author: Bermudez, C. J.

text:
    No. 11,038.
    Succession of Mrs. Wilhelmina Justus.
    The right of a surviving husband, loft in necessitous circumstances by a wife who dies rich, and without leaving issue, to tafee the marital fourth in fall property ■ * from 'her' succession is a personal and optional right, which remains inchoate and. does not rest absolutely in him, unless first accepted by him.
    It is not an inheritance and the survivor is not an heir.'
    Such right does riot pass to hisheirs, where he has not'urged-it himself.
    Tt'is a bounty, or charity, which can well be assimilated to that in cases of necessitous widows,.or minors, entitled to claim $1000 in preference to creditors.
    It may also bo likened toa donation inter vivos, which, unless accepted by the donee himself, or his agent, remains without'effeot.
    In ¡suchhoineStead cases, it is settled that’ the right ito demand and.receive it is a personal right and not an inheritance, and that ijt does not pass by the death of the widow to her major heirs, unless the bounty or charity had been previously demanded and re¿luced to possession.' ...
    When It was allowed-to minors, it was-not because they inherited it from their mother, but because they were entitled to it in.their own rights.
    The ruling in the Piffet ease, 39 ^n. 563, h as no bearing, as there the husband had claimed before his death and bis heirs merely continued the prosecution.
    Permitting the heirs of the deceased husband to take the fourth, where lio lias not claimed.it, would not be a furtherance of the humane objects which the law has in view, but doing violence to the spirit and letter of the provision. Scire leges non est verba earum ienere, sed vim ac potestatem capere.

    APPEAL from the Civil District Court for the Parish of Orleans. . King, J.

      BuokyDinkelspiel & Hart for Appellants:
    1. The marital portion is but a right to be exercised or not,- at the option of the husband or wife entitled to same. 14. C. O. 2382.
    2. It is not an inheritance, because not given in all cases. 3 An. 713.
    3. It is an option to be exercised or not, as desired by the party entitled thereto. . 39 An. 568. ■' ■ • •

      H. Heidenhain for Appellees:
    1. The marital fourth is an inheritance. O. C. 2882; Dunbar Heirs, 5 An. 159; Con-nor vs. Connor, 10 An. 451; Gee vs. Thompson, 11 An. 657.
    2. The failure of the surviving spouse to make a “ demand ” does not extinguish the right of the heirs. O. C. 948, 944, 945, etc.; C. 0 . 872, etc.

      3. The existence of a marriage contract does not interfere with the claim to the marital fourth. C. C. 1887.
    4. The demand is properly made when made under Article 1630 of the Civil Code.
   The opinion of the court was delivered by

Bermudez, C. J.

In this matter the heirs of F. R. Justus sue to recover the marital fourth which, they aver, their father was entitled to take from the succession of the deceased, who was his wife.

Mrs. Justus died rich, on the 27th of September, 1891, and Mr. Justus was left by her in necessitous circumstances. He died seven days after his wife, without having claimed that fourth.

Mrs. Justus left a will by which she bequeathed him a pension in the shape of a legacy of $75 per month and some movable property.

The contention is that the marital fourth provided for by Art. R. O. O. 2382 accrued as an inheritance from the succession of the wife to- the husband, which, at the moment of her death, vested in him as in an heir, and passed by his demise to his children, as heirs to his estate, although he did not claim that portion during his lifetime, which was not a condition sine qua'non.

This is a fallacy, resting on the assumption that the husband was an heir. Hence, the confusion of ideas on the subject and the cause of error committed.

The article in question is not found under the title of Successions, but under that of Marriage Contracts, in the code.

The spirit which inspired the legislation originally, in Rome, in France, and in Spain, and which dictated its insertion in the body of laws which govern Louisiana, was that, where husband or wife dies rich, without issue, leaving the survivor in a state of penury, the latter shall have the right to take from the succession of the deceased one'-fourth of its residue, in full property, after payment of the debts, in order that he or she may not, after a life of ease and comfort, be suddenly thrown into abject poverty. The law does not say that the survivor shall inherit one-fourth; but that he or she will have the right to take, that is, if he or she choose, out of the succession, that portion of the estate, when liquidated.

Read by the light of the spirit which animated the law.giver, that language clearly means that the survivor has the right to take out of the succession that portion of it concurrently with the heirs. The taking necessarily implies an antecedent act, an assertion of the right or privilege, and, in case of opposition, a revendication of if through the intervention of the courts.

The code says that there are three binds of successions, the testamentary, the legal and the irregular, and three kinds of heirs which correspond with the three species of successions, the testamentary or instituted heirs, the legal heirs or heirs of the blood, and the irregular heirs. R. C. O. 875 to 879.

Our code contains general rules under three different corresponding titles for the settlement of such successions accruing to such heirs. R. O. O. 886, 915, and others.

Besides, a succession is the transmission of the rights and obligations of the deceased to the heir. R. O. 0., 871-72-73.

Per contra, an heir is the person who is called to the inheritance of a deceased pereon, acquiring the rights and incurring the obligations of such party. R. O. O. 884.

An heir is defined to be: “ Oelui qui reeueille, á titre suceessif, tous les droits actifs et passifs qu’avait un défunt au moment de sa mort.

Successor in universum jus et personam defuncti. Diet. Droit Civil, Verbo Héritier, Vol. IV, p. 67.

Clearly, neither the rights which Mrs. Justus possessed, nor the obligations which burdened her, vested in Mr. Justus, who, under no eventuality, could, by asking the fourth, have become responsible for any of her debts or liabilities.

The claim to the marital fourth is one against, and not one by, the succession, which is. not here a plaintiff, but a defendant.

Surely Mr. Justus was not a testamentary heir; he was a simple legatee, and the legacy had never been accepted and claimed. He was not a legal heir, or legitimate heir, or heir of the blood; he was an utter stranger to his wife, and even had he been related, she had a right to dispose as she pleased of her estate, and she did it. He could not complain.

He was not an irregular heir, because he was not mentioned as an heir under the title of irregular successions.

Of course, a husband may inherit from his wife as aii irregular heir; but it must be under circumstances which are not such as are presented here — that is, where the wife dies intestate, leaving no lawful descendants, or acknowledged natural issue or lawful ascendants, or like collateral relations.

In the case of Gee vs. Thompson, 11 An. 659, in which the right to the marital fourth was involved, and in which it had been asserted that the wife was an heir, the then court, after full deliberation, dis- ' criminating' "between the rights of heirs proper and of surviving spouses, claiming the marital fourth, said: ‘ ‘ In regard to successions it interests the public order that the instant a person dies it should be known what persons should succeed to his "effects. Hence, those provisions of law were "established under the head of successions, declaring who shall inherit, and casting the inheritance upon the heir so designated, even unknown to himself. The person upon whom the inheritance is by law conferred, and who is called the heir, is so different from the surviving husband and wife claiming the marital fourth that such demand, like a demand for a legacy, must be made upon the heir. The heir, on the contrary, is not obliged to apply to a court of justice in order to take possession as proprietor.” It adds that the articles 918 and 2359 of the then code (1825) were intended to apply to different classes of cases: “The one to provide an heir to an entire succession, the other to relieve the surviving husband or wife when in want.”

