41 La. Ann. 251 | La. | 1889
Tlio opinion of tlie Court was delivered by
Claim is made by the plaintiff for $2164 65, as two-thirds of the contract price of laying a street asphalt pavement on St. Charles avenue, in front of the defendant’s premises, with eight per cent interest from the 1st of August, 1885.
It avers that, oil the 13th of October, 1883, by an act passed before a notary, it made a contract with the City of New Orleans, through her Mayor, who was duly authorized thereto by ordinance, to lay street asphalt paving on St. Charles avenue, in said city j and that said contract was made and said paving done, in accordance with and in pursuance of Sections 21 and 32 of Act 20 of Í882, Act 73 of 1876, ordinances numbered 239 and 451, Council Series, and other laws and ordinances on the same subject-matter, in force at the time.
It further avers that, previous to making said contract, the property holders on said avenue having the legal requirement of feet front, petitioned for the construction of a street asphalt pavement, and said petition was duly and legally advertised, and as recited in Ordinance No. 239, C. S.
That, at the time of the adoption of said ordinance, the execution of said contract, and the presentation of said work, the defendant was a front proprietor on said avenue, and owned a front on the south side thereof, between Carrollton avenue and Dublin street, of three hundred and twenty-five feet, “ and is liable for the paving, curbing'and other work done under said contract in front of his property, as far as the neutral ground, to the amount of two-thirds of the contract price thereof — the capital sum and interest above stated — with lien, privilege and right of pledge,.as stipulated in Act 73 of 1876, duly recorded.
It further shows that, upon the completion of the work, a certificate was obtained from the City Surveyor, and Commissioner of Public
This claim is met by no substantial defenses, on the part of the defendant, but, on the contrary, by a technical exception to the duplicity of the petition, in the first instance, and by sundry technical objections to the formality of the proceedings, and of the manner of plaintiff's pui- £ nance of them.
They may be epitomized as follows, viz:
1. An exception, that plaintiff’s reference to Act 73 of 1876, and Act 20 of 1882, without specifying upon which it relied as authority for its contract, made its petition vague ; and that, as the provisions of those acts are inconsistent, it should be ordered to elect between them.
2. That Act 73 of 1876 was repealed by Act 20 of 1882.
3. That the contract provided for the laying of a patented pavement, in violation of the letter and spirit of Section 21 of Act 20 of 1882, which requires that all such work shall be awarded to the lowest bidder.
4. That plaintiff’s demand for a forced assessment is a tax, in the sense of Article 209 of the Constitution, and the power of the city to levy taxes thereunder, for the year in which said contract was amide, was exhausted before same was made, and it is ultra vires and unconstitutional.
5. And that the work contemplated in said contract was one of public improvement, in the sense of said Article 209, which could not be undertaken at their expense, without a vote of the property taxpayers ; and for this reason the demand is illegal.
6. That St. Charles avenue is, in fact and in law, two streets, separate and distinct from each other,. with a strip of land between them, of about thirty or forty feet iai width, which is designated as “ neutral ground,” and owned by the corporation, and used by the New Orleans and Carrollton Railway Company, under a 'contract with the City Council ■, but, in the petition of the property holders, and all subsequent proceedings, the same wear treated as oaie single street — the property holders residing on any and all parts of either, signing same-indifferently— arid, that such petition and subsequent proceedings were thereby vitiated, and did not create foa-ced liability on the property holders, on either of said streets.
7. That said petition ivas not signed by the requisite number of owners -prescribed by Section 32 of Act 20 of 1882, whether said section is construed to mean ono-fourtli of the owners in number, or the owners
8. That many of the signatures affixed to the property holders’ petition were unauthorized, and cannot be counted, in ascertaining the number of front feet.
9. That St. Charles avenue, from Lee Circle to Madison avenue, Carrollton, is four or live miles in length, and that his property is situated near or at the upper end of Carrollton, and that it is not the spirit or letter of the law, that the full length of the same should be considered and treated as a unit, on which the one-fourtli frontage is to be calculated ; as, in so considering and treating it, property holders exclusively at one end “ might bind the owners to. an extension of three times more the distance ; * * and that for a distance of one mile, at least, from (his) property, much less than one-fourth in number, or amount of frontage is represented in said petition.”
10. That the contract is null and void, because the property holders’ petition called for street asphalt pavement, “ according to specifications of the City of Washington,” and this condition was not observed therein; the pavement contracted for differing therefrom, in essential particulars.
