State v. Citizens' Bank

52 La. Ann. 1086 | La. | 1900

Lead Opinion

The opinion of the court was delivered by

Nicholls, C. J.

On the 4th of June, 1894, on motion of C. H. Parker, tax collector of the First District, of the City of New Orleans, through Edwin Ii. McCaleb, Jr., attorney-at-law, appointed by the Governor of the State of Louisiana to. aid the tax collector of the Parish of Orleans in collecting the licenses for this parish, suggesting that 'the Citizens’ Bank of Louisiana was, and had been, conducting the business of banking, at 1,34 Gravier street, without any license from the State of Louisiana, and that its declared or nominal capital or surplus exceeds the sum of two millions of dollars, and further suggesting that all persons, who conduct business without obtaining a license from the State, before the first day of March, 1894, are declared delinquent, and suggesting to the court there was due by defendant to the State of Louisiana the sum of twenty-four hundred dollars, with two per cen,t. per month interest from March 1st, 1894, and as attorney’s fees, -five per cent, on said amount and interest and costs as a license for the year 1894; it was ordered by the Civil District Court for the Parish of Orleans, that the Citizens’ Bank show cause why it should, not pay twenty-four hundred dollars to the State of Louisiana for license for 'the privilege of conducting the above mentioned business during the year 1894, with two percent.. interest per month from March 1st, 1894, and as attorney’s fees, five per cent-:' on said amount, .and interest and costs, or be enjoined or restrained from the carrying on of said business until the said license, interest, five per cent, attorney’s fees thereon, and costs, be paid, and that the Citizens’ Bank be required to show, further, why this rule should not be made absolute, and judgment rendered in favor of the State of Louisiana for twenty-four hundred dollars, with interest, as set forth, five-per cent, thereon for attorney’s fees, and costs, and said injunction be perpetuated.

The Citizens’ Bank answered, pleading the general issue.

It then averred: That by virtue of the provisions of its charter, and especially by Section 4 of the Act of the Legislature of 1836, amending the said charter, the capital of the bank was exempted from any tax laid by the State, or by any parish under the authority of the State, during the continuance of said charter.

That the said exemption was granted by the State for á valuable consideration fully stated in the charter, which constituted a contract between the defendant and the State of Louisiana; that the license demanded was a tax upon the capital of defendant, intended to operate upon it in a different form of taxation, but with the same effect as an ordinary tax; that the imposition of the said tax was an impairment of the said contract between defendant and the State of Louisiana; that the law imposing the said license was, therefore, violative of Section 10 of Article 1 of the Constitution of the United States, and of the provisions of the Constitution of the State of Louisiana of 1812, under which the charter of defendant was passed, and of the provisions of the subsequent Constitutions of the State of Louisiana.

Defendant, therefore, pleaded the illegality and unconstitutionality of the said law imposing the license demanded. Defendant further averred that it had been decided and decreed by final judgments in five several cases between defendant and the State of Louisiana 'that the capital of defendant was exempted from all taxes of either the State or municipal authorities; that the said judgments were rendered by courts of competent jurisdiction in the following cases:

First. — By the Supreme Court of Louisiana in No. 7,368, Citizens’ Bank of Louisiana vs. L. Bouny, State Tax Collector (32nd Ann., 239).

Secondly. — By the Civil District Court for the Parish of Orleans, in No. 12,429, Citizens’ Bank of Louisiana vs. Board of Assessors et al.

Thirdly. — By the Civil District Court for the Parish of Orleans, in No. 19,144, Citizens’ Bank of Louisiana vs. Board of Assessors et al.

Fourthly. — By the Civil District Court for the Parish of Orleans, in No. 20,541, Citizens’ Bank of Louisiana vs. Board of Assessors et al.

Fifthly. — By the Supreme Court of the United States, in No. 108, October term, New Orleans et al. vs. Citizens’ Bank of Louisiana.

Defendant averred, that each and every one of the said judgments constituted res judicata of the question of exemption from all taxation of the capital of defendant.