Indeed, saying that the husband or wife is an "heir- in this "case would be to add another to the three classes of heirs enumerated by the code. This can not be done.

The right conferred by the article is in the nature of a charity or bounty, iñ favor of the surviving consort left in penurious circumstances, which, to vest in him or her, must at least have been claimed when it could be done.

It is a personal and optional right, which remains inchoate until accepted, and which lapses and dies away, and does not pass to the heirs of the survivor at his death, when not' previously accepted by him or her. "

The text reads: "Quarta datur in honorem preterite matrimonii. The fourth is given in honor of the past marriage, that the survivor be retained in the previous accustomed rank and condition. It is a gift.

It is not a donation by the deceased; but one by the sovereign acting in the place of the unwilling/hindered, forgetful or ignorant defunct spouse. It may be likened to a donation inter vivos, which, to be binding, must be'accepted in precise terms by the donee himself or his agent, and which if not so accepted can be accepted neither by his creditors nor his. heirs, and remains without, effect. R. O. O. 1540, 1543, 1544.

It may be assimilated to the charity or bounty extended, or conferred on the necessitous widow or minor heirs, by the Act of 1852, now Art. 3252, R. O. O., with this difference, that the .marital fourth is taken from a solvent succession or the heirs; while the $1000 are allowed in insolvent successions in preference to creditors.. Both are laws in derogation of common right. .

Under the provisions of the homestead laws, it has been held that the right was a personal one, depending on,the condition of the person in whose favor it is granted, and not a right or inheritance that vests irrevocably in full property in such person and forms part of his succession, which descends to his heirs. It is a right which must be asserted and reduced to possession, be demanded and received, before it can vest in the party. Succession of Robertson, 28 An. 832.

In the subsequent kindred case of the succession of Durken, 30 An. 669, in which the major heirs of a necessitous widow claimed the $1000, which she had not demanded, the court held that they could not receive. ....

The same doctrine was reiterated and applied in the posterior germane case of the succession of Vives, 35. An. 375.

The invoked decision of this court in the succession of Piffet, 39 An. 563, has no bearing, as the husband had accepted the gift and made his claim before his death, and his heirs merely continued or prosecuted it.

By his acceptance of the' bounty or charity, the right to take the fourth had vested in him, and so had passed to his heirs, who were recognized entitled to it in his stead.

Neither does the French case apply, referred to in Merlin, Vo. “ Conjoint Pauvre,” Vol. 10, p. 447, in 1732.

The fourth had been claimed by the surviving wife, to whom it had not been allowed, but she dying pendente lite it appears to have gone to her heirs. However, as she had accepted the legal gift, and as by that act the title to it had vested in her, it could be claimed by her heirs, and it was allowed them.

The husband here was not bound to accept the gift, and he did not claim it. He was, perhaps, satisfied with the testamentary disposition of his wife in his favor, which exceeded, as.an income, the revenue which the net fourth would have yielded;, or .was too proud to take either charity, or considered that what was intended for him should not pass to others.

Permitting the heirs in this instance to benefit by the marital fourth claimed would surely not be a furtherance of the humane objects of the-law giver, but doing violence to the spirit and letter of the provision. As well should it be allowed to creditors in default of heirs.

Scire leges, non est verba earum tenere, sed vim ac potestatem capere.

It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now adjudged that the claim of the plaintiffs, as heirs of F. R. Justus, be rejected, with judgment in favor of the defendant, and that plaintiffs pay costs in both courts.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 11,896.
    Succession of Mrs. Lizette Krekeler.
    It is of the nature, but not of the essence, of mandate that it be gratuitous Without express agreement courts may infer an implied contract to pay from the nature of the services and the relations of the parties.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    Buck, Dinkelspiel <& Hart for Appellees.
    L. L. Levy for Appellant:
    Where an agent has rendered important services to his principal, although there was no contract for compensation, and the principal has died- intestate and without final settlement with the agent, the latter is entitled to compensation from the succession. Succession of Fowler, 7 An. 207.
    It is not of the essence of mandate that it be gratuitous. The right to compensation may be inferred or implied from the nature of the services. R, O. C., Art. 1764, par. 2; Waterman vs. Gibson, 5 An. 672; Elkin vs. Elkin, 11 An. 225; Gottschalk vs. Jennings, 1 An, 5.
    Where such services have operated to the manifest benefit and advantage of the estate, it can not be a question that a reasonable compensation will be allowed. Nemmein opportet altei'ius damno locupletari.

   The opinion of the court was delivered by

Fenner, J.

Wm. Krekeler, the husband of Mrs. Lizette Krekeler, died on March 13, 1890, leaving an estate consisting of some movables and several houses and lots, valued altogether at $4873.90, belonging jointly to his succession and his widow as partners in community. He left no forced heirs.

Mrs. Krekeler was nearly 70 years old, in infirm health, weighing nearly 350 pounds, unaccustomed and unable to attend to business.

She sent for an acquaintance, Charles Kummel, and asked him to take charge of her interest and attend to her affairs and property, which he agreed to do. He attended to the opening of her husband’s succession in her behalf as surviving wife, managed the property, attended to repairs, paid the taxes, collected the rents.and did all her business for her. .As indicated, the property belonged to the community, and Mrs. Krekeler, ¡under the law would otlly have enjoyed the usufruct of the husband’s half, which, at her death, would have passed to his heirs. But Mrs. Krekeler informed Kummel that her husband had made a notarial will in 1858. Search in his house and papers failed to find the copy. Attention was turned tó notarial records. The counsel and notary of the succession made diligent search without avail. Mr. Kummel himself made active efforts to find it. After all others had abandoned the search as fruitless, he discovered the will in the records of the notary Coffey, indexed by mistake under the letter “ C,” instead of “ K.”

The will made Mrs. Krekeler sole universal legatee. It was probated and she went into possession of the entire estate as sole owner on the 4th of December, 1890. Very shortly afterward, on December 21, 1890, she died suddenly in church.

Her succession was opened and is under administration by the public administrator, to whom Kummel presented a bill for $500 for services and $22 for expenses. The administrator admitted the claim and placed it on his account. The heirs of.Mrs. Krekeler opposed'it, and from a judgment maintaining the opposition and rejecting the claim for services, Kummel prosecutes this appeal.

The opposition came with abad grace from the heirs who profited so directly by Kummel’s services, and we think the judge erred in maintaining it.

We can not distinguish the case from Waterman vs. Gibson, 5 An. 672, where we said: “ It is said that a contract of mandate is presumed to be gratuitous, unless there has been a contrary agreement. Under our code, which has modified the principles of the Roman law, it is not of the essence of mandate that it should be gratuitous. And, in our opinion, it is not necessary for an agent to establish an express agreement that be should have a pecuniary remuneration for his services. Courts may infer such an agreement from the nature of the employment and the relations of the parties. It would be unreasonable to look upon the undertaking of the defendant as a'mere Office d’ami.” See also Succession of Powler, 7 An. 207; 3 Baudry Lacantinerie No. 908; 27 Laurent, No. 346.

