On Rehearing.
MONROE, J.A rehearing was granted in this case at the instance of the Attorney General, who desired to be heard on behalf of the state, and who had not been apprised of the pendency of the ■ suit until after it had been decided.
It is said that “it is only railroad companies or corporations proper- that are entitled to the exemption provided by article 230 of the Constitution of 1898”; that the plaintiff corporation, having been established under Act No. 36, p. 27, of 1888, has no authority to operate and maintain a railroad; and hence that it is not entitled to the exemption.
The answer to this, as we think, is that the purpose of the framers of the Constitution was to encourage the building of railroads, rather than the multiplication of corporations, and they accordingly declared that:
“There shall he exempt from taxation, for a period of ten years from the date of its completion, any railroad or part of such railroad that may hereafter be constructed and completed prior to January 1st, 1904.”
This exemption has been extended by the amendment adopted in 1904 “to any railroad, or part of a railroad, that shall have been constructed and completed subsequently to January 1st, 1905, and prior to January 1st, 1909,” and has been made to include and apply to all the rights of way, roadbed, sidings, rails, and other superstructures upon such rights of way, roadbed, or sidings, and to all depots, station houses, buildings, erections, and structures appurtenant to such railroads and the operation of the same. Act No. 15, p. 19, of 1904. For the purposes of the exemption, we are therefore of the opinion that it is wholly immaterial whether the railroad is built and operated by a corporation, a private society, or an individual.
It is .true that in the same article of the Constitution (230) the word “railroad” is used to' express the idea of an artificial or juridical personage, with a capacity for intelligent action, it being provided that the exemption shall not apply to improvements, etc., “which may be constructed by railroads now in operation,” etc.; but the fact remains that the exemption was intended to encourage the building of actual roads, and that the language used applies to actual roads, or parts of roads. Upon the other hand, there can be no doubt that the word is thus used in the sense in which it is commonly understood (i. e., as meaning a highway open to the public, within the meaning of article 272, and the traffic upon which is regulated-by the law applicable to common carriers), and that it has no application to a road owned or operated either by a corporation or an individual exclusively for its or his own purposes, or for the carriage of passengers or freight selected by or belonging to the owner or operator.
It may be true that the plaintiff is without authority, under its charter, to maintain and operate such a railroad as is entitled to the exemption in question; but the Civil Code declares that whilst corporations unauthorized by law “enjoy no public character * * * these corporations may acquire and possess estates and have common interests as well as other private societies.” *867Civ. Code, art. 446. Assuming, therefore, that, for the purposes of the operation of a railroad, no such corporation as the plaintiff exists, there is nevertheless a private society which owns, or there are individuals who own, and operate, a railroad, or part of a railroad, over which the business of a common carrier is conducted, and which had been constructed since the adoption of the Constitution of 1898, and was completed prior to January 1, 1904; and it is to the property, and not to the owners, that the exemption applies. We therefore conclude that there was no error in the judgment heretofore rendered, and it is accordingly reinstated and made the final judgment of the court.
NICHOLLS, J., dissents.