text:
    No. 13,231.
    Flower, King & Putnam vs. John Beasley.
    Syllabus.
    1. It is the fluty of the tax collectors to proceed to the enforcement of delinquent taxes by sale of the real estate affected by the same when the time fixed by law for doing so is reached. The fact that it may be at that time in the possession of the sheriff under a seizure is no obstacle to this being done.
    2. Where, pending an injunction against the sale of property which is under seizure by the sheriff, it is sold in enforcement of taxes and the adjudieatee has been placed in possession under a recorded title, and the time for redemption has expired, the sheriff cannot be forced upon the dissolution of the injunction to proceed with the sale of the property under the seizure.
    The rights of the adjudieatee at tax sale can not be thus ignored.
    The principle lying behind Articles 2149 and 2453 of the Civil Code does not apply to such a case.
    CERTIFIED from the Court of Appeals, Third Circuit, by the Judges thereof Applying for Instructions.

      William II. Peterman for Flower, King & Putnam, Plaintiffs.

      Couvillon & Son for Saucier, Sheriff, Defendant in Rule.
    Statement of the Case.
   The opinion of the court was delivered by

Nicholls, C. J.

The Court of Appeals of the Third Circuit, have certified to us two questions of law accompanying the application by a statement of facts and asking for instructions.

1st. Can a sheriff who has property in his possession by seizure in executory proceedings, which proceedings are enjoined, sell said property at tax sale for the collection of taxes due thereon ? The sale being made while the property is in custodia legis; is it not absolutely null, although made for taxes ?

2nd. After the property has thus been adjudicated by him for laxes, and the vendees placed in possession under their title duly recorded, and the property has not been redeemed, can the sheriff under these circumstances, be forced by rule to proceed with the sale of the property in execution of the writ issued in said proceedings?

Statement of Facts.

On February 12th, 1895, the plaintiff in rule, (Flower, King & Putnam), issued executory process against John Beasley in suit No. 9231, upon an obligation executed by Beasley for the principal sum of five hundred dollars.

Under the order issued in said cause, the sheriff on the 26th day of February, A. D., 1895, took and seized and was commanded to sell upon the terms and conditions in said order fully set out, in order to pay and satisfy the aforesaid debt of five hundred dollars the ■ following described property as belonging to said John Beasley, to-wit:

A certain tract or parcel of land lying and being on the Bayou Choupique, containing twenty acres, more or less, the same being bounded North by J. B. Johnson, South by Narcisse Cappel, East by said J. B. Johnson, and West by O. G. Brassett, together with all the improvements thereon, worth over two hundred dollars.

On April 6th, 1895, Amelia J. Liewald, and others obtained in said court in suit numbered 9287 on the docket thereof, entitled Amelia J. Liewald, et als., vs. Flower, King & Putnam, a writ of injunction directed against the aforesaid executory proceedings, No. 9231, and restraining the sale of the above described property so seized by the sheriff under the writ of seizure and sale therein issued.

While said above described property was in the sheriff’s possession, under said writ of seizure and sale, in No. 9231, and at a time when said injunction suit No. 9287 was pending and undecided, the sheriff seized said property for taxes due thereon by the said John Beasley, and adjudicated same at tax sale on the 10th day of August, A. D., 1895, for taxes of year 1894 to G. H. Couvillon, and T. Lemoine for taxes of year 1894, whoso deed was properly recorded, and who went into immediate possession of the property. The tax roll of 1894 was on file in the Recorder’s office after completion in 1894. The said property was not redeemed from the effect and operation of said adjudication at tax sale within, the year allowed by law for that purpose.

On February 4th, 1897, the injunction suit of Liewald et als., No. 9287, was dismissed at plaintiff's costs therein.

After the dissolution, of the injunction the seizing creditor demanded of the sheriff that he proceed to the sale of the property seized, but he refused to do so unless he was given an indemnity bond in the premises. The seizing creditor refused to do so and ruled the sheriff into court to show cause why ho should not he compelled to proceed.

The sheriff answered denying that he had any right or authority in law to proceed with the sale and advertisement of the property; that it was no longer under seizure, it having been seized and sold for taxes dne thereon, and was no longer subject to sale under the seizure made under the writ issued; that the indemnity bond required was simply for his protection, as he was threatened with damages if he attempted to proceed with the sale of the said property.

The District Court made the rule absolute and the sheriff appealed.

The Court of Appeals reversed this judgment, but granted a rehearing and then applied for instructions, referring this court to the opinion of the Supreme Court of the United States in re Tyler, 149 U. S. Reports, p. 165, and Henry Tricou, 36 Ann. 519.

Opinion.

All property in the State not protected by constitutional exemption is subject to taxation, and payment of the claim of the government is secured by a privilege which primes any special mortgage upon it. The liability of property to taxation and to being sent to sale in enforcement of taxes, is independent of the fact that the owner has possession of it either when assessed or when sold at tax sale.

The proceedings taken in enforcement of taxes do not require the tax collector to make a seizure of the property and take it into his possession. The party holding possession at the time of the advertisement of sale remains undisturbed until after the title becomes shifted by an adjudication, and the law, as it now stands, contemplates the taking out by the purchaser of a writ of possession to place himself in actual possession (Acts 1880, No. 80), though it has been held that possession taken by him without objection or by consent is legal.

The fact that property which is subject to taxation may he under seizure in the hands of the sheriff, when the time fixed by law for the enforcement of delinquent taxes is reached, is no obstacle whatever to the prosecution of the State’s demand. The tax collector is imperatively-required to proceed at once.

The paramount rights and interests of the State are not to be subordinated to or held in check by the relations between the owner of the particular property and some private party holding' a mortgage upon it. The latter is bound to know as between the State or parties holding under it and himself that there may be taxes upon the land, and is. bound to safeguard his interests by payment of the taxes and subrogation to the State’s rights or in some other way.

If the possession of the sheriff is ultimately interferred with it, is only by way of consequence or result of the exercise by the State of its legal rights in the designated manner, and not a physical taking of the possession of the property by the tax collector, out of the hands of the sheriff.

If the proceedings had the effect legally of shifting the title and also of cutting off legally the rights of the seizing mortgage creditor, that ■effect could not bo broken by the fact that, at the time of the shifting of the title, the property was in the hands of the sheriff. Proceedings ’in enforcement of taxes are not the only ones which are authorized by law to be carried on, and to result in the shifting of titles independently of the fact of possession of the property, by the parties dealing in respect to it.

Partition is a proceeding of that character. (C. C. 1320).

It could scarcely be claimed that the title acquired by the purchaser .at a judicial sale, made to effect a partition by licitation among joint ■owners, would be invalidated by reason of the fact that, at the time of the sale, the property should have been under seizure, and in the hands ■of the sheriff, at the instance of a mortgage creditor of one of the joint owners.

The exercise of the paramount rights of the other joint owners would force the subordinate rights of the mortgage creditor to yield (C. C. 1337, 1338), and so it is in the case of the exercise of the paramount rights of the State.

It would have been an easy matter for the mortgage creditor to have "been present at the tax sale, and forced the bidding on the property up to a point sufficiently high to have protected his interests.

Under the statement of facts certified to by the Court of Appeals, ■the purchaser of the property at the tax sale has gone into and is now ill actual possession of the same under a recorded title. The circumstances under which the adjudieatee took possession, whether under a writ of possession, or the surrender of possession by the sheriff, is not disclosed, but the fact remains that he is in actual possession, as stated.

There is no attack upon the existence and validity of tire tax, or the regularity of the tax proceedings.

They must be presumed to have authorized the sale, and the purchaser to have acquired rights thereunder which can not be ignored in a collateral proceeding to which he is not a party.

He is to be held as a purchaser in good faith under a good and paramount title, until the contrary shall have been established in proceedings t,aken contradictorily with himself.

Assuming that actual knowledge by tire adjudieatee at tire tax sale, of the fact that the property offered for sale was then under seizure and in the hands of the sheriff, would have affected the validity of the sale; it is not claimed that he had such knowledge, and we do not think he would be bound by constructive knowledge of that fact. We do not think that the principle lying- behind Articles 2149 and 2453 of the Civil Code finds any application to a ease like the present, where the sale which has taken place, is under a paramount title or right under proceediirg-s legally authorized to be conducted out of court without the necessity of a prior seizure. Kohn vs. Lapham, 82 N. W. 409, 410. State vs. Godfrey, 10 Ohio Circuit Decisions, 316. American Digest (April, 1900). Lacassagne vs. Abraham), 48 Ann. 1160 and 51 Ann. 843.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,590.
    State of Louisiana vs. James Scanlan.
    Syllabus.
    1. In reference to severance, the orders granted were not prejudicial to the* appellant, as the severance applied was granted, though not on his motion, before the opening of the trial.
    2. On an appeal from the verdict of a jury and the sentence of Criminai District Court, the Supreme Court is not vested with authority to review the facts-by Article 94 of the Constitution of 1898.
    3. The court declined to review questions of facts and examine the testimony reduced to writing, and made part of the transcript, for the purpose of determining whether the testimony authorized a conviction or the refusal of a new trial.
    4. Jurors may separate for a few minutes in cases of necessity, when placed in charge of an officer who has them under his eye, and does not suffer them, to speak to any one.
    APPEAL from the Criminal District Court, Parish of Orleans— Baker, J.

      Walter Guión, Attorney General, and J. Ward Gurley, District Attorney, (Lewis Guión, of Counsel) for Plaintiff, Appellee.

      Louis P. Pacquet for Defendant, Appellant.
   The opinion of the court was delivered' by

Breaux, J.