Defendant, therefore, pleaded the exception of res judicata against the demand contained in the rule to show cause, as established, "and decreed in each one of the said causes.

It is therefore prayed that it be excused from answering certain interrogatories propounded to it; that there be judgment in its favor dismissing plaintiff’s demand . The interrogatories here referred to were subsequently answered, by consent, without prejudice to any of the defenses set up by the bank.

The questions and answers were as follows:

“Q. Have you not been conducting and carrying on business during the year 1894, as set forth in the rule taken on you in these proceedings and are you now carrying on said business?

A. Yes.

Q. ' Do not your declared or nominal capital or surplus from said' business exceed the sum stated in said rule?

A. No.

Q. Were not your declared or nominal capital or surplus from said business, during the year 1894, between two million dollars and three million dollars ?

A. No.

Q. Do you not owe your State license for 1894, for conducting or carrying on business, as set forth in said rule with interest bn said sum at the rate of two per cent, per month from March 1st, 1894, five per cent, thereon for attorney’s fees and all the costs of these proceedings ?

A. No.

Q Do you owe any State license for the year 1894? Then, if so, how much do you owe; and for carrying on or conducting that business?

A. No.

Q. Are not all the statements and allegations in the rule taken herein on you, true? If any allegation be untrue or incorrect, set forth the error and correct the same ?

A. During the year 1894, the capital of the bank was three hundred and eighty thousand, two hundred dollars, and the undivided profits were eighty-eight thousand, nine hundred and twenty-nine dollars and twenty-two cents, as per published statement of the 31st of October, 1894.”

On the trial, plaintiff offered in evidence the return made by the Citizens’ Bank to the State Treasurer for the year 1894, a statement showing the declared and nominal capital and surplus of the Citizens’ Bank for the year 1894; also Act No. 19 of 1880, and an extract from the minutes of the Citizens’ Bank of November 5th, 1880, showing an acceptance of the stockholders of that bank of the provisions of said act. The defendant offered in evidence the charter of the Citizens’ Bank and. the various acts of the Legislature amendatory thereof, also the pleadings and judgments in the cases referred to in its pleadings, and set up as res judicata.

The District Court rendered judgment in favor of the defendant, and the State appealed.

Opinion.

The District Court did not pass upon the exception of res judicata, urged by 'the defendant, assigning as its reason “that it did not appear that the issue of an exemption from a license had been presented in any of the cases and judgments relied on to support the plea.”

In State ex rel. Citizens’ Bank vs. Board of Assessors, 48th Ann., 35, this same exception was advanced, but overruled.

Referring to it, we very briefly said: “The cases to which the bank refers in support of the plea involved the furniture, the banking-house property and the shares of stock of the corporation. The property upon which it was attempted to assess taxes in those suits is different from that in the instant suit, and the issues are essentially different.

The property which it is attempting- to relieve from taxation is certain real estate specially mortgaged to the bank to secure the payment of eight hundred and fifty-four shares of the capital stock of the bank.

The bank foreclosed the mortgage and purchased the property “in order to make the debt.” There is much less ground, in this case, for the application of the doctrine of res judicata to the issues raised in it than there was in that just referred to; there the tax resisted, like those resisted in the cases relied on, was, at least, a tax of the same character; that is, a tax upon “property,” while the tax involved in this litigation is one esscntally different; it is a tax, it is true, but one upon callings or occupations, and it is controlled and goverened by rules and principles entirely different from those which bear upon property taraton. (City of New Orleans vs. Louisiana Savings Bank, 31st Ann., 638; Walters vs. Duke, 31st Ann., 671; Parish of Morehouse vs. Brigham, 41st Ann., 667). Articles 203, 206, 207 and 209, of the Constitution of 1879 also disclose this very fullly and clearly (see City vs. Ernst, 35th Ann., 746, and State ex rel. Ernst vs. Assessors, 36th Ann., 347).

The Supreme Court of the United States (in one of the very cases on which defendant relies to sustain its exemption), in emphasized language, recognizes that fact. (New Orleans vs. Citizens’ Bank, 167 U. S., 372).

We see no force in the plea, and it should not be, and it is not now, sustained, but rejected.

