On Rehearing.
BREAUX, C. J.Both plaintife and defendant filed petitions for a rehearing.
The plaintiff on the ground that the exemption claimed by it was real and bore upon the property and not a personal right; that the exemption followed the property after its transfer into third hands and existed in favor of the purchaser as it existed before the transfer.
The defendants, on the other hand, asked for a rehearing on the ground that the court, in error, condemned them to pay costs, and because the court, also in error, failed to condemn the plaintiff to pay them the statutory 10 per cent, attorney’s fee.
We take up in the first place plaintiff’s application for a rehearing.
Part of the road was decreed exempt; another part, known as the Texarkana Branch, was decreed nonexempt to an extent of 21.09 miles.
As to this distance, exemption did not inure to plaintiff when it bought it from *79the Texas, Shreveport & Natchez Railroad, the original builder.
We can only reiterate that it has not passed free from taxation.
The right of exemption to the original builder was acquired under article 230 of the Constitution; the road was constructed while that article was in force and not amended, as it was afterward amended.
This article was amended after the road had been constructed so as to exempt, in third hands, roads constructed after January 1, 1905, and prior to January 1, 1909.
The present road had been constructed prior to the first date mentioned above.
The exemption clause, mentioned above,passed subsequently, could not affect it in any way.
The silence of the old law upon the subject and the addition of the exempting clause by subsequent amendment has the appearance of an intention on the part of the lawmaking power to extend the exemption to third hands. It follows that this could be done from the date of the amendment extending exemption after the sale, or, rather, that prior to the time the railroads had not been exempt into third hands, and that it was from the date of the amendment the intention of the lawmaking power to exempt them is manifest. If that was not the purpose, there was no purpose at all. It would have been useless .and meaningless legislation, amounting to nothing, a mere loss of time, all of which we will not assume.
Taking up for consideration the leading decision, cited with confidence by the learned counsel for defendant in argument on rehearing, to wit, Metairie Association Case, 37 La. Ann. 33, we do not find it as pertinent as counsel thinks it is.
The facts in that case are that the owners of a tract of land in this city organized themselves into a corporation, “for the maintenance of - a cemetery,” is the expression used.
There may have been an exemption law at the time; that is of no moment here.
. Subsequently, there were other exemption laws adopted.
The Constitution of 1879 (article 207) contained provision for exempting places of burial with the restriction that “they were not to be used for purposes of private or corporate income,” are the words used.
It was a question at the time, as this corporation derived some revenue, whether or not it was organized for profit and income. A majority of the court decided that the corporation was not deriving profit and income by the sale of these lots.
That was the only question decided.
The court expressly stated that there was no profit or income from these sales.
There was no question before the court about the sale of the property to third persons or anything of the kind. In fact, the property was still in the hands of those who had organized the corporation and not in third hands.
It is true that there are expressions in the opinion in regard to third hands; they related to property disposed of as before mentioned. It was not the purpose in the cited decision supra to pass upon questions such as the one before us, relating to the sale of the whole property and its premises into third hands.
The case of Wilson v. Gaines, 103 U. S. 421, 26 L. Ed. 401, is pertinent.
The court held in a similar case that the property was not exempt from taxation in third hands; that immunity from taxation is personal and not transferable. It does not attach to nor run with the property after it passes from the original owner, in whose favor it was granted, unless there is some *81expression in the law which shows the intention to exempt it in third hands.
The decision is quite conclusive. It leaves room for no other view than that before expressed. It is quite convincing because it affirms a decision of our own court by the United States Supreme Court. Louisiana v. Morgan, 28 La. Ann. 482, affirmed on a writ of error in 93 U. S. 217, 23 L. Ed. 860.
That disposes of plaintiff’s application for a rehearing.
The defendants, on the other hand, in their application for a rehearing, ask to have the judgment amended to the extent that it condemned defendants to pay costs.
The judgment of the lower court was amended on appeal on defendants’ plea that the Texarkana Branch owed the tax.
The district court had declared it exempt; but, on appeal, it was decided that it was not, and thereby a change was effected.
As the judgment was amended, the plaintiff owes the costs of the appeal. Tulane University of Louisiana v. Board of Assessors, 115 La. 1025, 40 South. 445; Code Prac, art. 908.
As to the second ground pressed by defendants, in regard to attorney’s fee: No doubt but that 10 per cent.' attorney’s fee is due Section 56, Act No. 170 of 1898; Tulane University of Louisiana v. Board of Assessors, 115 La. 1025, 40 South. 445; Methodist Episcopal Church, South, v. City of New Orleans, 107 La. 611, 32 South. 101, and State ex rel. Stempel v. New Orleans, 105 La. 768, 30 South. 97.
It is therefore ordered, adjudged, and decreed that the order granting the rehearing be, and the same is hereby, recalled. The judgment heretofore rendered is amended by condemning plaintiff to pay the costs of appeal and by condemning the plaintiff in addition to pay 10 per cent, on the amount of taxes and penalty.
As amended, the reinstated judgment is affirmed.
MONROE, J., dissents.