The defendants, James Scanlan and James Brown, were-jointly indicted by the Grand Jury of the Parish of Orleans, on the seventh day of July, 1899, for killing- John Untereiner in that parish, on the seventeenth day of June, 1899.

Counsel for the defendant, James Scanlan, presented a motion to the court for a severence, which was overruled on the eighth day of February, 1900. Defendant, Scanlan, through his counsel, reserved a bill of exceptions to the ruling of the court.

On the twenty-sixth day of March, 1900, the defendants were placed on their trial; and immediately, thereafter, James Brown filed a motion for a severence. On this motion, the court ordered a severence to be-granted.

The State, and the defendant, Scanlan, being ready for trial, the jurors were empanelled, and the case against this defendant was heard.. The .accused was found guilty of murder without capital punishment. The defendant presented a motion for a new trial, substantially, on the ground that the verdict was contrary to the evidence, as it was shown that this defendant did not fire the fatal shot, but his co-defendant did;, that the State had not alleged and had not shown that any .conspiracy existed between the defendants, and his mere presence at the crime did not render him guilty of the crime charged; that the witnesses for the-State were unreliable, and unworthy of belief; that the testimony of the coroner, a witness for the State, showing where the deceased was-. wounded, together with the proof showing where the defendant was-standing when the fatal shot was fired, conclusively proved that he did! not fire it; and, lastly, defendant sets out that it was error on the part -of the court to permit the jury, after it had been empanelled, and after .a part of the testimony had been heard, to separate, as there was no necessity for the separation at the time. The motion for a new trial was overruled. To this ruling the defendant excepted, and reserved a bill of exceptions; and made the testimony taken on the original trial, ■and on the hearing for a new trial, part of his bill of exceptions.

The court sentenced the defendant to suffer imprisonment in the ■State penitentiary for life. From the verdict of the jury, and the sentence and judgment of the court, defendant prosecutes this appeal.

In reference to the motion for a severence, we noted, in our statement of the facts, that a severence was granted. Although it was not granted on this defendant’s motion, it remains that he was tried separately from the one with whom he was jointly indicted, and that this is the extent of the relief which he sought by his motion for a sever.ence.

We pass to the grounds which counsel for defendant earnestly presses upon our attention, arid we take them up in the order in which they are .argued in his brief.

Invoking Article 94 of the Constitution of 1898, defendant, through his counsel, urges that this court has jurisdiction in criminal cases, to examine into and pass upon evidence upon which a jury has based a verdict. We can only say, in answer, that the terms of that article do not look to the control and general supervision of evidence upon which n jury finds a verdict. Under the terms of that article, the questions are brought up on an application for issuing a proper remedial writ. No application for a remedial writ has been made. The record does not disclose any ground upon which such an application might have been based. This is particularly true of the verdict, -which can not be disturbed by any action under any of the remedial writs, on the ground, that it is contrary to the evidence. This appeal could find nothing for its support in the cited article, even if we were to conclude that questions can be brought before us under that article without the necessity of presenting them on an application for one of the remedial writs. The jury is the judge of the guilt or innocence of the accused. Their conclusion can not be disturbed by the exercise of the supervisory jurisdiction conferred by Article 94 of the Constitution. The court can review and revise the proceedings of other courts, as contended by the defendant, but not, however, as contended in this case, when the jury is made the judge of the facts upon which to base a verdict. Article 179-’ of the Constitution.

Taking a broad view of the different articles of the present Constitution, and no longer in the argument limiting himself to the cited Article 94,' defendant’s counsel urges that, under the different articles having bearing' upon the question of jurisdiction, this court can review the proceedings of law or fact of every other court of this-State.

We must decline to agree with counsel. There are limits that are-mandatory. One of them is, that on appeal in criminal cases, this' court shall have jurisdiction of questions of law, only; and this repels all idea that the court, on appeal, can set aside a verdict on the ground that it was found contrary to law and evidence. The questions of fact that are at all reviewable on appeal for a new trial, are those it is needful to consider in deciding questions of law raised. They are questions of facts blended with those of law, incidents of fact so connected in determining- the law applying that the facts must be considered. This court has never gone to the length of passing upon the guilt or innocence of any accused, and that we would have to do were we to grant a new trial in this case.

The court, in a multitude of eases, holds that questions of fact are-left to the jury. They are the judges of the credibility of witnesses, and they are to weigh the questions of fact presented upon which to-find the verdict. State vs. Seily, 41st Ann., 143; State vs. Nelson, 32nd Ann., 845; State vs. Sheldon, 8 Rob., 540; State vs. Paterson, 2 Ann., 921. These decisions sustain the proposition. The evidence of facts made part of a bill of exceptions is not to be considered for the-purpose of determining whether or not it justifies a conviction.

The next complaint on the part of the defendant is that there was a separation of the jury. Unquestionably, unless there is some reason for a separation, it should not be permitted. We take it that, upon the-occasion in question, there was necessity for granting permission to a number of the jurors to repair to one of the appartments of the court building. They were placed in charge of two deputies, and the record does not disclose that the separation was attended with the least circumstance of miscondulct. They were kept together until their return into court;-and when they returned, the trial, which had been interrupted -by their absence for about five minutes, was resumed. It is not contended that there is any suspicion that they conversed with any one. 'They never passed from under the eyes of the officers in charge of them, and they were not exposed to the least improper influence. The rule “that a jury should not separate is not intended to go to the length of prohibiting temporary separation, which, in the nature of things, must ■occur in the course .of a protracted trial. In our view, on this point, the case is stronger for the State, than it was in- State vs. White, 52nd Ann., 206. There was in the present case more necessity for the separation.

We have gone over all the points in this case. Although, in our view, there was no necessity of considering the evidence admitted before the .jury during the trial, yet we examined it all, from cover to cover, and found no point for decision which afforded any ground for granting ;a new trial.

Only one alternative is left. We must affirm the verdict and sentence.

For reasons assigned, the verdict of the jury and the sentence and .judgment of the District Court are affirmed.


author: Nicholls, C. J.

text:
    No. 13,546.
    John M. Bonner vs. Board of Assessors; Crescent City Railroad Company vs. Board of Assessors et als.
    Syllabus.
    Ü. The parties authorized to apply for the review of a judgment of the Court of Appeals, under Article 101 of the Constitution of 1898, are the parties cast in the judgment, or some party in interest therein, and not some person who may be simply interested in the question at issue. The State tax collector of one district of the city of New Orleans, has no legal* Interest to bring up for review a judgment of the Court of Appeals, negativing the right (in a certain class of cases) of the attorney-at-law employed to assist the tax collector in suits for the reduction of assessments, to have his1’fee for services taxed as "costs”, where the judgment has been rendered in a suit for reduction of assessment of property, outside of his own district.
    *2. Under Section 57 of Act 170 of 1890, parties seeking reduction of assessment on their property are chargeable as costs of suit, with the fee of the attorney-at-law appointed to assist the tax collector in the suit, only when they have entirely failed in their demand.
    IN RE C. Harrison Parker, Applying for Oertiorari, or Writ of Review to the Court of Appeals, Parish of Orleans, State of' Louisiana.

      Francis O. Zacharie for Petitioner.

      John M. Bonner, Respondent in pro. per. (Omer Villere of Counsel).

      Farrar, Jonas & Kruitschnitt for Orescent City Railroad Company, also Respondent.
   The opinion of the court was delivered by

Nicholls, C. J.

The judgments of the Court of Appeals, Parish of Orleans in the above entitled suits, are before us for review on the application of C. Harrison Parker, in his capacity as State Tax Collector of the First District of the City of New Orleans.

In his petition he alleges that the said causes embrace identically the same question of law, which was decided adversely to petitioner, and as petitioner believes and avers were so wrongfully and erroneously decided to the great injury of petitioner and the State of Louisiana, and so decided by a divided Court of Appeals; that the suit of John M. Bonner vs. Board of Assessors was a suit entered for a reduction of assessments in Division B of the Civil District Court, for the Parish of Orleans, from $25,000 to $10,000, the answer being a general denial, and a prayer for attorney’s fees of ten per cent on the amount involved therein. The lower court reduced the assessment from $25,000 to $14,-000, but refused to grant the ten per cent attorney’s fees on the $3,500 which was the amount which plaintiff failed to have reduced. An appeal was taken to the Court of Appeals on this point, and that court sustained the decision of the lower court unanimously. On application for rehearing it was granted, and after re-argument, the court took the case under advisement, but held up its decision until the ease of the C. C. R. Co., vs. Board of Assessors, which had been brought up on appeal, in the meantime should have been argued. This latter ease was, also, an application for reduction of assessment from $1,156,300 to $375,000. The answer was, also, a general denial, and a prayer for ten per cent attorney’s fees on the amount of taxes and penalties involved. The court (Division “C”) reduced the assessment to $850,000 ($475,000 less than the reduction prayed for) condemning said plaintiff company to pay to F. C. Zacharie, appointed to assist the tax collector, the sum of thrée hundred and fifty-six 25-100 dollars. From this judgment plaintiff appealed to the Court of Appeals, to which appeal defendant answered, asking an amendment of the judgment of the lower court so as to make the attorney’s, fee $415, that being- the ten per cent which plaintiff failed to have the assessment reduced. After argument, two members of the Court of Appeals, on April 9th, 1900, adhered to their original decision in the Bonner case, and reversed the decision of the lower court in the Crescent City R. R. case, thus depriving the attorney of any fees whatsoever in this class of cases. From these decisions, Judge Horace L. Dufour dissented, although he filed no written opinion. The effect of these decisions, if allowed to stand unreversed, will seriously embarrass the collection of the revenues of the State, by offering- no inducement to the attorney for the State Tax-Collector, in depriving him of any renumeration for his services in protecting the interests of the State, on erroneous -and ill-founded claims for unreasonable reductions, and will work irremediable injustice to the attorney. Taking into consideration the fact that the legal question at issue in these cases has been differently decided by two judges of the Civil District Court, and that the decisions of the Court of Appeals are by a divided court, and overturns your Honor’s decision in 46th Ann. Petitioner represents that these cases are eminently within the power of the court, under its equitable power to issue Oertiomri and prohibition writs. Wherefore, petitioner prays that this court issué the preliminary writs of certiorari and prohibition to the judges of the Court of Apireáis, and after due consideration of the briefs filed, that said writs may be made peremptory and mandatory, reversing the judgments of the said court, and decreeing- the'attorney for the Tax Collector entitled to the ten per cent attorney’s fees, as claimed by him.