The defendant urges that the license tax is substantially one upon its capital. The views expressed by us above indicate our opinion upon this point. The mere reference in the license acts to the) declared or nominal capital or surplus from business or banking institutions is not a tax upon the capital or surplus itself of the different banks, but a mere method of classifying the banks and establishing a graduation of licenses as required by Article 206 of the Constitution. (State of Louisiana vs. Liverpool and London and Globe Insurance Co., 40th Ann., 463; Parish of Morehouse vs. Brigham, 41st Ann., 666).

This court, in City of New Orleans vs. State National Bank, 34th Ann., 892, said: “A provision in the charter of a corporation exempting its stock and real estate from taxation, does not cover an exemption from license taxation. The grant of a charter to a bank, authorizing it to carry on a certain business during the term of its charter, does not import permission to do so without contributing to the support of the government in like manner with natural persons pursuing the same business.”

Reference was made by the court to New Orleans vs. Canal Bank, 32nd Ann., 104; City of New Orleans vs. Peoples’ Bank, 27th Ann., 646, and 32nd Ann., 84, which bear upon the same subject.

Defendant contends that the imposition of a license is a violation of a “contract right” between itself and the State. It says “that by virtue of the provisions of its charter, and especially of Section 4 of the act of the Legislature of 1836, amending its said charter, the capital of defendant is exempted from any tax laid by the State or By any parish under the authority of the Sta.te during the continuance of said charter. That the said exemption was granted by the State for a valuable consideration fully stated in the said charter, which constituted a contract between the defendant and the State of Louisiana. That the license demanded herein is a tax upon the capital of defendant, intended to operate upon it in a different form of taxation, but with the same effect as an ordinary tax. That the imposition of the same is an impairment of the said contract between the defendant and the State of Louisiana. That the law imposing the said license is, therefore, violative of Section 10 of Article 1 of the Constitution of the United States, and of the provisions of the Constitution of the State of Louisiana under which the charter of defendant was passed, and of the provisions of the subsequent constitutions of the State of Louisiana. Defendant, therefore, avers and pleads the illegality and unconstitutionality of the said law -imposing the license herein demanded upon defendant.”

The extent of the exemption granted originally from taxation was from “taxation upon its capital.” It could never have claimed greater or other exemption than that. The law of 1890, the unconstitutionality of which is pleaded, does not pretend to impose, nor does it impose any tax upon the “bank’s capital’’ and, therefore, there could by no possibility be, nor is there, any violation of any contract obligation through that act even should there really be any existing obligation at all between the State and the defendant as to taxation.

We are not called on in this case to enter into any discussion or examination of the general relations between the State and the Bank. We confine ourselves to the subject matter of the license demanded of the bank.

Pretermitting any opinion as to the power of the General Assembly of 1874 by extending the charter of the bank to January, 1911, to extend the exemptions from taxation granted by the charter which expired in April, 1884, we think the acceptance by the bank of the provisions of Act No. 79 of 1880, would have extinguished any right to claim exemption from this license, even, if but for this, the right of such exemption would have existed. In order to enable the bank to make compromises with its mortgage stockholders, the General Assembly of 1880 enacted Act No. 79 of 1880. Section 4 of the act' provided “that this act shall not be binding, or confer any right upon the bank, unless accepted within twelve months from the date of this act, and under the conditions of Articles 234 and 237 of the Constitution, such acceptance to be manifested by the bank in writing, and filed in the office of the Secretary of State.” The defendant can claim no exemption from license taxation under the Constitution of 1890.

Referring, in State ex rel. Citizens’ Bank vs. Board of Assessors, 48th Ann., 39, to the acceptance by the bank of the Act No. 79 of 1880, this court said:

“A written acceptance of the act was filed by the bank with the Secretary of State. * * * That the act was for the benefit of the bank is made certain by the acceptance and the test of the same. Article 234 forbids the altering or 'amending of any charter of an existing corporation for the benefit of such corporation, except upon the condition that such corporation should thereafter hold its charter subject to the provisions of the Constitution of 1879. * * * The acceptance of the benefits, of that act brings the corporation under the provisions of Article 237 of the Constitution. * *

We think the Citizens’ Bank has heretofore obtained all that it is entitled to, the exemption from taxation of its capital proper, and the real estate necessary for the carrying on its legitimate business or purposes.”

