(dissenting). The-majority opinion finds that proof of acknowledgment by the mother cannot be made, by other evidence than by a notarial act or the registry of birth or baptism.
That conclusion is sought to be justified by reasoning which may be said to be founded upon the text of article 203, and upon the word “bastard,” in article 920, when taken in connection with the classification of illegitimate children into natural children and bastards in article 202,
These articles read:
*599“Art. 202. Illegitimate children who have been acknowledged by their father are called natural children; those who have not been acknowledged by their father, or whose father and mother were incapable of contracting marriage at the time of conception, or whose father is unknown, are contradistinguished by the appellation of bastards.
“Art. 203. The acknowledgment of an illegitimate child shall be made by a declaration executed before a- notary public, in presence of two witnesses, by the father and mother; or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.”
“Art. 920. Bastard, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above mentioned, the law allowing them nothing more than a mere alimony.”
These same articles in the Code of 1825 read:
“Art. 220. Illegitimate children who have been acknowledged by their father are called natural children; and those whoso father is unknown are contradistinguished by the appellation of bastards.
“Art. 221. The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, whenever it shall not have been made in the registering of the birth or baptism of such child.”
“Art. 914. Bastard, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the eases above mentioned, the law allowing them nothing more than a mere alimony.”
It is thus seen that in the Code of 1825 there was the same classification of illegitimate children into natural and bastard; that the same word “bastard” occurred in article 914, now 920; and that the text of article 203, then 221, was the same as now, except that the words “by the father and mother or either of them,” • were added in the revision, and that the last paragraph of the article was omitted, which reads:
“No other proof of acknowledgment shall be admitted in favor of children of color.”
The interpolation of the words “by the father and mother or either of them” in article 914 has wrought no change in the article, since an acknowledgment cannot be made by anybody except the father and mother, or either of them.
In like manner the words added to article 202 have effected no change in the article —for all that concerns the present discussion — since by both articles unacknowledged illegitimate children are classified alike into natural and bastard.
Now, the point which I desire to make is that, all this reasoning of the majority opinion would have been just as apposite under the Code of 1825, and yet would have been squarely refuted by the presence in article 221 (now 203) of the paragraph for denying to colored children the privilege of proving acknowledgment by other evidence than a notarial act or the registry of birth or baptism. This paragraph, by excluding colored children specially from -that privilege, showed conclusively that white children enjoyed it.
In saying that the reasoning of the majority opinion would have been just as apposite under the Code of 1S25, I do not lose sight of the fact that this additional paragraph to article 221, now 203, has been left out of the article as revised in our present Code. I will come to that presently. All I say now is that the reasoning of the majority opinion, as founded on the text of article 203, and on the juxtaposition of the word “bastard” in article 920 with the classification made in article 202, would have been squarely refuted under the Code of 1S25 by the presence in article 203, then 221, of the said additional paragraph.
Now, if the purpose of the omission of that paragraph had been to change the law of inheritance, there would he a difference between the two Codes in that respect; but we know historically that that was not the *601purpose, but that the sole purpose was to put colored children on the same plane with white children, such having been, as is well known, the spirit prevailing with our legislators in 1870. In like manner every other provision of the Code of 1825 drawing the color line was omitted from the revision.
The framers of the Code of 1S25 did not consider that article 221, now 203, oF article 914, now 920, or the two in combination, or any other articles of their Code, would preclude illegitimate children from proving acknowledgment otherwise than by notarial act or registry of birth or baptism; for if they had so considered they would not have added a special clause to prevent colored children from being admitted to make such “other proof.”
Inasmuch, then, as this , additional clause to article 221, now 203, in the Code of 1825, shows conclusively that the framers of that Code understood that such “other proof” of acknowledgment was to be excluded only in the case of colored children, and inasmuch as those learned gentlemen must be supposed to have had a correct appreciation of the scope of the articles they were drafting, and inasmuch as the articles of that Code and those of our present Code in so far as pertinent to the present discussion are the same, except in respect to the said additional clause to article 221, now' 203, having been left out of our present Code when it was revised in 1870, the conclusion would seem to be forced that, if such proof is to be excluded under our present Code, it is because the said additional clause to article 221, now 203, has been left out of our present Code; and yet we know, historically, that the object of leaving out the said clause from the Revised Code was not to accomplish any such change a's this, or to affect in the slightest particular the meaning of article 221, now 203, as excluding or allowing other proof of acknowledgment than an authentic act or registry of birth or baptism in the case of white children, but that the object, and the sole object, was to put colored children on the same plane with white children in the matter of proving acknowledgment by “other proof” than an authentic act or registry of birth or baptism.