11. That said petition “ was intended to and did ask for the paving of St. Charles avenue, from Lee Circle to Madison avenue, Carrollton, “ * * and that the contract, as now sued on, was awarded and executed for the paving of certain portions of said avenue, the whole of the roadway on the swamp side, from Louisiana to Carrollton, being excluded and not paved.”
12. That, after the publication of the petition, material changes wore made, in the width of the roadways that were paved.
13. That the specifications for the work, and the contract on which publioation'for bids were made were not adhered to in many particulars, and the bond and security stipulated were not given.
11. Neither the specifications nor the contract stipulate the respective proportions pas'able thereunder by the city and the imiperty holders; and tho city was without authority to contract for a rate of interest in excess of four per cent.
15^ That if Act 73 of 1876 be hold to have been repealed by Act 20 of 1882, he insists that the provisions of the former were not within the contemplation of either of the parties at the commencement of proceedings, and that “ all acts are expressly and in terms set forth, in all ordinances and publications, done or intended to be done, under Sections 21 and 32,” of the latter.
17. That, if it be held to have been passed by such a two-thirds vote, same is absolutely null because the “ notice of intention ” contemplated by said statute was not given, and that same was a condition precedent thereto.
Tiie elaborate answer of the defendant is concluded bj' an alternative averment that, in any event, his liability cannot exceed one-half the cost of the pavement of the avenue immediately in front of his property.
We have been at great pains to critically analyze the answer, and state the various objections urged therein, in order that our opinion should not pass its limits. We will take them up, and dispose of them in the order of their proper sequence.
I.
Before going into the trial, the plaintiff’s counsel caused the following entry to bo made upon the minutes of the court, viz :
“ Counsel for defendant having called upon counsel for plaintiff’ to elect, according to defendant’s interpretation of his petition, upon which Act, namely, Act No. 73 of 1876, or Act No. 20 of 1882, plaintiff relied in support of the validity of liis contract as to form, counsel for plaintiff states that, so far as matters of form are concerned, lie relies upon Act No. 20 of 1882, and so far as the proportion of parnnents to be made by the property holders is concerned, and for his remedies, that ho relies upon Act No. 73 of 1876, as stated in the petition and contract.”
This fully responds to the defendant’s exception.
Plaintiff’s counsel entertained the opinion that the provisions of the two acts were not inconsistent, and thus believing they had a perfect right to urge them alternatively in their pleadings, as they are alleged to have done in their proceedings. Tlieir right so to do cannot he tested by a dilatory exception. It is a matter for the merits.
II.
Section 1 of Act 73 of 1876 designates the method of proceeding on the part of property holders who desire to liavo street-paving done, and, also, on the part of the City Council — including the petition, advertisement, memorial of opponents, adjudication of the work, the manner of paying the cost of samo, and by whom it shall be paid.
But Section 2 of the Act of 1876, .provides “that whenever * * paving * * is made upon a street * * having a strip of land, or neutral ground running through the middle, not private property, with a roadway on both sides, two-thirds of said * * paving * * shall be borne equally by the owners of real property fronting upon the roadways, according to the running front foot of property abutting on either of said roadways; and one-third of the cost shall be paid by the City of New Orleans.”
Section 3 of that Act provides “ that all payments shall be made upon the certificate of the Administrator of Improvements and City Surveyor, and which certificate shall be prima fade proof of a compliance with the contract, and due performance of its obligations; and which said contract, when duly passed before a notary, and signed by the Mayor shall be prima fade proof of due observance of all antecedent forms and requirements of law.” It further provides “that the cost of said ® paving * * shall be, and is hereby, constituted a real charge in and upon said real property * ■* * and the same shall be deemed, considered, and treated as pledged for the payment of said cost * '- and that it shall be sufficient to record the certificate of assessment, or performance, of the City Surveyor, etc.”
Upon a critical examination of the Act of 1882, there have been found no provisions upon the same subject-matter, as that cited in Sections 2 and 3 of the Act of 1876, and the two cannot bo said to be, in any sense, in conflict, inconsistent with, or contrary to, each other; and, lienee, those of 1876 are not, eo nomine, repealed. But, it is argued that, inasmuch as the Act of 1882 is the city charter, the presumption juris et de jure is, that it is full and complete, and contain all the powers the Legislature intended the city should possess or exercise, and such an interpretation, necessarily implies 'that all the provisions of the Act of 1876, on the subject of paying streets of the city, are repealed.