The terms of Article 234 of the Constitution of 1879 are broader than they are stated to be in the decision quoted from. That article is as follows:

Article 234. The General Assembly shall not remit the forfeiture of any corporation now existing, nor renew, alter or amend the same, nor pass any renew'al or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution.

The defendant can claim no exemption from license taxation under the provisions of that Constitution, or of the laws of the State relative to such taxation.

But we do not find that defendant’s liability for a license tax, for the year 1894, comes within the fourth class of paragraph 2 of Section 3 of Act No. 150 of the acts of 1890. It does not, therefore, owe the sum of twenty-four hundred dollars as a license tax for that year.

Its liability comes under the ninth class of said paragraph 2, Section 3 of the Act of 1890, and the amount it owes as license for the year 1894 is four hundred and fifty dollars.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now adjudged and decreed that the State of Louisiana do have and recover of the Citizens’ Bank of Louisiana, defendant herein, the sum of four hundred and fifty dollars as a license tax due by the said bank for the year 1894, with two per cent, per month interest thereon from March 1, 1894, until paid, together with costs of both courts.

It is further ordered, etc., that plaintiff do further recover from said bank five per cent upon the amount of this judgment as attorneys’ fees.

Monroe, J., takes no part, the case having been submitted prior to his appointment on this bench.

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Rehearing

On Rehearing.

Monroe, J.

The pleadings and facts in this case are set forth in the original opinion, and need not be recapitulated.

The plea of res adjudícala rests upon the proposition that a license tax is a tax upon the capital of the bank, and hence that a judgment declaring such capital exempt from taxation establishes the “thing adjudged,” with respect to the present claim for a license.

Although this question can no longer be considered an open one, we have given the able presentation of it, by the learned counsel for defendant, our serious consideration. We find the authorities cited in the original opinion conclusive upon the subject, however, and 'they are binding upon this court. It may be remarked, in addition, that if exemption of capital, necessarily, or in the contemplation of law makers, carried with it the exemption of the occupation of the owner of the capital, it seems hardly, probable that the Constitutions and laws of this State would, for many years, have contained separate provisions upon those subjects.

In so far as concerns the judgment of the Supreme Court of the United States in the matter of “The State of Louisiana ex rel. Citizens’ Bank vs. Board of Assessors ” taken up by writ of error to this court and reported in 167 U. S., 407, that judgment affirms tho judgment of this court, as reported in 48 Ann., 35, to the effect that “Where the Citizens’ Bank subjects property to its ownership which was mortgaged to secure stock subscriptions, the property is not exempt from taxation, as part of the capital stock of the bank,” and nothing else was decided in that case. In the case entitled “City of New Orleans vs. Citizens’ Bank,’’ 167 U. S., 373, appealed from the Circuit Court of the United 'States, there were three questions presented and decided, viz:

1. The majority of the court, sustaining the plea of res adjudicata, held that the bank is not liable to taxation on its capital stock, or its banking house, or furniture, used for its business, and that it can not be required to pay a tax assessed upon its shares in the hands of its shareholders.

2. It was further held that the bank is liable to taxation on property acquired in foreclosure of mortgages.'

3. It was further decreed that the claim of the bank to the non-liability of its shareholders to taxation should be rejected, and the question left open.

4. And, finally, the court refused to sustain the proposition “that the non-liability of the bank to taxation embraced also immunity from the payment of a license :tax to either the State of Louisiana, or the City of New Orleans,” and held that the question of non-liability for such license tax was not in the case.

