On Rehearing. A rehearing was granted in this case so that we might give further consideration to our former decree only insofar as it affirmed a judgment of the district court decreeing that 40 shares of paid up or investment stock in the First Federal Savings Loan Association of Shreveport and 60 savings shares in the same institution, standing on the books of that association and registered in the name of Mrs. Rowland as of June 12, 1941, to be property of the community which formerly existed between Mr. J. H. Rowland and Mrs. Louise T. Rowland, and recognizing plaintiff, Mrs. Ferol R. Cameron, to be the owner and entitled to the possession of an undivided one-half interest therein, together with one-half of all rents, revenues, and income therefrom since the death of Mr. Rowland on June 12, 1941. Our decree on original hearing in all other respects has become final.
In 1930, during the existence of the community between Mr. and Mrs. Rowland, 40 shares of investment or paid up stock in the Shreveport Mutual Building Association were purchased in the name of Mrs. Rowland. In 1914, also during the existence of the community, Mrs. Rowland began to purchase in her own name savings shares in the same institution, continuing to make these purchases until the conversion of this institution in 1935 into the First Federal Savings Loan Association *Page 222 of Shreveport. After this conversion all of the shares, both savings and paid up, in Mrs. Rowland's name in the Shreveport Mutual Building Association were converted into stock in the First Federal Association. Subsequent to this conversion Mrs. Rowland continued to purchase in her name savings shares in the Federal Association. These purchases were made up to the time of Mr. Rowland's death, and were included in the 60 shares of savings stock. It is the ownership of the 40 shares of paid up or investment stock and of the 60 shares of savings stock which is here in dispute.
Whatever may have been the character or nature of the stock in the Shreveport Mutual Building Association, whether community or separate property, this character or nature was not changed by the reissuance to Mrs. Rowland of the stock in the Federal Association, as this was not an acquisition by, or transfer to, her of anything which she did not already own, but was only a transformation of her interest from one association to the other. Kittredge et al. v. Grau et al., 158 La. 154,103 So. 723.
On original hearing this court found that all of this stock, the paid up as well as the savings shares, was purchased with funds belonging to the community which existed between Mr. and Mrs. Rowland prior to his death, and the character of these funds is no longer an issue in the case.
In the lower court, counsel for Mrs. Rowland, appellant, contended that all of the *Page 223 stock, regardless of the time of its acquisition, became the separate property of Mrs. Rowland under the provisions of Sections 34 and 76 of Act No. 140 of 1932. Section 34 provided that "Married women may subscribe for, own, hold, withdraw, transfer, pledge, borrow upon and surrender shares in such associations [building and loan associations], without the consent or authorization of their husbands, and same shall befor the wife's or widow's separate benefit as paraphernalproperty, and, during the marriage as well as after the dissolution thereof, shall not form part of the marital community or of the estate of the husband for any purpose. In all cases in which, at the time of the enactment of the present statute any husband, heir, creditor, or other person or party in interest, or any building and loan association, claims or pretends or believes that the said husband, or his heirs, or creditors, or any other party or parties in interest, have any interest or ownership or claim whatsoever, adverse to the wife's or widow's interest in and to any building and loan association shares in the name of said wife and widow, suit to have said ownership and interest declared and recognized must be instituted by such party or parties or association within a delay of ninety days from the date when the present statute shall go into effect, and, in the absence of such a suit, filed within said delay, the ownership of said wife or widow in and to said shares shall be and remain absolutely incontestable; and the present *Page 224 statutory period of prescription and repose shall run and operate against all persons whomsoever, including minors, interdicts, married women, and the State of Louisiana." (All italics ours.)
The second paragraph of Section 76 provided that "Any person holding shares in an association or otherwise interested, who attacks the constitutionality either of the waivers provided for in this Statute, or of any other provision of this statute, must file suit to that effect against the association within ninety days from the time when the present Statute goes into effect; and said period of ninety days is now fixed as the term of prescription within which any remedy in that behalf must be instituted in the courts by any member or other person; and the failure to file such suit within that delay shall be deemed and held by all courts at all times thereafter as an acquiescence in said waivers, or in any other provision of the present statute and after such ninety-day period no further attack on the constitutionality of said waivers or any other provision of the present statute can be presented; and the present statutory period of prescription and repose shall run and operate against all persons whomsoever, including minors, interdicts, and married women."
Counsel for Mrs. Cameron, appellee, then filed pleas of unconstitutionality as to the provisions of these sections. They contended that Section 34 was unconstitutional in that: *Page 225
(1) It constitutes a taking and divesting of the property of Mr. Rowland without due process of law, in violation of Section 2 of Article 1 and Section 15 of Article 4 of the Louisiana Constitution, and the Fifth and Fourteenth Amendments to the Federal Constitution;
(2) It impairs the obligations of the marriage contract in respect to property rights, in violation of Section 15 of Article 4 of Louisiana Constitution, and Section 10 of Article 1 of the Federal Constitution;
(3) It tends to abolish forced heirship, in violation of Section 16 of Article 4 of the Louisiana Constitution.