In this view, it is well to take into . consideration contemporaneous legislation, and its judicial interpretation, in order to properly appreciate. the purpose of the Legislature in enacting the provisions last quoted from that act.
Section 119 of Act 164 of 3856, which is identical with Section 32 of Act 20 of 1882, ipsissimis verbis, was examined and applied, by our predecessors, in Marquez vs. City of New Orleans, 13 Ann. 319, to a con
The Legislature of 1868 enacted a statute authorizing the police jury of the parish of Jefferson, left bank, to direct the construction of a shellroad, or Nicolson pavement, to connect the then .existing Nicolson pavement, from the upper line of the City of Jefferson, on St. Charles street, to the upper line of the City of Carrollton, on the right hand side of tlie New Orleans and Carrollton railroad track, and to assess tlie property owners with the cost thereof. One Correjolles became tlie adjudicatee of the work, and, upon proper certificates of its completion, lie instituted suit against the succession of Marquis Louis Fouclier, whoso property fronted on the south, or river side of said street, opposite that upon which tlie shellroad was constructed. Our predecessors said in that case :
“Tlie payment of the plaintiff’s bill is resisted on tlie plea that the middle ground of tlie street, which is now used by the New Orleans and Carrollton Railroad Company as a train way, is either the property of the railroad, or of the public, and, in either case, the city is bound to sustain its portion of tlie expense- of shelling the road. Tlie defendant doilies that liis lands, lying south of the street, are bound for any part of the taxes. ® s + * • * * “ It seems that tlie only question in which tlie defendant is concerned, presented in this case, was decided in tlie case of Marquez vs. The City of New Orleans. 13 Ami. 320. In that case tlie court held that the middle ground of Claiborne street belonged to the city as a loeus ]}ublieus, and that the city was bound to bear one-balf the expense of constructing a road on the north side of said street, tlie entire expense of which it was sought to impose upon the proprietors of the north side. That case and tlie one at bar seem to be identical. With that view of the case, the judge a <fuo decided in favor of the defendant, and we*261 think correctly.” Correjolles vs. Succession of Louis Foucher, 26 Ann. 362.
Yet, we And in Section 24 of Act 7 of 1870, extra session, the identical provisions of the Act of 1856 supra reported, and they remained in force until the passage of Act 73 of 1876, which appears to have embodied in it the substance, and purport of the decisions from which we have quoted. Now, when we consider the fact, that Section 32 of Act 20 of 1882 is identical mntatis mutandis with the statutes of 1856, and 1870, the idea of Sections 2 and 3 of Act 73 of 1876 being' repealod, appears to us utterly untenable. Those are the only statutory provisions extant, which relate to the paving of unpiaved neutral ground streets of the City of New Orleans. If it be repealed,.the jwisprudenee would be unaffected thereby, and would be strictly applicable to the existing statute, as it was to those x>receding it. But the existence of that jurisprudence exhibits a necessity for a statutory regulation on the subject, and, therefore, it is not correctly assumed by the defendant’s counsel that the omission of any such provision from the city charter, of necessity implies the repeal of a former, containing it.
In addition to this argument and authority, the Legislature itself placed an interpretation on the question of this alleged repeal; for, in an act 'amendatory of said Section 32 of Act 20 of 1882, it was specially provided “ that nothing herein shall be construed as affecting Act 73 approved March 30th, 1876, as to the paving of neutral grounds, or streets adjacent to the levee.” Act No. 113 of 1886. Vide Faissoux vs. Succession of Baroness de Charand, 36 Ann. 5407.
III.
An important question in the case is whether the contract awarded, and the plaintiff constructed a patented pavement or not; the theory of defendant’s counsel being, that if it was a patented pavement, the city’s adjudication was null, because it- violated the letter and spirit of section 21 of the city charter, which provides that all contracts for public work shall be awarded at public auction to the lowest bidder, or given to the one making the lowest sealed proposal therefor.
Their contention is that there could be no real and practical competition for the work, without the observance of this formality; and that effective competition is of the essence of such a contract.
Whilst there áre some well considered opinions which appear to sanction a contrary view, we prefer to follow that announced in Burgess Bennett et als vs. The City of Jefferson, 21 Ann. 143, which is to the
Accepting this theory, necessitates an examination of the evidence, in order to ascertain the truth or incorrectness of defendant’s charge.
On the trial, defendant’s counsel introduced in evidence, the assignments by E. J. DeSmidt to the plaintiff of two patents, and an application for another; but patents were not introduced, and the application does not appear to have been granted.
