The opinion of the court was delivered by
Pablo Sala, a resident of the parish of Orleans, died in said parish on the 25'th of October, 1894, leaving a last will and testament in which he^ appointed George. W.. Nott his testamentary, executor, and, in and, by. which be, constitute^ ; as, .bis, universal legatee bis sister,. Dona .Maria Sala, y. Fabrigas,. residi.ng,.in.jLlo.ret. de
In April, 1895, the Oharity Hospital at New Orleans brought suit in which it prayed that there be judgment in its favor, condemning the executor, Nott, to pay over and deliver to the treasurer of the Oharity Hospital the sum of twelve thousand five hundred dollars, or such sum as might be equal to ten per cent', upon all sums, or the value of all property which might fall to or become due to said Maria Sala, universal legatee of Pablo Sala.
' The demand was based upon the provisions of Act No. 130 of 1894 and upon the allegations that in this succession there fell to the universal legatee, Maria Sala, under and and by virtue of the last will and testament of the deceased, property and assets amounting to, at least, one hundred and twenty thonsand dollars after all the debts of the succession bad been paid or discharged. That George W. Nott was the executor of the deceased and was in charge of and had the administration of the succession property belonging to or falling to the universal legatee. That said legatee resided out of the State of Louisiana and was not a citizen of any other State or Territory of the United States, but a citizen or subject of the kingdom of Spain. That it was the duty of the executor to retain in his hands the tax for the benefit of the Oharity Hospital of ten per cent., for which, under the provisions of said Act No. 130, the said legatee was liable, and to pay the same to the ti’easurer of the Oharity Hospital.
The act referred to is entitled “An act to amend and re-enact Arts. 1221, 1222 and 1223 of the Civil Code relative to the tax due by foreign heirs, legatees and donees, repealed by Act No. 86, approved April 20, 1877.”
It reads as follows:
“ Be it enacted by the General Assembly of the State of Louisiana, That Arts. 1221, 1222 and 1223 of the Revised Civil Code relative to the tax due by foreign heirs, legatees and donees, repealed by Act No. 86 of 1877, Extra Session, be amended and re- enacted so as to read:
“Art. 1221. Each and every person not being domiciliated in this State, and not being a citizen of -any State or Territory-in thé Union,.who shall be ■ entitled - whether as heir, legatee or donee to the whole or.'any part of-the succession of a person'- deceased, whether'Page 1012such person shall have died in this State or elsewhere, shall pay a tax for the benefit of the Charity Hospital in New Orleans of ten per cent, on all sums on the value of all property which he may have actually received from said succession, or so much thereof as is situated in this State, after deducting all debts; when the inheritance, donation or legacy consists of specific property, and the same has not been sold, the appraisement thereof in the inventory shall be considered as the value thereof.
“Art. 1222. Every executor, curator, tutor or administrator having the charge or administration of succession property belonging in whole or in p'art to a person residing out of the State and not being a citizen of any other State or Territory, shall be bound to retain in his hands the amount of the tax imposed and to pay over the same to the treasurer of said hospital, in default whereof every such executor, curator, tutor or administrator and. his securities shall be liable for the amount thereof.
“Art. 1223. It shall be the special- duty of clerks of court to see that the tax imposed by the preceding section be collected and paid over; and each of such clerks shall be bound to furnish the auditor and the treasurer of said hospital once in a year a statement or list of the successions opened in his parish whereof persons who are neither residents of this State nor citizens of any other State or Territory in the United States are heirs, legatees or donees, in whole or in part, and of the amount accruing to such persons, and any clerk failiug to furnish such statement or to comply with the provisions of the law relative to vacant successions shall be responsible to the State for the amount due.”
Before plaintiff’s petition was put at issue Dona Maria y Pabrigas was, by decree of the District Court, recognized as the universal legatee of the deceased and put in possession as such.