This record exhibits no relations between Kummel and the deceased except those of long acquaintance. He is not shown to have been a relative or even a very close friend, or to have been under any obligations of any kind, or to have derived any advantage from his employment. Aside from such relations, .the services are certainly of a character which no person would be expected to render gratuitously. There is nothing in the evidence intimating that either party expecte'd or intended that they should be gratuitous. The sudden death of Mrs. Krekeler, before any occasion for settlement had arisen, robs of significance the failure to make the claim during her lifetime. We see no reason to doubt that, had she lived, Mrs. Krekeler expected to pay and would have paid a reasonable compensation for these services.

Considering, however, the value of the estate and that its entire revenues for the time of services did not exceed $500, we are disposed to think the charge somewhat excessive, and that an allowance of $300 in addition to expenses will suffice.

We have considered the suggestion as to our jurisdiction, but think it is disposed of by our decision in Brierre vs. Creditors, 43 An. 423.

It is, therefore, ordered and decreed that judgment appealed from be amended by increasing the amount allowed Charles Kummel from $22 to $322, and that, as thus amended, the same be affirmed, appellee to pay cost of appeal.


text:
    No. 11,032.
    New Orleans, City & Lake Railroad Company vs. The City of New Orleans.
    1. The power of regulating the streets', delegated to the city of New Orleans by the Legislature of the State, embraces authority to establish street railways on its streets, but it does not include authority to grant to any person or corporation an exclusive privilege to operate a railway on any street.

      2. The power to regulate the use of streets for railway purposes is a persisting power inhering continuously in the city government, and one council can not, by one exercise of the power, deprive succeeding councils of the power to exercise it again when found necessary for the public interest.
    3. Whether or not the Legislature itself possessed, under prior constitutions, the' power to grant such exclusive privileges, we hold that under the general and cautious terms of the legislative charter of the city no such power was delegated to the latter.
    é. In this case the exclusive privilege embodied in the contract between the city and plaintiff was ultra vires, and not binding on subsequent city councils, and whatever relief plaintiff may claim for violation of this stipulation of its contract, it clearly can not enjoin the city from doing that which it has a lawful right to do.
    5. Whilst valid contract rights must be respected, or only interfered with in the constitutional exercise of the power of eminent domain,.claims to exclusive privileges, under grants which are ultra vires, can not be permitted to thwart or obstruct the municipal discretion in the exercise of the power to regulate the streets confided to the city to be used for the benefit of the people.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Monroe, J.

      Buck, Dinkelspiel & Hart for Plaintiffs and Appellants.
    1. Franchises to construct and maintain street railways, when acquired for value, constitute property in the highest sense of the term, and can not be impaired or taken away except under the exercise of the power of eminent domain. 32 An., p. 915; People vs. O’Brien, ill N. Y., p. 1; Pierce on Railroads; Elliott on Streets and Roads; Dillon on Municipal Corporations; 73 Iowa 502 ;*33 Northwest. Reporter, 610. References and authorities cited in the brief.
    2. A stipulation in a contract of sale of right of way, based upon ordinances passed by the municipal corporation, to the effect that “The City of New Orleans binds herself not to grant during the period for which said franchises are sold a right of way to any other railroad company upon the streets upon which said right of way is hereby sold, unless by mutual agreement between the city and the purchaser or purchasers of this franchise,” is not a grant of an exclusive privilege or monopoly, in the sense in which these terms are usually understood in the laws and constitutions of this State; but even if so, in the absence of a constitutional provision prohibiting the granting of monopolies or exclusive privileges, the Legislature of the State could validly make such a grant.
    Where such a grant is made by the city of New Orleans, exercising the power vested in her by the State, the only question that can arise is a question of-del egation of the necessary power.
    3. When the contract in question, dated October 2, 1879, was entered into, there was no prohibition in the laws or in the Constitution of the State against such a grant; the Legislature could, therefore, have legally made it, or delegated the power to do so to the municipal corporation.

      i. Under the Charter of 1870, Act 7, extra session of that year, and in other legis • lative acts, the State had delegated “ full power,” meaning all her power in the premises, to the city of New Orleans. (References in brief.)

      5. The subsequent legislation of the State confirms the interpretation placed by this court and the city, authorities in the premises on the power exercised by the city, and authorizes 'expressly the sale of street railway franchises for price and on “ terms and specifications” prescribed by the city and published to the world. Acts cited in brief.

      W. B. Sommerville, Assistant City Attorney, for Defendant and Appellee:
    The charter of the city of New Orleans, Act No. 7 of 1870, does not confer power upon the corporation to grant the exclusive privilege of the use of a street. The powe,r conferred was restricted to the regulation and management of the streets. New Orleans, Oity and Lake R. R. Co, vs. Oity of New Orleans, 43 An.— (decided April 18, 1892); Canal & Claiborne St. R. R. Co. vs. Orescent Oity R. R. Oo., 43 An. — (decided April 4,1892); Oanal & Claiborne St. R. R. Oo. vs. Orleans R. R. Oo., 43 An. — ; Canal & Claiborne St. R. K. Co vs. Crescent City R.R. Co., 41 An. 561; New Orleans City R. R. Co. vs. Orescent City R. R. Co., 12 Red. R. 308; Brown vs. Duplessis, 14 An. 854; Elliott on Roads and Streets, pp. 566, 567, 568 and 573; Minturn vs. Larue, 23 How. 436.
   The opinion of the court was delivered by

Fenner, J.

This is a suit by injunction to prevent the city from selling a right of way for a sreet railroad over a certain portion of Magazine street, the plaintiff claiming that the proposed sale vio - lates the following stipulation in the subsisting contract between it and the city:

“ The Oity of New Orleans binds herself not to grant during the period for which said franchises are sold a right of way to any other railroad company upon the streets through which said right of way is hereby sold, unless by mutual agreement between the city and the purchaser or purchasers of these franchises.”

It can not be denied that the action sought to be restrained is in violation of the terms of this quoted clause of the contract. Whether the plaintiff is entitled to any, and if so, to what relief on account of such violation, are questions which we shall not discuss in the present opinion. It is sufficient to say that plaintiff is clearly not entitled to the particular relief invoked in this case.

We have repeatedly held that the Oity Council of New Orleans has no power to grant an exclusive right to use a street for the purposes of a street railway; and that any such exclusive grant can not ■operate to deprive succeeding councils of the right and power to regulate the streets by granting new franchises when deemed necessary for the public convenience, and when not inconsistent wit)i, or destructive of, the exercise of franchises formerly granted.

The proposed sale does not interfere with the exercise of the franchise granted to plaintiff save in the single feature of its exclusiveness. If the Oity Council, with which plaintiff contracted, had no power to grant an exclusive right or to deprive succeeding councils of the right to grant new franchises in the public interest, obviously plaintiff’s claim to an injunction restraining the granting of such new franchises can not be sustained, even if it were conceded that plaintiff was entitled to some kind of relief for' the consequent breach of its contract-

We do not understand that the learned counsel of plaintiff contests the logic of this conclusion; but with great earnestness and zeal he assails the correctness of the judicial conclusion which we have repeatedly announced, that the City Council of New Orleans has no power to grant or sell, in perpetuo, or for a term of years, the exclusive right to use its streets for the purposes of a street railway. New Orleans City & Lake Railroad Company vs. City of New Orleans, 44 An. — (decided, April 18, 1892) ; Canal and Claiborne Street Railroad Company vs. Crescent City Railroad Company, 44 An. — (decided, April 4, 1892) ; Canal & Claiborne Street Railroad Company vs. Orleans Railroad Company, 44 An. —; Canal & Claiborne Street Railroad Company vs. Crescent City Railroad Company, 41 An. 561; New Orleans City Railroad Company vs. Crescent City Railroad Company, 12 Fed. R. 308.

