the plaintiff as a witness, and probe his conscience.

The defendant himself was heard as a witness. He did not intimate as a witness that there was any writing on the subject.

The defendant applied to the District Court to have two witnesses examined: John L. Johnson, of Newark, New Jersey, agent for the heirs of J. Van Dyne, vendees of defendant in 1872, and the other, Robert Johnson, of Chicago. They are not vendors and their names are not connected with the chain of title as owners.

The interrogatories filed subsequent to the order were “ propounded to them on facts and articles,” although they were never owners of the property involved.

The ruling rescinding the order to haye these witnesses examined ,was entirely proper. The defendant complains of the omission of a word. There is no omission from the interrogatories quoted. But whether we read the words “produce,” “furnish,” “answer,” or any other, between the lines of the third interrogatory, as defendant contends should be read, the testimony would not be admissible; the purpose of the defendant being to show title to realty. The word is of no interest and does not change the issue.

The counsel for the defendant who filed the last brief for a rehearing have clearly stated the grounds of the defence. If they will recall that the title was made in the name of the plaintiff and duly recorded;

That he paid the price;

That the defendant has not any writing establishing title;

That the demands for money contained in several letters do not prove a sale, or refer to any sale, the impossibility of decreeing that there is a title under which the defendant shall hold possession as. owner will suggest itself to them.

Rehearing refused.


author: Breaux, J. Watkins, J.

text:
    No. 11,111.
    The State of Louisiana vs. The Boston Club. Club and Pickwick
    Tbe defendants are not carrying on business, nor are they engaged in trade, within the meaning of the statutes.
    The statutes requiring licenses from those who “ sell, give or otherwise dispose ” of alcoholic drinks are within constitutional limitations.

      Without regard to trade or business, or to the fact that the proceeds are not realized with a view to profit or for a livelihood, incorporated institutions engaged in selling intoxicating liquors to their members owe a license under the paragraph of Sec. 11, of the license tax law, designating “ sales, gifts or other disposition ” as subject to a license.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Edwin H. MeCaleb for Plaintiff and Appellant:
    1. Defendants in this rule are liable for the license tax imposed by Sec. 11 of Act 101 of 1886, and Sec. 11 of Act 150 of 1890, for “selling or otherwise disposing” of spirits, wines, alcoholic and malt liquors.
    2. Social clubs organized as corporations under the general laws, authorizing the formations of corporations “for literary, scientific and charitable purposes,” are liable to a license tax for selling liquors to their members and guests. American State Reports, pp. 35 to 49, inclusive. Decisions to the contrary are here reviewed and shown to bo unsound and fallacious. See also State vs. Neis, 108 N. C. 787; State vs. Essex Club, 53 N. J. L. 99; State vs. Easton Social, etc., Club, 73 Md. 97; State vs. Horacek, 41 Kansas, 97; People vs. Soulé 47 Mich. 250; People vs. Andrews, 115 N. Y. 427; State vs. Lockyear, 95 N. G. 633; Chesapeake Club vs. State, 63 Md. 446; Martin vs. State, 59 Ala. 34; Marmont vs. State, 48 Ind. 21.
    3. Defendants are pursuing the business of retail liquor dealers, and under Art. 206 of the Constitution, the statutes imposing a license upon them must be enforced. They can not escape, because carrying on a business not authorized by their charters. Salt Lake City vs Hollister, 118 XT. S., pp. 259, 260.
    4. The liquor sold, is the property of the corporation, from which the members can buy. The mode of furnishing liquors to the members and invited guests contains all the elements of a sale. R. C. C., Arts. 435, 436, 437, 438 and 2439.
    5. These clubs are compelled to take out a liquor dealer’s license from the United States, under its revenue laws. United States vs. Wittig, 2 Low. C. O. 466; Secs. 3242 and 3234, R. S. U. S. No good reason can exist to exempt them from payment of State licenses.
    9. Social clubs are also liable for the payment of a license tax on billiard and pool tables. Burroughs on Taxation; p. 152; Germania vs. State, 7 Md. 1; Sears vs. West, 1 Murphy (N. C.), 291.

      Howe & Prentiss for the Boston Club, Defendant and Appellee :
    1. The Constitution, Art. 20G, contemplates license taxes on business, etc., and tor revenue only.
    2. The statutes levy license taxes only on business, etc.
    3. The Boston Club is incorporated, bona fide, to establish and maintain a library and reading rooms, and the regulation o£ social intercourse among its members — and certain non-resident guests, who are members pro tern. It is not in the business o£ keeping a bar room, a restaurant, or a billiard saloon; and the furnishing oí refreshments, cigars and billiards to such members only is shown to be practically only a sort of co-operative housekeeping by a large instead of a small number of people. The club house is more strictly private than a private dwelling.