Counsel contended that Section 76 was unconstitutional in that:
(1) It amounts to a divesting and taking of the husband's property without due process of law, and is in violation of Section 2, Article 1, and Section 15, Article 4, of the Constitution, and the Fifth and Fourteenth Amendments to the Federal Constitution;
(2) It requires courts to render declaratory judgments, not permitted under the Louisiana Constitution;
(3) It violates Section 6 of Article 1 of the Louisiana Constitution by denying adequate remedy by due process of law in open court;
(4) It deprives the courts of this state of the power to declare an act of the Legislature unconstitutional, in violation of Sections 1 and 2 of Article 2, and Section *Page 226 1 of Article 3 of the Louisiana Constitution.
Counsel for defendant, Mrs. Rowland, filed a plea in bar of plaintiff-appellee's plea of unconstitutionality, alleging that, under the provisions of Section 76, the plea of unconstitutionality was untimely since more than 90 days had elapsed from the time the statute went into effect.
The district judge overruled the plea in bar of the plea of unconstitutionality, being of the opinion that Section 76 was unconstitutional insofar as it denied to plaintiff or any person in interest the right to question the constitutionality of any of the provisions of the statute. He held that all of the stock was community property, and in so holding concluded that Section 34 of the act was unconstitutional as applied to the facts in this case, in effect stating that the effect of this section was to transfer by legislative fiat to Mrs. Rowland the interest of Mr. Rowland in this stock purchased with community funds before the act was passed, and that this in his opinion, constituted a divesting of vested rights and was a denial of due process.
The paid up stock was purchased and acquired with community funds prior to the effective date of Act No. 140 of 1932, but, as pointed out hereinabove, only a portion of the savings shares was so acquired, the purchase of these shares of stock having begun in 1914 and continued up until the death of Mr. Rowland on June 12, 1941. *Page 227
To determine the nature of the stock, that is, whether it is the separate property of Mrs. Rowland or belongs to the community, we must ascertain the period of time or the date of the various purchases, for in our opinion it is the statute or law in force and effect at the time these purchases were made which is decisive of the question. In order to answer this question we shall review the various acts of the Legislature which may be pertinent here.
In 1902 the Legislature adopted Act No. 120, which, according to its title, was to provide for the organization, regulation, supervision, etc., of building and loan associations, and to define the rights, powers, and privileges of such corporations and the members thereof. Section 13 of this act provided in part: "* * * Married women may subscribe for, hold, withdraw, transfer, pledge, borrow upon and surrender stock in such corporations without the consent or authorization of their husbands, and same shall be for her separate benefit asparaphernal property."
According to the record in this case, during the time when this act was in full force and effect, Mrs. Rowland acquired the 40 shares of paid up stock and began to purchase in her own name the savings shares. There is no doubt, therefore, that under the plain terms of this act the fully paid up stock became her separate property under the provisions of Section 13 set out hereinabove. *Page 228
In 1932 the Legislature adopted Act No. 140, from which we have previously quoted Sections 34 and 76. This act, according to its title, also prescribed the rights, obligations, and duties of building and loan associations and all the members thereof, and with reference to building and loan stock read as follows: "* * * providing that shares in the name of a married woman shall belong to her as her separate property and fixing a period of prescription to set at rest all adverse claims to shares in such associations in the name of any married woman or widow. * * *" According to the repealing clause of this statute, certain laws and statutes were expressly superseded by the corresponding and relevant provisions of this statute, among these being Act No. 120 of 1902. Section 34 of the 1932 statute, as did Section 13 of Act No. 120 of 1902, provided that stock purchased by a married woman in her own name became her separate and paraphernal property. This section additionally declared, however, that the husband, heir, creditor, etc., claiming ownership or any of them having interest in any such stock purchased in the name of a married woman and adverse to her interest must institute suit to have said ownership and interest declared and recognized within a delay of 90 days from the effective date of the statute, and that, in the absence of such suit filed within said delay, the ownership of the wife should be and remain absolutely incontestable. *Page 229
It is the prescriptive period under the provision of the act on which counsel for Mrs. Rowland relied in the lower court in support of their contention that all of the stock, whenever acquired, is her separate property.
Counsel for Mrs. Cameron contend that this section is unconstitutional in that it constitutes a taking and divesting of property without due process of law.