Patents numbered 236,995 and 237,662, issued to defendant, were offered, but same were accompanied by assignments to other persons than the plaintiff.
If either of the first throe mentioned patents, for improvements in refining asphaltum, are assigned to the plaintiff, it should have been produced by the defendant, as the burden of proof was on him.
They wore of easy access. The law requires that all patents, and the transfer or assignment thereof, shall be recorded in the Patent Office at Washington, on the penalty of same becoming void, as to any purchaser or mortgagee. U. S. Rev. Stats. Secs. 481, 4883, 4898.
But, in addition to this, an examination of the specifications on which • the contract was awarded and, in pursuance of which, the work was done, discloses that the quantity and character of the material, and the method of laying the pavement, which are set out with great care and particularity. They provide that “the pavement shall be of an uniform thickness of two and one-lialf inches of sheet asphaltum, when compressed, laid on a base of hydraulic cement concrete, of an uniform depth of six inches.”
They require that this concrete base shall be made of English Portland cement, and sharp washed sand, mixed with broken hard-stone, brick, pebble, or sound Lake shells. They provide that the wearing surface, or pavement proper, shall be of “quire, refined asqihaltum, umnixed with any of the products of coal to',” and shall be comqiosed of four ingredients, viz:
1. Refined asqihaltum.
2. Heavy petroleum oil.
3. Fine sand.
4. Pulverized carbonate of lime.
Making a comparison of those ingredients, with the sqiecifications accomqianying the DeSmidt patents, it becomes manifest that the latter were not used by the qilaintiff in laying the qiavement in question, for the reason that those qiatents wore restricted to imqirovements “ in the
To make it plain, there was a stipulation in the specifications of the City Surveyor, that “parties desirous of bidding, but whose process of street asphalting differs from these specifications, and which may be as per specifications of Washington, D. C., are requested to forward'bids, with the difference well explained” — thereby clearly indicating that a patented pavement was not in contemplation of the City Council, in advertising for bids, and that competition was expected and invited in awarding the contract.
It is in proof that asplialtum is imported from Trinidad, by several companies in this country and in Europe, and that it can be purchased in New York and other markets of the United States. It is defined to be a mineral pitch which occurs on. the shores and surface of the Dead Sea, which is styled the Asphaltic Lake j and is found in many parts of Asia, Europe and America. Webster, verbo: Asphaltum.
The testimony, also, shows that there are several companies in the United States engaged in laying street asphalt pavement in accordance with the Washington specifications, which are nearly verbatim copies of those under which plaintiff bought the contract under consideration ; and, that, under them, any one of them, or any other company could have laid the pavement on St. Charles avenue, as plaintiff did.
We have no hesitancy in deciding that this complaint of the defendant was properly decided against him in the court a qua.
IY.
Conceding for the argument, that'the city had levied annual taxes for the year 1883, and for every year thereafter, up to the limit proscribed by Article 209 of the Constitution, and had, in each of said years, exhausted its powers of taxation thereunder, does it follow, therefore, that the forced assessment against the defendant is either illegal, ultra vires, or unconstitutional 9 Is such a forced contribution a tax, in the sense of that Article 9 Certainly not.
That Article provides that “ the State tax on property, for all purposes whatever * * shall not exceed, in any one year, six mills on the dollar of its assessed valuation * * and no parish or municipal tax for all purposes whatsoever shall exceed ten mills on the dollar of valuation.”
Those provisions have exclusive reference to the ad valorum taxation of the property of all the inhabitants of the city, for purposes of revenue only.
Such a distinction has been frequently recognized by us in recent decisions.
In Delcambre vs. Clere, 34 Ann. 1051, we said: “ There is a recognized distinction between the taxing power and the police power conferred on corporations; licenses or taxes may be imposed on certain branches, as a regulation under the exercise of the latter power, but it must plainly appear that they are imposed strictly and exclusively in aid of such power, and not for the purposes of revenue. The rule is, that mere “ police power, and the right to make all needful regulations under it, gives no right to tax for revenue.” Mestayer vs. Corrige, 38 Ann. 711.
Dillon says “ the taxing power is to be distinguished from the police power * * * * The power to license and regulate particular branches of business or matters, is merely a police power; but when licenses, fees or exactions are plainly imposed for the sole, or main purpose of revejwte, they are in effect 'taxes.’” 2 Dillon’s Munic. Corp. Sec. 609.
