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 New OrveEans, May 28, 1894. 
 Lo the flonorable Members of the General Assembly of Louts- 
 
 tana: 
 
 GENTLEMEN—On May 22, 1882, Mr. Paul Tulane made a 
 donation of real estate in the city of New Orleans valued at 
 $362,900 to certain citizens there for the higher education of 
 young white persons. In his letter of donation to the admin- 
 istrators of the fund appointed by him he used the following 
 language: 
 
 The fact that property donated for educational purposes is at 
 
 this time liable to taxation in the State of Louisiana has occasioned 
 me much embarrassment, as I should like to feel that the citizens 
 
 of that State, who are to be the beneficiaries of this donation, 
 
 should enjoy its advantages to the full measure of the value of 
 the property donated. There are other States whose laws do 
 not, by taxation, repel such gifts in aid of education, whose 
 wise example, I am assured, will be followed by the State of 
 
 ‘Louisiana and the city of New Orleans in this instance; and I 
 
 earnestly urge that you make immediate effort to secure the 
 exemption of this property from taxation, and be constant in so 
 doing until your efforts are successful. 
 
 The character of the property donated is to remain un- 
 changed. It can not be mortgaged, and it can not be sold nor 
 encumbered in any way, except at the end of not less than fifty 
 years, as hereinafter stated. Mortgaging it or selling it, and the 
 investment of the proceeds in stocks, bonds or other securities, 
 might and probably would lead to disaster, owing to the uncer- 
 tain and fluctuating nature of‘the value of securities of every 
 description. On the other hand, the real estate, the title to 
 which I intend to donate to you, is well located, and can not 
 fail to increase in value as the city shall become prosperous. 
 You must keep the property well-insured in solvent offices and 
 in good repair, so that the best rental possible may be realized. 
 
 Subsequently Mr. Tulane increased his donation to about 
 
 one million dollars, nearly all in stocks and bonds. 
 
 in response to this suggestion the General Assembly passed 
 Act No. 43, approved July 5, 1884, by which it made a con- 
 tract with the administrators of the Tulane Educational Fund 
 to devote all the revenues of that fund to the expansion and de- 
 
 velopment of the University of Louisiana, and to build up a 
 
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2 
 
 great university in New Orleans. In consideration thereof and 
 of alarge number of free scholarships, and of the release of 
 
 the State from a constitutional provision to grant an annuity of 
 
 $10,000 to the University of J.ouisiana, said Act No. 43 was 
 passed and submitted to the people for ratification in a consti- 
 tutional amendment. It is well known to you that this amend- 
 
 ment was adopted by an overwhelming majority. But before — 
 
 this ratification the question of the exemption from taxation of 
 Tulane University, in virtue of the legislative Act No. 43, came 
 before the Supreme Court of Louisiana, the decision of which 
 was delivered by Chief Justice Manning. This opinion is now 
 submitted to you, as it presents in authoritative and judicial 
 form from the highest tribunal of justice in this State not only 
 the law in this matter, but the principles that govern it. Legis- 
 lators will see that they are dealing with a State institution, 
 which is entitled to their generous consideration, and will re- 
 buke the blind jealousy which seeks to ignore that fact and to 
 enlist prejudices against a useful institution that is doing its full 
 duty to the State and to the people. 
 
 Very respectfully, 
 Your obedient servant, i 
 Wo. PRESTON JOHNSTON. 
 President of the University. 
 
 ~ 
 
 \ 
 
SUPREME COURT OF THE STATE OF LOUISIANA. 
 
 ADMINISTRATORS OF THE TULANE 
 CATIONAL FUND 
 Epuca (No. 9716. 
 5 US. 
 Tue Boarp oF ASSESSORS ET ALS. § 
 
 Appeal from the Civil District Court, Parish of Orleans. 
 CLERK’S OFFICE, New Orleans, April 5, 1886. 
 
 Mr. Justice Manning delivered the opinion and decree of 
 the court in the words and figures following, to-wit: 
 
 The Board otf Assessors of New Orleans placed upon the tax 
 roll for 1885 the property given by Paul Tulane to the plain- 
 tiffs to promote the education of the white youth of that city. 
 The object of the present suit is to annul that assessment on the 
 ground that the property is exempt from taxation. | 
 
 The same property was assessed in 1883 and the plaintiffs 
 then claimed the exemption of it from taxation and we held the 
 claim not good. State ex rel. Board of Assessors Tulane Edu- 
 cational Fund vs. Board of Assessors, 35 An. 668. 
 