He claims that this is the first case which has been presented in which the grant of the exclusive right has been expressly made as a stipulation and condition of a contract, and that it is thus differenced from prior cases.

In the case first above cited (which, however, is not yet final) we had under consideration the very contract now presented, and we then held, in the language of the syllabus:

“The charter of the city of New Orleans, Act No. 7 of 1870, did not confer power upon the corporation to grant the exclusive privilege of the use of a street. The power conferred was restricted to the regulation and management of the streets.”

We have, however, carefully considered the plaintiff’s argument, which reduced to the form of a syllogism is as follows:

1. In absence of constitutional inhibition, which did not exist at date of this contract, the Legislature of the State had the power to grant exclusive rights to the use of a street for a street railway.

2 The Legislature of Louisiana has delegated to the city of New Orleans its whole power over this subject; ergo the city has power to grant such exclusive rights.

In support of the major premise counsel cites a formidable array of authorities. We have no occasion to consider these or to enter into the nice distinctions in the definition and limitation'of the legislative power on this subject which appear in the decisions and text b >oks, because thejdoctrine heretofore announced by us rests entirely on our negation of the minor premise.

The grant of power to the Oity Oouncil in this matter, under the Charter of 1870, in force at the date of this contract, is found in Sec. 12, as follows:

“ To regulate and make improvements in the streets. * * * To regulate the proper government of carts, drays, carriages, Omnibuses, and other vehicles of every description; freight, locomotive, passenger and street cars, which run in the streets and within the limits of the city.” * * *

We have been referred to, and have ourselves been able to find, no authority holding that such a grant included a delegation of power to grant an exclusive right of way over streets to a railway company.

The power to “ regulate the streets ” is a persisting power, not exhausted by a single exercise thereof.

The case of Brown vs. Duplessis, 14 An. 854, held that it was a proper exercise of this power of regulation for the city to authorize street railways to be established on the streets. If one council, under this power to regulate, had the right to establish such a railway, it is difficult to understand why a succeeding council, having precisely the same power, should not have the right to establish a similar railroad, when found necessary in the public interest, and provided always it did not destroy or impair substance of the former grant.

The legislative grant to the city of New Orleans of the power to establish street railways is subject to the same construction which would be applied to a direct legislative grant to a private corporation for the same purpose; and as to the latter, Judge Dillon says:

“ A legislative grant of authority to construct a street railway is not exclusive unless so declared in terms, and, therefore, the Legislature may, at will and without compensation to the first company, authorize a second railway on the same streets or line, unless it has disabled itself by making the first grant irrepealable and exclusive.” 2 Dillon Mun. Corp., 3d Ed., Sec. 727.

The same principle must be applied in the construction of legislative delegations of authority to municipal corporations. Unless the terms of the delegation embrace expressly the power to grant exclusive rights, or are so sweeping as to operate a complete abdication of the whole legislative power in favor of the corporation, it can not be held to include such extraordinary power, the possession of which even by the Legislature is not free from dispute. See Elliott on Roads and Streets, p. 569.

The extremely general, guarded and cautious terms of the delegation in the instant case preclude any such construction and produce a'strong conviction that no such purpose was contemplated by the legislative mind.

The most apposite case we have found is that of Davis vs. Mayor, 14 N. Y. 536, of which we give Judge Diilon’s summary as follows:

“In a leading case, Davis vs. Mayor, it appeared that the city corporation, by, its charter, possessed general power to open, alter, repair and regulate the streets. By virtue of this power, and without any express authority from the Legislature, the corporation of the city undertook, by resolution, to confer upon an association of persons the exclusive right to construct and maintain for a term of years a railway in Broadway for the transportation of passengers for pi’ofib. It was the opinion of five of the seven judges of the Oourt of Appeal3-bhat the resolution was void. * * The judgment of the court in the case mentioned rests upon the sound principle that the powers of the corporation, in respect to the control of its streets,, are held in trust for the public benefit, and can not be surrendered or delegated by contract to private parties.” 2 Dillon Mun. Corp. Secs. 715, 716.

The later ease of People vs. O’Brien, 111 N. Y. 1, does not overrule or conflict with Davis vs. Mayor, bub is clearly distinguishable from it in the essential feature that an exclusive grant was not involved.

A different conclusion from that which we have reached would be nothing less than a public calamity.

Under the conditions of life in great cities, experience demonstrates that the power of regulating the use of streets in the establishment of railways thereon is one of the most important and essential of all municipal powers to the comfort, convenience and health of the inhabitants. Such railways relieve the unwholesome crowding of population in central localities, abolish the nuisance of over-populated tenement houses, enable the industrial classes to find homes where land is cheap, space is ample and air is pure, from which these carriers supply swift and frequent transportation to and from their working places, and contribute, in so many ways, to the comfort and convenience of the whole people that one wonders how such communities ever lived without them.

Whilst valid contract rights must be respected and only interfered With in the constitutional exercise of the power of eminent domain, claims to exclusive privileges, under grants which are ultra vires, can not be permitted to thwart or obstruct the municipal discretion in the administration of this important public trust confided to them to be exercised for the benefit of the people.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,037.
    State of Louisiana vs. Clifton Cannon, Sheriff, et al.
    1. The plea of want of previous tender as a condition precedent to the institution of suit to annul a judicial sale is not applicable to tax sales.
    2. The Constitution declares that no sale of property for taxes shall be annulled for any informality in the proceedings until the price paid, with 10 per cent, interest, be tendered to the purchaser, and that provision has been construed to mean^that tender may be made at any time prior to final judgment, or that the price may be liquidated and adjusted in the judgment.
    ON ItEIIEAJaNG.
    1. The court below decides a cause on whatever point it deems material, but it is the duty of this court to revise-its judgment, not the grounds upon which it is rendered. Its decision compels us.to examine the case on all the grounds it presents, if that be necessary to a rightful determination of the case.
    2. Section 1 of Act 80 of 1888 requires that the tax collector shall prepare a compíete list of all immovable property bid in for and adjudicated ‘to the State, as shown by the records of the conveyance office, which have not been disposed .of or redeemed, and transmit same to the auditor of public accounts for comparison with the records of property adjudicated to the State, on file in his office; said list, when corrected and approved by the auditor, shall be returned as approved to the tax collector, and it shall be the warrant of authority to him to advertise said» lands far sale.
    3. Without strict compliance with the provisions of this act a tax collector is not authorized to make sale of State lands, and an adjudication thereof without such compliance is absolutely void and conveys no title.

      L In case of such sale being made, and of the purchase price being put to the tax collector’s credit on the treasurer’s suspense account, the State does not become responsible to the bidder for its restitution upon the revocation of the sale. He must look to the proper accounting officers of the government, in due course of settlement and law.
    APPEAL from the Twelfth District Court for the Parish of Avoyelles. Oogo, J.