If we concede this to be true, it would prove of no avail to counsel for Mrs. Cameron insofar as the stock which was acquired prior to the effective date of the 1932 act is concerned, as these purchases would be governed entirely by the provisions of Act No. 120 of 1902, which was in full force and effect at the time the 40 investment or paid up shares were purchased and a portion of the 60 shares of savings stock, and which, as heretofore pointed out, made stock purchased in a building and loan association in the name of a married woman her separate and paraphernal property.
In Carter v. Third Dist. Homestead Ass'n, 195 La. 555,197 So. 230, 233, this court in discussing Section 34 of the act of 1932 observed: "The Legislature recognized also that, although section 34 of the act of 1932 remedied the apparent defect in section 13 of the act of 1902 in so far as subsequent purchases of building and loan stock by married women were concerned,the act of 1932 could not have any effect upon the ownership ofbuilding *Page 230 and loan stock that was acquired in the name of a married womanprevious to the passing of the act of 1932."
In that case the suit was a contest between a husband and a wife over the ownership of stock in a building and loan association, which the husband contended was purchased with community funds previous to the year 1932. The wife contended that, under Section 13 of Act No. 120 of 1902 and Section 34 of Act No. 140 of 1932, stock purchased by a married woman in a building and loan association became her separate property. The husband denied that Section 13 of the 1902 act changed the community laws in that respect, even with respect to stock in building and loan associations, and argued that Section 13 of the statute could not be construed as making such a change in the community laws without rendering it unconstitutional, because no such object or purpose was indicated in the title of the act. This court affirmed the judgment of the district court declaring that the stock in dispute was the wife's separate property for the reason that any claim that the husband might have had on the building and loan stock was barred by the provisions of Section 34 of Act No. 140 of 1932, and that this statute barred any claim of any interest or ownership or claim whatsoever of the husband in or upon the building and loan stock in dispute in that case. The constitutionality of Section 34 of the 1932 act was not raised and was not an issue *Page 231 in that case, and the court very properly concluded that the husband's claim to any interest or ownership in the stock was barred thereby.
It is unnecessary in the instant case for us to decide the constitutionality of Section 34 of the 1932 act, for the ownership of stock purchased by Mrs. Rowland prior to its effective date is not dependent upon the validity of the period of repose provided for in that section. As we have previously stated, the ownership of the stock purchased while the 1902 act was in force is governed by its provisions, and no plea of unconstitutionality was filed contesting the validity of that act.
Counsel for Mrs. Cameron strenuously urge in this court that, if we interpret Act No. 120 of 1902 as vesting title to these shares in Mrs. Rowland as her separate property, the act would be contradictory to, and in violation of, Section 16 of Article 4 of the Constitution of 1921, which prohibited the passage of any law abolishing forced heirship. Our construction of this statute, as we shall demonstrate later in this opinion, will not actually, or in practical effect, abolish the right of any heir.
In 1938 the Legislature of this state adopted Act No. 337, which amended the title to Act No. 140 of 1932, the pertinent part of which reads thus: "* * * providing that any married woman may purchase and dispose of shares in such associations as though she was a femme *Page 232 sole * * *," and reenacted Section 34 of Act No. 140 of 1932 to read as follows: "Any married woman may subscribe for, own, hold, withdraw, transfer, give, pledge, borrow upon and surrender shares in such associations as a femme sole." Since this amendment omitted completely the prior provision that such shares would be the separate property of the wife, we consider that the Legislature intended that the ownership of such shares would thereafter be determined by the general laws of the state; therefore, the shares purchased by Mrs. Rowland from the effective date of this act until the effective date of Act No. 95 of 1940 are under its provisions community property.
In 1940 Act No. 95, relative to Federal savings and loan associations domiciled and doing business in this state, was adopted by the Louisiana Legislature. The purpose of Act No. 95, according to its title, was, among other things, to regulate the ownership and disposition of shares in such Federal savings and loan associations by married women and minors, and to prescribe the manner in which shares might be held, withdrawn, pledged, or surrendered by married women or minors or the legal representative of such minors. In Section 2 it was provided: "That married women may subscribe for, hold, withdraw, transfer, pledge, borrow upon and surrender shares in such Federal savings and loan associations without the consent or authorization of their husbands; and such shares shall be *Page 233 the wife's separate and paraphernal property provided such shares were purchased with the separate and paraphernal funds of said wife, and both during the marriage and after the dissolution thereof shall form no part of the marital community." Under this provision of that act, the shares purchased by Mrs. Rowland after its effective date in the Federal Savings Loan Association of Shreveport are community property.
The death of Mr. Rowland dissolving the community occurred on June 12, 1941, and up to this time Mrs. Rowland had continued to purchase in her name savings shares, the purchase of which was begun in 1914, the aggregate of which constituted the 60 savings shares of the Federal Savings Loan Association of Shreveport. Since the record does not show the dates or amounts of these purchases, we cannot determine definitely how many or which of these shares of savings stock would be separate or community property, because this would have to be ascertained by reference to the act which was in effect at the time of each purchase.