 Since that decision was rendered the General Assembly have 
 passed an elaborate act the evident purpose of which is to ef- 
 fect an exemption of the plaintiff ’s property from taxation, and 
 our construction of that act will determine the question 
 whether the machinery adopted has accomplished the intended 
 purpose. 
 
 It is scarcely necessary to say that the General Assembly can 
 not exempt property from taxation by its own will. Unless the 
 expression of that will is in accord with the Constitution, it 
 . can accomplish nothing. 
 
 There has been for many years an educational institution in 
 New Orleans called the ‘‘ University of Louisiana.’? It was 
 founded by the State and has been fostered by it. For some 
 time only two colleges were in operation in it, those of law and 
 medicine. Later a college for the humanities has been added 
 under the humble name of an academical department. Succes- 
 sive constitutions of the State have repeated the injunction to 
 
4. 
 
 the Legislature to maintain it. The last Constitution has em- . 
 
 phasised this command and made it imperative. The General 
 
 Assembly shall from time to time make such provisions for the 
 
 proper government, maintenance and support of the University 
 of Louisiana as the public necessity and well-being of the peo- 
 ple may require. Const. 1879, Art. 230. The pecuniary aid 
 was limited to ten thousand dollars a year, and every Legisla- 
 ture since has appropriated the full sum, and we have held that 
 
 these appropriations have the character and rank of constitu- 
 
 tional appropriations. State ex rel. Ad. Univ. vs. Burke, 35 
 
 An. 457. : 
 The act of the General Assembly of 1884 begins its title with 
 
 the expression that the fostering, maintaining and developing 
 
 the University of Louisiana is one of its objects, and its pream- — 
 
 ble recites that the administrators of the Tulane Fund are 
 willing and desirous to take charge of that institution and to 
 devote all the revenues they now have, or may ever have, to its 
 
 expansion and development. It then enacts that the Tulane ~ 
 Administrators shall hereafter have full control and the exclusive 
 government of the University of Louisiana, and shall have all 
 
 the powers, privileges, franchises and immunities that are now 
 
 vested in the trustees of the University, and also all its property; 
 
 and in order to enable the State to realize the full benefit of the 
 intention of the Tulane Administrators to devote all their reve- 
 nues to the public purpose of maintaining the university, the 
 act declares that a contract is thereby made, by and under which 
 the Tulane Administrators are irrevocably vested with all the 
 
 franchises, privileges and immunities theretofore granted them, » 
 
 and in consideration therefor they bind themselves also irrevoca- 
 
 bly to devote all their revenues to the public purpose already © 
 
 stated. And then in recognition of the beneficence of Mr. 
 Tulane and of the fact that the administrators of the fund cre- 
 ated by that beneficence were hereafter to devote it exclusively 
 to fostering and developing this institution of the State, the 
 name of the benefactor was directed to be hereafter prefixed to 
 its ancient name, so that the future designation of it shall be 
 the Tulane University of Louisiana (Acts 1884, pp. 48 e¢ seg.). 
 
 Our learned brother of the lower court construed the act as 
 
 being a charter of a new university, to which was transferred — 
 
mo 
 
 5 
 
 all the property and privileges of the University of Louisiana. 
 It that be so, the University of Louisiana is abolished, for if all 
 its privileges are transferred to another institution, and all the 
 
 property it had to make those privileges effective and useful to 
 
 the public is likewise transferred, there will be nothing left but 
 the name. We can not attribute to the Legislature the inten- 
 tion to denude of its powers and privileges an institution which 
 the Constitution has commanded them to maintain, and thus to 
 make of it a simulacrum without vitality or power. Nor can 
 we attribute to the Legislature a purpose to evade the constitu- 
 tional recognition of the existence of the university. Obviously 
 the Legislature can not abolish the university. It has its root 
 in the fundamental law and that law has ordered the Legisla- 
 ture to foster and develop it. But if without assuming to 
 destroy, the Legislature desiccates it by removing the fecundat- 
 ing sources of its strength and growth, it does practically 
 destroy it. 
 
 No doubt the Legislature had in mind the creation of a new 
 university as a consequence or result of the constitutional 
 
 - amendment that it has directed to be submitted to a popular 
 
 vote, for among the objects of this act of 1884, expressed in its 
 title, is— 
 
 ‘* To give said Board of Administrators of the Tulane Edu- 
 cation Fund, upon the adoption of said constitutional amend- 
 ment, not only the full powers of administration over the 
 University of Louisiana, conferred by this act, but also the 
 power to create, develop and maintain a great university in the 
 city of New Orleans, which university so to be created shall 
 perpetually be under their full and complete control.”’ 
 
