City of New Orleans v. Poydras Orphan Asylum

— 852 — The opinion of the Court was delivered by Bermudez, C. J. This is a suit for city taxes of 1879, assessed on real property, in this city, owned by the defendant, and yielding revenue. The defense is, that the property is exempt from taxation. The reply is, th.at whatever the law was which may have, been considered as exempting all of defendant’s property, however used, from all taxation prior to 1868, that law, being inconsistent with the Constitution adopted in that year, was thereby abrogated, and that, if it survived that Constitution, it was repealed by Act 7 of 1870, the city charter. There is no dispute touching the power of the State to have granted the exemption claimed at the time it is claimed that it did, (1844). Neither is there any contest as to the character and identity of the defendant institution, nor as to the nature or mode of use and enjoyment of the property from which the tax is claimed. The institution is a charitable one. The property in question yields a revenue which, added to what resources the asylum may possess, is entirely inadequate to meet its urgent wants and necessities. Neither the land nor the buildings upon it are otherwise used than as a source of revenue, which is applied solely to the legitimate purposes of the institution. The different special acts, under which the defendant claims exemption, were, under plea, offered and introduced in evidence. The defendant corporation was created by a special act of February 22d, 1817. (Acts p. 193). ■All the property, real and personal, belonging to a similar institution, the Orphan Boys’ Asylum of New Orleans, was, by act of March 12th, 1836, (Acts, p. 135) exempted from all taxation, State, parish or city, in which situated. This exemption was, by act of March 25th, 1844, (Acts, p. 64, No. 96) specially extended to the Female Orphan Asylum, and to all other orphan asylums in the State, and to the House of Refuge for the Reformation of Juvenile Delinquents, which thereby were exempted from all parish, municipal and State taxation, “ any law to the contrary notwithstanding.” By act of March 21st, 1850, the property of this asylum, as well as that of all other charitable institutions, was exempted from any taxation by the City of New Orleans, or the several municipalities thereof. The judicial annals of this Court show what construction was placed by our predecessors .upon these different exemption laws. In a suit brought by the city against the present defendant, determined in 1854, in which taxes were claimed on property yielding revenue and not actually used for the purpose of the institution, the Oourt there said : “It is undeniable that the revenues derived from the property for which the exemption is claimed, are devoted to the charitable purposes for which the Poydras Asylum was established. Without such revenues, — 853 — ■or donations made to it, it is obvious that this institution would fail to accomplish the praiseworthy public object for which it was established. Its successful operation may be considered as an auxiliary in the administration of the municipal government, which is under obligation to provide for its paupers. “ The language used by the Legislature in the act of 1850, is plain and unequivocal, and in our opinion clearly extends, without any discrimination, the exemption from taxation to all property held by charitable institutions. “ But if the least doubt existed in our minds as to the true construction of this statute, it is clear that the defendant would be entitled to the exemption .under the acts of the 12th of March, 1836, and 25th of March, 1814 "The corporation of New Orleans derives the power of taxation from the Legislature, and as the Legislature has expressly withheld from it the power to tax defendant’s property, the attempt to tax such property must necessarily be abortive.” 9 An. 584 Acting on the faith of the immunities thus extended and thereby accepting the same, the defendant corporation assumed to build, in 1858, ■a large and costly asylum in the Sixth District of this city, to which it moved its orphans in that year, and which it has since continued to ■occupy to the present day. The evidence shows that the asylum is considerably in debt for a balance due on an amount borrowed for the purpose of constructing the building just mentioned; that its administration is gratuitous; that the revenue of the property owned by it is altogether applied to provide the •orphans with food, clothing, fuel, medicine, attention in sickness and other indispensable necessities; that the corporation has no reserve fund, no accumulated capital; that, if the tax were to be paid, it would have to come out of the wants of the orphans, and, as a consequence, the good work of the institution would be paralyzed and its doors closed upon many suffering ones. It cannot be, nor is it, disputed that, at the adoption of the Constitution of 1868, the defendant corporation was by law exempt from all taxation, but it is insisted on the one hand that this law was repealed, •and on the other that it is in full force and vigor. It is clear that it has not passed out of existence, unless jit was annulled by the Constitution of 1868, or by a subsequently passed statute. In order to ascertain whether the repeal has takenjplaee, we must ■confront the laws and compare them to discover their discrepancies, inconsistencies or repugnancies. In so doing, we will be guided by the rules established by law and jurisprudence for the construction of statutes. — 854 — “ The general rules of interpretation are the same whether applied to statutes or constitutions." Sedgwick Constr. 