institution, and the case, therefore, to be analogous to that of Hardie's case (43 La. Ann. 251, 9 South. 12); in other words, that the legatee was a distinct legal equity, capable of receiving by testament at the time the will was made, but which had gone out of existence by the time the testator died. It will be noted that the text to which said note is appended would justify a construction very much more latitudinarian than any that can be necessary for sustaining the legacy in the instant case, or even for sustaining such a legacy as that in the Hardie case (3 La. Ann. 251, 9 South. 12).

It is therefore ordered, adjudged and decreed that the testamentary executrix of Mrs. Anna Staub, deceased, pay to the city of New Orleans the legacy of three thousand dollars contained in the will of the said deceased in favor of the City Insane Asylum of the said city, to be applied to the uses named in the said will; the succession to pay all costs.

The Lapse of a Testamentary Gift to an Institution of a charitable character which ceases to exist before the death of the testator is considered in Stratton v. Physio-Medical College, 149 Mass. 505, 14 Am. St. Rep. 442; Gladding v. Saint Matthew's Church, 25 R. I. 628, 105 Am. St. Rep. 904; Snider v. Snider, 70 S. C. 555, 106 Am. St. Rep. 754.

TOWN OF MARKSVILLE v. WORTHY.
[123 La. 432, 49 South. 11.]

MUNICIPAL CORPORATION-Power to Penalize Card-playing.-Playing cards for money has not been denounced as unlawful by the statutes of this state, except when such gambling is carried on in or in view of a public highway or street. A town charter which contains no delegation of power to suppress gambling, but confers merely the right "to remove nuisances," does not warrant the enactment of an ordinance penalizing the playing of cards for money in any and all places within the corporate limits. (p. 355.)

(Syllabus by the court.)

Coco, Couvillon & Coco, for the appellants.

William Harris Peterman and Tucker Horatio Couvillon, for the appellee.

433 LAND, J. Defendants are charged with and arrested for playing cards for money, in violation of an ordinance of the town council of Marksville of date January 6, 1909, and reading in part as follows, to wit: "Be it resolved that after the 1st of February next, it shall be unlawful for any person Am. St. Rep., Vol. 131-23

or persons to gamble at cards, dice or any other game or device, in any hotel, saloon or any public place of business, or in any private residence, in the limits of the corporation.

Defendants filed a plea admitting the fact that they were engaged in a game of cards for money on February 2, 1909, as charged, and were arrested therefor, but assailing the said ordinance as unconstitutional, ultra vires and illegal, for the reason that the constitution has delegated to the legislature alone the power of suppressing gambling and penalizing the same, and the said town council usurps the power of the legislature when it attempts to do so."

The plea was overruled, the defendants were tried and found guilty, and each of them sentenced to pay a fine of ten dollars, and in default of the payment thereof to be incarcerated in jail for the period of four days. The defendants have appealed.

Act No. 82, page 69, of 1885, amending the act incorporating the town of Marksville, 434 confers upon the mayor and board of aldermen "the power to remove all nuisances," and "to prescribe fines for all breaches of the by-laws of said town." The town, also, by the terms of this act, is invested with "the powers that are prescribed by law for the government of corporations in general."

The record does not disclose what kind of a card game the defendants were playing, or in what particular place the game was played. It is stated in brief of appellants that the game was "draw poker," and the place a private room in a building occupied as a saloon. Counsel for the prosecution states that the game was played in a pool-room, which is a public place.

The defendants were convicted, as charged, "for playing cards for money within the corporate limits of the town of Marksville," and on their admission of the facts as set forth in the charge. Hence there is nothing to show that the defendants were gambling in a public place.

All the authorities cited in behalf of the plaintiff refer to gambling-houses, or to gambling in public places. It has been held in several cases that a municipality may pass an ordinance prohibiting gambling games denounced by the statutes of the state: City of Monroe v. Hardy, 46 La. Ann. 1232, 15 South. 696; New Orleans v. Collins, 52 La. Ann. 973, 27 South. 532. The charter confers no powers on the town of Marksville to suppress gambling eo nomine. "The power to remove all nuisances' does not include the power to suppress acts merely vicious and immoral. There is no general state law which

prohibits playing cards for money. Act No. 69, page 108, of 1886, makes it unlawful to gamble with dice or cards on or in view of public highways or streets. In State v. Dobard, 45 La. Ann. 1412, 14 South. 253, it was held that under the general power "to suppress all nuisances" the council of the eity of New Orleans 435 had the right to penalize the sale of lottery tickets, already made unlawful by the laws of the state. But in City of Shreveport v. Maloney, 107 La. 193, 31 South. 702, this court declared null and void and ultra vires an ordinance against betting on horseraces through the medium of turf exchanges. At that time gambling on horseraces had not been made unlawful by state legislation. The court adopted the view that under article 188 of the constitution of 1898 the duty to suppress gambling was primarily confided to the legislature.

Act No. 136, section 15, page 231, of 1898, conferred on municipalities organized under or adopting the provisions of that statute the power to "prohibit games, gambling-houses and rooms, and to provide for the punishment of persons engaged in the same.