This decree was rendered with the consent of the Board of Administrators of the Charity Hospital, under an agreement entered into between the board and the legatee, that in order to secure the Charity Hospital in case final judgment should be rendered in favor of the plaintiff on the present demand, a certain plantation; known as the Zeringue plantation, should not be sold by the legatee. Dona Maria Sala y Pabrigas (Maria Sala) having been placed in possession, answered plaintiff’s petition. Having first pleaded the general issue she admitted that she was the universal legatee of Pablo Sala,
The portion of the treaty relied on is its eleventh article, which is as follows:
Article XI.
“ The citizens and subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other by testament, donation or otherwise, and their representatives being sujects of the other party shall succeed to their said personal goods, whether by testament or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein the said goods are, shall be subject to pay in like eases.
“ And in ease of the absence of the representative, such care shall be taken of the said goods as would be taken of the goods of a native in like case until the lawful owner may take measures for receiving them.
“ And if questions shall arise among several claimants to which of them the said goods belong, the same shall be decided finally by the laws and judges of the land wherein the said goods are. And where on the death of any person holding real estate within the territories of the one party, such real estate would by the laws of the land descend on a citizen or subject of the other were he not disqualified by being an alien such subjects shall be allowed a reasonable time to sell the same and to withdraw the proceeds without
The District Court rendered judgment in favor of the defendant, rejecting the claim of the Charity Hospital, and it appealed.
The position of the plaintiff is thus stated in the syllabus of the brief filed in their behalf:
“ Article XI of the Treaty of 1795 between the United States and the kingdom of Spain guarantees to the citizens or subjects of the contracting parties acquiring property by testament, donation or inheritance, situated in the territory of the other, specific rights as to movable and immovable property so acquired; the rights as to each class of property are different and distinct fiom the other; as to movables, the only guarantee given is that the citizens or subjects of the one shall pay no dues or charges not imposed upon the citizens or subjects of the other situated in'like circumstances (and a portion of our citizens are liable to this tax) ; that as to immovables, the only right conferred is that where the laws of the State in which the property is situated prohibit an alien from acquiring real estate, such alien shall have a reasonable time to dispose of his legacy or inheritance and to remove the proceeds without molestation.
• “ As under the laws of this State a Spaniard- may acquire real estate by a title either gratuitous or onerous, the case contemplated by the treaty can not arise.”
' Plaintiff maintains that it is the duty of the court to enforce the law in every respect in which its provisions are-not squarely covered by the treaty; that a portion of our own citizens are liable to pay this tax. Defendant urges that the words “ personal goods” in the treaty do not mean “ personal property” in the sense of the common law of England and the United States, or movables in the sense of the civil law. That it is evident that the expression “personal goods” is synonymous with the Spanish term “ bienes person-ales,” which, like the Breach word “biens personéis,” signifies “ property personal to the party,”, whether it be ■ movable or immovable, and ineludes'both. That personal or movable property in Spanish would be “ bienes meubles; * * * that as the article of the Spanish treaty saving the succession property of the citizens of both countries from taxation is the same verbatim as the article of the Italian treaty,:the decision in the Rixner succession (48 An. 552):.should,dispose .of the present..case.” ....
We are next to consider what the situation is in respect to the tax claimed upon the immovables of the estate. The treaty deals directly and expressly eo nomine with immovables only in respect to the legal results which would be made to flow under the laws of either country, should foreigners be prohibited from owning real estate. It concedes, the existence of a continuing power and authority in the two governments to control and regulate the disposition of immovable property within their respective borders — a power of control which governments have much more jealously and tenaciously adhered to- and insisted upon than they have upon a similar control over movables. Oivil Code, Arts. 9 and 10. In view of that continuing power and with reference to a possible exercise of the same by either country in its harshest and broadest discrimination against foreigners through an obsolete prohibition of their owning immovable property the two governments stipulated that should this reserved power be so brought to bear by either upon aliens the citizens of the other should be none the less protected in their substantial rights of ownership in respect to the same. The property was to be made to enure to the benefit of the foreign heir by being converted into money and the money so obtained was to be received and held free from all charges against it by the government. The immovable was .to be considered practically for the purpose of ultimate ^benefit to
Plaintiff’s position is that the effect of the failure of the two governments in express terms to take any action in the treaty in reference to immovable property other than the special action just mentioned, is to leave the law of 1894, except under that special condition of affairs, operative against foreign heirs and legatees in-all other respects as to that species of property, unless the law itself be unconstitutional. We are therefore called on to see whether we-are authorized to give to the words “ personal goods” found in the first paragraph of the eleventh article of the treaty the meaning attributed to them by the defendant and make them' cover immovable property. The treaty appears to have been drawn up in English. Whether there was or was not a' Spanish duplicate of the same we do not know. If there was a duplicate we have not been informed what words appear therein as those corresponding to the terms we are now considering. Defendant concedes that as English words they convey an idea opposed to that for which she is contending. The right of disposal in connection with the words “ personal goods” in the first paragraph of the article is there referred to as-an absolute one, not one which was in contemplation of parties, susceptible of being withdrawn by either, while the language employed in dealing with the special case of aliens who might be prohibited from inheriting real estate does not, though found in the-same article, present the case by way of proviso or exception to-what had already gone before, but as an independent proposition on an independent subject not connected with the rights which had. already been therein fixed and provided for.