19. “We are aware of no reasons, applicable to ordinary legislation, which do not apply equally well to constitutions.” Cooley C. Lim. 63; 3 Ind. 258; 21 N. Y. 12; 10 O. N. S. 588; Wade on Retroactive Laws, 8-37. “ The general doctrine is, that constitutions are to be expounded in the same way and according to the same rules as statutes.” Bishop on Statutory Crimes, g 92; 7 Md. 135; 5 Ind. 557; 5 Md. 337. It is elementary that laws are repealed expressly or impliedly. The repeal is express, where it is literally declared by a subsequent law; it is implied, when the new law contains provisions contrary to, or irreconcilable with, those of the former. Repeals by implication are not favored by law. The old is abrogated by the new law only when the latter is couched in the negative, or so clearly repugnant as to imply a negative. Different laws on the same subject, if not absolutely inconsistent, must be construed and taken as one. A particular law, still less a special statute, which is one requiring plea and proof, is not considered as repealed by a general law, unless-expressly so, or conflicting to such an extent that they cannot be reconciled and cannot stand, co-existing, under any circumstance. R. C. C. 17, 23,1746; 10 M. 172; 12 M. 697;-1 N. S. 161; 2 N. S. 33; 3 N. S. 190; 5 N. S. 527,575; 6 L. 135; 7 L. 166; 4 R. 71; 1 An. 54; 2 An. 919; 3 An. 398; 5 An. 121, 395; 6 An. 605; 12 An. 498, 805; D. 1 L. 3 T. 1. 26, 28. “A general statute, without negative words, will not repeal the particular provisions of the former, unless the two acts are irreconcilably inconsistent. The reason and philosophy of the rule is that, when the mind of the legislator has been turned to the details of a subject and he has acted upon it, a subsequent statute, in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction in order that its words shall have any meaning at all.” Generalia specialibus non derogant. Sedgwick Constr. 92, 2d ed.; Dwarris on Statutes; Cooley Const. Lim. Among the cases mentioned by the first named author, is that of Blain vs. Baily, 25 Ind. 165, which is to the effect that: “ a special exemption of particular property from municipal taxation is not affected by a subsequent general statute giving cities power to tax “ all property ” within their limits, there being no special repeal.” Further: Legislation, constitutional or statutory, is usually intended to operate prospectively, and should be applied accordingly, unless it clearly result from the terms used that it was designed to act retrospee — 855 — tively, and that, under the Constitution it could legitimately do so. R. C. C. 8, 1946. Sedgwick, 161, note; 58 Barbour, 161; Wade, 33, 34, 35, and authorities in note. “ One oí the cardinal rules by which courts are governed in interpreting statutes is, that they must be construed as prospective in every instance, except where the legislative intent, that they shall act retrospectively, is expressed in clear and unambiguous terms, or such intent-is necessarily implied from the language of the statute, which would be inoperative otherwise than retrospectively. This rule rests upon no constitutional limitation of the legislative power, but is a doctrine-of the common law, founded upon the recognized injustice of a method of making laws by which the Legislature looks backward to discover past errors to be corrected and past grievances to be remedied. In all retroactive laws there must be an element of surprise, by which the persons whose rights are affected are taken unawares. They are called upon to act in a manner different from what they had been led by the previous state of the law to anticipate. So repugnant is such a system of legislation to our moral sense of justice that it has been stigmatized as more unreasonable than that adopted by Oaligula, who was said to have written his laws in a very small character and hung them upon high pillars, the more effectually to ensnare the people.” Wade 34, 35, 36; 1 Blackstone Com. 46, and numerous authorities iu note of Wade 34. “ This principle is not only applicable to legislative acts, but to State Constitutions, and, in fine, to all written law. Where constitutions contain provisions prohibiting the Legislature from authorizing counties, or subordinate branches of the State government, to assume liabilities, such provisions cannot affect the validity of special statutes already in existence, authorizing the assumption of such liabilities, but will be construed as prospective.” 4 Peters, 401; Wade, 37; 85 Pa. 357; 81 Pa. 482; 9 W. Va. 162; 23 Md. 203; 41 Mo. 453. “ Every reasonable doubt as to the intention of the law-maker, is-resolved against, rather than in favor of, the retroactive operation of the statute. Its retrospective features must be the necessary result of a strict construction of its express terms.” Wade, 35; 21 Wis. 268; 15 Wis. 548; 58 Barb. 161; 21 Conn. 351; 52 Pa. 315: 10 Conn. 77; 7 Conn. 558; 29 N. J. 311, 333. Applying those rules to the case before us, we find that article 118-of the Constitution is not couched in negative terms; that it is not retrospective in its tenor or apparent intent; that it contains provisions for the-future only; that it is not inconsistent with, or obnoxious to, the exemption-special statute, previously passed, invoked by the defendant in this suit. — 856 — It is worthy of note, that the Constitution, termed of 1864, which