the Tulane Education Fund acquiesced in and assented to the sublease in the exercise of its rights, under the terms of its lease to said Nicholson; said contract of sublease having been made by notarial act passed before Lamar C. Quintero, notary public, on January 29, 1898, a copy of which will be produced on the trial hereof. "That meanwhile the portion of said property not subleased to Klaw & Erlanger had remained unimproved, and did remain unimproved for some months thereafter. That, after said sublease had been made, the said John S. Rainey stated that he and Mr. Soria were averse to putting up more money to further the lease enterprise. That he, acting for himself and said Soria, authorized said Henderson to sell the stock in respondent belonging to said Rainey and Soria, if necessary, at two-thirds of the amount which they had paid for their interest in the said company, and that said Henderson made numerous efforts with a number of moneyed men in this city to sell the said stock of said Rainey and Soria. That, except as hereinafter set forth, said Henderson was unsuccessful in making said lease; the capitalists approached having no confidence in the financial success of the undertaking. "That some time in the year 1898, and subsequent to the making of said sublease to Klaw & Erlanger, said Charles Payne Fenner was thrown by accident on a journey from this city with Walter C. Flower, then mayor of this city, and a member of the Board of Administrators of the Tulane Education Fund, at the time when said lease was made and at the time herein now referred to. That said Charles Payne Fenner endeavored to enlist the interest of said Flower in said undertaking by having him purchase the said interest of said Rainey and Soria, and did enlist his interest therein. That, on the return of said Flower to the city shortly thereafter, said Henderson effected a sale to him of the said stock of said Rainey and Soria at its cost to him, and said Flower thereupon became the owner of one-third of the stock of respond constitutional amendment adopted by the people of the state of Louisiana and set forth in Act 43 of the Acts of the General Assembly of the State of Louisiana of 1884, to lease the said property, and that said board did lease said property in the exercise of its judgment and discretion to respondent, as set forth in said notarial act passed before Hughes T. Gurley, notary public, March 11, 1897, and that any law of the state of Louisiana, or any decision of any of its courts, which might declare, or attempt to declare, the said lease to be invalid, would impair the obligation of the contract evidenced by said lease, and by the constitutional amendment adopted by the people of the state of Louisiana, evidenced by Act 43 of 1884, the same being a contract between the state of Louisiana and the Board of Administrators of the Tulane Education Fund, and that such impairment of such contract is and would be contrary to the Constitution of the United States of America, and particularly to the first paragraph of section 10 of article 1 thereof, and to the fourteenth amendment to said Constitution of the United States, which provides that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, both of which provisions respondent specially pleads as a defense to this action." On the 14th of June, the day of the trial of the case, the following motion was filed: eral, and of W. S. Parkerson, associate counsel, "On motion of Walter Guion, Attorney Genand on suggesting to the court that, since the decision of the Supreme Court in the case of John B. Levert v. Daily States Publishing Company, they have reached the conclusion that the issue involved in this case depends solely upon the questions as to whether or not the contract of lease sought to be annulled was in fraudem legis, contra bonos mores, and against public of Act 94 of 1890; that the allegation in the policy, and upon the constitutionality vel non petition that the lease was made for an inade and that they are desirous of withdrawing and abandoning said charge and of reiterating the allegations in the petition that the contract is bonos mores, in fraudem legis, contra against public policy, and that Act 94 of 1890 is unconstitutional, being in violation of the constitutional provision of Act 43 of 1884 and of article 46 and article 29 of the Constitution ent, and his estate is now the owner thereof. "That, after the acquisition of said interest of said Flower, said Henderson, acting for re-quate consideration is totally immaterial; and spondent, procured the said Flower to purchase ultimately $30,000 of the bonds of respondent for the purpose of improving the said property and deriving a revenue therefrom, and at or about the same time induced said Charles E. Fenner to purchase ultimately $10,000 of bonds of the same character, and thereby said Flower and said Charles E. Fenner became the holders of bonds of respondent in the amount set forth. That the estate of said Flower is now the holder of said bonds so taken by him, and the Board of Administrators of the Tulane Education Fund subsequently acquired by purchase the bonds of Charles E. Fenner, as it did the stock of respondent owned by Mrs. Carrie P. Fenner and Charles Payne Fenner. "That all of the above and foregoing transactions were open, honest, and fair, and made without concealment. That the fact of said lease being under consideration by the said board of administrators was a matter of public knowledge at the time, and was commented upon by the newspapers of this city. That there was no adverse criticism thereof, nor any suggestion of impropriety in the said dealings, nor of inadequacy of price, and that there was in fact no illegality or impropriety in said acts, and no inadequacy of price in said lease. "That said matter was a matter of record at the time that it transpired, March 14, 1897, more than 10 years before the institution of this suit, and that the action of