      H. G. Morgan and T. H. Thorpe for Plaintiff and Appellant:
    The doctrine ot tender as a prerequisite to a suit to annul a sale made under the tax laws of this State is not sustained by authority; even where such condition has been imposed by statute, grave doubts have been expressed as to its validity, and it has been construed with great strictness. 33 An. 528.
    Before the exception of want of tender can be sustained, it must surely be made to appear to the court that there is reimbursementjdue; even in such a ease it has been held that the State can not be coerced into compliance with the rule.
    Though the general authority for a fiscal sale be contained in a statute, an executive warrant is the sine qua non to its validity; without such warrant the officer is incompetent to divest ownership. The primary authority to sell in the suit at bar was Act 80 of 1888; the final authority was the list compared, corrected and approved by the auditor, which constituted the executive warrant; without this list in his hands the tax collector had not the right even to advertise the property for sale.

      B. J. Joffrion and ./. G. Gappell for Defendants and Appellees.
   The opinion of the court was delivered by.

Watkins, J.

The object of this action is to h,ave declared null and void a tax adjudication of real property situated in the parish of Avoyelles on the ground that it was a non-consummated sale for want of due compliance by the tax collector with a condition precedent, claim being made that it had been adjudicated to J. H. Bemiss, of the State of Texas, one of the defendants, under and by authority of Act 80 of 1888.

The property in controversy was sold to the State in 1886 for the delinquent taxes of antecedent years, and certain, of the heirs of J. A. D. Tureaud and Madam George Sauvé made application for their redemption, and the negotiations therefor had been well nigh completed when the complained of adjudication took place..

On account of the alleged irregularities in the tax collector’s proceedings the attorney general, in the name of the State, demands their revocation and annulment, and the restitution of thestatus quo.

To be more specific, the contention of the State is, that prior to said adjudication the tax collector failed to submit to the auditor of public accounts a list of said lands for comparison with records of property adjudicated to the State and secure his approval before offering same for sale; and that such comparison and approval was a condition precedent to such sale, and without it the tax collector had no warrant of authority for making sale and that the adjudication was void without-it. .

Preliminarily, the defendants tendered a series of exceptions to plaintiff’s suit, one of which was want of tender, coupled with the averment “that plaintiff, as vendor, has accepted and still holds the purchase price of said property.”

This, with other exceptions, was by the court referred to the merits, and the defendants filed answers and the case went to trial on the merits and exceptions. But the, court, finding that the plea of want of tender was well taken, grounded its judgment upon it and non-suited the case, and the State has appealed. Hence, the only question we have to deal with is this ruling of the judge of the court below.

Considering the' question Of tender, we - find in the petition the allegation that “the State has never received any part of the sum of $1057 recited as the consideration for said pretended act of adjudication, and that the sum, if paid by said Bemiss, has Over since remained in the hands of said Gannon” — the tax collector who is defendant.

This allegation is plainly an offset to the exception.' In the face of this specific averment in the petition, that the State had never received any part of the alleged price of sale, we are at a loss to understand why the plea was tendered, very much less, entertained. The fact of receipt vel non by the State of the proceeds is disputed on the one hand and affirmed on the other, and constitutes the question one for the merits, and, what is termed and treated as an exception, must be considered as a part of the answer. For it is a very plain question, that we must go into the merits, in order to determine the fact of payment to and receipt by the State of the proceeds of sale.

But in the case of Stafford vs. Twitchell, 33 An. 520, this court had occasion to examine the question of want of tender, as applicable to tax sales — if, indeed-, it be a question here, for determination as a matter of law — and, in that connection, we had occasion to hold that our predecessors had acted without sufficient consideration in deciding in Barrow vs. Lapine, 32 An. 310, that this plea had applicability thereto, and said:

“We do not find this doctrine, as applicable to tax sales, sustained by authority.”

This principle of construction has never been departed from since, but, on the contrary, has been constantly maintained. Guidry vs. Broussard, 32 An. 924; Davenport vs. Knox, 34 An. 407. Those decisions are strictly conformable to prior jurisprudence. Brooks vs. Hardwick, 5 An. 675, and Coleman vs. Baker, 24 An. 524.

But the question of tender is not an open one, because it is defined expressly in the Constitution, and the constitutional definition has been recently interpreted by us.

In Breaux vs. Negrotto, 43 An. 426, we said:

“It is sufficient for us to say that the provisions of Art. 210 of the Constitution do not seem to contemplate a ‘ previous legal tender ’ of the price of adjudication being made — such as is contemplated in O. P. 407, et seq., andR. C. O. 1933, et seq., and 1911, et seq. —as a condition precedent to the institution of the suit for rescission of the sale. It declares: ‘No sale of property for taxes shall be annulled for any informality in the proceedings until the price paid, with 10 per cent, interest, be tendered to the-purchaser.’ Constitution, Art. 210.

“We think the tender may be made at any time prior to the rendition of final judgment decreeing the nullity of the sale; or the price may be adjusted and liquidated in the judgment.

“Certain it is that the constitutional mandate must be carried into effect, and the tax purchaser must be compensated, and the judgment annulling the sale can not be completed until that is done.”

To that view and opinion we adhere, and it is conclusive of the question under consideration.

The judgment appealed from is erroneous and must be reversed.

It is therefore ordered and decreed that the judgment appealed from be and the same is annulled and reversed; and it is further ordered and decreed that the cause be remanded to the lower court, and therein reinstated for trial on the merits; and that the defendants’ plea of want of tender stand as a part of their answer.

It is finally ordered that 'the defendants and appellees be taxed with-the costs of appeal, and that all other costs to await final determination of the cause.

On Application por Rehearing.

We are requested to grant a rehearing, recast our opinion and decide the case on its merits because the interest of the State might be jeopardized by the protracted delay occasioned by remanding the cause; and counsel for plaintiff, in support of their application, refer to the fact, which is evidenced by the record, that the case was tried on the merits, contradictorily and upon issue joined on answer.

Whilst this statement is correct, yet because the judge a quo confined his decree to the plea of want of tender, and, finding it good, dismissed the case, we limited our judgment to that finding, reversed the judge’s ruling and remanded the cause for trial and decision on the merits, following the precedent of Connery vs. Waterworks, 39 An. 770.

The plea of the plaintiff is persuasive as well as urgent, and much inclines us to its favorable consideration; and in its support the counsel cite the opinion of Judge Martin, speaking for the court, in Kenner vs. Their Creditors, 3 N. S. 51, who puts the proposition in this wise, viz.:

“ It is obvious that this is not a sufficient cause to authorize us to refuse.to act on the whole case.

“The court below decides a cause on whatever point it deems material; our duty is to revise its judgment, not the grounds on which it is rendered. Its decision on the merits requires, nay, compels, us to examine the case on all the grounds which it presents, if that be necessary to a rightful determination of the case; for the error of the judge a quo, for which relief is sought at our hands, may be his failure to take into consideration an objection on which his judgment is silent. Under the principle contended for there might be as many appeals as points in a case, if be acced on only one at a time and decided erroneously. (Italic ours.)

“ It has been the uniform practice of this tribunal, as it is the real intent of the statute, that the decision of the first judge on the merits, brings up the whole ease. The contrary doctrine would be productive of intolerable expense and delay.”