In Town of Ruston v. Perkins, 114 La. 851, 38 South. 583, it was held that Act No. 136, page 224, of 1898, was constitutional. The town of Marksville has never adopted the provisions of this act, but has retained its old charter adopted at a time when no form of gambling was unlawful except banking games, such as faro. It may be taken for granted that the lawmakers of 1855 had no intention whatever to vest in the town of Marksville the power to suppress all forms of gambling for money, whether in public or in private.

Gambling per se was not an indictable offense at common law. The municipal police power over gambling and gambling houses is dependent upon the charter or general laws: 28 Cyc. 713, 714.

Our conclusion is that the ordinance is illegal and ultra vires in so far as it penalizes the playing of cards for money. It is not pretended that the defendants were keeping a gamblinghouse or were gambling in public view.

It is therefore ordered that the sentences appealed from be annulled, avoided and reversed, 436 and that the defendants be discharged without day, and that the town of Marksville pay costs in both courts.

The Power Delegated to a City "to Prevent and Suppress Gaming and gambling-houses, or places where any game in which chance predominates is played for anything of value," authorizes the common council to prevent the setting up or keeping of any house or place

for the purpose of selling lottery tickets or certificates depending upon the event of a lottery: Portland v. Yick, 44 Or. 439, 102 Am. St. Rep. 633. See, also, Ex parte Kameta, 36 Or. 251, 78 Am. St. Rep. 775.

LEVERT v. DAILY STATES PUBLISHING COMPANY. [123 La. 594, 49 South. 206.]

LIBEL Statements Selected from Other Journals.-Malice on the part of a publisher of statements selected from other journals that are injurious to the reputation or character of private individuals or public officials is conclusively inferred if the communications are false in fact. The good intentions of the publisher affect only the question of damages, and, where no special damages are proven, the plaintiff is entitled to such damages on account of injured feeling as must unavoidably be inferred from the nature of the libel. (p. 368.)

LIBEL.-A Sweeping Charge of Official Favoritism and Misconduct leveled against the members of a public board without exception necessarily points the finger of condemnation at every one of them, though none are named, and if not proven constitutes a libel, if the members are known and the publication is generally understood to apply to them. (p. 369.)

LIBEL. The "Freedom of the Press" Consists in a right, in a conductor of a newspaper, to print what he chooses, without previous license, but subject to be held responsible therefor as anyone else for a similar publication. (p. 368.)

LIBEL.-The Absence of Actual Malice in the publisher of a libelous article on a matter of public concern will be considered in mitigation of damages, and, where no special damages have been sustained, nominal damages, at least, will be awarded for the purposes of vindication. (p. 369.)

(Syllabi by the court.)

Clegg & Quintero and Miller, Dufour & Dufour, for the appellant.

William Stirling Parkerson, for the appellees.

595 LAND, J. This is a suit for ten thousand dollars damages for an alleged newspaper libel against the plaintiff as a member of the board of administrators of the Tulane University of Louisiana. The case was tried before a jury, and the plaintiff appeals from a verdict and judgment in favor of the defendants.

On August 15, 1906, there appeared in the columns of the "Daily States," a newspaper of general circulation, published and edited in 596 the city of New Orleans by the defendants herein, the following article:

"AFFAIRS OF TULANE UNIVERSITY.

"(From the Boston Herald,' August 8, 1906.)

"A most unpleasant, and, as it appears reprehensible condition of affairs has been developed in respect of Tulane University of New Orleans. The newspapers of the city discuss it with much tenderness, but there appears to be a practically unanimous sentiment that the institution has been grossly imposed upon and abused by the management or mismanagement of its responsible officers of administration. Tulane University is one of the leading educational institutions of the South, and it has received endowments that give promise of enhancing its importance if they are prudently and intelligently managed. It has obtained from the state landed property in New Orleans which was valued, when prices were very much lower than now, at $200,000. It is also exempted from taxation on all property below $5,000,000. Being thus endowed and favored by the state, in addition to private endowments it had high rank and promise. Dr. E. A. Alderman, now president of the University of Virginia, was for several years at its head, and he ranked among the bestequipped college presidents of the country, and gave prestige to the institution. It has 1,500 or more students, and more than 100 instructors.

“During last winter a movement was undertaken to obtain for it an annual subvention from the state treasury, and in this way to raise it to the position of the State University. Although there is already at Baton Rouge a recognized State University, the scheme was, we believe, to effect some kind of union of the two, making the Baton Rouge institution an agricultural and technical department of the complete State University. This movement to officialize Tulane University led to an investigation of its management of the state aid already given to it. It was discovered that it had never rendered an account concerning the use of its endowment, given by the state in trust, and the press insisted that the board of management should make a report of its stewardship. The showing of facts that was made rather reluctantly was far from indicating that a prudent and wise discretion had been exercised, and one transaction was revealed that has the quality of a scandal and has been visited with severe criticism.

"There was a certain parcel of improved property for which some time ago a demand appeared. A citizen offered to purchase it for a sum specific in order to devote it to business purposes. The question to be considered, of course, was