      4. Tlie distribution of refreshments and cigars among such members of a club is not a sale íd any fair sense of the word. It has no element of bargain. It is not done for profit or livelihood. It is a merely equitable plan to prevent the loss which would otherwise occur from falling on those members who do not partake of such refreshments or cigars. State vs. Columbia Club, 14 S. 10. 290; 8 Q. B. 373; 55 Md. 566; 63 Bid. 460; 102 Mass. 147; 137 Id. 564; 11 Lea, 542; 25 Pac. Rep. 1042; 12 S. K. 963.
    5. The comparative expense of the maintenance of the library and reading rooms and the refreshments not important. .
    6. No license has ever been required by the United States.
    7. The club is not in the business of keeping a billiard room. Acts of 1890, pp. 205-6.
    Farrar, Joña s <& KruttsclmiU for the Pickwick Club, Defendant and Appellee:
    1. The Constitution of the State of Louisiana, Art. 206, provides that the General Assembly may levy a license tax * * * “ to be collected from the persons pursuing the several trades, professions, businesses, vocations or callings. All persons, associations of persons or corporations pursuing any trade, profession, business or calling, may be rendered liable to such tax,” etc.
    2. The Legislature of the State of Louisiana has levied all licenses which it is authorized to levy by the Constitution — i. e., licenses upon all “businesses,” and it could not levy any others.
    3. The functions performed by a bona fide social club do not constitute a trade, profession, vocation, business or calling, either in ordinary parlance or according to general dictionaries, or according to law dictionaries. See Worcester’s Dictionary, verbo11 Business;” Anderson’s Law Dictionary, verbo “ Business,” and following authorities: Moore vs. The State, 16 Alabama, 413; 52 Id. 21; 71 Id. 62; 28 New Jersey Law, 545; 23 New York, 244.
    4. The Louisiana Legislature recognizes the distinction between social clubs and business corporations, and has provided for their incorporation by separate acts. See Act No. 112 of 1882, and Act No. 36 of 1888.
    P. F. Fdri/ngton and H. L. Fufour, amici curise, on- the same side.
   The opinion of the court was delivered by

Breaux, J.

The State prosecutes this rule against the clubs above named for the payment of license taxes for conducting the business of retail liquor dealers and keeping billiard and pool tables and a restaurant.

By agreement the two cases were consolidated.

The defendants, incorporated institutions under the laws of the State, pleaded a general denial; also a special denial that they, during any of the years named in plaintiff’s rule, pursued any trade, profession, business or calling, and in a special plea in their answer they alleged that Art. 206 of the Constitution limits the power of the General Assembly, and that any legislation levying such a license tax upon others than those pursuing trades, professions, business and calling is unconstitutional.

It is proven that the Pickwick Club is a social club and composed of members who have no proprietary interest in the assets of the club.

That it provides a reading room, restaurant, bar room, billiard and sitting rooms for its members.

That the expenses of the club are defrayed by annual dues of $100 for each member, and by payment made by the members for food and drinks.

That the guests pay for drinks, or the introducer pays.

That the prices are about the same as those in the bar rooms of the city.

That small sums were expended to make additions to the library, and about $400 per annum are spent in papers and magazines.

It is also proven that the club is open to members, their families and guests; the guests are limited to three at a time for each member.

The agreed statement of facts shows that no profits have been realized; that the operations of the club have resulted in a loss over and above its income from all sources; except that for the year ending April 1, 1892, the loss was about $7000 less than the total income, including members’ dues, and that the sums received were expended in increasing the convenience afforded to members.

The object of the other defendant, the Boston Club, to all intents and purposes, is the same.

There is but little difference between the charters of these clubs.

The proof establishes that profit is not contemplated by the sales of liquors and other refreshments, and that the defendant institutions are of a high social standing. Plaintiff claims licenses from the defendants for the years 1888, 1889, 1890 and 1891, with interest and attorney’s fee, under the statutes which provides that for every business or places where liquors and other refreshments are sold, directly or indirectly, an annual license graduated on gross receipts from sales shall be paid, and that no establishment selling or giving away, or otherwise disposing of, any spirits shall pay less than the minimum amounts fixed in the statutes.

An examination of the different acts discloses that in 1871 the Legislature classed clubs in which spirituous liquors were sold, used or supplied to members or visitors under the head of “ persons, trades, professions and occupations subject to taxation,” and imposed upon them a license tax of $250 per annum.

The word “ club ” is not in the revenue act of 1880.

A license was imposed, in that act, on “all places” and “establishments ” where liquor is sold or given away.

The act of 1886 upon the subject is the same, except that restaurants are not named. The Legislature retained the license on clubs distributing liquors and on the business of “ restaurants.”

This act and those subsequent contain an exemption not in prior acts.

“No license shall be charged for selling refreshments for charitable or religious purposes.”

Oorporations are distinct from all persons who compose them.