plaintiff herein, if any it has or claims, is barred and prescribed by the prescription of 10 years. "Further answering, respondent shows that the Board of Administrators of the Tulane Education Fund had a legal right by the terms of its of 1879." On the same day the state filed this supplemental and amended petition: "The supplemental and amended petition of the state of Louisiana, on the relation of Walter Guion, Attorney General, leave of court to file same first being had and obtained, respectfully represents: "That in the original petition filed herein petitioner sets out: ""That, if the Board of Administrators of the Tulane Education Fund or the lessee pretends that said lease was made under color of Act 94 of 1890, petitioner avers that Act 94 of 1890 did not authorize the making of said lease. Said act is in violation of the constitutional amendment of 1884.' "That, since the filing of said petition, the defendant in the above-entitled and numbered cause sets up in its answer: ""That the contract of lease was made by said board in the exercise of its legal powers under Act 43 of 1884, adopted as a constitutional amendment and under Act 94 of 1890 of the acts of the General Assembly of Louisiana.' "Now petitioner avers that, in addition to the reasons already set out why said act is in viola tion of the Constitution, said act is in violation There was trial by jury and a great deal A number of the provisions of the act reof testimony taken, and the jury unanimously rendered a verdict in favor of the state of Louisiana. A new trial was asked for and refused. Judgment was entered upon the verdict, and from that judgment the Board of Administrators of the Tulane Education Fund and the Tulane Improvement Company prosecute this appeal. Opinion. The first question in logical order and importance is whether the state of Louisiana has a right to maintain this suit. Paul Tulane, a man of wealth, who had formerly resided in the state of Louisiana, in the year 1882 expressed to certain citizens of this state his intention to donate valuable real estate to him belonging in the city of New Orleans for the purpose of fostering higher education in this state. The said citizens thereafter organized themselves into a corporation, under the name of the "Administrators of the Tulane Education Fund," and Paul Tulane donated to said administrators nearly $1,000,000 the revenues whereof were to be used for the promotion and encouragement of intellectual, moral, and industrial education. late to its acceptance by the board pending the submission of the said constitutional amendment or in case of its defeat. But, as the amendment was adopted, such provisions do not concern us. The act, in all its provisions, was declared to be a contract between the state of Louisiana and the Administrators of the Tulane Educational Fund, irrevocably vesting said Administrators of the Tulane Educational Fund with the powers, franchises, rights, immunities, and exemptions therein enumerated, and thereby granted, and irrevocably binding said administrators to develop, foster, and maintain the university as aforesaid in the city of New Orleans. The board, however, agreed and bound themselves "to waive all legal claim upon the state of Louisiana for any appropriation, as provided in the Constitution of the state, in favor of the University of Louisiana." Under article 230 of the Constitution of 1879, it was made the duty of the General Assembly to make provision for the support of the university of Louisiana, not to exceed $10,000 annually. By this legislative contract the state was forever relieved of the burden of maintaining and supporting the University of Louisiana In the year 1884 the said administrators by annual appropriations or otherwise, and made known to the General Assembly their the Administrators of the Tulane Education desire to take charge of the University of Fund bound themselves to use the revenues Louisiana in the city of New Orleans, a state and income of the property donated by Paul institution, and to devote the revenues of the Tulane, as well as the revenues of all other property then owned or thereafter to be own- property thereafter to be held, owned, or coned by said board to its expansion and de- trolled by them, to develop, foster, and mainvelopment, and upon the adoption of a con- tain, to the best of their ability and judgstitutional amendment to that end, to apply ment, the University of Louisiana, thereafter all the revenues of property then owned or to be known as the "Tulane University of thereafter to be acquired by them to the crea- Louisiana," and, upon the adoption of the act tion and development in the city of New Or- as a constitutional amendment, the said adleans of a great university, whereby the bless-ministrators bound themselves to perpetually ings of higher education, intellectual, moral, and industrial, might be given to the youth of this state. The General Assembly and the Board of Administrators of the Tulane Education Fund entered into negotiations which resulted in the enactment of Act No. 43, p. 48, of 1884, which was subsequently adopted as a constitutional amendment, because of the doubt of the power of the Legislature to transfer to said board all the rights, privileges, and property of the university of Louisiana and to exempt all the property of the board from taxation. Pending the submission of the constitutional amendment, it was left optional with the board to avail themselves of the provisions of the act, and it was provided that: "In case the said constitutional amendments as aforesaid be not ratified the said board should not in any way be held bound by its said action, but shall have the right to relieve itself of all liability growing out of said action by turning over to the Governor of the state, any property received by it from the state, or from the administrators of the University of Lou use the powers conferred by the act, for the purpose of creating