The same author says the Constitution of California requires that taxation shall be oqttal and uniform throughout the State, but that the Supreme Court of that State holds that the word “ taxation,” as used therein, “refers to general taxes to defray the ordinary expenses of the State, and its subordinate local governments, and not to assessments for local improvements; that taxation was intended to be exercised upon the basis of value, so as to secure equality and uniformity; that assessments (though a branch of the taxing power) need not necessarily be exercised on the ad valorem, principle, but the Legislature is at liberty to adopt a different mode or basis of apportionment, such as frontage, benefits received, or superficial contracts.” Ibid sec. 599, citing: Emery vs. Gas Company, 28 Cal. 345; Hart vs. Garin, 12 Cal. 476; Argenti vs. San Francisco, 16 Cal. 255.
“So in Louisiana, according to the later, if not the earlier, casen, local municipal assessments for local improvements are valid, although
On this subject Judge Cooley says:
“ A like principle is sometimes applied to the construction and improvement of the streets. These, as has been said, constitute highways for the accommodation of the general public, but are calculated, by their improvement, to increase largely the value of all property fronting on, or lying in the immediate vicinity of them. Should the Legislature determine that the cost of a street improvement should be borne in part by the whole city, and, in part, by an assessment made upon the basis of benefits within a district to which the improvement was exceptionally valuable, we know of no valid objection that could be interposed.” Cooley on Taxation, p. 117.
“ Special assessments are a,j>eeuliar species of taxation, standing apart from the general burdens imposed for State and municipal purposes, and governed by principles that do not apply generally. The general levy of taxes is understood to exact contributions in return for general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection, and the general public good. . Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially, and peculiarly benefitted, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it.” Ibid pp. 416, 417, 418, 420, 422, 423.
This and kindred questions -were carefully examined and decided in Charnock vs. Levee District Co., 38 Ann. 323, and Planting and Manufacturing Company vs. Tax Collector, 39 Ann. 461; and the principles announced by the text writers quoted from were affirmed as strictly applicable, under our present Constitution.
Tt is our decided conviction that the statute, and special assessment involved in this discussion, are constitutional and legal.
Tlie argument and authority cited in the last paragraph are applicable to this proposition as well.
The proviso to Article 209 of the Constitution declares “ that lor the purpose of erecting and constructing public buildings, bridges and works of public improvement in the parishes and municipalities, the rate of taxation herein limited may be increased when the rate of such increase, and the purpose for which it is intended shall have been submitted to a vote of the property taxpayers of such parish or municipality * * and a majority of same voting at such election shall have voted therefor.” The one contemplated is, as shown in the preceding paragraph, an ad valorem taxation on all property, generally.
Article 209 et sequenies must bo construed and harmonized with the provisions of Article 46 of the Constitution, which reserves to the General Assembly plenary power to deal with the corporation of the City of New Orleans, at will.
VI.
Preliminary to the discussion of this, and subsequent grounds of objection, which are mainly directed against the proceedings of the different parties, it is well to examine tlie standpoint occupied by them, and ascertain upon whom the onus probandi rests. It must be borne in mind that Section 3 of Act 73 of .1876 provides, that the certificates of the Administrator of Improvements and City Surveyor “ shall be prima faeie proof of a compliance with the contract and due performance of its obligations; and that said contract, when duly passed before a notary, and signed by the Mayor, shall be prima facie proof of due observance of all antecedent forms and requirements of law.”
This is a well recognized principle, for Dillon says: “If the work has been done in a manner satisfactory to the corporation, and has been accepted by it, a prima faeie case is made out.” 2 Dillon’s Munic. Corp. Sec. 650.
“The Legislature may provide for a summary collection of taxes and assessments and declare what shall make a prima faeie case.” Ibid, Sec. 651.
Judge Cooley says on this subject:
“ It is no defense to an assessment that the contract for the work was not performed according to its terms. The proper authorities must decide upon this, and, if they accept the work, the acceptance, in the absence of frauds, is conclusive.'' Cooley on Taxation, p. 468.
“ In the absence of proof of fraud, the acceptance by the corporation of work which it was authorized to contract for, is prima facie evidence against the defen dant, so far as relates to its completion, and the manner in which it was done.”
Hence it appears that the onus is on the defendant to show plaintiff’s non-compliance with its contract, the non-performance of its obligations thereunder, its wcm-observance of antecedent forms and requirements of law, and the iiora-completion of the work.
