State v. Centenary College

65 So. 624, 135 La. 502, 1914 La. LEXIS 1802

• Court: Supreme Court of Louisiana
• Decided: March 30, 1914
• Docket: No. 20485
• Status: Published

Opinions

LAND, J.

The state sued the defendant on a mortgage bond for $10,000 of date July 26, 1848, for the purchase price of all the rights, privileges, title, and interest which the state had in and to the College of Louisiana, and its appurtenances, situated at Jackson, La. This transaction was authorized by Act No. 179 of 1848, the second section of which reads as follows:

“That the bond to be given by the trustees aforesaid (of Centenary College) shall bear no interest, nor shall the same be considered as legally due so long as the trustees aforesaid keep the college buildings in good order and continue to provide and keep a regular faculty of arts, and. competent teachers for all the students that may be in attendance. The faculty to embrace the usual number of professors known to colleges in the United States, never to be less than four besides the president, except when a vacancy shall occur by death, resignation, etc., in which case a reasonable time shall be allowed for filling said vacancy.”

Section 3 of the act made it the duty of the faculty of said Centenary College to have at all times in said institution, and to educate gratuitously, ten indigent young men to' be designated by the Governor of the state.

Section 4 of the act provided that, whenever the trustees aforesaid shall fail to perform any of the above conditions, the said bond shall be due, and the treasurer should proceed to collect accordingly, with legal interest from the time of such forfeiture.

Centenary College was established in the year 1848, and flourished as an educational institution until its operations were suspended for several years by the great Civil War of 1861-1865. After the close of that struggle, Centenary College was reopened, and maintained as an educational institution. In the year 1871, the Legislature passed Act No. 63, p. 167, “entitled an act for the relief of Centenary College of Louisiana,” providing as follows:

Section 1: “That in accordance with the-condition stated in the original sale of the College of Louisiana (Act No. 74 of 1845, and Act 113 of 1847) the Centenary College of Louisiana shall not be appropriated to any other purpose than a literary institution.”

Section 2: “That the board of trustees of said Centenary College shall be * * * relieved from all further and subsequent conditions and liabilities to the state of Louisiana.”

It is admitted that Centenary College has. been removed to Shreveport, La., and that the trustees were no longer operating an institution of learning at Jackson, La., but were negotiating to sell the property for educational purposes. It is further admitted that the trustees have not kept the buildings at Jackson in good repair.

This suit was filed June 1, 1912. In July of the same year the Legislature passed Act No. 56, p. 67 (a concurrent resolution), authorizing the Attorney General to settle this suit by selling to the board of trustees of Centenary College all the right, title, and interest of the state in and to the property .at Jackson, La., known as Centenary College for the price of $2,500, payable by tbe first Monday of September, 1912. The suit was not compromised on the proposed basis. It is, however, to be noted that in the preamble of the act it is recited that the board of trustees “was exempted from the payment of said bond and mortgage by Act No. 63 of 1871.”

There was judgment for plaintiff as pray•ed for, and the defendant has appealed.

In the answer below the defendant pleaded Act No. 63 of 1871 as a discharge from the •obligation of the bond in question. Plaintiff .attacks the constitutionality of this act in argument and brief in this court, but raised no such issue by plea in the court below. We therefore cannot consider the question of the constitutionality of said statute. State v. St. Romes, 26 La. Ann. 754; Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 South. 809; Rausch v. Barrere, 109 La. 567, 33 South. 602. The point is so well settled that the citation of other cases is unnecessary.

That it was the intent of Act No. 63 of 1871 to relieve Centenary College of all subsequent conditions and liabilities to the state, except the condition set forth in the first section, is manifested by the use of the words “all further” in the second edition. The words “liabilities to the state” are broad enough to cover the mortgage debt, and all other pecuniary obligations resulting from the sale by the state to Centenary College. This construction jumps to the eye, and was adopted by the Legislature in the preamble of Act 56 of 1912. This construction is reinforced by the silence. and inaction of the state for 41 years. The mortgage bond was not preserved in the office of the state treasurer, and the petition alleges that it was lost and cannot be found. If the bond had been considered as a live asset of the state, it probably would have been preserved.

We are satisfied that Act No. 63 of 1871, as the title indicates, was passed to relieve Centenary College, impoverished, doubtless, by the war of 1861-1865, of the burden of its obligations to the state, so that it might survive as one of our oldest educational institutions.

If the college has appropriated the property at Jackson “to any other purpose than a literary institution,” the state has a remedy in another form of action.

It is therefore ordered that the judgment below be reversed, and it is now ordered that plaintiff’s suit be dismissed, with costs.