Applying that principle to this case the conclusion appears to be quite irresistible that, inasmuch as it was tried upon its merits; upon issue joined and testimony adduced; though the judgment was restricted to a solitary issue, it is our duty, in revising it on an appeal, “ to examine the case on all the grounds which it presents, if considered necessary to a rightful determination of the case,” and decide it accordingly.

Upon this hypothesis we have concluded to grant the relief prayed-for, and decide the case upon its merits.

A correct recital of the issues-involved will be found in our original opinion, and it is specially referred to; and the substance of which is that the defendant, as tax collector, proceeded without due authority in attempting to make the sale in question of State lands, having failed to procure the proper authorization from the auditor of public accounts as the statute required him to do.

Defendants — the sheriff and ex-officio tax collector, joined by the alleged adjudicatee — in their answer reiterate their exceptions, and plead the general issue, affirming the validity of the sale. Coupled therewith, is a plea of prescription of one, two and three years, in bar of plaintiff’s right of redemption.

It may be well to premise that this is a suit brought by the State through the attorney general, claiming to be “the true and lawful owner ” of the lands in controversy, and denying the legality of the tax collector’s pretended adjudication thereof to his co-defendant, Bemiss', on the ground stated above.

The original owner and tax debtor, whose title was expropriated at tax sale in 1885 and adjudicated to the State, is not a party, either plaintiff or defendant, and consequently his right of redemption is not an issue in the case.

The law invoked by the State is Act 80 of 1888, Sec. 1 of which declares “ that it is hereby made the imperative duty of each collector of the State taxes throughout the State to prepare, within two months after the expiration of the year in which the property must be redeemed * * .* a complete list of all immovable property bid in for and adjudicated to the State for the taxes of the year 1880 and subsequent year3, as shown by the records in the conveyance office * * * which have not been otherwise disposed of by the State, and not redeemed within the time prescribed by law; which list shall be transmitted to the auditor of public accounts for comparison with the records of property adjudicated to the State, on file in his office; and, when corrected and approved by the auditor of public accounts, the same shall be returned as approved to the collector. Upon receiving said list it shall be the duty of -the-collector to.¡proceed at once to advertise for sale all immovable property appearing upon 'said list, and which has been heretofore bid in for and adjudicated to the State,” etc. - : -

The sheriff’s prooes verbal of sale to Bemiss recites that it was -in7 tended to be made in-pursuance of and conformably to the provisions of that act, bat it does not contain any recital to the effect that, he had complied with its'specified conditions precedent.

Not placing full reliance upon the ah sense of such recital, the plaintiff exercised the precaution of interrogating the auditor, who, as a witness, states that, subsequent to the adjudication in question, Oannon, sheriff, made up a list of lands in the parish of Avoyelles, which had been sold by him under the Act of 1883, including those adjudicated .to Bemiss, and caused-same to be filed in his office, and that he at once attracted his attention to the fact that'he'had failed, to comply with the provisions of that act, above q-uoted,-and inclosed a copy of the act to him, and at the same time advising him of the necessity of his transmitting to him for comparison and ap-_ proyaba list of lands adjudicated to the State.

He further states that he notified the sheriff of the fact that there were then pending negotiations for the redemption of the lands in controversy, as a reason why a description of same, as lands to be advertised for sale, should not be included therein; a.nd^hepxam-' ined, compared and approved the list without enumerating same, and returned it according to law; but he affirms thathe received no reply to said instruetions andad vice.

The statements of the auditor are in no way controverted by the defendants, and they may be accepted as absolutely true; and, rak-, ing them as true, the sale proceedings of Oannon, sheriff, were altogether unauthorized. He made up a list of lands he had already adjudicated to the defendant and other persons under the supposed authority'of the Act of 1888, in lieu of having made up a list of lands which had been previously adjudicated to the State, and furnished same to the auditor for examination and approval, preparatory to sale.

It is evident that the sheriff acted without any warrant of law in attempting to make sale of State lands as he did, and that said proceedings and adjudication are void absolutely, and confer no title on Bemiss.

Adjusting the question of purchase price, the evidence applicable seems to be as follows:

That on the 4th of March, 1890, the adjudication complained of having been, made and completed -on the 2d of March, 1889, and this suit having been instituted on the 1st of-' March, 1890, Cannon, sheriff, forwarded his check for §1847.83, covering amount of proceeds of sale of the property in contest, amongst others, to the treasurer, to be held in abeyance until said sales could be checked up and audited in the auditor’s office. Of this check or draft the auditor speaks as a witness, viz.: I received a draft to cover the settlement, which I have collected and deposited with the treasurer, to be held until such time as the list can be checked, audited and approved.. This money is to the credit of the ‘ suspense account, ’ and not. actually covered into the State treasury, as all or any part of it can be withdrawn without any warrant, and will be so held until' Mr. Cannon’s list can be audited and appi-oved.’ ”

This statement is neither denied nor its accuracy questioned, and taking it as true, there can not be a doubt of the correctness of the averment of the plaintiff’s petition “that the State has never received any part of the sum of §1057 recited as the consideration of said pretended sale.” It is evident that the production and deposit of money under the circumstances detailed, subsequent to institution of suit by the State, could not impair or prejudice her claims, or put upon her any obligation for its restitution. In our opinion" the defendant’s demand of the State for the restitution of the price paid can not be favorably entertained. The adjudicatee has his recourse against the proper State officers in due course of settlement and law, but he is not entitled to relief in this suit.

It is therefore ordered, adjudged and decreed that the judgment and decree hereinbefore rendered be vacated and set aside, in so far as it ordered the case to be remanded to the lower court for further proceedings; and it is now ordered and decreed that there be judgment upon the merits of the case in favor of the State,- as plaintiff, annulling and revoking the adjudication complained of, to Bemiss, and maintaining her title.

It is further ordered that the demands of the defendants be rejected at their cost in both courts. But equity requires that the effect of this decree be suspended, and the State take nothing thereby until the purchase money is restored to the defendants, and it is so ordered.

Defendants’ and appellees’ right to apply for a rehearing is re - served.


author: Watkins. J.

text:
    No. 11,017.
    Edward Eisenhauer vs. Daniel M. Brosnan.
    1. As the law declares that it shall be sufficient that the registering in the conveyance office in the city o£ New Orleans of a notarial act of sale there executed be made upon a certificate presented from the notary executing it containing certain requisites in the way of detail and description; and, as it further declares, that the register’s certificate of inscription made conformably to the foregoing requirements shall be received by courts of justice in evidence, in the same manner as other public acts — such certificates must be eon- • sidered and treated as furnishing evidence of equal dignity as that furnished by the authentic act from which the data of which it is composed is taken.
    2. A voluntary sale at public auction need not be preceded by an advertisement, as same is optional with the owner. It being necessary, only, that the public officer crying the sale should make proclamation of the terms of sale, at the time of offering, it is to that proclamation that bidders must look at their peril.
    APPEAL from the Oíyü District Oourt for the Parish of Orleans. Monroe, J.

      Henry P. Dart for Plaintiff and Appellee:
    1. Where proof is made that an original notarial act containing a transfer of immovable property has boon mutilated, and a portion of it lost or destroyed, the contemporary registry in the register of conveyances is admissible to prove the contents of said act, and that it was properly registered, and to prove thoreby-the sale of the immovable.
    2. One who has a notarial title perfect in form, but whose vendor’s notarial title is mutilated and a portion of it lost or destroyed, may shield himself behind the prescription of ton years, and compel a purchaser to accept his title by showing that his own title on its face is perfect in form; that ho paid a fair consideration, in good faith and after an examination of title; that he dealt with a person whom he beliovod to bo owner, and has remained in undisturbed possession of said property for more than tenjyoars. Pattison vs. Malony, 38 An, 885.