was superseded by that of 1868, contained, as did the latter, a special prohibition against retroactive legislation. This is not said to mean that it could be a restraint upon the Convention, but only to indicate how improbable it is that, after placing such prohibition on the powers of the Legislature, the Convention would itself have disregarded the rule, and that, too, in relation to church, school and charitable institutions, previously, unquestionably exempt. The fallacy of the proposition advanced to the effect that all exemption laws previously in force were abrogated by the Constitution of 1868, arises from a confusion of ideas and from an erroneous assumption of facts. The confusion of ideas consists in thinking that the language used in the affirmative by the Constitution and by the Statutes, is as peremptory in its repealing effects as if couched in the negative, and in leaving out of view article 149, which continues in force consistent laws. The erroneous assumption of fact consists in dealing with the property of the defendant corporation as though the corporation had been created since 1868. We see no incompatibility between the exemption law invoked and the Constitution of 1868, or the revenue laws, State and municipal, on the subject, and think that, far from being antagonistic and self-destructive, they can well be construed so as to co-exist and to accomplish the purposes for which they were respectively designed, particularly if we consider that, were it not so, the constitutional article and the statutes, which are claimed as obnoxious to the exemption invoked, might be assailed, as, in fact they are hypothetically, as impairing the obligations of a contract binding upon the State, its functionaries and the corporation. It appears to have been settled — but on this subject we express at present no opinion, as such is not necessary — that laws of this kind have been sustained as valid and binding when invoked by literary and charitable societies, when, at the time of the granting of the exemption, there existed no constitutional restraint on the power of the Legislature. Wade, 95; 6 Conn. 223; 8 Wall. 430; 7 Pick, 108; 8 Wall. 439. The case of University vs. People, decided in 1878, in 99 U. S. 321, bears peculiar analogy to that now under consideration. We have examined the different authorities relied upon to defeat the defense of exemption, but do not feel authorized to give them the weight which is claimed for them. We propose to review those authorities seriatim and to show their inapplicability to the case before us. The case of the City of New Orleans vs. the Congregation Dispersed Judah, 15 An. 379, was decided in 1860, the defendant claiming an exemption under the act of 1856, which extended the immunity only to prop — 857 — erty in actual use, (Act 1856, p. 147, §40, No. 4). The Court declared that the property belonging to the association, yielding revenue to its coffers, had not the privilege or benefit of this exemption. In the case of the City vs. Bank of Lafayette, 27 An. 376, the bank claiming exemption was created since the adoption of the Constitution of 1868. The language used in the very brief opinion delivered must be considered as obiter, being totally uncalled for and is supported neither by reasoning nor justice. It cannot bind this Court. In the case of the City of New Orleans vs. the New Orleans Mechanics’ Society, 27 An. 436, the exemption pleaded was declined, not only because the charter did not provide for it, but also, because the property was not used as required by law for charitable purposes, and because the corporation was not a charitable institution. There is no reference in it to the Constitution of 1868. In the case of New Orleans vs. People’s Bank, 27 An. 519, the suit was for a tax on the capital of the bank. The Court held that, because the defendant is required to pay a license, it is no reason why property owned by it should not be taxed like other property in the City of New Orleans. The bank had been created in 1869, (27 An. 646). In New Orleans vs. People’s Bank, 27 An. 646, the bank having been incorporated in 1869, was declared not entitled to the exemption claimed, owing to the prohibitory provision of the Constitution of 1868, found in article 118. In New Orleans vs. Metropolitan Loan, Savings and Pledge Bank, 27 An. 498, the bank having been created since the adoption of the Constitution of 1868, was denied the exemption claimed for the same reason. In New Orleans vs. St. Charles Street R. R. Co., 28 An. 497, decided in 1876, the defendant claimed exemption under a contract entered into with the city, and the Court held that the city had no right to defeat the commands of its creator; in other words, to exempt the property as claimed. In New Orleans vs. St. Patrick’s Hall, 28 An. 512, the exemption was claimed under an act of 1874, No. 29, but the evidence showed that the property was not used for church, school or charitable purposes, and the act was declared violative of the constitutional prohibition and, therefore, null and void. In New Orleans vs. Lafayette Insurance Co., 28 An. 756, the exemption was claimed under an Act of 1871, which being violative of the Constitution of 1868, Art. 118, was declared inoperative. In New Orleans vs. Davidson, 30 An. 554, the question was one of compensation, and really has no practical bearing on the case now before us. — 858 — In New Orleans vs. St. Anna’s Asylum, 31 An. 295, the question was, whether property acquired in 1874, and yielding revenue, could