John M. Bonner has moved to dismiss the review so far he is concerned, on the grounds:

1st. That C. Harrison Parker, Tax Collector, is not a party to the suit of John 11. Bonner vs. Board of Assessors, and has no legal or pecuniary interest in said suit, and has no legal authority to collect taxes or to represent the State in tax matters outside of his own district.

2nd. The property on which a reduction of assessment was asked and granted is situated in the 6th District of the City of New Orleans, and B..T. Walshe is the State Tax Collector — and he was made a party to- the suit as required by Section 26, p. 132 of Acts of 1890, that the parties to the suit were the Board of Assessors, the City of New Orleans and B. T. Walshe.

3rd. That the case of John M. Bonner is a separate suit from that of the Orescent City R. R. Oo., was brought separately, tried separately, and decided separately, and was never consolidated with the suit of the •Orescent City R. R. Co., in any way.

4th. That even if said suits had been consolidated, C. Harrison Parker, State Tax Collector, (the judgments of the Civil District Court reducing the assessments having been acquiesced in by the Tax Collectors of both districts, they having received the amount of taxes due to State) has, as Tax Collector, no interest nor authority to apply for a writ of certiorari in this case.

5th. That the only proper parties to petition for writs of certiorari and prohibition herein, are the State of Louisiana by its Attorney General, and the attorney for the Tax Collectors who, alone has a pecuniary interest in the question before this Honorable Court.

6th. That, if it should be held that C. Harrison Parker, Tax Collector, being a party to the suit of the Orescent City R. R. Company, would have the right to apply for a writ of certiorari therein, although all State taxes have been paid, he clearly would have no authority to petition for such a writ in the case of John H. Bonner, to which he is not a party, and the property that gave rise to the suit being out of his tax district.

Opinion.

Article 101. of the constitution of -1898 authorizes the Supreme Court to require by. certiorari or otherwise, any case to be certified from the Court of Appeals to it for its review provided application be made to the court or to one of the Justices, not later than thirty days after the judgment has been rendered and entered.

The article is silent as to the party or parties entitled to this relief, but Section 2 of Act No. 191 of 1898, declares them to be “the party •east in the suit or any other person in interest, who may feel aggrieved thereby.”

It is contended on behalf of John M. Bonner, the plaintiff, in' one of the suits, that the judgment rendered therein by the Court of Appeals, has been brought before us on the application of a person, who was not ■a party to the suit, nor had any interest therein, and this proceeding as to that suit should be dismissed.

It is conceded that the property, the assessment of which was sought to be reduced by John M. Bonner, is not in the First District whereof C. Harrison Parker is the Tax Collector. ■

It is urged that the use of the name of Parker in this case was by an. inadvertence, in not noticing in what district, the property was situated that it was intended to use the name of "Walshe; and that it was a clerical error in not having’ done so, and that we should pass on the issues as if Walshe were before the court asking for a review.

Assuming that the insertion of Parker’s name in the application for review was through an error, and that Walshe on discovering the mistake could have prayed for a substitution of his name in lieu thereof, there has been no attempt to have the substitution made and the application stands before us at the present time, as that of Parker, who was not the party cast in the suit or a party in interest.

The motion to dismiss is well taken. It is proper for us to state, however, that the substitution of the name of B. T. Walshe in this application for that of Parker, had it been asked, would have been totally inadmissible. The matter is too plain to call for discussion. The1 motion to dismiss from our consideration for review the judgment of the Court of Appeals in the case of John M. Bonner vs. the Board of' Assessors, is sustained and matters in that suit placed as they were before our order herein was granted.

The question brought before us for review in the matter of the Crescent City Railroad Company vs. the Board of Assessors, is, whether, upon the failure of a party seeking to obtain a reduction of the assessment made of his property by the Assessor or Board of Assessors, to the full extent claimed by him, he can be condemned to pay as part of the costs of the suit, the fees of the “attorney-at-law, appointed to assist the Tax Collector, in the collection of taxes to represent the same in all suits for the reductions of assessments;" and, if so, how much that fee should be.

The suit of tlie Crescent City Bailroad Company was for reduction of the assessment of its franchises for the year 1897, from one million one hundred and fifty-six thousand, three hundred dollars ($1,156,-300.00) to the sum of three hundred and seventy-five thousand dollars, and was filed on the 30th of October, 1897. Judgment was rendered in that suit on the 18th of May, 1899, reducing the assessment to the sum of eight hundred and fifty thousand dollars. The court condemned the the plaintiff to pay to F. C. Zaeharie, attorney, appointed to assist the Tax Collector, the sum of three hundred and fifty-six 25-100 dollars aá being the amount of ten per cent, granted to him by law. The plaintiff appealed to the Court of Appeals, and that court, oh appeal, affirmed the judgment, in so far as the reduction of assessment was concerned, but reversed it, in so far as the plaintiff was condemned to pay the fees of the attorney as costs.

It is this latter portion of the judgment of the Court of Appeals which has been brought up for review. By the 57th Section of Act No. 106 of 1890, it was enacted that in the Parish of Orleans, there should be an attorney-at-law, appointed by the Attorney General, whose duty it should be to aid the Tax Collectors in the parish in the collection of all taxes, and to represent the said Tax Collectors in all suits for the reduction of assessments; and upon all taxes and penalties collected through the assistance of said attorney, and in all suits for the reduction of taxes, where the party applying for the reduction shall be decreed not entitled to the reduction as claimed by him, either in whole or in part, the delinquent owing the taíx, and the party applying for the reduction of assessment, shall pay a commission to said attorney of ten per cent., calculating the same upon the aggregate amount of taxes and penalties so collected and paid over to the Tax Collector, and the said attorney’s commission shall be paid by the tax-payer, and collected by the Tax Collector, as costs, at the same time that the taxes, interests and penalties are collected.

This 57th Section of Act of 1890 was reproduced in Section 57 of the Revenue Act of 1898 (Act No. 170 of 1898 approved July 14th, 1898) with the single change that the words “either in whole or in part” in the Section 57 of 1890 (which we have italicised) are omitted in the 57th Section in the Act of 1898. This particular section of both acts refers, in terms, to the Parish of Orleans. The 56th Section of thie Act No. 106 of 1890 (reproduced exactly in the 56th Section of Act No. 170 of 1898) refers to the commission or fees of the attorney, who represents the Tax Collector in parishes other than Orleans as follows:

“The attorney-at-law who represents the Tax Collector or Tax. Collectors, in all proceedings for the reduction of assessments, and collection of taxes (license taxes excepted) and in all injunction proceedings wherein the Tax Collector or Collectors, axe sought to be restrained from the tax collection of taxes, shall receive a compensation of ten per centón the amount collected, calculating same upon the aggregate amount of taxes and penalties so collected, as the result of aforesaid proceedings. The aforesaid commission to the attorney-at-law, shall be paid by the party against whom the judgment is rendered in whole or in pari, (italics- ours), and shall be collected by the Tax Collector, as costs at the same time, that the taxes and other penalties are collected.”

A comparison of the Section 56 of the Acts of 1890 and 1897, with Section 57 of the same two Acts, will show considerable difference in the phraseology.

No brief has been filed in this court on behalf of the Crescent City (Railroad Company. In that filed by John M. Bonner, a number of constitutional objections were urged against the 57th section of both of the acts quoted, but we find no such grounds of unconstitutionality set up anywhere in the plea'dings, and the issue on the disputed point was not decided on that ground. The Court of Appeals held that the law to be applied to the case was not the Act of 1898, but of 1890, and that the language of that law that the fee or commission of the attorney of the Tax Collector, was to be charged “as costs”, in all suits for the reduction of assessments, “where the party applying for reduction shall be decreed not entitled to the reduction as claimed by him, either in whole or in part,” limited the right to claim attorney’s fees as costs, to causes where the party claiming the reduction, failed entirely in obtaining a reduction; that if he succeeded at all, he was justified in his suit, and was not chargeable as claimed.

We are of the opinion that the Court of Appeals was correct in holding that the issue presented, should be determined by the provisions of the Act of 1390. The suit was an existing suit when the Act of 1898 was enacted. Plaintiff ventured therein with knowledge of the existence' of the Act of 1890, and the possible liability which he would incur in making a claim for reduction. Non constat he would have filed the demand had his possible liability been made greater than it was. The. moment he filed his suit its extent was fixed1. Whether the infliction on a party plaintiff as costs, the fees of the attorneys of the opposite party, as costs, be strictly and technically, a “penalty” or not,, it is in the nature of a penalty. It is a statutory liability thrown upon the party, as the result or consequence of taking a certain step, and it should not be increased by statute when the step has already been taken. We have no idea that it was the intention of the General Assembly to make the Act of 1898, have retroactive effect. There is no necessity for our dis-' cussing the question, whether it would have had the power to have so made it.

