Murrell vs. Lion. was in favor of plaintiff, for $1260, with five per cent interest from judicial demand, second of November, 1872, that is for one year's rent, from the first of October, 1872. The check to Barrett's order, and his receipt of the thirtieth of October, 1872, for the rent for that month, offered in evidence, must have escaped the notice of the district judge, as well as the lease to Gauche for thirty-six months, at the rate of $1000 for the first year, and $1100 for each of the two succeeding years. We think the judgment should have been in favor of defendants. It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed; and that there be judgment in favor of defendants, appellants, rejecting the demand of plaintiff, appellee, with costs in both courts. No. 6508. FIRST PRESBYTERIAN CHURCH VS. CITY OF NEW ORLEANS. Until a definitive judgment, rendered by a court of competent jurisdiction, has been set aside, either on appeal or by an action of nullity, money paid under it can not be recovered back. Property used for school purposes, and the lots appurtenant to and used therewith, are exempt from taxation. Property belonging to a church, and used as a parsonage, or rectory, is not exempt from taxation. PPEAL from the Superior District Court, parish of Orleans. Lynch, APP Singleton & Browne and John P. Smith for plaintiff and appellant. The opinion of the court on the original hearing was delivered by MANNING, C. J. The City of New Orleans obtained judgment against the First Presbyterian Church for taxes of 1874, on an assessment against two pieces of its property. This judgment became final and execution issued, under which was collected from the defendants in execution five hundred and eighty dollars and eighty cents for the amount of judgment and costs. Afterwards, the City sued to recover five hundred and thirty-two dollars and fifty cents for taxes of 1876 assessed on several pieces of property. The present suit is to obtain the repayment to the plaintiff of the sum paid in satisfaction of the judgment for the taxes of 1874, and also to have established the exemption of all of its lots from taxes. The money paid in satisfaction of the judgment for the taxes of 1874 can not be recovered back. It was rendered after a due observance of First Presbyterian Church vs. City of New Orleans. all the forms for that kind of action. Its nullity is not alleged nor prayed, and until set aside for some legal cause, or reversed on appeal, it must stand good, and the money paid under it remains the property of the defendant. A part of the property assessed for taxation in 1876 is a lot and improvements used as a school-house and grounds. The testimony is that the school is established by the Church, and is conducted under its supervision, and the lots adjacent to it are used for purposes of ingress and egress to the school building. This property is exempt under that clause of the Revised Statutes which exempts school-houses and the lots appurtenant. But it is further claimed that a building and lot, used as a parsonage or rectory, is also exempt, and we do not think the law sanctions that exemption. The rule is that all property is liable to taxation. The Legislature, acting in subordination to the Constitution, has exempted certain classes or descriptions of property. Among the exemptions are "colleges, school-houses, and other buildings for the purpose of education, and their furniture, apparatus and equipments, and the lots thereto appurtenant and used therewith, so long as actually used for that purpose only." sec. 3233. Parties who claim exemption from taxation must shew that they belong to one of the favored classes, and we do not construe the terms of the above recited enactment as including a residence of the clergyman who officiates in the church. It is a matter of no consequence whether the rectory is on an adjacent lot to the church or whether it is separated from it by several streets or blocks of buildings, as this is. The residence of the clergyman is in no proper or legitimate sense appurtenant to the church, and is not exempt from taxation. It may be very convenient, as it certainly is very proper, that the church should own a lot and building, devoted or appropriated to the use of the rector as a residence, but it must be taxed until the Legislature shall enlarge or increase the classes of exempted property. Judgment affirmed. Mr. Justice Marr and Mr. Justice Egan took no part in the decision of this cause. ON APPLICATION FOR REHEARING. SPENCER, J. In the opinion of the court heretofore rendered, by inadvertency, paragraph No. 2 was referred to and copied instead of paragraph No. 4 of section 3233, of the Revised Statutes. The latter paragraph is as follows: "Churches, chapels, convents, and other public buildings for religious worship, with the furniture and equipments and lots of ground thereto First Presbyterian Church vs. City of New Orleans. appurtenant and used therewith, so long as the same shall be actually used for that purpose, only." The counsel insists that not only the church, "but property actually used for the purposes' of the church," is exempt. He argues that the parsonage is a property used for the purposes of the church, inasmuch as a church must have a parson, and the parson must have a house. We do not understand the words "for that purpose only" in the statute quoted as having any such meaning. They refer to, and are used to avoid repetition of the words "for religious worship." The substance and marrow of the law may be stated thus: churches, and other public buildings for religious worship, with their appurtenant grounds, are exempt from taxation so long as they are actually used "for that purpose," i. e. "for religious worship." A parsonage may be property used for church purposes, but it can not be said to be used "for religious worship." The dominant idea in the statute is that the exemption shall be limited to "public buildings" and appurtenant "lots of grounds,” used "for religious worship." Exceptions to general laws are always to be strictly construed-a party claiming exemption from their operation must bring