 But the Legislature, so far from attempting to abolish the 
 university, by its own act-expressly includes its maintenance in 
 the objects of its legislation and remitted to a constitutional 
 amendment the derivation of authority to replace the former 
 university by a new creation. 
 
 The legislative purpose to preserve the University of Louis- 
 lana is unequivocally and constantly manifested in every part 
 of the act of 1884. The title mentions it, the preamble gives 
 prominence to it and the enacting clauses confirm it. The 
 university is delivered to the Tulane Administrators with all its 
 
6 
 
 franchises, immunities and property to be governed and de- 
 
 veloped by them. Its existence is continued, and if it is not 
 perpetuated, the constitutional amendment alone will confer 
 the power to replace it by another. 
 
 But the real question lies behind this, and it is whether the 
 
 dedication by the Tulane Administrators of all the revenue to — 
 
 the support and maintenance of the University of Louisiana is 
 such dedication to public use as will exempt the property from 
 taxation proprio vigore. : 
 
 It is thus apparent that the question presented in this case is 
 wholly different from that considered and decided in the former 
 one—the question then being whether the property of the Board 
 was taxable, its income being devoted to education, and we 
 held that it was private or corporate income. 
 
 The first exemption from taxation by the Constitution is ‘‘ all 
 public property ’?’ (Art. 207). The University of Louisiana is 
 not only a public institution, but the Constitution has taken it 
 under its protecting care. The entire revenues of the Tulane 
 Administrators are dedicated to its support. The State has 
 contracted with them to deliver this public institution into their 
 hands, on the condition that their revenues shall be wholly ap- 
 plied to its maintenance and development, and they have accepted 
 the contract and thereby made the University the usufructuary 
 
 of all their property. Whatever taxes are payable upon this prop- 
 erty must necessarily be paid out of these revenues that have 
 been thus dedicated to a public use—that is to say, must be paid- 
 
 by the University. 
 
 Whatever diminution of these revenues is made by the pay- 
 ment of taxes is a diminution fro ¢anto of revenues that have 
 been consecrated to public use, and it is admitted that taxes for 
 1885. and 1886 exceed the sum that the State has annually ap- 
 
 proprieted to the University. So that if taxes are collected 
 
 from the Tulane Fund and the State continues its appropria- 
 tion, she will receive money only to pay it back. But the 
 plaintiffs have refused to receive this annual donation from the 
 State since the passage of the act of 1884, and they have ex- 
 
 pressly waived all right to it and all right to any future appro-. 
 priation, and this waiver is stated in the act to be an additional 
 
 consideration, supporting the contract made therein. Sec. 6. 
 
Pe 
 ee 
 
 7 
 
 The plaintiffs have complied with their part of that contract. 
 From August 1, 1884, when they took charge of the University 
 to the close of 1885, they have expended near a hundred 
 thousand dollars (exact figures $98,259.50) upon it, including 
 the cost of insurance and repairs of the buildings, and these 
 were the property of the University before it was turned over 
 to them. Their revenues have conserved its property, paid its 
 current expenses and have begun to develop a_ languishing 
 and resourceless institution into vigorous and healthy life. 
 
 The usufructuary is bound to pay all the taxes on the property 
 that is subject to the usufruct (Rev. C. C., Art. 578); and as 
 the University of Louisiana is the usufructuary of the Tulane 
 property, it follows. necessarily that whatever taxes are 
 paid will be paid by the University. The only reduction or 
 diminution of the revenues of the University possible under the 
 contract of plaintiffs with the State is the diminution that would 
 
 be wrought by the sanction of the State’s demand for taxes. Now 
 
 the University can not be taxed. The Constitution created it. 
 Its property is public property within the intendment of the 
 Constitution. | 
 
 But the property of the Tulane Board is not the property of 
 the University, and it is the property of the Tulane Board of 
 which taxes are demanded. 
 
 The title of property does not invariably fix the person who 
 is obliged for the taxes upon it. As we have just stated, the 
 usufructuary and not the titular owner pays on property held in 
 usufruct. Familiar illustrations of the rule are found in those 
 instances where private property is taken for a public road, or 
 a dedication of a lot of ground is made on condition that a 
 court house is built on it. The ownership remains where it 
 was, but the owner pays no taxes. 
 