The General Assembly has by separate enactment authorized the incorporation of societies for literary and other similar purposes, and in some respects the law maintains a difference between them and corporations for the profit of its members: in other words, business corporations, but there is no difference between them as to collective entity. The rights of each are independent from the individual shareholders.

The defendants, to the extent that they have for purpose to provide for the social and intellectual entertainment of their members, are exempt.

In order to support their contention that they are not indebted at all for a license, they allege that they are not engaged in trade, and do not follow a business. The definition of business by the lexicographers is sufficiently broad and comprehensive to embrace every employment or occupation, and all matters that engage a person’s attention, or require his care without the least regard to trade or business.

The meaning of the legislators as expressed in the statutes is not as extensive. Business, in a legislative siynse,' is that which occupies the time, attention and labor of men for purposes of livelihood, or for profit. A calling for the purpose of a livelihood,

We will follow the latter meaning in interpreting the statutes relating to license tax.

The defendants are not money corporations in a business sense, nor are. they business corporations.

All subjects of license designated in the license acts have reference to business, except liquors.

There is a license required for the business of a hotel, of a theatre, of billiard tables and other occupations.

The defendants may think it sufficient to answer that the same is true for every business of bar room, cabaret and coffee house. A position which would be correct, if legislation with reference to alcoholic drinks were not exceptional.

The section 11 must be taken as a whole.

It includes all places and establishments in which liquor is distributed.

The limitation of the Constitution pleaded and argued does not restrict the General Assembly so as to prevent the collection of a liquor license as required by the statute.

The Legislature has the power to prohibit as well as the power to license the sale of liquors.

It has complete control of the subject. The affirmative prescription of the Constitution authorizing legislation with reference to a license tax, it has been decided, is not a limitation or restriction on the law-making power.

The judiciary can arrest the execution of a statute when it con - ' flicts with the Constitution. It is for those who question the validity of a law to show that it is forbidden.

It was stated in argument by defendants’ counsel that these social clubs are more private than the average dwelling.

That fact does not relieve them from the payment of a license. In reference to privacy they will be, under the law, as secure from intrusion as they were prior to the payment of a license.

The payment of a license does not have the effect of making them public.

Nor is the co-operation feature urged (if there be co-operation in carrying on the affairs of a club), a good ground of defence sustainable against the plain provision of the law.

The corporation furnishes its members with things they enjoy in common, such as commodious reading rooms, books, newspapers, at an assessed value per annum.

The drinks can not be enjoyed in common with all the members of the club.

Bach member pays for that which he receives.

Even if it be not a sale it is included within the terms of the statute, and can not escape the application resulting when any spirits, wines, alcohol or malt liquors are “ given away or otherwise disposed of.”

The question whether or not clubs furnishing refreshments to their members, for a consideration are engaged in selling and in business that requires a license, is one of first impression in this State. It has led to many and conflicting decisions in other States.

Cases arose when the club was an association not incorporated, and the courts decided that there was no sale.

The case of Groff vs. Evans, Q. B. Div. 375, upon the subject, is referred to as leading.

The manager of the Grosvenor Club, an association organized in good faith, was prosecuted for selling liquor without a license, under the English licensing act prohibiting the retail of any intoxicating liquor without a license.

He interposed the defence that he transferred to the members, as they required, for a money consideration.

That each member being a part owner, he (the member) could not be the seller and buyer of his own property.

The funds of the club received from the members for liquor were used in buying other liquors and other refreshments which were distributed to other members at fixed prices.

The court maintained the defence and decided that the members were co-owners, and that the transfer of the property was not a sale within the meaning of the section.

The reasoning which led to the conclusion has been criticised, and has not met with general approval.

The infinitesimal interest of the member of a large unincorporated association in the drink he orders does not make him a “ tenant in common” with his co-members; and the delivery fora consideration not a sale.

This decision has, nevertheless, been followed in several jurisdictions, namely: in the cases of Commonwealth vs. Pomphret, 137 Massachusetts, p. 567; Commonwealth vs. Smith, 102 Massachusetts, p. 147; Seim vs. State, 5 Md. 566. “The club is not required to pay a license;” it was not a sale. Piedmont Club vs. Commonwealth, 12 South-Eastern Reporter, 963; State ex rel. Columbia Club vs. Mr. Master Mayor, 14 South-Eastern Reporter.

The better opinion seems to be that, whether incorporated or not, in both cases, the property passes to the individual member, and the money paid becomes the property of the club. This was the conclusion reached in a number of cases.

In State vs. Neis, 108 North Carolina, 787, the court held that the member of the association did not receive the identical liquor which belonged to himself; that it belonged mostly to others, in which he had a minute individual interest; that for his money he received in exchange liquor of others as well as of himself, and converted it to his sole and separate use; that it was a sale. The court affirmed the prior decision of State vs. Lockyear, 95 North Carolina.