himself clearly within some exception. These are elementary rules of interpretation. Rehearing refused. No. 6761. STATE EX REL. N. O. CITY RAILROAD Co. vs. THE BOARD OF ASSESSORS. The power of the arbitrators, to whom the law refers the complaints of taxpayers touching the over assessment of property made by the tax assessors, is limited to ascertaining the value of the property listed on the assessment rolls. They have no power to determine what is, and what is not exempt from taxation, but any award they may make reducing the valuation of property listed, is binding. "Over assessment" means over valuation. A mandamus will issue to compel the Board of Assessors to enter on their assessment rolls, the value put by the arbitrators on any property listed on those rolls. PPEAL from the Fifth District Court, parish of Orleans. Rogers, APP Louque & Fernandez and I'm. H. Hunt for plaintiffs and appellants. B. F. Jonas and Samuel P. Blanc for defendants. The opinion of the court was delivered by SPENCER, J. Relators were assessed for $1,140,000, as follows: State ex rel. N. O. City Railroad Company vs. The Board of Assessors. They complained to the Board of this last item of assessment as being excessive. The Board refused a reduction, and the matter was referred to arbitrators under sections 15, 16, 84, 87, and 88, of act No. 96, of 1877. The arbitrators made the following report and decision: "To the Administrator of Assessments, and Fred. Wintz, Esq., President City R. R. Company, N. O. : "GENTLEMEN-On investigation of the question submitted, we find that the City Railroad Company, through its several contracts with the city, acquired vested rights of way, etc., covering in our opinion the question of franchise during the duration of their respective charters, and that each contract contains the following clause: 'The contractor or contractors shall pay into the city treasury, upon the assessed value of said roads and fixtures, the annual tax levied upon real estate, and the value of said roads and fixtures shall be assessed by the usual mode of assessment.' Which while completely silent regarding franchises, is very specific as to other objects of taxation. That, therefore, the capital of this corporation should be estimated for assessments— First-Upon cost of construction as derived from the company's books.... $667,278 Less a reasonable allowance for difference now existing in cost of material, labor, etc., than when built, say 331 per cent.. 222,426 Second-Bonds of the Mechanics' and Fair Association... . . . . Leaving an assessment on capital. . $444,852 2,000 10,390 $457,152 "We have based our ideas as to a proper reduction to be made from information derived from various and reliable sources, and assumed a percentage we believe to be rather below than above what has actually occurred. "Understanding that we were only requested to arbitrate on the question of capital, we have given consideration alone to that subject. "Yours, very respectfully, [Signed] "LIONEL C. LEVY, "ED. A. PALFRY." The Board refused to abide by the award, and amended the assessment of that item as follows: Construction, road, switches, etc., valued by arbitration....... $457,152 Capital over and above other assessments.... 417,848 Making the total.. $875,000 Just as it was before. Thereupon, relators applied for mandamus to compel the Board to State ex rel. N. O. City Railroad Company vs. The Board of Assessors. reduce the assessment in conformity to the award. The Board answered that the arbitrators had exceeded their authority by undertaking to exclude from their estimate a part of relators' capital. The court a qua refused the writ, and relators appealed. We are satisfied that under the provisions of the statute in question the power and duty of the arbitrators are limited to the ascertainment of "the value of the things listed on the assessment rolls. They can not assume to decide that any part of the things there listed, whether real or personal, corporeal or incorporeal, are exempt from taxation. 66 Section 87 gives this right of arbitration whenever the taxpayer complains of an over assessment; " and the same section provides the same remedy, when the Auditor or other proper officer complains of an "under valuation." We think it fair and reasonable to interpret the words "over assessment" as meaning "over valuation." As there has been no complaint of an "under valuation," we must presume that the sum of $875,000 represented the entire capital stock, outside of the property specifically named and listed. If so, why should not relators at least have the benefit of the reduction of $222,426, which the award clearly fixes as over valuation of the material and costs of construction of relators' railroads? The property, the value of which the arbitrators thus reduce, undoubtedly entered into and formed part of the capital stock included in and estimated by the Board in the item $875,000. So that, admitting that the arbitrators had no power to exclude any part of the property from their valuation and estimate, yet their award as to the value of what they did take into consideration ought to have effect. Thus, if the assessment roll lists five pieces of property, while it is true that the arbitrators can not declare any one of them exempt, yet if they do exclude one or more, and value the others, the reduction awarded as to these last ought to be effective.. The award seems to proceed upon the assumption that this assessment of $875,000 was made up as follows: Costs of material and construction.... Franchise purchased from the city.... $667,278 207,722 $875,000 Making..... At least they claim to have valued every thing else of the capital stock except what was invested in the purchase of the franchise, and this they clearly exclude. Whether the franchises of these roads are exempt from taxation or not, is not now before us. But it is evident the arbitrators intended to include in their estimate every thing else; and they say, in effect, excluding that, and the real and personal property specifically named and listed, the balance of the capital is valued too high, by the sum of $222,426, |