It is manifest, then, that, whether the bank is liable for a license tax, was not decided. On the other hand, it was decided that the question of immunity from taxation on capital does not embrace or include the question of immunity from a license tax. Again, the Circuit Court had held that the bank was exempt from taxation on mortgaged property, bought in by it, because the property so acquired became, by virtue of the purchase, a part of its capital stock. But the Supreme Court said: “Evidently it was a confusion of thought on this question, which led the court below to hold that the property bought in, in enforcement of the stock mortgages, and held by the bank, was the capital of the bank, and, therefore, not liable to taxation.”

It is said that, even though it be held that exemption from license taxation is not included in the language by which exemption from capital taxation is conferred, the court must, nevertheless, be convinced that it was the intention of the State that exemption from taxation, upon the business, or occupation, of the bank, should be included in the grant, for the reason, that, by the act of 1836, the bank acquired the character of an agency, established by the State of Louisiana for governmental purposes, and that it would be unreasonable to suppose that the State would hamper the operations of its own agent by requiring it to pay a tax; and that such intention becomes all the more improbable in view of the fact that the capital of the bank was expressly exempted from taxation during the continuance of its charter, and the exemption thus accorded has been held and construed by the various departments of the State government, from 1836 up to within a few years past, to include exemption from taxation such as is now sought to be imposed.

There is nothing in the pleadings upon the subject of the construction placed by the officers of the State upon the exemption granted to the bank; nor was any evidence offered bearing upon that subject, save the pleadings and judgments in the suits relied on to sustain the plea of res adjudicata, and they show, conclusively, that from 1878, up to the present time, the officers charged with the assessment and collection of taxes, have denied the exemption claimed by the bank on its capital, and have endeavored to compel it to pay taxes, and that, in some respects, the claim of the bank has been sustained, whilst, in other respects, it has not been sustained. Thus, the claim that it was exempt, with respect to mortgaged property bought in by it, appears to have been as urgently pressed as any other part of its demand, and yet the Supreme Court, in the case already cited (167 U. S.) says, upon the subject: “The record affirmatively shows that for many “years after the charter was adopted, the property acquired by the “ bank under foreclosure of mortgage was taxed like property of other “citizens, and the tax was voluntarily paid. ‘Indeed’ (says the “ court) ‘it was stated in the discussion at bar, and not denied, that “ the supposed right of the bank to exemption on property acquired by “it, under foreclosure of mortgage, was for the first time asserted “ in this suit, and that for the long series of years which had elapsed “ since the organization of the bank, that character of property was “regularly taxed, and the tax paid.’” And the judgment of the Circuit Court, decreeing such property exempt, was accordingly reversed. Eor' the purposes of the present case, therefore, we shall be unable to consider the effect of any supposed construction of thedaw under which the exemption is here claimed, or of any acquiescence in such contraction by the officers charged with the execution of the law. This suit was brought in 1894, for the collection of the license for the current year, amounting, as appears from the original opinion,' to $450.00. We should not, therefore, be called upon, even if the pleadings and evidence were other than they are, to deal with the question of giving a retrospective operation to a new and suddenly conceived construction of a law which had long been otherwise interpreted, and of thereby requiring the payment of a large sum for licenses, for years during which no one believed them to be due and no demand was made for their collection. When such a case is presented, it will be considered upon its merits, as was the case of the “State vs. The Comptoir National, etc., 51 Ann., 1272, which has been invoked. That case can not, however, be considered authority for the proposition that the State can be permanently estopped from enforcing the collection of its taxes by the previous acquiescence of its officers in a misconstruction of the law. Upon the contrary, express reference is made in the opinion to the fact that the future taxation of the defendant had been provided for, and it was found, moreover, that the statute under which the State claimed was inapplicable to the case.

Returning to the question; what should be presumed to have been the intention of the State, in view of the relations established between it and the bank by the act of 1836, and by other acts, subsequently passed? The main proposition advanced by counsel for the defendant relates to a supposed general understanding, in 1836, and is fairly summed up in the following statement, in one of their briefs:

“The idea that prevailed at the time the bank was established was that the enterprise was, in a certain sense, a State, rather than a private enterprise; that the carrying on of the business designed to be ■ carried on, was an inestimable boon to the State, not merely sanctioned by the State, but in which the State herself engaged. - It was inconsistent with the fundamental object of such an enterprise, the administration of which was controlled by the State, that it should be subjected to any license tax.”