We are of the opinion that -the court of Appeals construed the provisions of the Act of 1890 correctly. As we have said, the charging of attorneys fees of the opposite party, to the plaintiff seeking a reduction of his assessment, as the result of having availed himself of a constitutional right, is in the nature of a penalty, and provisions of law of that character, are strictly construed and not extended. There is unquestionably a difference in the language of Section 57 of the two Acts and that of Section 56. We must assume that the difference was made designedly, though without being able to know why the difference was made. It is difficult to understand why the liability of parties, seeking reduction of assessments in the parish of Orleans, should be either greater or less than that of parties occupying the same situation in other parishes, but the legislature has thought proper to make the difference, and we do not feel authorized to bring the sections of the law into harmony, by construction and alteration of language.

There is a feature of this ease drawn to our attention, by the brief of counsel, in the Bonner case. Assuming the position that his client was chargeable with attorneys fees, as costs, he maintained that the basis upon which the fee or commission was attempted to he charged, was not that provided for by the law; that the commission could not he based upon the amount of the reduction of the assessment, which was not granted, but, at best, upon the amount of the “taxes which should be collected” and paid over, and the penalties paid over to the tax collector, npon that amount of assessment.

The wording of the law is exceedingly ambiguous, resulting from the fact of attempting to provide in one, and the same sentence, for eases involving contests as to taxation, where “money” demands are directly at issue in the suit, and cases of reduction of assessment, from which subsequent money demands are only to spring and be effected as a consequence.

We are of the opinion that the judgment of the Court of Appeals is correct, and it is hereby affirmed.


text:
    No. 13,179.
    Louisiana Molasses Company, Limited, vs. Louis LeSassier et als.
    Syllabus.
    The architect who prepared the plans and specifications of a building, and after-wards became tho contractor, and agreed with the owner to put up the building according to plans and specifications, is responsible for any defect or insufficiency in the specifications. He can not escape responsibility for
    ' ' defectiveness of the work by taking the ground that the'defect was in the specifications, and not in the work. He is responsible for both. The Surety Company which signs his bond to guarantee the safe execution of his contract as an “architect and contractor” is equally as responsible as the architect and builder for the defectiveness of the specifications, or the work, where the “architect and builder” are one and the same person.
    The agreement was between all the parties (the oivDer and the contractor, and of which agreement the Surety Company was aware when it signed the bond), that payment would be made each month on the certificate of the superintendent showing the proportion of the work done. Effect is given to this certificate issued without fraud or intention of partiality, especially as the Surety Company itself agreed to some of the payments as made. Estimates can not be expected to be absolutely correct.
    Plaintiff tendered the amount it owed and offered its bond in payment of the . . claims of material men. This proceeding was in concurso and precludes . prescription.
    A tender must include interest, principal and costs incurred to the date of the tender. It must appear that the tender declined included the whole amount, or that the one tendering was ready to deliver principal, interest and costs.
    As to one of the claims, the judgment was not sustained by the evidence, and as to that claim the judgment is amended at the creditor’s costs on appeal.
    For reasons assigned in the original case of the Louisiana Molasses Company, Limited, vs. Louis LeSassier et als., the judgment as therein amended is affirmed.
    On Application of Louisiana Molasses Company foe Reconsideeation and Amendment of Deceee as Relates to Costs.
    In forming the ooncurso, plaintiff should deposit the amount it, at the time, acknowledges was due. Otherwise the costs and interest will be due by tbe debtor, although the amount he failed to deposit was small as compared with the amount deposited.
    APPEAL from tbe Civil District Court, Parish of Orleans — Bilis, J.

      Andrew II. Wilson for Plaintiff, Appellee.

      Purnell M. Milner for Fidelity and Deposit Company of Maryland, Surety, Defendant.

      Bart & Kernan for Brakenridge Lumber Company, Limited, and Joseph Sutton & Son, Defendants, Appellees.

      William S. P'arherson for R. A. YanClgave, Jr., Defendant and Appellee.

      Bernard McCloskey for Cole Manufacturing Company, LaPierre & Pory, Manion & Co., A. Ledoux, Agent, Salmen Brick & Lumber Company, Limited, and William Hankins, Opponent.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff pleaded as in a concurso to compel the parties concerned to appear in court and assert their claims and rights over a fund of twenty-six hundred and forty-two and 5-100 dollars, which it deposited in court. It is alleged, in substance, by it, that in 189.6, by written contract, it entered into a contract with a contractor and builder to erect a five-story warehouse building for the price of thirteen thou■sand four hundred and forty-two dollars, to be paid on terms as stated in the contract; that the Fidelity and Deposit Company, of Maryland, became the surety of this contractor up to the amount before stated; that the contractor and plaintiff selected Louis A. Ganteii, an architect, as superintendent and supervising architect of the works, and notice of the selection was duly given to the Surety Company; that payments -were to be made to the contractor at the end of each month for all the work done during the month less twenty per cent., which was to be retained by it until the completion of the building; that the payments were- to be made on the certificates of the superintendent of construction, Ganter;,that the sum alleged, except the amount deposited as before stated, was all paid to the contractor, and a large portion was paid with the consent of the Fidelity Company, surety; that since the. payment of this sum, attested accounts by workmen and material men were ■served on it for material supplied, amounting to a large sum, about six thousand dollars; that after service of these accounts it refused .to make further payments; that it notified the defendant, the Surety Company, that the contractor was quite slow in performing his work; that on October 5th, 1896, plaintiff seeing that he would not complete it, gave him notice that if he did not carry out the contract, it would avail itself of its rights and that a copy of the notice was served on the Surety Company. He, the contractor, failed to finish tire work and abandoned the-building; that, again, in November, it called in vain upon these parties to finish the work; that it was then that plaintif took charge of and completed the building according to specifications; that a part of the-front wall was badly constructed by the qontractor and had to be reconstructed in order to comply with the Specifications.

Petitioner also alleges that after making payments as stated, it had a balance on hand which it did pay over to the depository of the court, as-before mentioned, less the sum of twenty-five dollars reserved for costs; that it was necessary to form a concurso and bring in all interested parties in order to settle tire right of each. The building contract, specifications, and the contract of the contractor with the Fidelity and Deposit Company are all in evidence containing the terms and conditions usually inserted in such contracts and the details usual in specifications. The material men who had recorded their claims were made parties by plaintiff. Five of these men had brought suit against the plaintiff alleging that plaintiff had made payments by anticipation which resulted in' their injury. These suits are all consolidated en concurso, and are before us for decision. Those who had not sued appeared’ on the day of trial and were permitted to prove their claim.

The Fidelity and Deposit Company pleaded the general denial, and,, also, specially averred that plaintiff had made an over estimate of the-work performed each month, and had, in consequence, overpaid the contractor each month and the' payment in anticipation had caused it to-lose a considerable amount, sufficient for it to claim its release and discharge on its bond. The creditors made parties joined in the concurso issue with those opposing their interests and claimed the amounts due-them. Defendant avers that after a large amount of costs had been incurred and it had proven that the tender of 'the before stated amount was insufficient, plaintiff deposited a further sum of twenty-three dollars, and, thereby, made a second tender.

The statement of facts shows that some time after having agreed upon a plan of the building, plaintiff entered into a contract with a builder to erect the five-story building in question in accordance with the draw7 ings and specifications identified with the contract, i. e. the plans and specifications were prepared by the architect sometime prior to signing-the contract with plaintiff. They were accepted by plaintiff and bids were received by plaintiff. A Mr. Ganter made a bid for the contract, but as it was not the most acceptable and that of Mr. LeSassier was, it was awarded to the latter, who is also an architect, and who signed the contract and bound himself to build the warehouse as contractor and builder. After his bid had been accepted, LeSassier rfeleased the Molasses Company from its promise to pay him for his plans and specifications, and, with the consent of LeSassier, and after notice to the Surety Company, Ganter was employed by plaintiff as his superintendent-and supervisory architect. The Surety Company knew about the time that Ganter was employed, that he had been employed.

The builder bound himself to furnish all the labor, tools, and materials of every description and to deliver the work complete, free from all liens for labor and materials, on the fifteenth day of September, 1896. Payments were to be made monthly, for all work done in one month. Payment was to be made at the end of each month, in amount twenty per cent, less than the value of the work done during that month. The twenty per cent, deduction was to be retained until the building was completed. The plan or specifications are, to some extent, defective, unless the defect be supplied by the following, copied from the specifications: “Iron Work — Furnish and erect in place all iron work required to finish the building, as follows, viz. Oast iron and all the ordinary cast iron plates, well plates, capitals, etc., as per detail. Wrought Iron — All wrought iron work in connection with carpenter’s work, such as joint bolts, anchor iron for floor guards and door frames, tie bolts, etc., as per detail. In addition to what is specified above, all iron of any description necessary for the proper construction of the building shall be furnished, by the contractor without extra expense to the company”. It is contended by the Surety Company that the specifications provided for the construction of the arches, under the head of brick work, and that it did not contain anything about iron lintels or anything of the sort. The contract also contained a stipulation that if the builder failed to comply with its terms then plaintiff was to have the right to put an end to the contract and complete the work at the expense of the builder without being liable or accountable for the manner whereby plaintiff completed the work.