In Martin vs. State, 59 Ala., the club was incorporated; it purchased liquors and sold to its members. The money received was deposited in the common fund and was spent to replenish the stock of liquors for the use of the club.

The court held that the furnishing of drinks to members for a consideration is a sale.

A similar conclusion prevailed, as to sales, in the well considered case of People vs. Soule, 74 Mich. 255.

The following decisions are to the same effect: State vs. Easton Club, 78 Md. 102; Chesapeake Club vs. Maryland, 68 Maryland, 446; New York vs. Andrew, 427; United States vs. Wittig & Lowell, 466.

The weight of authorities impels the assent to the proposition that they are sales.

Conceding them to be sales, considering the statute as a whole, we conclude that it is not the intention to require a license of social clubs as being in business or trade.

An indispensable criterion of business is that profit is intended.

The Supreme Court of Tennessee, of Virginia, of Montana and of South Carolina have decided that the operations of clubs in supplying their members with food and liquor do not constitute a business within the meaning of the statutes of their respective States.

But intoxicating liquors are specially designated, singled out, excepted.

They are subjected to the license tax without reference to any business in which the party may or may not be engaged.

The history of legislation upon the subject, in this State, preclude the possibility of concluding that it was not the intention to tax them in inserting a paragraph as broad and comprehensive in Section 11 of the license law.

It is not limited to a license for the business of bar room, etc., but extends to all “ places ” and “ establishments,” selling or “ giving away or otherwise disposing.”

This reaches the transfer of liquors, whether by sale,” “ gift or other disposition.”

Under the settled jurisprudence of this court in cases appealing to its equity powers, penalties in matters of licenses are allowed from judicial demand. State of Louisiana and City of New Orleans vs. New England Mutual Insurance Co., 43 An. 733.

It is therefore ordered, adjudged and decreed that the judgment appealed from, in favor of the Pickwick Olub, be reversed, avoided and annulled.

And it is now ordered, adjudged and decreed that plaintiff have judgment against the Pickwick Olub for the amount of the licenses of 1888, 1889, 1890 and 1891, to-wit: Sixteen hundred dollars and 10 per cent, attorney’s fee on the amount of $800 and 5 per cent, attorney’s fee on the remaining $800.

It is ordered, adjudged and decreed that the judgment appealed from, in favor of the Boston Olub, be reversed, avoided and annulled.

And it is now ordered, adjudged and decreed that plaintiff have judgment against the Boston Olub for the amount of the licenses of 1888, 1889, 1890 and 1891, to-wit: Nine hundred dollars and 10 per cent, attorney’s fee on $500 and 5 per cent, attorneys’ fee on $400.

And that said amounts be secured as prayed for. The defendants to pay the costs of both court's.

Judge Fenner recuses himself, being an officer of the defendant corporation.

On Application nor Rehearing.

Watkins, J.

The following are the several grounds on which the defendants rely in support of their application — the two motions, substantially, covering the same defences — to-wit:

1. That the judgment and decree of this honorable court are ultra petitionem and are in favor of the State upon a cause of action not alleged and not before the court.
“ 2. That the enumeration of persons and pursuits from and upon which license taxes may be levied, and enumerated in Art. 206 of the Constitution of the State of Louisiana, is an exclusion of a power to levy such taxes on any other persons.
“3. Under Art. 29 of the Constitution of the State of Louisiana, it is provided that every law enacted by the General Assembly shall embrace but one object, and. that be expressed in the title, and the only object contained in the title to the acts of 1886-90, upon which plaintiff herein relies for a recovery, is the levy of a license on businesses and occupations, and on nothing else whatsoever; and if the said acts be so construed as to levy a license upon anything else than a business or occupation, they are to such extent unconstitutional, null and void, because embracing more than one object, and those objects not expressed in its title.
“ 4. The fact that, in the year 1871, the Legislature of the State of Louisiana imposed a tax on club houses where spirituous liquors are used, sold or supplied to members, and that said tax has subsequently been eliminated from the legislative acts, shows the intention of the Legislature not to levy a license upon such clubs.
“5. The proviso, at the end of the eleventh section of the acts of 1886-90, merely fixes a minimum license, which must be paid by every business establishment which either sells or gives away, or disposes of intoxicating liquors in quantities, however small. This proviso is not intended to levy a license upon a class of persons upon whom the license is not levied by the rest of the section. It must be read in connection with the rest of the section, and applies solely to business establishments where liquor is given away.”

I.

On the first proposition the contention of counsel is that the State claims that the defendants were eondueting, or carrying on, a certain kind of business, and demands of them, respectively, a license therefor, under the provisions of the two hundred and sixth article of the Constitution and the revenue laws of 1886 and 1890; and that our opinion inaccurately holds that the claim is not well founded in respect to their pursuit of a business of any kind, and yet compels them to pay a license tax.