There is no evidence before us as to the condition of public sentiment in 1836 concerning the enormous aid extended by the State to what all writers and jurists would concur in holding’ to be, and to have been, a private corporation. It is not doing violence to probabilities, however, to suppose that there were some persons, not connected. with the bank, who doubted the propriety of using the credit of the State in that way. At all events, the experience of the State, in aiding property banks, and other enterprises, would seem not to have been either pleasant or profitable, as may be inferred from the character of some of the provisions incorporated in the Constitutions adopted since that time. Thus, the Constitution of 1845, prohibited the State from subscribing to the stock of any corporation, and prohibited the creation, renewal, or extension of any corporate body with banking or discounting privileges, and restricted the power of the State, with reference to contracting debt, by provisions which were, at once, stringent and peculiar (Arts. 121, 122, 114). In the Constitution of 1852, there was some relaxation with regard to aiding corporations for works of public improvement, but those possessing banking or discounting privileges were especially excluded (Art. 109). And the Constitution of 1864 contained a similar exclusion (Art. 112). The Constitution of 1879 contained a number of provisions intended to guard the State against the encroachment of corporations, and, among others, one, prohibiting the loaning, pledging, or granting to them, of the “funds, property, or things of value of the State, or of any political corporation thereof” -(Art. 59). And a provision identical in language is to be found in the present Constitution (Art. 58). When we turn, for information, as to the relations between the Citizens’ Bank and the State, to the legislation upon the subject, we find a volume, beginning with the act of incorporation, in 1833, and extending over a period of nearly fifty years. The bank was started as a purely private venture, planned upon a large scale and contemplating the use of twelve millions of dollars in a variety of enterprises which seemed calculated to develop 'the resources of the State, and to put money into the pockets of its originators. There was no eleemosynary feature about it, and nothing that would conceal from an ordinary business man 'the fact that the resourses of the State were to be developed for no other immediate purpose than to promote the prosperity of the Citizens’ Bank and its incorporators. Even the mass of individuals comprising the public at large seemed to Lave been of that opinion, and the invitations extended to them to contribute were not accepted. Three years later, in 1836, therefore, the General Assembly was again appealed to, and another act was passed, the first section of which reads as follows:

“Be it enacted, etc., That, in order to facilitate the Citizens’ Bank of Louisiana in the negotiation of the loan of twelve millions of dollars, authorized by the act of incorporation of the first of April, 1833, the faith of the State is hereby pledged for the security of the said sum of twelve million dollars, or such part thereof as may be required by said bank.” This section is followed by others, establishing certain relations between the bank and the State, and the act itself was followed by numerous acts, the titles of which are indiees of the disasters which resulted from that relation. Within less than six years, the bank had obtained over six millions of dollars upon bonds furnished by the State; its entire scheme of development had been broken down; and its charter had been forfeited by judgment of court. Since then, and for nearly sixty years past, the Legislature and the courts have been afforded occupation in dealing with the wreck.

Section 3 of Act 92 of 1843, being “An Act to Facilitate the Liquidation of the Property Banks, Chartered by this State” reads: “Be it further enacted, etc., That the assets of the Consolidated Bank of the Planters of Louisiana and those of the Citizens’ Bank of Louisiana, are, and shall remain in the possession and under the exclusive management of the State of Louisiana until final payment, by each of them, of all the State bonds issued in their favor.”

In 1852, an Act was passed entitled “An Act for the relief of the Citizens’ Bank of Louisiana’’, being No. 141, the preamble to which Teads as follows: “Whereas, the State of Louisiana is now responsible for bonds issued in favor of the Citizens’ Bank of Louisiana for a sum exceeding six millions of dollars, together with accruing interest; and, whereas, the present condition- of said bank is such as to expose the State to loss from the inability of said bank to meet the payment of said bonds and interest, if the liquidation of the bank be continued on the system now established by law. And whereas, the managers appointed by the State for said bank have represented that the stockholders will be enabled to secure thea State from said risk of loss if they be restored to the control and management of the affairs of said bank, with the rights, privileges and immunities possessed by said bank at the date of the decree of forfeiture, rendered against it in the First District Court of New Orleans, now the Fifth District Court of New Orleans, on the eighteenth day of October, 1842”.