 And those illustrate another legal proposition, viz.: that pri- 
 vate property which is subject to taxation becomes exempt by 
 the change that is made in its use. ‘The character of taxability 
 is not ineffaceably stamped on property, and it may be removed 
 by the act of its owner. Whenever he dedicates it to public 
 use it passes under the dominion of the exemption that is ac- 
 corded to public property. And that is what we meant when 
 in the earlier part of this opinion we said that the question was 
 
8 
 
 whether the consecration of the plaintiff’s revenues to a public — 
 use did not proprio vigore operate an exemption. The Legis- 
 lature can not exempt from taxation property that is constitu- 
 tionally liable to it, but an owner of property may translate it 
 into the domain of constitutional exemption by dedicating it to 
 a public use. 
 
 And primarily the TL poidlenire determines what is a Sabite 
 use, and when it has declared what may be so regarded courts 
 will not interfere, except in clear cases of usurpation or abuse of 
 authority (Inhab. of Wayland vs. Co. Com. Middlesex, 4 Gray 
 501). The act of 1884 declares that the plaintiffs revenues are 
 devoted to public use, and, as a legal consequence, the property 
 that produces them is exempt from taxation unless we are pre- 
 pared to say that the legislative discretion has been unlawfully 
 or evasively exercised, for that is said to be ae criterion by 
 which a court is to test it. | 
 
 SaysCooley: ‘‘ Taxes should only be levied for those purposes 
 
 which properly constitute a public burden. But what is for the - i 
 
 public good and what are public purposes, and what does con- 
 
 stitute a public burden, are questions which the Legislature 
 
 must decide upon its own judgment, and in respect to which it 
 is vested with a large discretion which can not be controlled by — 
 the courts, except, perhaps, where its action is clearly evasive, 
 and when under pretence of a lawful authority it has assumed 
 to exercise one that is unlawful.’’ Const. Lim., p. 157. 
 
 We do not announce a new legal principle when we hold that 
 property dedicated to a public use, the revenues of which serve © 
 
 a public purpose, is public property, although the title be notin 
 
 the public. When a judgment creditor of the Charity Hospital 
 
 levied on its property we maintained an injunction of its sale, e 
 
 saying: 
 
 ‘¢Tt may not be that the title to the property from which their 
 revenues may in whole or in part be derived is literally in the 
 State; but nevertheless the State owns them, or holds them in 
 trust, though it be for the benefit of those they were established 
 to serve. | ; 
 
 ‘Tf, then, this hospital is a State institution, maintained and 
 administered as we have seen by State authority, it is the first 
 duty of the State to secure and preserve to it the essential con- 
 
 Sorte 
 
9 
 
 dition of its existence for the purpose for which it was estab- 
 lished. 
 
 ‘¢ Tt is utterly inconsistent with this duty and the protection 
 that the State owes to this institution to suffer it from any cause, 
 or at the instance of creditors or other persons, to be deprived 
 of its property, without which its work of beneficence and 
 charity can not be accomplished.’’ State vs. Finley, 33 An. 
 114. 
 
 If it is the first duty of the State to prevent others despoiling 
 the property of an institution under its protection, much more 
 is it its duty to abstain from despoiling that property itself. The 
 sale of the property ot the Charity Hospital at the instance of 
 its creditor would have despoiled it of a part of its revenue, 
 and the sanction of the State’s demand for taxes of the Tulane 
 property will have a like effect upon the revenues of the uni- 
 versity. As we did not allow the one, neither can we the other, 
 and the plaintiffs are entitled, therefore, to a judgment decree- 
 ing the exemption of their property from taxation. 
 
 We felicitate ourselves that the way to this consummation has 
 been timely cut by the Legislature, so that the stream of Paul 
 Tulane’s bounty shall flow on undiminished, while the children 
 of our State through successive generations shall ‘‘rise and call _ 
 hira blessed.’’ 
 
 It is therefore ordered and decreed that the judgment of the 
 lower court is avoided and reversed, and that plaintiffs now 
 have judgment against the defendants annulling the assessment 
 of the property donated them by Paul Tulane and decreeing 
 .the same exempt from taxation. It is further decreed that the 
 plaintiffs recover their costs in both courts. 
 
 Justice Fenner recused himself, being one of the adminis- 
 trators. 
 
 A true copy: 
 [Signed] JoHn AUGUSTIN, 
 
 Deputy Clerk. 
 
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