The certificate of the Commissioner of Public Works, under the city charter, takes the place of that of the Administrator of Improvements, under the statute of 3876. The certificates of the Commissioner and City Surveyor, as well as the notarial contract of the plaintiff with the Mayor, are in evidence; and proof is abundant, of the city’s acceptance of the work performed.
This question being settled, we may proceed with the discussion of the questions remaining.
We do not regard it as material, that the property holders’ petition, and other documents and contracts treated St. Charles avenue as a whole, and did not mention it as consisting of two distinct roadways separated by a neutral ground belonging to the municipality — conceding the facts to be" as stated, arguendo — because the greater includes the lesser, and there is no provision of the law violated thereby. This avenue is dealt with throughout all the proceedings as a double, or neutral ground street, possessing two distinct and separate roadways. While" it maybe true that the property holders, on either side of the street, or roadway signed the petition indifferently, they must be eownted separately in waiving the computation of proprietors owning the abutting properties, for the purposes of special assessment. This is a question of jxroof, and not of the technical sufficiency, and formality of proceedings.
VII.
Section 32 of Act 20 of 1882 provides that, “ whenever one-fourth the owners of real property * * * shall, by petition signed by the petitioner, or petitioners, and addressed to the council of said city, etc.” and, it is argued by defendant’s counsel, that this language implies that one-fourtli of the persons owning front property on the avenue is meant, and not the owners of one-fourtli of the rehl property fronting on the street. Such a construction would be manifestly unjust, because, by this .method of computation, a large number of persons owning a small front, would
It is ihe clear meaning of the phrase that such petition may be “ signed by the petitioner or petitioners,” that a majority of the abutting property was intended.
We have already ascertained that the provisions of Section 119 of Act 164 of 1856 are identical with those of Section 32 of Act 20 of 1882 — vide paragraph IT supra — a further examination of the two acts shows that Section 122 of the former is identical with section 35 of the latter. The result is that the librases, “ the majority of owners, etc.” and “ the owners of a majority, etc.” arc construed to be convertible, and of the same import. Daniel vs. City of New Orleans, 26 Ann. 4.
On the trial, the defendant offered no affirmative .proof in support of his objection, and, in its absence, the notarial contract, which furnishes prima facie proof of compliance with all antecedent forms of law, is sufficient to defeat this objection. Section 3, Act 73 of 1876.
Such was the jurisprudence at the time of the passage of that act, for it was said in O’Hara vs. Blood, 27 Ann. 57 :
“We ñnd a petition signed by a number of persons representing them-. selves as property holders on Locust street, ashing for banquettes to be constructed on that street. On the principle that omnia presumuntur rite esse acta, we must suppose that the persons petitioning constitute ouefourth of the property owners on that street. The defendant has offered no answer to rebut the presumption.” Webber vs. Gottschalk, 15 Ann. 376.
This is a recognized principle of construction in Federal jurisprudence. Gelpcke vs. City of Dubuque, 1 Wall. 221.
But we have the distinct admission in the defendant’s brief (p. 24), “that if the river side of the avenue, alone, be taken, the number of signers exceeds one-quarter, unless your Honors hold that tíre per pro signatures must be thrown out.”
In as much as the proof shows, and the defendant’s admission declares, that St. Charles avenue is composed of two separate and distinct streets, with a neutral ground dividing them — vide paragraph VI and
We know of no hypothesis upon which we are required to disregard the per pro signatures appended to the petition. Defendant should have urged objection seasonably, or he should have offered some proof to sliow the same were unauthorized. Certainly, they furnish prima fa-ice evidence, and that is all the plaintiff was required to do.
VIII.
This objection is fully answered in preceding paragraph.
IX.
A sufficient answer to this objection is that the statute treats a street as a unit for the purposes of all computations required, without regard to its length, and defendant’s counsel is in error when he says “ that it is not the spirit, or letter of the law, that the full length of the street should be considered and treated as a unit, on which one-fourtli frontage is to be calculated, etc.” Vide paragraph VII supra.
X.
This objection is disposed of in paragraph III supra.
XI.
A careful examination and comparison of the petition and contract fails to show any such discrepancy between them as is complained of by the defendant’s counsel.
This objection conforms to the terms of the contract in admitting that it excludes “ the whole of the road-way on'tho swamp side, from Louisiana avenue to Carrollton.” That portion of the avenue was properly omitted, because the proof shows, and our opinion has declared — vide paragraphs II and III, citing 21 Ann. 143 — in effect, that the part of said roadway which was excluded had been previously paved with Xicolson pavement, and hence proceedings for its repavement could only be taken in conformity with the provisions of Section 33 of Act 20 of 1852, and Act of 1876.