And the Act then vacates the forfeiture and restores the administration of the affairs of the bank to the stockholders. In 1853, another act was passed (No. 246) whereby, and for the purpose of enabling the bank to raise a million of dollars, as a working capital, it was authorized to convert ten thousand shares of its mortgage stock into cash stock, and the method of voting the stock was so changed as to give 'to the cash stock holders a larger voice in the directory, and' probably the control of the bank.

Again, after some intervening legislation, an act was passed, in 1874, whereby the charter of the bank was extended, from April 1, 1884, the date at which it would otherwise have expired, to January 1, 1911, and the bank was authorized, with the consent of the holders.' to extend the bonds, which had been issued to it by the State, for twenty-five years. And, finally, in 1880, still another act was passed (No. 79) authorizing the bank, with the consent of 'the bond holders, to compromise with the mortgage stock holders, and thus disengage, and disentangle, its banking department from its mortgage stock department. And this last act was accepted by the bank, November 6, 1880, agreeably to its terms, and under the conditions prescribed by Articles 234 and 237 of the Constitution of 1879, which read as follows:

Article 234. “The General Assembly shall not remit the charter of any corporation now existing, n-or renew, alter, or amend 'the same, nor pass any general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of 'this Constitution.”

Article 237. “No corporation shall engage in any business other than that expressly authorized in its charter, or incidental thereto, nor shall it take or hold any real estate for a longer period than ten years, except what is necessary and proper for its own legitimate business and purposes.”

Let us concede now, that the bank, as organized under the Act of 1836, is to be regarded as, in some sense, a governmental agency, for the carrying out, with the co-operation of the State, of the scheme of public benefaction proposed by jts organizers. We know that within six years from that time the whole scheme had disastrously failed, and that the State stood to pay six millions of its bonds, upon which tlie bank had realized the money, unless the amount could be made out of the assets of the bank, whose charter had, in the meanwhile, been forfeited by judicial decree. From that time to this, the State has been endeavoring to protect itself against loss, without inflicting hardship on the subscribers to the mortgage stock, or injustice on the creditors of the bank; whilst a certain class of the stock holders of the bank, to-wit, those who were able to contribute cash, as provided by the Act of 1853, have been endeavoring to save something for themselves. The efforts of the State have not been altogether successful, as the jurisprudence of this court shows. The cash stockholders of the bank, upon the other hand, have cast off the burden of the mortgage stock department, (which was to have developed the agricultural, etc., etc., resources of the State), and are operating a bank for their own benefit, which is an ordinary bank in everything except the exemptions which it claims, and which were granted to a different institution. And it is on behalf of the bank, so conducted, and not of the mortgage stockholders, that said claims are made.

Conceding, therefore, that the relations between the bank and the State, at one time, justified the exemption which is set up in this ease (although upon authority and precedent, the exemption from taxation of the capital did not carry with it the exemption of the occupation), the reason for such exemption has long since passed. away, and the original grant has long since expired.

In this situation, the following language used by this court in another case, may properly be applied:

“Of one thing we are assured, that the xolaintiff company has no right to consider itself aggrieved by our decision. The privileges claimed by it are mere incidents of a burthen said to have been imposed. They are not claimed as independent rights, but merely to enable it to discharge an onerous duty. Relieved, as she now is, of this duty, every claim of incidental right vanishes.”