A consideration of all of these acts convinces us that the provisions thereof dealing with the purchase of stock by married women had for their object to protect building and loan associations and all persons in dealing with a married woman with reference to stock of such associations standing of record on the books in her *Page 234 name, and, further, to encourage saving and investment in such associations by married women and to facilitate trade in such stock.
We do not think it was the intent and purpose of the Legislature by adopting such statutes to divest the community of the funds, used in the purchase of building and loan stock, which would otherwise belong to the community under the general law of this state relative to community property, nor were these statutes intended by the Legislature to be a means to defeat and defraud the community or the interest of any heir. The Legislature did not intend, by the provisions in the various acts making the separate property of a married woman stock standing on the records of the association in her name, to deprive the community of the right to demand at its dissolution restitution of its funds used to purchase stock which was the separate property of the wife.
Furthermore, we do not know of any constitutional prohibition against the enactment by the Legislature of a statute providing that stock bought by a married woman, standing on the books of the building and loan association in her own name, was her separate and paraphernal property, provided that such act is given prospective effect only. Of course, in the event such stock is purchased by the wife with community funds, although the stock will be the wife's separate *Page 235 property pursuant to such statute, nevertheless, under the general community property law of this state, she will be indebted to the community at its dissolution for the purchase price thereof. When given this interpretation, such a statute in no manner divests any vested right and is not a denial of due process.
For these reasons, we are of the opinion that the 40 shares of paid up stock in the First Federal Savings Loan Association of Shreveport, standing on the books of the association as of June 12, 1941, in the name of Mrs. Rowland, are her separate property, having been purchased under the provisions of Act No. 120 of 1902. With reference to the 60 savings shares registered in the name of Mrs. Rowland as of June 12, 1941, in the same institution, all that portion of the stock purchased under the provisions of Act No. 120 of 1902 and of Act No. 140 of 1932 prior to its amendment by Act No. 337 of 1938 is also the separate property of Mrs. Rowland. All that portion of the savings stock purchased subsequent thereto and until the time of Mr. Rowland's death is governed by the provisions of Act No. 337 of 1938 and Act No. 95 of 1940, and is community property.
Mrs. Rowland, however, is indebted to the community for the full purchase price of the 40 shares of paid up stock and also for the purchase price of all that portion of the 60 savings shares acquired before the effective date of Act No. 337 of 1938. *Page 236
Since Mrs. Rowland began the purchase of these stocks in 1914, and since these purchases continued until Mr. Rowland's death in 1941, and since the record does not disclose with exactness the dates of her many purchases, it is necessary that we remand the case to the lower court so that an accounting may be had to determine Mrs. Rowland's indebtedness to the community.
Counsel for Mrs. Rowland have filed a supplemental brief on rehearing in this court, strenuously urging that, if this court should find that any of the shares are Mrs. Rowland's separate property, Mrs. Rowland is not accountable to the community for its funds used to purchase such shares. This argument is made on two grounds — first, that the funds of the community used in the purchase of these shares were a gift of movables from Mr. Rowland to Mrs. Rowland, and, second, that the pleadings presented in this case do not authorize this court to issue a decree recognizing an indebtedness of the separate estate in favor of the community estate.
In answer to the first ground, we find no evidence whatever of a gift by Mr. Rowland to Mrs. Rowland of the community funds she used to purchase the shares. As to the second ground, while there may be no specific prayer in the pleadings for a decree recognizing the indebtedness of the separate estate to the community, we feel that in the interests *Page 237 of equity and justice our decision in this matter requires such a decree.
For the reasons assigned, the judgment appealed from, recognizing the ownership of the stock here in dispute to be community property, is set aside, and it is now decreed that the 40 shares of paid up or investment stock in the First Federal Savings Loan Association of Shreveport, standing on the books of that association as of June 12, 1941, in the name of Mrs. Louise T. Rowland, are her separate property. It is further decreed that that portion of the 60 savings shares of the First Federal Savings Loan Association of Shreveport, registered in Mrs. Rowland's name, purchased by her prior to the effective date of Act No. 337 of 1938, is her separate property, and that all that portion of said stock purchased subsequent to the effective date of this act is property belonging to the community. It is further ordered that this case be remanded to the lower court for the purpose of an accounting to establish Mrs. Rowland's indebtedness to the community for the purchase price of all stock decreed to be her separate property.
Appellant, Mrs. Rowland, is to pay all costs of this rehearing.
The right is expressly reserved to all parties at interest to apply for a rehearing.
O'NIELL, C. J., does not take part.
HAMITER, J., is of the opinion that the original decree should be reinstated. *Page 238