Dissenting Opinion.
Fenner, J.In order to avoid confusion, it is necessary to consider, separately and independently, the several questions presented by this case.
The defendant claims its exemption under and by virtue of act of February 22d, 1817, and act of March 24th, 1844, taken in connexion with act of March 12th, 1836, which provide substantially that all the property, real and personal, belonging to the institution, is exempted from all taxation, State, parish or municipal.
This exemption is unrestricted by any qualification whatever as to the use either of the property or of its revenues.
It is a striking fact, that the Constitution of 1812, in force when these statutes were passed, contained no provision whatever on the subject of taxation, but left the legislative power over the rate, mode, purposes and objects of taxation, entirely unrestricted. Therefore, the power of the Legislature, under that Constitution, to make the broad and unqualified exemption of defendant’s property was, at the time, unquestionable.
A large portion of the original majority opinion in this case was -devoted to the establishment of the proposition that the Constitution *863•of 1868 and the revenue laws passed in pursuance thereof did not operate retroactively or to repeal the exemption granted by the statutes ■above referred to.
If this proposition were correct, this case would be one of easy solution. It would only have been necessary for defendant to establish its •title to the property in order to sustain the exemption claimed, without reference to the use either of the property or its revenues.
I can, therefore, perceive no necessity or relevancy in the further elaborate discussion by the Court of the meaning of Art. 118 and of the terms “ actually used for church, school and charitable purposes,” nor in the conclusion that the defendant’s property is exempt because its revenues are used for legitimate charitable purposes.
I think that, under the terms of the Constitution, and under the jurisprudence of the courts established thereunder, the exempting statute was unquestionably repealed so far as inconsistent with the rule of taxation provided by article 118.
The position that in giving the Constitution this effect, we attribute to it a retroactive operation, is, to my mind, entirely unsound.
Article 118 of the Constitution of 1868 simply prescribed the rule of taxation to be thereafter followed by the legislative power. The rule operated for the future only, and the Legislature, in framing future tax-laws, was bound to follow that rule, and to disregard all prior statutes inconsistent therewith. If it might disregard the constitutional rule, and follow former statutes differing therefrom, the constitutional requirement would be vain and unavailing. '
The sweeping provision of Art. 149 of the Constitution of 1868 that •“ all laws in force at the time of the adoption of this Constitution and not inconsistent therewith, shall continue as if it had not been adopted,” is pregnant with an equally sweeping deduction that all laws, inconsistent with the Constitution, must cease to have effect.
This statute must stand on the same footing with all other existing statutes. So far as consistent with the Constitution, it remained in force; so far as inconsistent therewith, it was repealed and destroyed, unless protected by the element of. contract, which we are not now discussing.
Such was the distinct and unequivocal conclusion reached by this Court in the St. Anna’s Asylum case, where it was said, in discussing the very same statute here in question: “ 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.” 31 An. 292.
It is irrelevant to say that this decision is on appeal to the U. S. Supreme Court and is, therefore, not final as authority. On this point it is final, the only question carried to the Supreme Court being the ques*864tion of contract, which we are not now considering. The decision affirms the ease of City vs. Bank of Lafayette, 27 An. 376, which had declared that “ any law which is in conflict with that article (118), whether passed before, or after, its adoption, is stricken with nullity, unless the law created a contract.”
Eor this Court to overrule these decisions of the courts organized under the Constitution of 1868, is, to my mind, a violation of the cardinal rule that constitutions should receive an unvarying interpretation. “ The meaning of a constitution,” says Judge Cooley, “ is fixed when it is adopted, and it is not' different at any subsequent time when a court has occasion to pass upon it.” It is not to be made to mean one thing to-day, and another thing to-morrow. By our decision of to-day, the Constitution of 1868 is made to have a different meaning from that which it had when adopted, and continued to have during the whole term of its existence, according to the authoritative determination of the highest judicial tribunal created by it, and having authority to interpret its effect in the last resort.
The construction thus placed upon it by its own courts, was made the basis of legislative action in framing the revenue laws of t.he State and city, and our decision must operate seriously to derange the estimates of receipts and expenses, upon the certainty and correctness of which depends the financial system of both.
The same construction may well have influenced the minds of the framers of our present constitution in using, in its article 258, the same language with reference to prior existing laws, which had been used in article 149 of the Constitution of 1868, under the supposition that the effect would be to repeal exemption, as well as other statutes inconsistent with the constitutional rule of taxation, as had been decided to be the effect of the same words in the former Constitution. Aside from my conviction that the former decisions are correct, these and other like considerations would prevent me from consenting to overrule them.
The next point for consideration, is to determine the meaning of article 118, in order to decide whether the exemption here claimed is inconsistent with it.
The interpretation placed upon this article in the majority opinion is entirely contrary to that established by the existing jurisprudence.
In a ease later even than that of the St. Anna’s Asylum, the Court said: “ The grant of power to the General Assembly (in article 118) to exempt property actually used for church, school or charitable purposes, is an enumeration, and, hence, an exclusion of the power to exempt all property not included in its terms.” La. Cotton Mfg. Co. vs. City, 31 An. 443.