The builder furnished a bond in favor of plaintiffs, signed by the Fidelity and Deposit Company, in accordance with the terms of the Statute 180 of 1894, in which the latter bound itself, if the plaintiff failed to carry out the agreement between plaintiff and builder, to pay all .amounts necessary to complete the building as agreed upon, provided plaintiff notified it of any act of the builder “which may involve a loss”. About the end of the third month’s work on the building, the builder progressed quite slowly with it. Not long after there appeared fissures ■or cracks in the front wall. The builder had abandoned the work and the Surety Company was notified. Another architect was called upon, who dre.w plans and specifications under which the arches near where there were cracks, were reinforced, and the defects which had caused the fissures in this wall were remedied, and the opening or cracks closed and the building completed. The architect employed to see to the completion of the work says that the cracks were caused by the weight coming down too heavily at a iff ace over the arches; that he had the arches taken down on the first floor and that three rows of sill beams were laid sufficiently strong to carry the weight of the floors and brick tiers. Prior to this there were no beams over the arches, only brick work, though it appears iron lintels were necessary. We are informed that originally the floor beams over the arches ran directly into the wall over the opening.

And that the change in the construction of the arches was necessary.

It is averred by the Surety Company that the building was constructed according to the plan and specifications, and that the Surety Company is not responsible for the defects therein, as it bound itself only to see that the builder would complete the building according to the plan and specifications. The Surety Company also complains of anticipated payments made to the builder, also of over estimates whereby the contractor received a larger amount than he should have received at the end of each month; that he was only entitled at the end of each month to amounts earned during that month. It is a fact that’in this case there was paid nine hundred and twenty-two 22-100 dollars on June 1st, for May’s labor account, four thousand and seventy-three 52-100 dollars on July 1st, for June labor account, and four thousand seven hundred and ninety-seven 76-100 dollars on August 1st, for July labor account, and that a lárge part of these amounts was paid with the consent of the general agent of the Surety Company. It is also a fact, as charged, that plaintiff sold old bricks to the contractor for two hundred and eighty dollars, which were collected only in Aug: ust, though the bricks were sold in May.

One of the general agents of the Surety Company being questioned with reference to the bond executed by them said that before signing a bond for any one they examined the contract and specifications and all other data so that they might become familiar with the plan of the building to be constructed, and that they did so in this case. In addition he stated that it was usual with the agents of the company to become familiar with the financial standing of the contractor and his record as a builder. It is in place here to state that the material men, made parties en concurso, claim the amounts due them respectively. There is no objection to the amounts claimed, but, as we take it, the complaint is that the amounts are not due by the Surety Company. It appears that the superintendent issued certificates based on estimates for plaintiff showing work done at the end of each month during the progress of the work. These payments amounted to nine thousand five hundred •and ninety-three 50-100 dollars, and all that was due except 20 per cent., as agreed upon, was paid. This was all done before any of the creditors had served attested accounts of their claims. All the labor was paid and there are no workmen or laborers claiming in this suit.

Judgment for the Louisiana Molasses Company was pronounced in the District Court accepting the sum of two thousand six hundred and ninety and 50-100 dollars, making up the two tenders and deposits as the amount due to the contractor, LeSassier, and the other parties in interest, and decreeing further in favor of plaintiff for all its costs, as stated in the judgment.

The plea of prescription filed by the Surety Company was not sustained and judgment was rendered against said company in favor of ■each creditor for the deficiency. There was a judgment rendered in favor of the Surety Company against those it called in warranty on their indemnity bond in favor of the surety. From the whole judgment the Surety Company appeals.

All the parties admit that the contractor and architect contracted to build a large brick building for plaintiff, and that the aforementioned 'Surety Company bound itself as his surety. It is also evident that there is no further issue among the parties growing out of the fact that plaintiff took possession of this building before it was completed, and after-wards completed it as alleged. We understand that possession of the building was taken with the consent of the Surety Company. The rights of the parties are not prejudiced by the act of possession of plaintiff. The only question regarding the construction relates to certain charges for re-enforcing the wall and for completing the building. "With reference to the weight of the articles placed on the'floor of the building by the plaintiff, after it had taken possession, the preponderance of the testimony shows that it was not the.cause of the crack in the wall. This disposes of the Surety Company’s complaint of the overweight placed on the floor by plaintiff bearing heavily on the arches.

The only remaining difference between the plaintiff and the Surety Company arises from the latter’s complaint that the former, the Louisiana Molasses Company, dic^ not guard itself against the specifications and plans furnished it by the architect, and also did not comply with the stipulations and- conditions of the bond.

In the first place we take up for decision the complaint of the Surety Company directed against the plan and specifications of the architect. The Surety Company insists that the defect in the wall over the arches was not caused from the defective construction of the building, but was-the result of the faulty plan, conformably to which the building was constructed.

The contention on its part is that although the plaintiff company entered into a contract with LeSassier bj' which he agreed to “erect, furnish, and deliver in a satisfactory condition and workmanlike manner one five-story warehouse, all per plans and specifications drawn by Louis LeSassier, architect and builder”, and although the Surety Company bound itself for the faithful carrying out of the building contract, nevertheless it did not bond him as an architect nor did it guarantee-that plans and specifications which had been prepared by him and accepted by the Louisiana .Molasses Company, long prior, were proper and sufficient. It bonded him as a builder. On this point we do not find that the position of the Surety Company is sustained by the facts, or the law. In our view, there is a difference in matter of the responsibility of an architect. If he has only furnished defective plans and specifications, he can be held bound and accountable only in case the building has been constructed strictly in accord with them when no fault is imputable to the builder or contractor. lie is then independent of the contractor and builder and one surety or the latter would not be bound for the error of the architect, but it must be different where the architect has taken charge of the execution of his plan. Here he had his own plan, selected his own sub-contractors, and his own workmen and the-materials which were used in the construction of the building. He then becomes responsible to the owner with whom he contracted. Architecture is the art of building according to certain determined rules. The owner does not know the rules. He employs an architect who makes the plans in accordance with them, and if the architect undertakes to carry out his plan, he is not to be heard after he has executed it, to urge, as an architect, that his employment having changed from that of an architect to that of a builder, he is no longer bound for his defective plan, particularly in the presence in his contract of these words, “architect and builder,” showing the extent to which he is bound, i. e., (as architect of the contract). On suit brought against an architect, contractor and builder bound as such for loss occasioned by affective work, the contractor and builder should find no relief in the plea that he is not responsible for the reason that the fault was with the architect. This responsibility, we infer, was well understood by the agents and representatives of the Surety Company, who properly made inquiry regarding the standing, character and ability of the architect, who was also contractor or builder, in order, as we take it, to protect themselves against too great a risk. In this case, they, the Surety Company’s agents, did more, and required an( additional security in the shape of an indemnity bond of the assured to secure their company to some extent at least.

We believe, under the terms of the contract, the Surety Company is liable for all expenses for completing the building and repairing the cracks in the brick arches, including the charges of the experts whose employment was made necessary by the condition in which the building was. We leave these propositions (viz: touching the insufficiency of the specifications and the cracks in the wall) with the statement that though it may be true that whenever an owner takes bids on plans and specifications made for him by an architect, the contractor to whom the bid is awarded is not responsible for defects caused) by incorrect plans or specifications; the case is different where the contractor draws up his own plans and specifications as an architect. For that reason we do not accept, as applying, the decisions cited by the. Surety Company as precedents having bearing upon the .issue presented.

We take up the Surety Company’s next ground of complaint: That payments were not made in accordance with the terms of the contract, that is. the payments were not all made for all the work done in one month at the end of the month (less the twenty per cent mentioned in the contract). The first item falling within this objection, the Surety Company urges, is the sum of two hundred and eighty dollars due for old bricks which were used in the foundations, to which we have referred heretofore in our statement of facts. If due at all, the Surety Company avers ii; should have been paid out of the estimate due on Tune 1st. We think that plaintiff, as between it and the contractor, had the right to sell to the latter material at its value. Under the circumstances here, as between him and the plaintiff, the objection in our view cannot be sustained. The Surety Company has not shown that any error or wrong of any kind has been committed which gives to it the right to have this amount added to the fund to be distributed. This amount was, as wo take it, considered in the estimate and was covered by the superintendent’s certificate. We do not think that it should be singled out to be deducted. Of itself, the fact that a furnisher of supplies did not collect a comparatively small amount, during, and his claim was not considered in the estimate of, the first month, would not give rise to cause to have the payment recalled and cancelled because it was taken into account and paid in the month following.

The next item covers the claim of the Brackenridge Lumber Company for an account paid, the Surety Company asserts, before the architect had furnished any certificate. There is a conflict of testimony as relates to this claim and the claim of the Salmen Brick and Lumber Company. The two plaintiffs and the contractor testify that the purchase as made from the former was necessary and that the Surety Company consented. This is denied by the Surety Company. The district judge found that the preponderance of proof as to this claim was with the plaintiff. We do not find that in thus deciding, he was in error. The lumber was received and used in the construction of the building. We think that it was included in the estimate of the superintendent and covered by the certificate. This, with the consent of the Surety Company’s agents, if given as testified to by three of the witnesses, would answer the objection to payment in anticipation. One of the witnesses for plaintiff testified that the work was being delayed and that the company refused to deliver any more lumber unless the amount in question was paid, that tire matter was brought up before the bond company and it was agreed that it should be paid. Furthermore, there is the written evidence of the general agent of the Surety Company showing, as we think, its consent.