      Gus. A. Breaux for Defendant and Appellant:
    1. A copy of recordation of act is not admissible in evidence until the existence and .loss or destruction of the original act is proven, and that a certified copy is not obtainable, as it ¡3 not the best evidence. C. C. 2268, 2270; Morder vs. I-Iadnau, 39 An. 94.
    2. No title to real estatejnot to bo found in a notarial record is good and sufficient title to offer to a bidder at public sale. O. C. 2440; Gassen vs. Palfrey, 9 An. 560; Roberts vs. Bauer, 33 An. 45.3; Bachino vs. Corte, 35 An. 572; Patison vs. Molony, 38 An. 886; shown not to be applicable.
    3. Any change in the advertisement at the last moment vitiates the bid. Nothing ■ that the auctioneer may say, varying the advertisement, can avail either vendor or bidder. As a fact, the bidder was not aware of any change, and his good faith was surprised. Ilodinvs. McCorkle, H An. 46; Porée vs. Boneval, 6 An. 386.
   The opinion of the court was delivered by

Watkins. J.

This action is petitory in character, and has for object to compel defendant’s compliance with his bid for the two-story frame residence, designated by the municipal numbers 246 and 248 Eighth street, between Prytania and Coliseum streets, city of New Orleans, and which was adjudicated to him at public auction on the 4th of April, 1891, for the price and sum of $4675; and his acceptance of the title tendered him.

The defendant states in his answer two reasons for declining to accept title: first, that there is a fatal defect in the title of plaintiff’s vendor, Charles De Bonchel; second, that previous to the adjudication, plaintiff had caused the sale of the property to be advertised, and on the sale-day so altered and changed the advertisement as to deceive and mislead him in an important particular, and upon the faith of which he acted in making his offer.'

I.

It appears that plaintiff purchased the property in question from Charles De Bonchel on the 26th of May, 1879, and that his purchase is evidenced by a notarial act in due form, containing a stipulation of full warranty. The act describes the property fully, and it was duly recorded. It contains a recital to the effect that plaintiff’s vendor, Charley De Bonchel, acquired title from O. De Bonchel and others, giving date of purchase and other particulars.

It is to this title that the defendant makes objection.

The fact is, that Charles De Bonchel did purchase certain property from O. De Bonchel and others on the 4th of December, 1878, title executed before A. E. Bienvenue, notary public, though the original act does not, as it at present exists, contain a description of the two lots in question.

The proof discloses the death of the notary who executed the act, and the transfer of his notarial records to the keeping of the Custo - dian of Notarial Records of-the parish of Orleans. It also shows that the act has, by some means, become mutilated, and parts thereof completely eliminated, and the conveyance certificate thereto attached has its end torn off.

In order to supply this ellipsis plaintiff’s counsel introduced and caused to be filed in evidence, over the objections of defendant’s ■counsel, a certificate from the register of conveyances, of date November 5, 1891, purporting to furnish correct, exact and contemporaneous data from the conveyance records, fully confirming the conveyance of said property by the mutilated deed.

Viewing this certificate as secondary evidence we are clearly of the opinion that it was admissible under the principles of the code, which are to the effect that when an instrument in writing, containing obligations which a party wishes to enforce, has been lost or destroyed by accident or force, evidence may be given Of its contents provided the party show the loss, either by direct testimony or by such circumstances * * * as render such loss probable,” etc. R. C. C. 2279; Lam vs. Cameron, 37 An. 250.

It is only the lost instrument that needs advertisement previous to the introduction of proof of loss. R. C. C. 2280.

Previous advertisement could have been of no possible avail, as the deed in question had been partially destroyed and its mutilated remains were in evidence, and physically present in court.

The rule of law applicable to notarial titles, passed in New Orleans, is that they must be recorded in the ¡book of conveyances. R. O. O. 2255.

And it is the duty of the register of conveyances to preserve such records and “ to deliver certificates of inscription” to any one who may require same. R. O. O. 2257.

The law declares that “ it shall be sufficient that t¿ie registering of the act be made on a certificate being presented from the notary who shall have passed the act containing (1) the date of the act and the place where it was passed; (2) the names of the * * * parties; (3) a description of the immovable sold, etc.; * * * and (4) the price of the transfer,” etc. R. O. O. 2259.

To the register’s certificate of inscription, made conformably to the foregoing provisions of law, is given the force and effect of primary proof, for the code declares that—

“ Such certificates, when signed by the register and sealed with the seal of office * * shall be received by courts of justice in evidence in the same manner as other public acts.” R. O. O. 2257.

That provision of law has been'fully complied with in this instance, and the proper certificate furnished. It clearly shows that the property in controversy was conveyed, and the certificate furnishes ull and complete proof, thus supplying “ the missing link” in the Bienvenue notarial title.

Accepting this theory plaintiff’s title is complete without the aid of ten years’ prescription.

II.

The sale was one mads at auction, the plaintiff, as owner, voluntarily offering the property in this manner. R. O. O. 2602.

Previous advertisement of this kind of auction sale is not of its essence, same being purely optional with the owner, and for his advantage and convenience merely. It must be made through the ministry of a public officer appointed for the purpose. Id. 2605.

It is his duty to make public proclamation of the terms of the sale at time of offering, and in a loud and audible voice.” Id. 2606.

The property must be knocked down to the highest bidder, “ who is publicly declared to be the purchaser, and the thing sold is adjudicated to him.” Id. 2607.

“ The adjudication is the completion of the sale,” etc. Id. 2608.

From these precepts it appears to be clear that no special significance can attach to the specifications of an advertisement of such a sale, as it is to the terms of sale announced at the offering that bidders must look. In such case the advertisement is merely to’attract the attention Of the public, and invite .bidders to the sale. It is quite impossible to conceive in what manner the mereYaet that the buildings were temporarily leased could affect the title tendered to the defendant, particularly in view of the further fact that the judgment appealed from reduces the amount of his bid by Yhe exact amount of the rent.

