Dissenting Opinion.
Fenner, J.I fin'd it impossible to concur in the decree rendered herein.
In the view which I take of this case, the learned opinion delivered •on behalf the majority of the Court overturns the settled jurisprudence ■of the State on all the questions which it determines, and omits to •determine at all the only question left open to controversy under that jurisprudence.
To establish this, it is only necessary to refer to the latest decision on the subject, in the City of New Orleans vs. St. Anna’s Asylum, 31 An. 292, which reviews all prior decisions and states the substance of the “settled jurisprudence,” including the proposition, “that all grants of exemption made after the adoption of the Constitution, of property not in terms covered by it, were void,’and that all prior grants of exemption inconsistent therewith were repealed thereby unless protected by contracts.”
It is to be borne in mind that the Court, in the above case, was discussing a statute, incorporating the Orphan Boys’ Asylum, passed in 1836, the very year in which the statute incorporating the defendant corporation was passed, and absolutely identical in the terms of •exemption. The Court says : “ Under this settled jurisprudence, there can be no doubt of the liability of the property in controversy, unless removed from the general rule by some exception. Such exception is ■claimed as resulting from the charter of the defendant corporation, by which it is contended that a contract was created divesting the State of all power to repeal the exemption claimed.” .
Proceeding, the Court quotes the exemption clause of the charter, identical with that now under consideratian, and says: “ The mere existence of this statute would not alone entitle the property to exemption, for, as we have already seen, all statutory exemptions incompatible with the existing constitutional provision have, by it, been repealed. The •solitary question, therefore, is, was this exemption a contract of such a nature as to invest the corporation with such a right as to remove it from all subsequent legislative control ? ”
It cannot possibly be disputed that this decision does positively settle the point that the Constitution of 1868 did repeal all prior inconsistent exemption laws, unless protected by the element of contract; and does settle that an exemption law, precisely similar to the one at bar, is inconsistent with it.
*861The opinion of my brethren in this case overrules the St. Anna’s case on both the above points. The St. Anna’s opinion is in harmony with all prior opinions of the courts organized under the Constitution of 1868.
I think that this Court, created under the Constitution of 187&, should, in all possible cases, abstain from overruling the construction placed upon the Constitution of 1868 by the courts organized under that constitution. I think the construction adopted by those courts on the present subject was clearly correct; but, if I doubted, I should follow their authority.
In this case, as in the St. Anna’s case, the only question left open to controversy is whether the exemption claimed was protected as a contract. There, the property, for which the exemption was claimed, was-acquired after the Constitution of 1868 was in force, and it was held that such property was not so protected, and it distinctly left open the ques- . tion as to prior acquired property to be determined when presented. In this case, it is presented, and should be determined. The opinion of my brothers fails, and, indeed, expressly declines, to determine it.
In my opinion, the exemption granted under the statute invoked in this case, is not protected as a contract. It was a mere privilege, without consideration, simply suspensive of the sovereign right of taxation, and susceptible of being recalled by the sovereign will. I do not think that one General Assembly has the power, without consideration, to divest even subsequent assemblies, and, still less, the people in convention, of the sovereign right of taxation.
I, therefore, dissent from the opinion and decree herein rendered.