In paragraph VI we hold that it was not material that this petition treated St. Charles avenue as a whole, and not as two separate and distinct roadways because it violated no provision of law. Such a petition operated full notice to the defendant because it included the south, or river side of the avenue on which Ms property fronted, and he is with
XII.
There is no proof of this objection; and, if there was, it appears to us to be perfectly immaterial, as there is no designation of tlie alterations which were made, nor any averment that same were not beneficial to the property holders. Non constat that defendant did not derive a benefit therefrom.
XIII.
This objection is of similar import, as tlie one considered in the preceding paragraph, in part, and the same course of reasoning applies thereto; and the residue is fully answered by the evidence.
XIV.
It is not a valid objection to urge against the specifications furnished by the City Surveyor, and the plaintiff’s contract with the city, that neither of them stipulate the proportionate share of the cost to be borne by the city, and the property owner, respectively, because tlio statute regulates, and fixes their proportion of the cost. Section 2, Act 73 of 1876.
This question is fully discussed and decided in paragraph II supra. Vide Marquez vs. The City of New Orleans, 13 Ann. 19; Correjolles vs. Succession of Foucher, 26 Ann. 362.
We see no reason why the city did not have the power to stipulate eight por cent interest against defaulting property-owners. It would seem to be implied from her power to adjudicate the work, and to make the contract for the purchase price thereof, for which the property-owner and any future transferee, are personally bound. Sec. 3, Act 73 of 1876.
The Code says “tlie damages due for delay in the performance of an obligation to pay money, are called interest.” R. C. C. 1935; and hence the stipulation of any rate, not exceeding eight per cent, would appear to be an incident of the obligation. R. C. C. 2924.
This precise question was decided in tlie Second Municipality of New Orleans vs. McFarlain, 3 R. 406, in which Judge Martin, in speaking for tlio court, used tlie following terse and pertinent language:
“ The Municipality had the undoubted right of calling on tlie owners of lots, for a contribution to the expenses attending the paving of the streets before their respective property. In doing so, they might insist that those who delayed payment, should pay interest at eight per cent,*271 the delay being a facility which they were not bound to grant; and the owners might have avoided the payment of the stipulated interest by an earlier payment.”
The defendant’s counsel complains of the reasons assigned, as being insufficient, and, of the decision itself as being an isolated one, and unsupported by subsequent opinions. To our thinking the reason is ample; and, while a single decision cannot be considered as having the force of stare decisis, it is entitled to due weight and consideration. Wo have no hesitancy in main tain g that the view, therein so concisely expressed, is strictly applicable to, and as decisive of the question in hand.
XV.
While it is true that mention is made, co nomine, neither in the petition of the property-holders, the specifications, ordinances, nor the contract, of the provisions of Act 73 of 1876, it does not follow that they were not in the contemplation of the parties thereto, mainly for the reasons assigned in the answer of the plaintiff’s counsel to the defendant’s exception.
Vide paragraph I. If, as the plaintiff assigns, it relied upon them for its remedies in the enforcement of its contract, and for the ascertainment of the proportionate share of the cost of the work done by the abutting proprietors, only; and, upon those of the city charter as to all matters of form, only; was it not expedient that the latter should have been mentioned in, and the former omitted from the acts and proceedings?” We think so.
We said, in answer to the defendant’s fourteenth objection that it was unnecessary that the proportionate share of the cost of the work done by the proprietors should have been stated; if not, why should the law have been referred to ? Vide paragraph XIV supra.
XVI and XVII.
These two objections need not be discussed because they have been already eliminated from the argument, by reason of the city having acted under the sanction and authority of the special and exceptional provisions of Section 32 of Act 20 of 1882, and Sec. 2 of Act 73 of 1876, and not by virtue of the general powers of the council. Vide paragraph XI. Bennet Burgess et al. vs. The City of Jefferson, supra.
XVIII.
The defendant’s counsel insists that he is, at most, only liable for one-
Section 2 of Act 73 of 1876, establishes the plaintiff’s right to claim two-thirds, and in paragra.gh II of this opinion, we hold that it is unropealed and in force, pro tanto.
XIX.