It is noteworthy that, while our Code (article 180) provides that legitimation can be effected only “in the manner prescribed by law,” it makes no such provision with regard to acknowledgment.
So much for that.
The majority opinion finds that article 202 is “substantive law,” and that the fact of the Code Napoléon containing no corresponding article differentiates the two Codes.
By substantive law is meant law which creates rights or obligations. 37 Cye. 508. This article 202 does not do that, but merely makes a classification.
True it is that no corresponding article or any such classification is to be found in 'the Code Napoléon. But no argument can be founded on that, since all classifications and all purely abstract propositions were left out of that Code. The framers of it did not, like the framers of our Code, interlard their work with such mere scholastic matter — out of place in statutory law, however useful in a treatise — but confined themselves as far as possible to purely substantive, or regulatory, legislation. And the reason for it, as explained by the commentators, was that all such generalizations were considered both out of place and dangerous in a statute.
This court has had occasion more than once to animadvert upon such generalizations in our Code, as shown by the following, which I transcribe from Hennen’s Dig. p. 250, No. 11:
“Our Codes were prepared by lawyers, who mixed with the positive legislation definitions seldom accurate and points of doctrine always unnecessary. The Legislature modified and *603changed many of the provisions relating to the positive legislation, but adopted the definitions and abstract doctrine without material alteration. From this circumstance, as well as from the inherent difficulty of the subject, the positive provisions of our Code are often at variance with the theoretical part which was intended to elucidate them; and, whenever that occurs, it is a sound rule of ‘interpretation to disregard the doctrine and consider the definition modified by the clear intent of the positive enactments. Ellis v. Prevost, 13 La. 237; Egerton v. Municipality No. 3, 1 La. Ann. 435.”
I am perfectly free to admit that article 920, with the comma in it after the word bastard, gives rise to an ambiguity when read in connection with article 202, classifying as bastards illegitimate children unacknowledged by the father or whose father is unknown. But I believe I can demonstrate that the said comma was inserted undesignedly, and should lie disregarded, so as to have the article read “Bastard adulterous or incestuous children,” etc., and not, as now, “Bastard, adulterous or incestuous,” etc.
The text of said article in the Code of 1S25 reveals the presence of this same comma, and yet nothing can be more certain than that that Code did not use the term “bastard” in any other sense than that of illegitimate child; for in that Code the classification of children was into legitimate and .bastard. “Children,” it is said, “are legitimate or bastards.” See article 27. In our present Code this was changed to—
“Art. 27. Children are legitimate or illegitimate. Legitimate children are those, who are born of a marriage lawfully contracted; and illegitimate children are such as are born of an illicit union.”
Articles 182 and 183 of our present Code speak of “adulterous and incestuous bastards,” placing them in a category by themselves. In like manner, I say, article 920 does not intend to do any more than this, and should be read without the comma after the word “bastard.” Thus:
“Bastard adulterous and incestuous children,” etc.
Punctuation serves to clarify written language, and a comma often has the effect of changing the meaning of a sentence; but commas are not unfrequently inserted with .no great thought to their effect. Indeed, some writers are said to be as prodigal of them in their manuscript as some people of black pepper upon their food. A comma which would put mere illegitimate children on a parity with adulterous and incestuous children should not be allowed to stand, unless known to have been inserted designedly. And in the present case it so happens that we have the very strongest kind of evidence that this particular comma was not inserted designedly. In the French text of the article, which as much as the English constituted the text of the Code of 1S25, the reading is:
“Les batards adultérins ou incestueux,” etc.
The corresponding article of the Code Napoléon, article 762, reads:
“Art. 762. Les dispositions des articles 756, 758, 759' et 760 ne sont pas applicables aux enfants adultérins ou incestueux.”
“La loi ne lour aecordc que des aliments.”
The articles here referred to are the same to which our article 920 has reference by the words:
“In any of the cases above mentioned.”