We now pass to the over-estimates alleged by the Surety Company. There is no question but that in' a controversy over the amount due the contractor under a building contract, great weight is due to the certificate of the architect or superintendent, issued without fraud or palpable mistake. Here it is charged that the contractor has been overpaid to the prejudice of the material men, and this objection is urged by the surety. The complaint urged by the Surety Company is that the superintendent and supervisory architect and agent of plaintiff was familiar with the plan and specifications and that he should have estimated with approximate certainty, but that in this he failed.

The Surety Company charges that the superintendent admits that while he made the estimates for June 1st and July 1st, he permitted the contractor and builder himself to make the estimate on August 1st for the month of July. The testimony shows that a large amount was paid on the contract with the knowledge, and, as we take it, with the consent of the Surety Company. Plaintiff, in compliance with the request addressed to them by the Surety Company, made its checks for August on this contract, payable to LeSassier, contractor, and the Surety Company. These checks amounting to within a few hundred dollars of tho sum due for the work done in July, were received by the Surety Company, and the contractor jointly, but were turned over subsequently by the Surety Company to the contractor. The proceeds were not used as the Surety Company avers it had the right to have them used, but they, none the less, we must say, had control of the amounts, and, as we think, can not urge with any degree of plausibility that the plaintiff, as to these sums, made payments which it should not have made.

It must be borne in mind that payment was to be made on the certificate of the superintendent o£ construction, and that the superintendent had issued hisi certificate prior to each payment showing an estimate equal to the amount paid. In Rosselot vs. Kirwin, 8th Ann., 302, referring to such a certificate, the court said: “We consider the convention of the parties to have been an absolute one for the payment of the sum of twenty-five hundred dollars per month, provided the architect gave his certificate that there was such an amount due. We are further of the opinion that the appellants are protected in such payments by the certificate of the architect and that it is incompetent for the plaintiffs to go behind the certificate and to show that it did not state the truth.” We are decidedly of the opinion that the quotation is direct and determinative of the issues upon this point. Plaintiff has performed its part of the contract -by retaining the .twenty per cent, which it had bound itself to retain. This part of the stipulation looking to the guar.antee of the Surety Company is unassailed. The certificate was based upon estimates. The word “estimate” precludes accuracy. Judge Rcdfield, speaking of contracts of construction says that “monthly estimates” are understood to be mere approximations. 1st Redfield’s Railways, p. 436. If there were mistakes in the case here, they were not '“obvious,” nor did they arise from “partiality,” grounds which have .been considered to take a case out of the application of the rule. It would be different, doubtless, if there were any question of fraud at issue, or downright negligence on the part of the plaintiff, but there is nothing of the kind. The plaintiff trusted the superintendent and contractor, in whom all concerned had the utmost confidence, until it was too late to avoid loss.

We pass to a consideration of the Surety Company’s plea of prescription on the limit of ninety days, contained in the Act 180 of 1894, during which unpaid material men and furnishers have a direct action. The contract entered into between plaintiff and the Surety Company •extended the time within which any suit might be brought to six months. Before the expiration of ninety days after the building had been completed, the concurso proceedings had been filed. The funds were deposited and prayer was made to cite all the creditors. Several •creditors did not file an appearance within the six months. There was, none the less, a standing acknowledgment in favor of all concerned. Moreover they were all joined, and, in law, considered parties to the •concurso and were called upon to divide, in proportion to their claims, the funds deposited.

For the purpose of the litigation and settlement, the rights of each, in the concurso, to an extent, are admitted.

Any debtor whose property is encumbered in favor of a number of •creditors may implead them, and bring about a settlement of their rights, one with the other.

A contesbatio litis, as it were, arises in ease of the estate of an insolvent under administration. Jurisprudence has sanctioned this method •of proceeding, and the legal effects must follow as in other similar cases. For instance, when the syndic files his tableau of account, though the creditors are not all actually cited, they are constructively in court. The time within which the tableau is before the court for approval cannot be computed as part of the basis for prescription. True, in the ease of insolvency, prescription is suspended by statute. But as relates to the administrators of successions, without a special statute on the subject, the same rule governs. . .

. When the administrator files his account, every creditor whose claim is carried thereon is protected, without service, from the plea of prescription. The debtor, in the case before us for decision, has filed -a petition, in effect the same as, as relates to prescription, to the syndic’s tableau, or the administrator’s account. If it, the proceeding here, has any validity at all, it must have the weight and the power of the syndic’s tableau or administrator’s account.

The plea of prescription is sbricLi juris. It is not presumed. The onus to sustain it is with plaintiff, both as relates to the facts and the law. For this reason it has been held by the courts 'that the service of citation, with copy of the petition, though neither bears the impress of a seal, is sufficient to interrupt prescription. The want of jurisdiction and the many errors of form affording cause to reject the demand have none the less, prevented prescription from accruing.

Plaintiff alleged the liability of the Surety Company, and prayed the decree of the court. The action was pending before the delays had elapsed. Plaintiff has deposited the cash it owed and tendered its bond for the remainder, which is equivalent to cash. To obtain its discharge, in case the contractor defaults, if he have no bond, he would have been obliged to deposit the whole of his indebtedness to the mate-' rial men, which would have been an express acknowledgement of it. In* stead, he deposited the balance due by him and tendered the bond the law authorizes him to substitute to cash, in certain cases. Clearly, prescription does not lie against those named in the papers as creditors, with the right to share in the amount deposited and in the proceeds of the bond necessary to discharge the obligation.

We taire up for decision the defence of the want of tender made by the Surety Company. There was a deficiency of an amount which the plaintiff tendered and another tender was made. Be the cause of the mistake whatever it may, the law is peremptory that to avoid costs a tender must- be made. There is an exception arising when the one to whom the tender is made refuses to accept. None the less, the tender made at the time, must include the whole sum, including costs. That question was considered in a similar case and the court held that plaintiff should have deposited the whole amount she was bound to pay.. Allen vs. Wills, 4th Ann., 98. This rule is affirmed in McComas vs. Administrator, 4th Ann., 123.

This brings us to the claim of Manion & Co. Their claim was for one hundred and ninety 45-100 dollars. This was the amount of the account filed in evidence and which was shown to be due on the trial. The decree, evidently ¡by an oversight, allows this firm two hundred and eleven 45-100 dollars and legal interest.

It is ordered, adjudged and decreed that the judgment be affirmed except in two particulars, and, as to these, it is ordered, adjudged and decreed that plaintiff pay costs incurred in the District Court up to the date that the last tender was made by it, viz: November 21st, 1896, and also the costs of appeal.

It is further ordered, adjudged and decreed that the judgment in so far as Manion & Co. are concerned, be amended by reducing its amount from two hundred and eleven 45-100 dollars to one hundred and ninety 45-100 dollars, and that in so far as it is concerned, it is’ condemned to pay the costs of appeal.

The Cole Manufacturing Company, Lapiere and Foray, Manion & Company, A. Ledoux, Agent, Salmen Lumber Company, Limited, and William Hankins, have taken an appeal separate from the appeal taken in the Louisiana Molasses Company vs. Louis LeSassier et al. The brief in their behalf was filed in the cited case and their rights were therein considered and decided. In the case before us, no new issues are presented. The court can not be expected to pass twice upon the same questions among the same parties.

It is, therefore, adjudged, ordered and decreed that the judgment appealed from is affirmed save in the respects in which it is amended by the decree in the cited case — appellee to pay costs of appeal.

On Application op Louisiana Molasses Company por Reconsideration and Amendment op ti-ie Decree as Relates to Costs.

The amount which plaintiff failed to deposit being small as compared with the amount actually deposited, plaintiff invokes the maxim, De minimis non curai lex, as affording ground for deciding that the company does not owe costs to the date in the history of the litigation when the deficiency úAmatter of deposit was supplied by depositing the whole amount due.

Unquestionably it devolved upon the plaintiff to tender the whole amount it owed. Having failed in this, the costs are due as heretofore determined by us.

La matter of tender the whole amount must be tendered and an amount as large as plaintiff failed to tender, under the circumstances of the failure, does not come within the maxim cited.

We must decline to amend the judgment.

Rehearing refused.

<On Application of the Defendant, The Surety Company, for a Rehearing.

We have carefully re-examined the grounds upon which our decision rests and have found no reason which we think would justify us in granting a rehearing.

Rehearing refused.


text:
    No. 13,517.
    Anna Billington,Wife of, vs. Ella Sims, Wife of, Tutrix et als.
    Syllabus.
    1. The property owned by two persons, but assessed exclusively in the name of one was considered as to its value, and it was found that the taxes paid thereon were charged properly, in proportion to the interest of each of the owners.
    •2. The value of rental was not larger than fixed in the judgment of the District Court.
    3. The “bridge fund” was properly expended and sufficiently accounted for.
    4. The fee of attorney was properly charged to the interest safeguarded by the services; and the costs of the settlement of the succession, in which the minor was concerned, were also correctly passed upon in the court below.
    APPEAL from the Tenth Judicial District Court, Parish of Avoyelles — Laforgue, J.

      Joseph Olifton Gappell for Tutrix, Appellee.

      William Hall and J offrion & J offrion for Opponent, Appellant.
   The opinion of the court was delivered by

Breaux, J.

This cause was remanded to the District Court with instructions to Ella Sims, wife of W. II. Jackson, and W. II. Jackson to ■file a full and final account of their administration as tutrix and co-tutor of Anna Billington, wife of Charles L. Younger, in conformity with the views of the court. Sims, Tutor, vs. Billington, 50th Ann. 968..