We are of the opinion that the words “personal goods” in the-first clause of Art. XI of the treaty were intended to cover and do-refer to and cover movable property exclusively, and that immovable property or real estate is referred to and dealt with in the> •treaty only in its third clause.
We are further of the opinion that the only a'etion taken by the-two governments in respect to immovable property was to deal withi and provide for the consequences of the special case where foreign~ ers in either country should have been prohibited from inheriting-real estate, and that the effect of this limited action is to leave the;
The view which we take of the treaty forces upon us an examination of the constitutionality of Act No. 130 of 1894. The statute is attacked as being in conflict with Art. 35 of the Constitution, which requires' that all bills for raising a revenue and appropriating money to originate in the House of Representatives. It is conceded that the act originated in the Senate. Plaintiff denies that the act is one raising •revenues, or appropriating money, It claims that the statute is a legal limitation upon the right of inheritance; that it simply affixes •as a necessary condition for the existence of a capacity to receive by •succession the payment of a certain sum; that the claimant can not urge the rightand, atthesame time, repudiate the condition on which it was granted; that the money ordered to be paid is that of the individuals who pay it and not funds of the State, and therefore there can be no “appropriation” made in the sense that term is •employed in Art. 35 of the Constitution; that the House of Repré-' ■sentatives is designated as the body to originate bills for revenue •upon the theory that the citizens of th'e different parishes are Specially concerned in the imposition of taxes, as it is from them and their proporty that they are to be taken, and the members of the lower house are considered more directly the representatives of the taxpayers than are members of the Senate — that these money's aré to be drawn from aliens, and the people of the State have nó interest or concern in the question whether they should be made pay, and if so, bow much the amount should be.
’ We see nothing in the language of the statute making the payment •of the tax a condition precedent to a right of inheritance. The law permits the foreigner to inherit, but, having so inherited, charges him with the payment of the tax. The property and property rights of the foreigner found within the Státe are subject to taxation as is other property." C. C. 9. Its ownership is immaterial. The fact ¡that a succession right accrues to foreign heirs or legatees, and the funds to arise therefrom are liable to be immediately transferred' to '.a foreign country, furnishes no good ór suffieiept legal reason why, ¡■While in the'State, they or their owners should not be'taxedlike other
The beneficiary of the fund to be raised from foreign heirs, legatees and donees under the act of 1894 — the Charity Hospital — is a public institution of the State — one sustained almost exclusively by State appropriations, authorized to be made on its behalf under Art. 204 of the Constitution. All moneys reaching its administrators under the act would reach it as having been derived really irom the State, lightening, to that extent, the necessity of State direct aid. Neither the mere form or process by which and through which the funds would be transmitted to the institution, nor the limited number of persons to be affected by the legislation, would change the character of the contribution or alter the real source from which they came. In our opinion the act is one intended to raise a revenue by a tax on property rights in the State, and one in reality appropriating the revenue to be'derived therefrom to one of the public institutions of the State. That legislation of the character of that contained in the act of 1894 has been considered in the light of legislation concerning taxation will appear from an examination of the revenue acts of 1848 and 1850.
. For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.