Precisely the same doctrine was first announced in Morrison vs. *865Larkin, 26 An. 702, where the Court said: "The special grant of authority in article 118 to the General Assembly ‘ to exempt from taxation property actually used for church, school or charitable purposes,’ carries with it an implied inhibition against the exemption of property not actually used for church, school or charitable purposes.”
The same doctrine was followed in 27 An. 646, id. 276, id. 648; 28 An. 498, 512, 756; Cooley’s Const. Lim. pp. 64, 87.
Then, unless the property here claiming exemption is “ actually used for church, school or charitable purposes,” the exemption (in absence of contract) cannot be sustained.
This brings us to the question as to what is meant by “ actually used ” for such purposes.
Here, too, the authorities are unanimous that the phrase means the actual use of the property and not of the income derived therefrom. Property is one thing — income is another.
Pour decisions of this Court sustain the doctrine that where the property itself is not used for the designated purposes, but is rented to others, who use the property for their personal purposes, it does not fall within the meaning of the phrase “ actually used,” although the revenues derived by the owner may be applied to charitable purposes. Dispersed of Judah case, 15 An. 390; St. Patrick’s Hall case, 28 An. 512; St. Anna’s Asylum case, 31 An. _; Mechanics’ Society case, 27 An. 436; see Burroughs on Tax., pp. 134, 136; Blackwell Tax Titles, 409, 410.
The learned counsel for defendant have utterly failed to point out any contrary authority either in this State or elsewhere, judicial or textual.
The case of University vs. People, 9th Otto, 324, the only one referred to on this point, turns out to be directly against him.
Prom a close examination of this case, the following facts, strikingly similar to the one at bar, appear: The Constitution of 1848 of Illinois authorized the exemption of “ such property as the Legislature may deem necessary for school, religious and charitable purposes.”
Under this constitution, the Legislature passed an act declaring that “ all property, belonging to or owned by said corporation, shall be forever free from taxation.”
Subsequently, in 1870, the State adopted a new constitution providing that “such property as may be used exclusively for school, religious and charitable purposes, may be exempted from taxation.”
The Legislature, then, in 1872, passed a law exempting only “ the real estate on which the institutions of learning are located, not leased by such institutions or otherwise used with a view to profit.”
Under this act, the State demanded taxes on property of the University leased by it, but of which the revenues were used exclusively *866for its educational purposes. The Supreme Court of Illinois, under the peculiar facts of the case, conceded that if the original exemption law was valid under the constitution of 1848, it constituted a contract not repealable by the subsequent constitution and law. But the Court held that, even under the constitution of 1848, the legislative power of exemption extended only to property used directly for school purposes, saying, “property for such purposes, in the primary and ordinary acceptation of the term, is property which, in itself, is adapted to and intended to 'be used as an instrumentality in aid of such purposes. It is the direct and immediate use, and not the remote or consequential benefit to be derived through the means of the property, that is contemplated.” The Court, therefore, maintained the tax.
The U. S. Supreme Court, in reviewing this decision, said: “ The first observation we have to make is, that the constitution (of 1848) does not say ‘ property used for schools,’ as the opinion of the Court implies. Neither the important word, use or schools, is found in the section of the instrument on that subject. If the language used were that the Legislature might ' exempt property for the use of schools,’ we should readily agree with that court. Indeed, that would be the appropriate language to convey the idea on which the Court rests its decision.”
The Court proceeds then to show that the constitution of 1848 gave the Legislature discretionary power to exempt property “ for school purposes,” without any reference to its use, and held that property leased, of which the revenues were applied to school purposes, was property held for school purposes, although not used for school purposes.
And the Court further places side by side the provisions in the constitution of 1848 and 1870, to show that the language used in the latter, and not in the former, was the proper language to be used, if the intention was to confine the exemption to property actually and primarily used directly for the school purposes, and to exclude property leased for other purposes, though the revenue was applied to the school.
Not the slightest question was made in either Court, that the later constitution repealed the prior statutory exemption, unless the latter was a contract, and both Courts agreed that the language employed in the later constitution, viz: “ Property exclusively used for church, school or charitable purposes,” only embraced property so directly and primarily used, and excluded property leased for revenue, although the revenue was employed for the designated purposes. It is impossible to draw a distinction between “ property exclusively used,” and “ property actually used,” for such purposes.
So far as my own researches have extended, and so far as I have been aided by the researches either of defendant’s counsel or of the *867majority of my brethren, I have been able to discover no single authority ■militating, in the slightest degree, against any of the positions herein ■assumed.
I am, therefore, constrained to conclude, that, unless protected as a -contract, the exemption claimed by defendant has no ground to rest on.
Upon this question of contract vel non, I have been seriously impressed with views of that subject expressed by the U. S. Supreme Court in the case of University vs. People, just discussed, and, under the facts of this particular case, might possibly change the opinion expressed in my former dissenting opinion. I shall, therefore, content myself with dissenting from the opinion of the Court herein, without .taking any position as to the decree.
The importance of the questions involved, as well as my sympathy with a noble charity, impel me thus to place of record the strong reasons which require me to oppose rulings favorable to interests.