Counsel x>roposed to amend their answer so as to specially aver defendant’s exoneration from all liability by reason of the fact that the city ordinance and contract designated the portion of St. Charles avenue on which pavement was to be laid, as extending “from Lee Circle to Carrollton that this designation was not intended to include that part of 'the city which is ordinarily designated as Carrollton, of which Lower Line street is the lower limit; and “that this property is situated at the upper end of Carrollton.” The amended answer was disallowed by the court a qua, and defendant’s counsel retained a bill of exceptions. During the progress of the trial defendant’s counsel offered evidence, by ■which to prove what was the understanding of the plaintiff and property-holders, at the time the work was in progress, with regard to the upper terminus,and it was admitted over plaintiff’s objection and exception. Without traversing these rulings, it will suffice to say, that we consider this defense, only, an affcer-thouglit, and of little practical importance, inasmuch as the defendant’s original answer places our interpretation on the phrase “from Lee Circle to Carrollton,” exactly opposite to that proposed in his supplemental answer.
We quote from the original brief of the defendant’s counsel, the following paragraph as taken from that answer, viz :
“ The petition, such as it was, on the part of the signers and those interested, intended to and did ash for the paving of St. Charles avenue from Lee Circle to Madison avenue, Carrollton, and this petition so was published for the aforesaid purpose of serving as a basis for a contract for the paving of the whole of “St. Charles avenue,” as understood, as aforesaid; and notwithstanding the foregoing, the contract, as now sued on, was awarded and executed for the paving of certain portions of said avenue, the whole of the roadway, river or swamp side, from Louisiana avenue to Carrollton, being excluded, and not paved.” (Brief, p. 11.)
That part of the specifications furnished by the City Surveyor, referring to “ roadways,” stipulates that the portion of St. Charles avenue to be paved shall be “twenty-four (24) feet wide between Louisiana avenue and Madison streets-,” and that the width of the sidewalks shall be “between Loe Place and Louisiana avenue, eighteen (18) feet; be
If anything wore needed to further enforce tins language it is supplied by the plain and unambiguous terms of the material contract, which is as follows, viz :
“ Said T. Tupper declared that, acting for and in behalf of said Barber Asphalt Paving Company, and on the terms and conditions, and for tito considerations herein set forth, he agrees for, and binds said Barber Asphalt Paving Company, to pave with “sheet asphaltum” both sides of St. Charles avenue, from Lee Place to the upper side of Louisiana avenue, and the east, or river side of St. Charles avenue, from Louisiana cwenue to Madison street, Carrollton.”
Reference to the sketch which was introduced in evidence by the defendant’s counsel, discloses that Madison amanue, Carrollton, intersects St. Charles avenue, at an angle slightly acute, and immediately above the New Orleans and Carrollton railway station on one side, and the defendant’s Carrollton garden and hotel on the other, side. According to this sketch, the upper terminus of the pavement to be laid in pursuance of plaintiff’s contract, was the upper limit of the defendant’s property, and not Lower Lino street — as contended by the defendant’s counsel — ■ it having anciently been the lower limit of the town of Carrollton, prior to its legislative incorporation into the City of New Orleans.
This argument includes, incidentally, the discussion of the final proposition, that the defendant is entitled to a credit for the cost of the construction of twenty-five feet of pavement, in that, he is sued for the cost of a frontage of three hundred and twenty-five feet from Carrollton avenue to Dublin street, whereas that frontage is only three hundred and one feet.
This deficit is claimed as being a deduction for the width of Dublin street. That might be correct if Dublin street intersected, or separated the defendant’s property; but the said sketch shows that it does not. The testimony of the City Surveyor confirms this conclusion.
“ Q. About how many feet — Madison avenue and St. Charles avenue, both being extended in direct lines — how much extension would be necessary for Dublin street to run into St. Charles avenue ?”
“ A. About fifty or seventy-five foot between the- two. I stepped it off about two Sundays ago.”
On this point the district judge says:
“ The certificate of the city officers covers a 'distance of 325 feet from the corner of Carrollton avenue towards Madison street, and embraces some 24 or 25 feet of frontage which faces the open end of Dublin street.*274 lean see no error in tlie certificate; Dublin street does not cross St. diaries avenue, but stops short upon the north side ; lienee there is lio intersection, and the defendant is liable for the paving upon that part of his front just as on any other part.”
After a most careful examination of the record, and the elaborate briefs of counsel, and a deliberate, and critical review of all the authorities cited, wo feel constrained to say that the finding of the judge a quo in favor of tho plaintiff, was correct.
Judgment affirmed.