N. O. & Carrollton R. R. Co. vs. City of New Orleans, 34 A., 444.

But there are still other reasons why the exemption claimed cannot be allowed. The Act of 1814, in so far as it extended the charter of the bank, from 1884 to 1911, was to take effect only in 1884; from which we deduce; first, that the extension thus granted could add nothing not authorized by the Constitution of 1868, under.the dominion of which the Act was passed, and which required the payment of a license; second, that the grant, to take effect in 1884, became subject tii the Constitution adopted in 1879, which also required, or authorized, the Legislature to require, the payment of the license. Gosselin vs. Gosselin, 7 N. S., 470; Mayor vs. Ripley, 2 La., 345. But, even if this were not so, the acceptance by the bank of the Act No. 79 of 1880, specifically, and in terms, subjected it to the Constitution of 1879, and thereby placed it out of the power of the Legislature to exempt it from the payment of the license imposed on other institutions of the same class. And neither the Supreme Court of the United States, nor this court, nor any other court, so far as we are informed, has ever decided to the contrary. The decision of the Supreme Court of the United States, to which we have been referred, did not affect the question here presented, because the issue as to the liability of the bank for a license was not before it, and it was so declared in the opinion and decree. Nor has the question of “license” ever been presented to this court. But, in the case of State ex rel. Citizens’ Bank vs. Board of Assessors, 48th Ann., 35, where the question to be determined was whether the bank was liable to taxation on mortgaged property bought in by it, it was distinctly decided, upon the application for a rehearing, that, by its acceptance of the Act of 1880, the bank brought itself under the provisions of the Constitution of 1879, Article 237, which prohibited corporations from holding real estate longer than ten years, etc.

Referring to the Act in question, the court said:

“That the Act was for the benefit of the corporation is made certain by the acceptance of the benefit of the Act, and the text of the same. Article 234 forbids the amending, or the altering of the charter of an existing corporation for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of the Constituton of 1879. Article 237, which the bank accepted, as governing its charter, provides that “no corporation shall *' * *” etc. The acceptance of the benefits of the Act bring this corporation under the provisions of the above article * * *. To hold that the property purchased is part of the banking capital would, in effect, be to repudiate this article of the Constitution, and to nullify the bank’s acceptance of the same.”

The acceptance of the bank, which is in the record, after a preamble, reciting the meeting of the stockholders, and-the vote cast, leads: “Therefore, resolved: That the .Directors of the Citizens’ Bank of Louisiana do hereby accept the aforesaid Act No. 79, and the Cashier is hereby instructed to file a certified copy of this preamble and resolution forthwith in the office of the Secretary of State, in accordance with, and as required by Article 4 of the said Act.”

The Secretary of State certifies that it was filed in his office on November 6, 1880.

Article No. 4 of the Act, to which the acceptance refers, reads:

“Further, that this Act shall not be binding, or confer any right upon the bank, unless accepted within twelve months from the date of this Act; and under the conditions prescribed in Articles 234 and 237 of the Constitution, such acceptance to be manifested by the bank in writing, and filed in the office of the Secretary of State.”

Not only does Article 234 of the Constitution prohibit the remission of the forfeiture, and the renewal, altering and amending of the charter of an existing' corporation, save upon the condition that such corporation shall “thereafter hold its charter subject to the provisions of this Constitution,” but it prohibits the passage of “any general or special law for the benefit of such corporation,” save upon the conditions mentioned.”

It seems impossible, therefore, successfully, to deny that the bank accepted the Act of 1880, and thereby deliberately entered izzto a contract with the State, under the Constitution of 1879; and equally impossible to deny that this court has so decided.

Now, whether the bank did, or did not, accept the Act of 1880; and whether or not this court has so decided; and if it did accept, in what manner the Constitution and laws of this State apply to the condition resulting therefrom, are not federal questions, but are questions arising under the Constitution and laws of this State, which this court, always actiizg with the greatest respect for, and under the established jurisprudence of, the higher tribunal, wihose authority has been invoked, feels bound to determine for itself. Bisland vs. Provosty, 14 A., 174; Bucher vs. Cheshire R. Co., 125 U. S., 555; First National Bank vs. Chehalis Co., 166 U. S., 440; Nobles vs. Georgia, 168 U. S., 398.

Finding no error in the original decree rendered herein, it is ordered, adjudged and decreed that it be re-instated, and now made the judgment of this court.

Watkins, J., concurring, handed down a separate opinion. Breaux, J., and Blanchard, J., handed down separate dissenting opinions.