There .is, however, an even more conclusive reason than the foregoing for holding that this comma was not inserted designedly in this article. Article 202 does not say that children acknowledged by their mother “shall be contradistinguished by the appellation of bastards,” but only that children unacknowledged by the father shall be so distinguished. If, then, we allow this comma to remain in article 920, and'we read that article in conjunction with article 202, we have the result that an illegitimate child, unacknowledged by its father, or whose *605father is unknown, cannot inherit from its mother, even though duly acknowledged by her. Thereby this article 920 is brought into direct contradiction with article 918, which is one of cases to which it has reference by the words “in any of the cases above mentioned.”
To avoid the flat contradiction which would thus arise between these two articles, if this comma were left in article 920, the majority opinion resorts to the device of enlarging article 202, so as to include the mother.
In answer to this I might content myself with the statement that, the said article not saying “mother,” the court cannot make it say it. Article 203, which the majority opinion says enlarges said article 202, so as to insert in it the word “mother,” bears upon an entirely different subject. It purports simply to provide a mode of acknowledgment. It in no way undertakes to supplement a classification; whereas the whole purport of article 202 is the making of a classification.
But the matter lies very much deeper than this. Both in the French and in the Spanish law, from which the regulations of our Code on this subject of illegitimate children are derived, a fundamental distinction is made between the father and the mother in the matter of acknowledgment. I will not go into all that, but merely observe that the general idea of it is that the mother who does not love, recognize, and acknowledge her child is something of a monster; whereas the father, not having borne the child, and not having oftentimes any absolute assurance of his paternity, is not so intimately connected with it. It was designedly' that the mother was left out of said article 202, and not accidentally, or by oversight, as the majority opinion would suppose.
• Let us read article 920 with the comma in it, and see what the unavoidable consequence will be. It reads:
“Art. 920. Bastard, adulterous 'or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above mentioned, the law allowing them nothing more than a mere alimony.”
As I have just said, the cases referred to by said article by the expression “the cases mentioned” are those of articles 918 and 919, which articles read:
“Art. 918. Natural children are called to the legal succession of their natural mother, when they have been duly acknowledged by hér, if she has left no lawful children or descendants, to the exclusion of her father and mother and other ascendants or collaterals of lawful kindred.
“In case the natural mother has lawful children or descendants, the rights of the natural children are reduced to a moderate alimony, which is determined by the rules established in the title: Of Father and Child.
“Art. 919. Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the state.
“In all other cases, they can only bring an action against their natural father or his heirs for alimony, the amount of which shall be determined, as is directed in the title: Of Father and Child.”
Substituting to the word “bastard” in article 920 the definition of this word in article 202, and substituting to the phrase “in any of the cases above mentioned” the article itself, which is thus referred to (article 919), and we have the following:
“Children who have not been acknowledged by their father, or whose father is unknown, or whose father could not have acknowledged them because they were adulterous, “shall not enjoy the right of inheriting the estates of their natural father * * * who has duly acknowledged them.”
What nonsense this is!!
And what greater nonsense it is in the case •of inheritance from the mother; i. e., in the case of' article 918. Making the same substitutions, we would have:
*607Children who have not been acknowledged by their father, or whose father is unknown, or whose father could not have acknowledged them because they were adulterous, “shall not enjoy the right of inheriting the estates of their natural * * * mother * * * when they have been duly acknowledged by her.”
With such a reading of this article 920, what becomes of article 918, which provides that children acknowledged by the mother shall so inherit?
With all due deference I say it, my honored colleagues attach too much importance to the word “bastard” in' article 920. The word is there used in its ordinary sense. That article was transcribed verbatim, including tbe comma- after “bastard,” from the Code of 1825, and in that Code the term “bastard” was used to designate a child born out of wedlock. Thus article, 27 of that Code provided:
“Children are legitimate or bastards.”.
Acknowledgment- by the father may be said to be highly exceptional; whereas non-acknowledgment by the mother might be said to be equally highly exceptional. To place the two upon exactly the same plane in the law of inheritance would be going against the well-known law of human nature, and the law of successions is founded on human nature. .