The first item left open to be examined and passed upon in matter of the final account was: the amount of the taxes paid on the property belonging to the Succession of. George Billington;

.Second: The amount to be charged for rental of “home place”;

Third: The matter of the expenditure of the amount received from the “bridge fund”;

Fourth: The costs of attorney’s services in the matter of the Succession of Rachel Billington, which are to be equally divided between Mrs. Hardee and the opponent heirs of the late Mrs. Rachel Billington,, also matter of the debts of the Succession of Rachel Billington;

Fifth. Costs in the Succession of George Billington.

In accordance with the direction of the court, the final account was filed. Opponent opposed its homologation on a number of grounds.

On the trial of this opposition, evidence was heard .regarding the taxes charged of which we have made the following summary.

The deputy assessor made an estimate of the amount of taxes paid by William Jackson for the estate of Billington showing amount j)aid by t'he former on the whole property. The amount due by each interest is not clearly set out in' the statement of this officer. The judge of the-District Oourt, in order to close the litigation, adopted a basis of settlement which 'we have determined to approve. He found that the taxes-paid on the community, property.was nine 64-100 dollars, one-half of which was charged to the opponent, who owned one-half, and the other one-half to the accountant, who was the owner of the other half of this «articular tract of land, which was of little value. This left one hundred and nine 62-100 dollars' of taxes paid on the separate property, adding- the one-half of nine 64-100 dollars ($4.82). Opponent contends that upon this basis, to which he does not seem to object greatly, there was error to the amount of four 80-100. dollars. We see that tlie property of the two persons had, for a great many years, been assessed in bulk and the taxes paid by one of these parties. In. ascertaining the amount due by each, the small difference ($4.80), in view of' the difficulty of establishing the amount to a cent,, comes within the rule de minimis. The judgment as to these taxes does substantial justice between the parties.

The rent of the “home place” gives rise to the next question before-us for decision. This land is only ten acres in extent. Some six acres of it was cultivated. It was occupied by Mr. and Mrs. Jackson, accountants, after their marriage. Rent is unquestionably due by these parties. Some of the witnesses have estimated -this rent at a considerable sum per month, and some have not been impressed by its value: The judge of the District Court placed the rental value of the place at sixty dollars a year. We feel confident, after having considered the evidence, that that amount .is fully all that it is worth. It might even be something less, but he having fixed it at that amount, being doubtless familiar with the locality and personally acquainted with the witnesses, we- deem it proper not to reduce the amount.

With reference to the “bridge.fund,” another subject which has given rise to contention, and which is numbered three (3) in the foregoing statement of the grounds of opposition, the facts are: The sum of five hundred and twenty-three 50-100 dollars was a community fund received by the widow, Mrs. Jackson (who is the accountant), after the death of her late husband. Three hundred and fifty dollars was deducted by the judgment rendered by the District Court. She produced .a list of the debts, which she swears she had paid. The question propounded to her as a witness was:

“Q. Mrs. Jackson, will you state what you did with five hundred and twenty-odd dollars which was paid to you by Mr. Hardee, after the death of Mr. Billington, and between his death and your marriage with Mr. Jackson; what became of the money ?
“A. I paid debts with it, most of it, and the balance of it went to the support of myself and child.”

These debts, as decided by the District Court (though Mrs. Jackson claimed they were twelve dollars more) footed three, hundred and fifty dollars, and included the funeral expenses of the former husband of Mrs. Jackson and the father of the opponent, Ella Billington, child of Mrs. Jackson, by her first marriage. Twelve dollars of the claim of Mrs. Jackson was not allowed by the District Court. The tutrix says that she kept memoranda of a few of the items, not all. She lost all the receipts except one. This is scarcely a compliance with the requirements of law, but in this settlement between the mother and daughter, we think that we are justified in the conclusion that the mother’s statement is true and for that reason, in our view, it was proper to allow the deduction as made.

This brings us to the fee of attorney in matter of the Succession of Rachel Billington, the fourth ground of the opposition, as before stated. Opxionent’s co-heir (there were only two heirs in this succession) testified that the property was divided equally between them, and that each paid one-half of the debts. The minor’s one-half of the indebtedness was paid by Jackson, to whom proper credit is given. We have not found, as relates to Rachel Lillington, any indábtedness which was not settled as just stated.

We now come to the fifth ground of opposition, viz: costs in matter of the settlement of the succession of George Billington. Opponent contends, in the first place, that all cost for filing the tableau in the latter succession should be divided in proportion to the interests of each succession, those of George and Rachel Billington respectively. We understand that the costs in the succession of Rachel Billington were satisfactorily settled as before stated, and a division made between the two heirs, and now Mrs. Hardee, plaintiff’s co-heir in succession of Rachel Billington, is not before the court and can not be charged for the expense of a tableau to which she is not a party. If she owes any amount, she can not be charged at this time and in these proceedings.

The total assets in the succession of George Billington amount to one thousand nine hundred and twenty-eight dollars. The account filed shows that defendant’s interest in the succession of George Billington, growing out of the community existing between her and her said late husband was only two hundred and eighty-four dollars, and to that extent she has been held bound for costs and charges. No other amount, in our view, is to be taken into account in settling the rights of the parties and in fixing the amount of the defendant’s proportionate-indebtedness for fees and costs. Defendant owes in the proportion of one thousand nine hundred and twenty-eight dollars to two hundred and eighty-four dollars, and urges that it should be added to an item of and eighty-four dollars. The opponent claims that the amount is one hundred and forty dollars, and urges that it should be added to an item of three hundred and sixty dollars admitted by defendant. Part of this-item, viz: seventy dollars, was the subject of contest on the first trial, and it was not allowed. We do not think that the remaining seventy dollars making up the one hundred and forty dollars is sustained by fireproof.

Counsel for opponent invites our attention to the charge of three hundred and ninety dollars for expenses of minor, and contends that the question is still open for decision, and that it should be stricken from the record. This sum was allowed (in our first decision) to the tutrix on the condition that there is revenue, and that it is not deducted from the principal amount due the minor. ■ •

The testimony shows that there is revenue, and, therefore, this amount is properly deducted from it, Interest is claimed by the opponent on small amounts from the date they were respectively received. Interest on rental account cannot be allowed for the reason that in estimating the rent in bulk it is covered by the total at which the rent was fixed. As to the interest claimed on the other small items, it would amount to very little, and, in the main, is taken into account in arriving at the different amounts due.

We have considered the respective claims of' the parties and have arrived at the conclusion that the judgment appealed from should not be disturbed.

Although the tutrix was originally at fault in not obtaining the court’s order before paying certain debts of the succession in which the opponent, a minor, had an interest, yet when the minor is paid all to which she would have been entitled had everything been settled strictly in accordance with the law’s requirement, she no longer has good ground to complain.

For these reasons it is ordered adjudged and decreed that the judgment be and the same is hereby affirmed.

On Application for Rehearing.

The many issues presented, involving small amounts, has resulted in two escaping direct attention. We, at this time, make needful amendments.

In reference to the proportion to which counsel call our attention, i. e., opponent’s interest, “it is the difference between $1,928.00 and $284,” equal to $1,644.00. We have found no good reason for increasing the $284.00 by adding $300.00 to it, being the enhanced value of land through erection by the mother of a residence on it.

The next item to which objection is raised on this application for a rehearing relates to expenses of the minor. The amount claimed in the account is thirty dollars per p,nnum since 1883, amounting to $390.00. In the opinion of the District Court, which forms no part of the decree, there is a hastily written expression: “The minor must, however, be charged with the amount of thirty dollars a year, and this to be from the date of her father’s death.” The decree itself is correct enough, for, after making certain changes in, and amendments of, the account in which not the least mention is made of the thirty dollars a year, the court approves and homologates the final account. This approves the item in question as written in the account, and it cannot be affected in any manner by the hastily written words in the opinion of the district judge.,

. ■ We have reconsidered the. item claimed for interest on money received, and the result is that as between this mother and her daughter, we think that full justice has been done, and that no interest is due as claimed on rehearing. In allowing rent for the land, we took into account all values. It should not now be increased by adding interest to the $900.00 charged for rent.

As relates to the remainder, if account be kept of the indebtedness of the minor for her support, in matter of this interest the amount would be very little, if any, in hex favor.

As relates to the horse, counsel calls attention to this evidence: “When I married Mrs. Sims, I fo.und one horse on the place. It was there when first inventory was taken. I can’t say why it was not placed on the first inventory. I swapped it for a mule, which I have yet. The mule was worth about sixty dollars when I got it.”

This amount is, therefore, charged'to defendants in solido.

A further deduction of seven dollars from credits allowed the tutrix is asked. The husband of the tutrix testified that an item of seven dollars on the account is not correct. It will he deducted.

We have chosen to make the foregoing corrections at this time and on this application. We have given careful attention to each item of the account. In view of the details in matter of the settlement of this succession, nearly all of facts, we have given attention to all questions arising on the application fox a rehearing.

• It is ordered, adjudged and decreed that our decree on this appeal be and the same is hereby amended by charging the tutrix with one item of sixty dollars, and another of seven dollars; and to that extent, to-wit: $67.00, the judgment of the District Court homologating' the account is amended.

. It is further ordered, adjudged and decreed that our former judgment be amended by charging the costs of appeal to the appellee.

As amended, our former decree remains and the rehearing is refused.


text:
    No. 13,539.
    George Redersheimer vs. Walter C. Flower, Mayor et als.
    Syllabus.
    Excei-tion of No Cause of Action.
    A tax-payer and abutting proprietor has a right ol action, on sufficient cause alleged, to enjoin the proposer and the bidder from signing a public contract to carry out the terms and conditions of the award.
    On the Mekits.
    Where the circumstances render it proper to set aside all steps taken to award a bid to an asserted lowest bidder; the nullity may be decreed without trenching upon contracts that have been accepted and are being executed.
    APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J.