and maintaining in the city of New Orleans a great university, devoted to the intellectual, moral, and industrial education and advancement of the youth of this state, under the terms of the donation of Paul Tulane and the provisions of the act. The said administrators further agreed to give continuously in the academic department free tuition to one student from each Senatorial and from each Representative district or parish to be nominated by its member in the General Assembly. Under this provision free tuition is perpetually assured to more than 100 of the youths of this state, without cost to the public fisc. The act provided that its adoption as a constitutional amendment should operate as an exemption from taxation of the real estate of the board, not otherwise exempted, not exceeding in value $5,000,000; the exemption to remain in force as long as the revenues of said board are directed to the maintenance of the University of Louisiana as aforesaid. of 1884 that the state was contracting with a private corporation organized by notarial act under the general laws of the state. In the argument of the case the Attorney General admitted that the "Administrators of the Tulane Education Fund" is not a state institution. It cannot be otherwise under the facts of the case and the provisions of said statute. The General Assembly recognized the board as a private corporation capable of making a perpetual and irrevocable contract with the state of Louisiana. The act of 1884 expressly repealed section 1366 of the Revised Statutes of 1870, giving the Legislature power of supervision and control over the University of Louisiana. It goes without saying that the Legislature cannot make such a contract with a state institution or renounce its powers of supervision and control over a state agency. Section 2 of the act declares that the board shall have full direction, control, and administration "of all the property belonging to the state of Louisiana, and now dedicated to or used by the University of Louisiana, as well as all property controlled or used by the said University of Louisiana." It was directed that the Board of Administrators of the University of Louisiana turn over to the Board of Administrators of the Tulane Education Fund all the property, rights, books, papers, and archives now under their administration or control. And it was further enacted as follows: "An inventory shall be made of all the property, movable and immovable, belonging to the University of Louisiana, and transferred by this act to the control and administration of the Administrators of the Tulane Education Fund, by two appraisers to be appointed for that purpose by the Governor of the state and sworn, which appraisement shall be filed in the office of the Secretary of State, as evidencing the description and appraised value of the property so transferred, and also in order that the liability of the said Administrators of the Tulane Education Fund may not be extended beyond the return of the property, so transferred, in any contingency; provided further, that the property, so transferred, may not be sold or disposed of except under legislative sanction; provided further that if the Tulane University of Louisiana' as herein established, should cease to use the property, and exercise the privileges, franchises and immunities, now under the control and administration of, and enjoyed by the University of Louisiana as now constituted and transferred by this act, for the exclusive purposes intended by this act, then and in that event, the state of Louisiana shall have the right to resume the custody, control and administration of said property, and the exercise of said privileges, franchises and immunities." The suit at bar is one to annul a lease made by the Administrators of the Tulane Education Fund, and for an accounting of revenues, in order that the property and revenues may be, as prayed for in the petition, "turned over to the Board of Administrators of the Tulane Education Fund, to be by said board administered for the use of the university, as contemplated by law at the time the property was, by the state of Louisiana, originally delivered to said board." In short, this suit is one, not to enforce the return of the property to the state of Louisiana under the provisions of Act No. 43 of 1884, but an action instituted for the use and benefit of the "Administrators of the Tulane Education Fund," against their protest, and in which the state of Louisiana attempts to substitute herself for said board of administrators. In a suit by A. for the use of B., the latter is the real plaintiff, of whom the court and the defendant are bound to take notice. Davis v. Taylor, 4 Mart. (N. S.) 135; Dayton v. Commercial Bank, 6 Rob. 17. The very statute authorizing the institution of this suit restricts the authority of the Attorney General to a suit to annul the lease to Thomas Nicholson for the purpose of having the property "restored to the Board of Administrators of the Tulane Educational Fund." See Act No. 17 of 1908, p. 17. In other words, the state is suing, as the guardian of the Tulane University, to annul a lease made by its representatives, and not to annul the legislative contract of 1884 by which the property was transferred in perpetuity to the board of administrators. As already stated. the only right the state has under the act of 1884 is to sue to recover the property for herself on the ground of breach of the contract by the defendant board. We will, however, consider and determine the validity of the lease to Nicholson made in March, 1897. All of the essential facts and circumstances relating to the Nicholson lease were determined by this court in Levert v. Daily States Publishing Company, 123 La. 594, 49 South. 