be considered as exempt from taxation under the charter of the corporation granted in 1853, which placed it on equal footing with other charitable institutions. It is true the Court denied the exemption, but it said: “ When a case of prior acquired property presents itself it will be time enough to express our opinion thereon.” So that the Court drew a line-of demarcation between the two sorts of property, that acquired before and that acquired after 1868. This case is on writ of error before the United States Supreme Court and undecided. We cannot recognize that it has a bearing on the matter now before us and which exhibits a case of prior acquired property. The constitutional requirement of equality and uniformity, only extends to such objects as the Legislature shall determine to be property subject to the burden. Cooley on Taxation, 126. The rule of uniformity “must extend to all property subject to tax- . ation, so that all property may be taxed alike, equally, which is taxing by a uniform rule.” Burroughs on Tax., p. 65. The provision of uniformity does not prevent the State from exempting objects of charity. Commenting upon article 118 of the Constitution of 1868, providing that “ all property shall be taxed in proportion to its value, to be ascertained by law,” in the case of New Orleans vs. Fourchy, 30 An. 913, Mr. Justice Spencer, as the organ of the Court, says, alluding to the defendant: “He maintains that, by the Constitution of 1868, all property or none must be taxed, and he cites article 118. We do not construe that clause as does the defendant. It simply means that the taxation of all' property subject to tax shall be ad valorem.” Further, he says : “ The question as to what property falls or shall be embraced within the classes designated as for ‘ church, school, or charitable purposes,” is, of necessity, largely one of legislative discretion, and this Court would with reluctance interpose its opinions to thwart this legislative-discretion, unless there was a manifest and flagrant abuse of it. We are-not prepared to say that in any of the exemptions complained of the Legislature has transcended its authority; on the contrary, we think it a. wise and beneficent exercise of it to exempt enough of the indispensables of life to save the poor from pauperism, and thus protect property and society from increased burdens.” It may well be that the charter of the defendant may be a subject of repeal under the powers reserved by a general law; but we consider that it was not repealed. The most that could be claimed would be — 859 — a partial repeal, or an amendment destructive of an immunity previously granted; but, from the fact of a reserved power to repeal entirely, it cannot be inferred that the power to repeal partially, or amend, can be exercised. The power to destroy at once may exist, but the power to destroy gradually, or in part, has no being. It may well be that, before exercising the high prerogative of total destruction of an institution of charity of this description, which has exhibited a character which strongly recommended it to the protection of government, the Legislature would pause and rather support than suppress it. Construing the law invoked with the Constitution and subsequent revenue State and municipal statutes, we think they mean and say: “ Taxation shall (hereafter) be equal and uniform throughout the-State. All property (not heretofore or hereafter exempt) shall be'taxed in proportion to its value, to be ascertained as directed by law. The General Assembly shall have power to exempt (hereafter) from taxation property actually used for church, school or charitable purposes.” Coming down to the character of the particular property on which the tax claimed was levied, we attach no importance to the fact that it-is not in the physical, actual, use of the asylum, and that it is a source of revenue. It is enough that it was entitled to be and was exempt from taxation at the adoption of the Constitution of 1868, under the law of 1844, although not in such actual use, and that the exemption is still in. force, to enable us to concede to it the immunity claimed for it. Construing, as we do, the law of exemption relied upon and the Constitution of 1868, and the revenue statutes subsequently passed, we retain unhurt, uncrippled, an institution, which, owing to its usefulness, like others of the same character, to the public, to suffering and forsaken humanity, it is neither the will nor the policy of the law to tax. We do not mean that whatever property may be owned by a charitable institution, incorporated prior to 1868, is exempt from all taxation; on the contrary, we expressly hold that it is only such property as is actually used, or the revenue of which is indispensably necessary for the legitimate purposes of the institution, that enjoys the immunity. Exemptions subsequently granted are restricted to the property actually' used, and do not cover property yielding revenue. Burroughs on Tax.,, pp. 134,135. The judgment of the lower court subjected the property to the payment of the tax claimed on the authority in the 31st An., which does-not authorize such conclusion. It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be reversed, and proceeding to render such judgment as should have been rendered, It is ordered, adjudged and decreed that the demand of plaintiff be860 rejected, with judgment in favor of, the defendant, with costs in both •courts. Mr. Justice Fenner dissents, reserving the right to express his written views. •