It is quite true that our opinion states that claim is made for a license for conducting a business, but that business is particularly denominated as that of retailing liquor. It then gives a definition of the term business to be, in a legislative sense, that which occupies tlie time, attention and labor of man for purposes of profit or a livelihood. It then announces that neither of defendants are, in any sense, business corporations, and that all subjects of license designated in the license acts have reference to business except the sale of liquors; and then adds, that the license law under consideration must be taken as a whole, and that it includes all places and establishments in which liquors are distributed.

The opinion then declares that the defendants “ are subject to the license tax without reference to any business in which they may o may not be engaged. The history of legislation upon this subject in this State precludes the possibility of concluding that it was not the intention to tax them in inserting a paragraph as broad and comprehensive as Sec. 11 of the license law. It is not limited to a license for the business of bar room, etc., but extends to all places and establishments selling or giving away, or otherwise disposing of liquor.

This reaches the transfer of liquors by sale “or other disposition.”

Just here the question arises as to whether the relief granted the State is ultra petitionem or not. We are of opinion that it is not, for the reason that our opinion states that the demand of plaintiff is that the defendants pay “ license taxes for conducting the business of retail liquor dealers,” and not for conducting a business simply. It is quite evident that the plaintiff’s case is brought within the province of the license law, because of defendants being charged with retailing liquors, notwithstanding it is not a business within the terms of the license law, in this particular instance, it not being conducted by the defendants with a view of making a profit — giving liquor away laying them liable under the law quite as well as selling it.

This principle is well grounded in authority, as an examination of decided cases will show — the test being, that the disposition was of the liquors, as property of the corporation, among its members, and not that the business was conducted profitably. Hence the main question is as to right of proprietorship in the liquors, whether in the corporation or its members. In many cases the additional test is put as to the disposition being a sale, but with the object in view of determining the proprietorship of the goods disposed of.

The case of Commonwealth vs. Pomphret, 137 Mass. 564, is one of the most conspicuous and frequently cited cases on the subject of retailing liquors without license, and the court says:

“ The Legislature has prohibited the selling, or exposing for sale, of spirituous or intoxicating liquors, but it has not undertaken to prohibit the drinking, or buying of intoxicating liquors, or the distribution of it among, persons who own it in common. If, therefore, two or more persons unite in buying intoxicating liquors, and then distribute it among themselves, they do not violate the statute, and the intent with which they do it is immaterial.”

And in Commonwealth vs. Smith, 102 Mass. 147, the defence was that the goods sold were property of a club of which the defendant was a member, which advanced a certain sum for the purchase of liquors and refreshments for the use of its members, and to whom it was issued out on checks and certificates; and the court held that “if the liquors really belonged to the members of the club and had been previously purchased by them, or on their account, or some per - son other than the defendant, and if he merely kept the liquors for them, and to be divided among them according to a previously arranged system, these facts would not justify the jury in finding against the defendant.”

It was on this principle that the clubs therein involved were held not liable — they having, at time of distribution, no right of proprietorship in the goods disposed of, same being exclusive property of the members among whom the distribution was made.

Likewise the court held a club not liable in Groff vs. Evans, 8 Q. B. D. 378, the court basing its opinion “ on the ground that there was no transfer of the general or absolute property, but a transfer of a special interest, as all the members of the club were owners in common,” and held that “ the furnishing of liquors to a member was not a sale within the meaning of the English Licensing Act.”

Stein vs. State, 55 Md. 566, was decided on the same ground, and there are some other cases to the same effect.

But in Reckart vs. People, 79 Ill. 85, the court say: “The proposition is absurd, that a ticket holder really owned the liquors with which the bar is stocked, as evidently the liquors belong to the company as partnership stock, and the company would have no more rightful authority ¡to sell to the individual members or partners at retail without a license than a mere stranger would have;” but they say: “on the contrary, it has been repeatedly held that the delivering by the club or society, through its agents, of (liquor) which was common property of the society, to a member of the society, upon credit or for cash, and which thereby became the separate property of the member, was a sale within the meaning of the licensing statutes.”

To the same effect are the following cases: Marmont vs. State, 48 Ind. 21; State vs. Mercer, 32 Iowa 405; Martin vs. State, 59 Ala. 34.

In People vs. Soule, 74 Mich. 250, the question was whether a club “can distribute liquors among its members, receiving pay for such liquors as they are distributed by the glass, the proceeds to go into the treasury of the club to be used in purchasing other liquors or in paying expenses, without being liable under the laws of the State to paya retail tax,” and the court said: “It must be held that the liquors purchased and kept by the club were, before they were dealt out to the members, the property of the corporation.