      B. Howard McCaleb for Plaintiff, Appellee.

      Buck, Walshe & Buck for PI. O. Spinks, Defendant, Appellant.

      Samuel L. Gilmore, City Attorney, and Walter B. SommervilU, As•sistant City Attorney, for City of New Orleans, Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, a citizen, and taxpayer and owner of land on 'the street it is proposed to pave, instituted this ¿ction and sued out an injunction to prevent defendants from carrying- out a contract for paving- with asphalt St. Charles street from Canal street to the terminus of the present asphalt pavement around Lee Circle.

The grounds of complaint are that defendants required, in the proposal for bids, that all rock asphalt used in the pavement be mined from ■one or more of the natural deposits; that that from the Sicilian mines •at Ragosa, should equal in quálity and composition that mined by the United Lumber and Vervahle Rock Asphalt Company, and that that from the Swiss mines at Yal dé Travers should equal in quality and -composition that mined by the Neuehatel Rock and Asphalt Company; •or that that coming from the French mines at Seysel should equal in quality, and composition that mined by the Compagnie General des Asphalts de France.

The ground of complaint, in the second place, is that under the head of sample in the specifications, the successful bidder was required to deposit as a model, a sample not less than one foot square of the wearing surface of the sheet asphalt which had been in actual use in a street, together with a written account of its composition, and a certificate from the city officials where it had been in use showing the time it had been used on the street in which it was laid, and setting forth that the-number of square yards laid was not less than one thousand; and, lastly, that the successful bidder was required to satisfy the proper municipal authorities that the third course of wearing surface of the sheet asphaltum, or of the rock asphalt, was all that it is represented to be by furnishing testimony of its having been in successful use in roadway pavements in one or more cities for a period of a least five years.

The proposal was for the construction of a payement of sheet or rock asphalt, the one being considered of equal value to the other, and the specifications, as relates to the proposals for bids, were intended for both. They were both treated as being on the same footing and as being of equal grade.

It appears that the difference between the two, the rock and the sheet asphalt, is not considerable. The sheet apphalt has very nearly the same proportion of ingredients as the rock asphalt. When laid in a pavement, they amount, as relates to use, to about the same thing. One is the natural product of the mines, and the other is artificial, an imitation of equal-value to the original.

The adjudieatee of the contract is TI. C. Spinks, who proposes to furnish Sicilian rock .asphalt on six inch concrete at $2.58 per square yard. The lowest bidder was I. M. Kelly, who proposed to construct the pavement of sheet asphalt on six inch concrete at $2.40 per square yard. The-third bidder was the Barber Asphalt Company, whose bid was larger in amount than either of the two just named.

The defendants severed in their defense. The city and the mayor filed a plea of general denial, while Spinks filed an exception of no cause-of action and the general denial.

We think that the foregoing- is a sufficient outline of the case. In the course of the discussions, we will state such other facts as may be deemed needful. As relates to the exception of no cause of action, we know of no good reason why the action of the lower court in overruling-this exception should not be sustained, for, if, as charged by the plaintiff, the statute has not been complied with, plalintiff, who is a tax-payer and owner of property abutting on the street to be paved, has a standing in court to prevent its infringement and sustain his allegations of injury to his interests. The right of the property owner to sue out an injunction and compel obedience to a statute, has always been recognized upon allegations of threatened injury, made in apparent good faith.

Where the charter requires that a contract be awarded to the lowest' bidder, and it has not been so awarded, the tax-payer may enjoin and' prevent the consummation of the contract and bring about a re-advertisement for bids.

The exception is overruled.

On the Merits.

At the outset of the discussion, we are confronted with the statutory-provisions requiring that the contract be awarded to the lowest bidder. To the council is given the right to advertise for bids to construct pavements. The bidder offering Sicilian rock asphalt- was, in view of the guaranty offered, considered the lowest bidder for work advertised by the Council. The testimony shows that the material in question is of a-superior quality. The difficulty grows out. of the fact that it is obtained from one of the few mines mentioned in the specifications (that is by special mention in the specifications), and in that way, plaintiff urges., competition was stifled.

It is true that rock asphalt is obtained in large quantities in many places. It is also true that it varies in its composition, and that much of it is of inferior quality. Eor this reason, defendants contend in support of the specifications, which plaintiff asserts are offending and injurious, that a standard must be adopted in order to protect the city against worthless materials. '

We are not inclined to deny the truth of the proposition. In view, however, of the provisions of the. charter requiring competition in matters of bids, we are disposed to think that the specifications in question should be expanded a little and liberalized somewhat.

While the lowest bidder should not be afforded the opportunity of using untried and worthless materials, on the other hand, the standard or grade of materials required should be broad enough to embrace, if not absolutely all, at least a goodly portion, of the first class material ■offered for sale.

Rock asphalt is not res incognita. It has been known from time immemorial, and surely a standard of quality can be adopted without limiting bids to three or four mines.

We are informed by the evidence that the foreign product of the rock asphalt mines referred to, was selected chiefly for the reason, that domestic rock asiihalt has not given satisfaction as a pavement. None the less, we do not find in the record sufficient reason for excluding all mines save those mentioned in the specifications. There are many other mines than those before mentioned, which produce a pure and durable quality of rock asphalt. Even domestic rock asphalt, allthough it has not yet found its way freely into the markets, is entitled to a hearing.

The specifications set forth that "all rock asphalt used in this pavement, must be natural, bituminous, limestone rock mined from one or more of the natural deposits.” (italics ours). This positively excludes all rock asphalt, and particularly the domestic, save that before named. It is true that the testimony shows that domestic rock asphalt has never proven a success, unless it has been mixed with other kind of asphalt. To that extent at least it might perhaps be given some little consideration. But, under these specifications, the domestic rock asphalt would not have even the scant privilege of being mixed with foreign asphalt, and thereby of gaining some little success.

Those'who deal in and control sheet asphalt, are permitted to bid on ■sample and testimonial of sucessful use in any other city for a number ■of years. The restriction for the bid is not great, and we believe that •as to the two years limit, it is entirely reasonable. We understand, that, being an artificial product, there was no necessity to limit it as to locality, or to certain designated mines as in the case of rock asphalt. Would it not be reasonable to conclude that if sheet asphalt is not limited at all as to locality, the rock asphalt limits as to locality should be made as large as possible, and not restricted to a very few mines which may be under such control as to hold the material, rock asphalt, at •a higher price than it would be held at, if brought into regular competition ? One being the competitor of the other, the price of one has its influence over the price of the other.

In expressing these views, we are not to be construed as holding that any bidder can insist upon the acceptance of his bid without regard to the quality of the material he is to use. He should, above all other-considerations, satisfy the authorities that the material ho proposes to-use is of the quality required. Great care should be taken not to burden, the streets with bad pavements.

' This brings us to a consideration of plaintiff’s objection to certificates-to be obtained from those in charge of pavement constructed in other cities. In view of the great care and diligence required in the selection of good materials, we are not disposed to find fault with the methods-adopted to obtain certificates of good service for two years from some responsible person in authority. We are informed by the testimony that actual use in the streets for at least two years, is the only reliable method of ascertaining whether the paving material is good or bad.

Defendants, as a further’guaranty from bidders, prior to bidding, inserted another requirement in the specifications, i. e., a requirement regarding the surface of the pavement. This part of the specification calls-for evidence of successful use of the pavement proposed by the bidder for five years. We have not found that this last requirement is directly sustained by evidence of the necessity of a test of so many years. From our point of view, after the quality of the asphalt, be it rock or sheet,, is ascertained by a laboratory test and satisfactory use of the material for two years, an additional period of three years is a very long time. If there is necessity for additional time to investigate, it might be made,, we think, less than three years additional.

In Bergoffer vs. City, 23 N. Y. Law Journal, 206 to which learned counsel for the defendants have directed our attention, the two years’’ certificate was sustained as legal, and at the same time as ample.

We have expressed our views regarding the specifications. We think that they should be broader and more comprehensive. The lowest bid, that of Kelly, as his .bid did not comply with any of the specifications as required, was not accepted for good reason. After it was rejected, as an independent question, it would havg been better if the proposal for bids had been re-advertised.

Now that the questions have been passed upon, the specifications should be broadened. We think that the proposals for bids should be re-advertised, and that the' Spinks bid should be set aside. That is the-extent of our conclusions, although we have decided views, as indicated by our opinion, on the other subjects discussed. They are not intended, and we do not think that they tend, to invalidate or in any way .affect a contract for paving that has been accepted, and that is now being executed. We deem it proper to state that no unfairness is •charged in the pleadings. If any error has been committed, it grew out •of the desire, as we take it, of protecting the interests of the city. In •order to avoid error or mistakes, it requires unusual knowledge of such matters. They are full of difficulties. MacAdam, the engineer, and “the Scottish trustee of roads”, although he succeeded in acquiring fame, did not establish a system or plan always satisfactory in constructing roadways. Many difficulties arise and are to he con-sidered — the drainage of the soil, the grading, the quality pf the material to be used, the skilled workmanship required, the climate, •the traffic, and other considerations must be taken into account. Small wonder it is then, that those in charge find it necessary to insert many requirements in specifications, and for that'reason, we think that the -courts should be slow in setting aside an accepted contract that is being -satisfactorily executed, although it is different before acceptance.

Eor the reasons here assigned, the judgment of the District Court is .■affirmed in so far as it sets aside the bid of II. C. Spinks and annuls all nets looking to the signing of a contract to carry out the terms of his .bid.

Rehearing refused.