New Orleans Female Orphan Asylum v. Houston

Concurring Opinion. Fenner, J. I yield my concurrence in this decree under the principle of. stare deeisis. I have sought in vain for a single substantial feature distinguishing this case from that of the City vs. Poydras Asylum, 33 Ann. 851. In the report of that case will be found a full statement of the cogent reasons which prompted my dissent from the decree therein. One of the strongest of those reasons was that it was contrary to prior decisions on the same subject, in -which connection I used the following language: “It is, to my mind, a violation of the cardinal rule that constitutions should receive an unvarying interpretation. ‘The mean *70 ing of a constitution/ says Judge Cooley, is fixed when it is adopted, and it is not different at any subsequent.time when a court has occasion to pass upon it.’ It is not made to mean one thing to-day and another thing to-morrow.” These principles are entitled to application here. Tt would be a scandalous commentary upon the uncertainty of even the organic law and the vacillation of courts, if, as regards two orphan asylums having precisely the same right, vve should grant exemption to one and refuse it to another. Misera estservitus ubi jus vagum cmt incertum est. Then, obedience to law becomes an intolerable hardship. In matters of constitutional rights especially, it is the duty of courts “to keep the 'scale of justice even and steady and not liable to waver with every new judge’s opinion,” I take occasion to say, however, that I do not hold myself bound by this rule, except so far as identical cases are concerned. For these reasons I concur in the decree.