“ When the liquor was passed by the agent of the corporation— the respondent in this case — over to the individual member, it became his property, and was a sale to him, as he paid for it when it was delivered to him. He could then do with it as he pleased — drink it himself, give it to a friend to drink or throw it away. Being sold within the quantity prescribed by statute it was a sale by retail, and a corporation or its agent making a business of it, the sale constituted the business of selling by retail. The law includes all persons, and the places of sale prohibited, without the payment of the tax are not limited. It reaches a club house or a private house, as well as a saloon or a tavern. The object of the law is to tax the business when found or by whom carried on.”

After examining and analyzing many decisions the court said:

“ It appears to be a simple and unanswerable proposition that the liquor was, in the first place, owned by the corporation as corporate property, the same as any person might own it; that when it was delivered to a member of the corporation for money paid to the corporation or its agents, and going into the funds, it was a sale to that member the same as if it had been passed to a stranger to the corporation in the same way, and the liquor, by such sale, then becomes the absolute property of the member, the same as if he had purchased it in a saloon or in any other place where it is sold.”

That opinion is particularly appropriate in this connection, because it not only presents in a clear light the liability of the club on the theory of its proprietorship of the liquors that were dealt in, but it distinctly holds that as the club made a custom or business of such a traffic, the sales of liquors constituted the business of selling by retail, as the law includes all persons and the..places of sale are not limited.

In Chesapeake Club vs. State, 63 Md. 446, the question under consideration arose under a statute declaring it unlawful for any one “ to sell directly or indirectly, at any place, or to keep or give away at his, her or their or its place of business, any spirituous, fermented or intoxicating liquors,” and the plaintiff was a corporation organized for literary, musical and scientific purposes.

The question was one of violating the statute, by the club providing and keeping at its club rooms spirituous and fermented liquors, with the intent and for the purpose of supplying the same to its own members, as same might be called for or desired, either on checks or otherwise, as the association might provide.

On a full consideration of the question then raised, the court said:

“ There, as we have seen, by the recital of the terms of-the statute, the language is broad and comprehensive as could well be employed. In express terms, it applies as well to all corporations and associations, as to all persons; and the great object in view is the absolute prohibition of all dispensing of intoxicating drinks, either by sale or gift, except under special conditions not existing here.
“ Intoxicating liquors can not be sold directly or indirectly, nor can they be given away at the place of business of the donor. The place, and only placé of business of the appellant is the club room, where the liquors are kept and dispensed to the members of the club upon application.
“ It is not pretended that the liquors were bought by any individual member of the club on his own account and kept by him. Nor by all the members of the club jointly, in their personal capacities. But the appellant, by its constitution and by-laws, has provided the ways and means by which to raise funds — that is, by entrance fees and by assessments,'and these funds, when paid over, are the funds of the corporation in the hands of its treasurer. The liquors and other articles purchased for the benefit of the club with the funds thus raised are dealt out by a steward or janitor regularly appointed by the corporation, and who is its agent for that purpose. Therefore, whatever is done by him within the scope of his authority is the act of the corporation, and for which it is liable.
“This being the case, why is not the liquor thus supplied disposed of either by sale, or gift, according to the conditions of its delivery, to the particular member receiving it from the agent of the corporation?
“ It is supposed that because the members are joined in an association for social and other purposes, no matter how numerous and indiscriminate their membership may be, that they may do, as among themselves, with entire impunity, what individuals in their relations and dealings with their fellow-members of the commuity may not do under the statute?
“ But is there any substantial ground discoverable either in the letter or policy of the statute for any such distinction? The reason and good sense of the distinction is not perceived, and in view of the manifest object and policy of the statute such a distinction is wholly inadmissible. If the liquors, the property of the corporation, be kept to be given to the members at the club room, it is a violation of the letter and spirit of the act; and if it be sold to the member, either for money or for checks previously purchased, it is equally a violation of the law, for by its terms the statute declares that liquors shall not be sold, either directly or indirectly.
“The framers of the statute would seem to have been studious to avoid the possibility of allowing any combination, or contrivance whereby the objects of the law could be defeated. All means, whether direct or indirect, tending to defeat or evade the provisions of the act are prohibited; and to say that a corporation, or any association, whether formed for the particular object or otherwise, can, with entire impunity, dispense liquors to its members at pleasure, according to any artful device that may be adopted, would be simply to disregard not only the terms of the statute, but the manifest object to be effected by the Legislature.”

It is quite true that that opinion was expressed by a divided court, but subsequently the same question was presented to and decided, in the same way, by a full bench and an unanimous court, in State vs. Easton Social Club, 73 Maryland, 97, and the principles announced in the preceding case were affirmed.

The answer of the defendant in that case was very much the same as that of the defendant in this, to the effect that the club was a corporation organized for the purpose of rational entertainment and amusement, and was not engaged in the transaction of any business whatsoever for the purpose of making a profit, directly or ndireetly, and that the income derived from various sources is solely applied to defraying the expense of the corporation — enumerating, much the same as in this case, as the various sources of its revenue, the entrance or admission fees of members, monthly dues, and the money paid by members for what refreshments, liquors and cigars they obtained for their personal use at the club house.