206. Repetition of the evidence would serve no useful purpose. We find that such lease was authorized by Act No. 94 of 1890, expressly empowering the board of administrators to lease, sell, or dispose of the immovable property transferred to them by the state under Act No. 43 of 1884, subject to the approval of the Governor of the state; that the said board in March, 1897, leased said property to Thomas Nicholson for an adequate price, and said contract was duly approved by the Governor of the The only right of action conferred by the act on the state of Louisiana under said legislative contract is set forth in the foregoing provisions, and the only liability of the board is restricted to the return of the prop-state; that in making said lease the members erty to the state in the event the board should fail to carry out its part of the agreement. If the board has unlawfully disposed of the property without legislative sanction, the right of the state of Louisiana, if any, is to sue directly to annul the contract and recover of the board acted in good faith and for what they deemed the best interests of Tulane University, and the price was adequate according to values at the time; that Nicholson was not, as alleged, a person interposed for the president of the board; that the presi ever in said lease at the time it was made and executed; and that his subsequent connection with the Tulane Improvement Company cannot affect the validity of said lease. The state, which in 1890 gave to the board of administrators plenary power to lease, sell, or dispose of the property, comes into court after the lapse of 18 years, and alleges that the Legislature exceeded its constitutional powers in granting such authority. It is therefore ordered, adjudged, and decreed that the verdict and judgment below be reversed, and it is now ordered that the demand of the state be rejected, and this suit be dismissed. MONROE, J., takes no part. For reasons assigned in a separate opinion, his honor, the CHIEF JUSTICE, dissents. BREAUX, C. J. (dissenting). After having devoted earnest thought to this case, I have determined to consider only certain questions of law and fact (the latter not of a personal nature). In my opinion, the "University of Louisiana" was not entirely superseded by "Tulane University." In the consolidation of the two institutions, enough remained of the University of Louisiana to save it from destruction; nor did Tu lane University, under the conditions of this consolidation, become a private institution. It is first argued that Act No. 43 of 1884, subsequently adopted as a constitutional amendment, in providing that "the property so transferred may not be sold or disposed of except under legislative sanction" contemplated that the board of administrators should first make a tentative lease, sale, or disposition of the property, and then refer the agreement to the Legislature for ratification and approval. This is a strained construction of the terms of the statute. Log-in accordance with Act No. 43 of 1884, ically and reasonably a mandate to sell should precede the contract of sale, and an agent or trustee would find it most difficult, if not impracticable, to dispose of property without a power of attorney. The uniform legislative practice has been to authorize leases or sales of property in advance. Such acts are too numerous for citation. Act No. 94 of 1890 followed the usual legislative practice in such matters, and is not repugnant to Act. No. 43 of 1884. Moreover, we are not prepared to say that the Tulane Board, a perpetual corporation with the right of perpetual use, cannot make a 99-year lease under the provisions of Act No. 43 of 1884. Leases for such a term are valid both at the civil and common law. The next objection is to the title of Act No. 94 of 1890, which reads as follows: "An act to authorize the Board of Administrators of the Tulane Education Fund to lease, sell or dispose of the immovable property, transferred to them by the state, under Act No. 43 approved July 5th, 1884." The objection seems to be that the title does not recite that the act was intended to give the sanction required by Act No. 43 of 1884. There is but one subject-matter contained in the title, and the provisions of the act are confined to that subject-matter. The next objection is that the act is a local or special law amending or extending the charter of a corporation, and therefore is repugnant to article 46 of the Constitution of 1879. Act No. 94 of 1890 is a supplement to Act No. 43 of 1884, and purports to provide the legislative sanction contemplated by the latter act, which subsequently became an amendment to the Constitution of 1879. Hence Act No. 94 of 1890 therefore cannot be unconstitutional on the ground mentioned. Our conclusion is that the board of administrators was expressly authorized to make the lease to Nicholson, and that said contract is binding on the parties and their assigns It possesses all the powers of the University of Louisiana, a state institution. These are substantially the words of the statute. The act cited supra, authorizing the union between these institutions, was carefully written and well considered. Early in the history of the state, the citizens, through their representatives, established the University of Louisiana, a state insti tution as just above mentioned. Its educational influence was felt, though not a large institution. It had the same departments of learning that it has at present. Many of the names of the professors are well known in the history of the state. The university rendered services that received recognition and were appreciated. The institution has an interesting history in connection with the state's progress and development. Its traditions were well known among the youths and young men of the state. A number of these youths and young men availed themselves of the opportunities offered for improvement in the departments of the institution. From that university a number of students graduated as physicians and lawyers. Mr. Tulane, personally, doubtless, knew something of the usefulness of this institution, although, because of its poor