The majority opinion would derive an argument from the use of the term “natural children” in the articles which regulate the rights of illegitimate children to the successions of their parents — articles 918 and others. For the purpose of that argument the assumption is made that the term “natural children” is there used in the specialized, or technical, signification imparted to it by article 202; i. e., the signification of children unacknowledged by the father. But that assumption Is wholly erroneous. If the term had been there used in its said specialized or technical signification, the clauses “when they have been duly acknowledged,” and “who has been duly acknowledged,” would not have been added; for they would have been necessarily implied from the term “natural.” ■ The reading would have been simply “natural children,” not “natural children when they have been duly acknowledged,” or the natural children whose father has acknowledged them. The adjective “natural” is there used in the ordinary sense of illegitimate; and the proof of this is that, if we- substitute to it the adjective “illegitimate,” the sense of the sentence remains precisely the same; whereas the expression “natural children when they have been acknowledged” carries the inevitable implication that natural children do not inherit unless, or until, they have been acknowledged, thus showing that the adjective “natural’’ is being used in its ordinary meaning, and not in the specialized or technical signifi- * cation imparted to it by article 202. In article 920 the word “natural” is manifestly used in its ordinary sense.
I have in this dissenting opinion confined myself to an analysis of the majority opinion. I have thought it unnecessary to reproduce here the arguments and considerations which have heretofore led this court, as composed of successive judges from 6 La. to 133 La., to adopt a view different from that now sought to be 'established by the majority opinion. In the case of Succession of Vance, 110 La. 760, 34 South. 767, this court distinctly refused to overturn that jurisprudence. Speaking through Mr. Justice Blanchard, and after citing the cases of Lange v. Richoux, 6 La. 560, Succession of Fortier, 51 La. Ann. 1585, 26 South. 554, and Bourriaque v. Charles, 107 La. 217, 31 South. 757, this court said:
“But though wc adhere to [these cases] the jurisprudence authorizing methods of acknowledgment of illegitimate children otherwise than as laid down in Civ. Code, art. 203. it is impossible to hold what Vance said to the witness *609Lee * * * suffices to invest her with the title of a legally acknowledged * * • child.”
In addition to the said cases thus cited, the court might have cited the cases of Jobert v. Pitot, 4 La. Ann. 305, Succession of Hebert, 33 La. Ann. 1099, and doubtless others, for I have not sought to make an exhaustive research, not deeming same at all necessary under the circumstances, the decisions being all one way. And since this Vance Case was decided the recent case of Briggs v. McLaughlin, 134 La. 133, 63 South. 851, has been decided in the same sense.
The overturning of this jurisprudence in an In re case, without the hearing of argument, is a dangerous practice. What assurance have we that our successors upon this bench will not return to that jurisprudence ?
In the majority opinion it is'said that our jurisprudence has “vacillated” on this point, and in support of that assertion the cases of Pigeau v. Duvernay, 4 Mart. (O. S.) 265, and Dupre v. Caruthers, 6 La. Ann. 156, are cited. The former of these cases was decided in 1816, whereas our Code was adopted in' 1825. The decision therefore cannot be said, to have been an interpretation of our Code. The other of these cases was decided by Justice Preston alone, a strong judge, no doubt, but better versed, as is well known, in the common law than in the civil law. Justices Eustis and Slidell concurred only in the decree, which could only mean a dissent from the doctrine of the ease; while Justice Host, one of the ablest judges we have ever had on this bench in a separate opinion, frankly dissented. But, conceding everything that can be said for those two decisions, why return after these many years to a conclusion authoritatively' repudiated by a subsequent jurisprudence long adhered to?
Even if I thought myself wrong in everything I have thus far said, I should still dissent, for the reason that a point of this kind, after it has been properly considered and decided, and the decision adhered to in subsequent cases,, and a jurisprudence thereby established, should stay decided.
PER CURIAM.Rehearing granted.
MONROE, C. J., and PROVOSTY and DAWKINS, JJ.All of the issues in this cause having been compromised and settled between the parties, and all of the parties hereto having joined in the request as to the former judgment of this court, rendered on the 3d day of November, 1920, decreeing the defendants and applicants to be the owner of the property in dispute, all as is more fully shown by the joint application of all of the plaintiffs and the defendants, it is therefore ordered, adjudged, and decreed that the former judgment of this court rendered on the 3d day of November, 1920, be, and the same is hereby, reinstated and made final, and the defendants and applicants are decreed to be the owners of the property involved in this litigation, and the costs are ordered paid by defendants, all in accordance with the consent of the parties on file.