The court stated the question to be “whether the furnishing of spirituous and fermented liquors by the steward or manager of the club to the members thereof, upon the payment of the prices fixed by the regulations of the corporation, constituted sales of such liquors, in violation of law?” and held that such a transaction constituted a sale, and, |as such, was a violation of the statute; and asked this pertinent question, to-wit:

“And such being the case, why should this court be astute and indulge in questionable refinements in order to relieve these corporations of the just consequences of their acts? ”

And then answered the question thus:

“By holding that the supply of liquor by the club to its members, in the manner admitted by the answers, does not constitute a sale * * we should certainly afford impunity to gross violations of the spirit and intent of the statute, and thereby open the door to all the evils intended to be suppressed by it; and that done by simply allowing a combination of individuals to do what individuals without combination could not do without incurring the penalty of the law. We think the facts admitted in the answers clearly show habitual and constant violations of the law by these corporations by the sale of liquors at their club rooms to the members of the club; and the fact that the sales are made without actual profit to the corporation is wholly untenable, and affords no ground of defence to these proceedings.”

This case and the one preceding cover every possible view that can be taken of the question under discussion, and fully support the views announced in our opinion; it matters not as to the character of the disposition of the liquor, whether sale or gift, it is equally amenable to the law and makes the defendant liable for license taxes. It is equally immaterial whether the disposition was profitable or unprofitable; or whether profit was contemplated by this course of dealing or not. This is the substantial claim of the State in this case as set out in her petition and as announced in our opinion. Hence the first ground of objection is not well taken.

II.

We do not understand Art. 206 of the Constitution as imposing any restriction whatever in the matter of levying license taxes, but on the contrary, as granting permission to the General Assembly in respect to them, for the language employed is, to-wit:

“ The General Assembly may levy a license tax, and in such case shall graduate the amount o£ such tax to be collected from the persons pursuing the several trades, professions, vocations and callings.”

Then follows this declaration, viz.:

“ All persons, associations of persons and corporations pursuing any trade, profession, business or calling, may be rendered liable to such tax,” etc. Art. 206.

Looking into the license law of 1886 that was enacted in pursuance of the provisions of that article of the Constitution, we find its provisions to be, to-wit:

“ That there is hereby levied an annual tax * * * upon each person or association of persons, or business firms and corporations, pursuing any trade, profession, vocation, calling or business, except those expressly exempt from such license tax ,by Arts. 206 and 207 of the Constitution.” Sec. 1, Act 101 of 1886.
“ That for every business of bar room, cabaret, coffee house, café, beer saloon, liquor exchange, drinking saloon or other place where anything to be drunk or eaten on the premises is sold directly or indirectly, the license shall be,” etc.

After enumerating the nine different classes and grading them ac _ cording to gross receipts, this proviso occurs, to-wit:

“No license shall be charged for selling refreshments for charitable or religious purposes; ” and the further proviso, “ that no establishment selling or giving away, or otherwise disposing of any spirits, wine, alcoholic or malt liquors in less quantities than one pint shall pay less than fifty ($50) dollars.” Sec. 11, Id.

See. 1 of the license law of 1890 is couched in identically the same language as that of the license act of 1886. Vide Sec. 1 of Act 150 of 1890.

And Sec. 11 thereof is practically identical with Sec. 11 of the act of 1886. Vide Sec. 11, Id.

The terms of these licensing laws are almost identical with the language of the Constitution- in respect to the persons, associations, and corporations pursuing the different trades, professions and vocations designated, though superadding “the business of bar room, liquor exchange, drinking saloon or other place where anything to be drunk or eaten on the premises is sold, directly or indirectly; ” and as if to emphasize and enforce the idea that was intended to be thereby conveyed, the proviso is made that “no license shall be charged for selling refreshments for charitable or religious purposes ” — thus, by the plainest possible implication, excluding all other disposition of refreshments or liquors from the contemplation of the Legislature in framing these license statutes.

But if it be doubtful whether a sufficient grant of power is delegated to the General Assembly by Art. 206 of the Constitution for such a purpose, we have only to look into the provisions of Art. 170 to ascertain that “the regulation of the sale of alcoholic or spirituous liquors is declared a police regulation,” and that “ the General Assembly may enact laws regulating their sale and use.” Art. 170 of Constitution. And it is not perceived in what more appropriate way the General Assembly could regulate the disposition of alcoholic and spirituous liquors than by ^bringing the sale or other disposition of them under subje. .on to the license laws. There can not be a doubt of our right to examine and contrast different articles of the Constitution in pari materia, in order to determine the scope and meaning of either; and applyn g this test, we think it evident that Art. 206 of the Constitution not only does not contain any exclusion of power to levy the license taxes that are imposed by the licensing acts, but that the grant of constitutional power is full and complete.