financial condition, its usefulness was limited. While accumulating his large fortune in this city, many of the youths and young men of the state were students there. At his home in New Jersey, he announced his intention of endowing an institution of learning among a people whom he had known and for whom, doubtless, he entertained profound regard. The preliminaries were agreed upon and resulted in the adoption of the statute before cited. showing the intention of absorbing the Uni- on good grounds. Be this as it may, it does versity of Louisiana. not appear as true and correct. The act before cited is direct evidence in this regard. Where, however, an act authorizes the selling, leasing, or disposing of property, those The modest old merchant, wisely conserva- | authorized have no power to let the property tive, was anxious, doubtless, not to destroy, for 99 years. but to build up, the university on the foundation which it had. In business, in commerce, an agent authorized to sell, lease, or dispose of property The following excerpts from the statute would have no power without some instruchave a plain meaning: "The board of administrators of the "Tulane Education Fund' shall perpetually, as administrators of the University of Louisiana," and throughout the statute that university is referred to as a living, going university to be united with Tulane University, with its rights and privileges transferred to the latter to the end of promoting the intellectual, moral, and industrial education in the state. The status of the institution is of importance. If it be a private institution, it is a private matter, the state is not concerned, and, as against the defendant, representing a private institution, the statute of limitation applies, and that is an end of the discussion. Furthermore, the state is not concerned in anything relating to a private institution. In that case the statute of 1900, as relates to form, is entirely legal. On the other hand, if it is not a private institution, and the property belongs to the state, as against the state, prescription cannot be successfully pleaded, and the statutes are subject to construction. Both of these institutions received constitutional recognition-one the University of Louisiana in the Constitution of 1879, the other the Tulane University of Louisiana, in 1898. Each was represented by the Board of the Tulane Educational Fund. Object of the act not expressed in its title: The object expressed in the title is: That the act authorized the "board of administrators to lease, sell or dispose of the property." The object expressed in the act is "to confer the sanction required by section 2 of Act 43 of 1884"; in other words, the object expressed was, substantially, to authorize, approve, or sanction a sale already made. tion to lease the property for that number of years. Such assumption of authority would never do. Why should it be different with the state? Upon the authority of a statute authorizing a sale, lease, or other disposition, without a word showing the intention to lease for 99 years, there was, in my opinion, scant authority to let for that number of years. Besides, a careful reading of the statute cited supra shows, as I think, that the state retained the right to approve any sale or lease made. The agreement was thus made subject to legislative sanction after its date. property may not be sold or disposed of except under legislative sanction. Act No. 43 of 1884. Said Another point gives rise to grave doubt. The Legislature delegated its own discre tion and power under the Constitution, to be exercised by another body under the Consti tution, embodied in the Constitution of 1879. This unusual lease, with most extraordinary terms, should not have been entered into without approval of the Legislature. The Legislature, in a matter left to its discretion, has no power to make a statute deconfide to others the legislative discretion pendent on such a contingency; nor can it which the legislators are bound to exercise themselves. Cooley on Constitutional Limitation, pp. 163, 169. Again, in Succession of Hutchinson, 112 La. 656, 36 South. 639, the legacy was to the Tulane University of Louisiana, and not to the Tulane Education Fund. If it had been left to the Board of Administrators of the Tulane Education Fund, a private corporation, the result of the suit would doubtless have been different. But it was left to a private institution the same as that for which the state has ordered a suit to be brought. In other cases heretofore, it was my opinion that the disposition of property of the state held by her institutions should be sub The attack on a statute, on the ground of the title not expressing the object, seldom has merit. A lease confers the enjoyment of the property for a certain length of time. Civ. Code, art. 2674. A 99-year lease is extraor-ject to close construction, notably the Female dinary, to say the least. An article of the Code provides that one year is the term of a lease of predial estate, if nothing is said in the act about term. True, a 50-year lease was ratified. City of New Orleans v. Shakspeare, 39 La. Ann. 1033, 3 South. 346. There is as much difference as between day and night when the owner ratifies a lease, irregularly made, and when the owner seeks to avoid a lease as not authorized. The owner may ratify a lease that would afford scant protection to an as Orphan Asylum Case, 119 La. 278, 44 South. 15. Indeed, in all cases in which the sovereign is directly concerned, the interpretation should not be liberal and latitudinal. I recall the words of an eminent and honorable judge in a great case: ceits of opinion-the human mind possesses no "I have long ago put behind me all vain coninfallible touchstone of truth-and that men, equally honest and intelligent, whatever their desire to harmonize, will often reach opposite conclusions in the same matter. I concede to others, what I claim for myself, the sovereignty |