The argument of the learnea counsel for the defendants on this proposition is neither cogent nor persuasive, as will appear from the subjoined extract we have selected from one of their briefs, to-wit:

“The enumeration of powers to levy lieense taxes on certain persons, in Art. 206 of the Constitution, is an exclusion of the power to levy such taxes on any other persons. This is the rule laid down by Cooley in his Constitutional Limitations, p. *64, and which is cited with approval in La. Cotton M. Co. vs. New Orleans, 31 An., p. 444. And in that case e. ^rge number of decisions of this court are cited to the effect that where the General Assembly is authorized to exempt certain property, it may not exempt other property. And see cases cited in Endlich on Stat., Sec. 533.
“It follows, that when Art. 206 confers authority to levy license taxes on persons, associations of persons and corporations pursuing any trade, profession, business or calling, it by implication denies the power to impose license taxes on persons or corporations that do not pursue any trade, profession, business or calling — that is, on such corporations as you find these literary and social clubs to be. And see City vs. Telephone Co., 40 An. 42 (pp, 4 and 5).”

The requirement of the Constitution in reference to the levy of taxes is that “all property shall be taxed,” and in reference to licenses, that “the General Assembly may levy a license tax * * on all persons, association of persons,” etc.; but in respect to tax exemptions its language is that “ the following property shall be exempt from taxation, and no other.” Arts. 203, 206 and 207. From these constitutional precepts it is clear that the power to levy taxes is to be liberally construed, while exemption from taxation must be strictly construed. /

This is the universal rule of interpretation. Hence the argument and authorities appertaining to tax exemptions are wholly inapplicable to the question under discussion.

III.

While it is true that the Constitution provides that no law shall embrace more than one object, and requires that it shall be expressed in its title (Art. 29 of Constitution), and that in the title of the license laws drawn in question the only object expressed is the levy of a license tax — it pursues, however, the exact phraseology of the Constitution, and adds the guarded expression, to-wit: “ except those who are expressly excepted from such license tax by Arts. 206 and 207 of the Constitution.” It seems quite apparent that the conclusions we arrived at in the previous paragraph in regard to the constitutional grant of power to the General Assembly is equally applicable to the question presented here. For if it is permissible for us to examine and compare the provisions of Arts. 170 and 206 of the Constitution in order to ascertain the extent and scope of the grant of power to General Assembly to levy a license tax on the sale of liquor, we may with equal propriety examine and compare ¿hem with the provisions of Art. 29 of that instrument, in order to determine the constitutional legality of the titles of said licensing acts.

IV.

It is argued that because the license laws under discussion do not contain any such specific provision as the law of 1871 did to the effect “every club house where spirituous liquors are uáed, sold or supplied to members or visitors ” (See. 3, Act 42 of 1871), should pay a license, therefore we must conclude that it was the legislative intention to exclude same therefrom; but we take it to be perfectly clear that the language employed in the licensing acts of 1886 and 1890 ar„e equally as clear and strong as that of the act of 1871. For although the term “every club house ” is omitted, the phraseology employed, to-wit: “the business of bar room, liquor exchange, drinking saloon, or other place where anything to be drank or eaten on the premises is sold, directly or indirectly,” is equally indicative of the legislative intention to include club houses. This is further strengthened and fortified by the terms of the proviso, which declares “ that no establishment selling or giving away, or otherwise disposing of any spirits, .wines, alcoholic or malt liquors,” shall escape the payment of a license; and such a term certainly includes a club house.

Y.

While it is quite true, as contended by counsel, that the proviso to the eleventh section of the two licensing acts ‘ ‘ merely fix es a minimum license which must be paid by every business establishment which either sells or gives away, or disposes of intoxicating liquors,” and was “not intended to levy a license upon a class of persons upon whom licenses are not levied by the rest of the section,” and that same must be read in connection with the remainder of the section; yet it is certainly competent to examine and construe the language employed in the provisos for the purpose of determining the proper interpretation to be given the entire act. And particularly is this true of the proviso that declares that “ no license shall be charged for selling refreshments for charitable or religious purposes.”

The construction of the provisos contended for has been, in effect, applied in the preceding argument.

In conclusion we feel constrained to say that after making a most careful examination of the law and evidence in this case, making a careful comparison of our original opinion with the averments and prayer of plaintiff’s petition and with the opinions of many courts of other jurisdictions, and having carefully examined and compared the terms and phraseology of the licensing statutes with the precepts of the Constitution, we feel bound to adhere to the conclusions originally announced and refuse the application of the defendant.

Rehearing refused.

Mr. Justice Fenner recuses himself on the ground of interest.