The judgment is correct and affirmed.


author: McEnery, J. McEnery, J.

text:
    No. 10,923.
    Widow Louis Fix vs. George A. Koepke.
    In a partition suit, the absence o£ an averment o£ the value o£ the property ;and where located can be cured by an amended petition.
    The amended petition has the effect of perfecting the original, and orders-issued on the filing of the suit, and before the amendment was filed, are valid.
    In fixing the terms of sale of immovable property in which minors are interested as plaintiffs, the judge must do so on the advico of a family meeting.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. King, J. '

      A. J. Villere, for Plaintiff and Appellee,
    cited: 36 An. 785; 38 An. 164; 39 An. 119; 40 An. 609.-

      T. M. Gill for Defendant and Appellant:
    1. Defendant’s residence or place where he lives must be mentioned in petition. C. P. 172, No. 3.
    2. Court having no jurisdiction can render no valid order but of dismissal. 32 An. 48; 37 An. 586, 605 ; 39 An. 853, 854, 806; O; P. 92; 39 An. 310.
    3. An owner in common is not entitled to a sequestration of the half of any particular thing. 3 L. 136.
    4. Neither the supplemental petition nor the affidavit discloses any right or cause for a sequestration. C. P. 275, No. 2.
    5. Such writs will not be granted unless specially provided for by law. 19 An. 195; 9 An. 535; 2 An. 96.
    ■6. That the matters and things alleged in the second supplemental petition can not be cumulated with and brought into a suit for a partition.
    7. An administrator can not represent either the heirs or succession in a suit for partition. 30 An. 182; 14 An. 182; 26 An. 606, 607; 21 An. 712.
    S. An administrator has no authority to institute such a suit, nor to carry it on after brought, and no authority to stand in judgment. 26 An. 606; 30 An. 182.
    9. That the appointment of a curator and tutor ad hoc to the minors herein is unauthorized and illegal. 25 An. 466, 467; 31 An. 574.
    10. The major heirs, or minors represented by a tutor appointed, if they hayo none, upon the recommendation of a family meeting duly convened, are the parties in such cases to institute and carry on partition suits. C. O. 270, 271; C. P. 937, 958, 959; 26 An. 704; O. C. 1307 (1230), 1329 (1252), 1312 (1235).
    11. When necessary to appoint special tutors-, one must bo appointed to each' minor. 5 An. 211; 9 An. 56; 30 An. 182.
    12. This is not a case against a minor. C. C. 313; C. P. 116,194.
    13. The experts were illegally appointed. C. P. 446, 448.
    14. Tire report of the experts furnished none of the legal requisites of proof that the property is indivisible. 18 An. 282; 15 An. 697, 698 ; 0 . O. 1339 (1261), 1340 (1262); 40 An. 572.
    15. A family meeting must be convened and fix the terms of sale of immovable property in which minors are interested; this ts imperative. O. 0.1341 (1263); 12 An. 153, 154; 15 An. 250, 697, 698 ; 30'An. 974; 40 An. 574; 35 An. 572.
   The opinion of the court was delivered by

McEnery, J.

This is a suit for a partition of the property inherited by plaintiff and defendant from a common ancestor, and held in indivisión by them.

The defendant excepted to the petition on the ground that it did not disclose the place of residence of the plaintiff, the place where the property is situated, and the value of the property to be partitioned.

With leave of the court, before the exception was tried, an’amended petition was filed,.which cured these defects.

The amended petition did not alter the substance or character of the demand; and only cured the defects or errors in general allegations and was therefore permissible.

The order granted by the court on the filing of the first petition can not, therefore, be set aside because of the want of jurisdiction alleged in the exception.

The amended petition gave vitality to the original one as though it was perfect when filed.

The amended petition was excepted to on the ground that gave rise to the first exception, the idea being that for want of proper jurisdictional allegations in the first petition the court could do no act, except to dismiss the suit. As above stated the amended petition cured the defects in the original.

The second, third, fourth and fifth grounds in the exception, that the court, because of the alleged want of jurisdiction could not issue a writ of sequestration prayed for by the defendant in the amended petition, are therefore without merit.

. A supplemental petition was filed by the administrator of the plaintiff, who had died pending the suit, alleging the nullity of certain tax sales of properties which were adjudicated to the defendant.

It will not be necessary to notice the exception filed' by the defendant, as he states in his testimony that he let the. property go to tax sale and purchased it, thinking that in this way he could reduce the amount owing for taxes.

He was the agent for plaintiff and held the property, and he says his purchase was for their joint benefit.

The judgment appealed from is in conformity to the evidence, and based upon the facts mainly furnished by the defendant.

Judgment affirmed.

On Application for a Rehearing.

McEnery, J.

The application for a rehearing in this case presents only one point which it is necessary to consider.

The District Judge fixed the terms of sale of the immovable property without the advice of a family meeting. There were minors interested, and this was essential, as they were plaintiffs in the suit. Civil Code, 1341; 12 An. 153; 15 An. 250.

It is therefore ordered that our former decree herein be amended so as to strike from the judgment appealed from that part of the same which fixes the terms of the sale of the immovable property. In other respects it will remain undisturbed.

It is further ordered that the case be remanded to be proceeded with according to law and the views herein expressed.


author: McEnery, J.

text:
    No. 10,927.
    New Orleans, City & Lake Railroad Company vs. City of New Orleans.
    When the city of New Orleans grants a privilege to a corporation to construct a street railway through a street, the neglect of the corporation to comply with its obligation can be taken advantage of only by the city.
    Another corporation running a line of street cars over the same street can not interpose the defences of the city in aid of a grant of an exclusive privilege over the same street.
    If the city does not declare the grant forfeited, and the corporation, without interference on the part of the city, constructs its road, the city is estopped from . forfeiting the grant.
    The streets are the common property of all the inhabitants of the city, and the corporation holds them in trust for their use aud benefit.
    The Oity Council is without power to sell for even a limited time the exclusive privilege to use a streei for any particular purpose.
    It can only regulate their use and management, which involves the exercise of the use of the police power of the city, which is inalienable.
    The charter of the city of New Orleans, Act No. 7 of 1870, did not confer power upon the corporation to grant the exclusive privilege of the use of a street. The power conferred was restricted to the regulation and management of the streets.
    APPEAL from the Civil District Court for the Parish, of Orleans. King, J. 1

      Buck, Dinkelspiel <& Hart for Plaintiff and Appellant:
    1. Franchises to construct and maintain street railways, when acquired for value, constitute property in the highest sense of the term, and can not be impaired or taken away except under the exercise of the power of eminent domain. 82 An., p. 915; People vs. O’Brien, 111 N. Y.,p. 1; Pierce on Railroads; JElliott on Streets and Roads; Dillon on Municipal Corporations; 7SIowa, 502; 88 Northwest Reporter, 610. References and authorities cited in tlie brief,
    2. A stipulation in a contract of sale of right of way, based upon .ordinances passed by the municipal corporation, to the effect that “The city of New Orleans binds herself not to grant during the period for which said franchises' are-sold aright of way to any other railroad company upon the streets upon which said right of way is hereby sold, unless by mutual agreement between the city and the purchaser or purchasers of this franchise,” is not a grant of an exclusive privilege or monopoly, in the sense in which these terms are usually understood in the laws and constitutions of this State; but even if so, in the absence of a constitutional provision, prohibiting the granting of monopolies- or exclusive privileges, the Legislature of the State could validly make such a grant
    "Where such a grant is made by the city of New Orleans exercising the power vested in her by the State, the only question that can arise is a question of delegation of the nepessary power.

      3. When the contract in question-, dated October 2, 1879, was entered into, there was no prohibition in the laws or in the Constitution of the State against such a grant; the Legislature could, therefore, have legally made it, or delegated the •- power to do so to a municipal corporation.
    4. Under the Charter of 1870, Act 7, extra session of that year, and in other legislative acts, the State had delegated “ full power,” meaning all her power in the premises, to the city of New Orleans. (References in brief.)
    5. The loss in daily receipts is the proper measure and criterion of damage, by reason of competition with lines of railroad operating in the same street.
    6. Rights of way resulting from ordinances which have never been accepted or acted upon are mere licenses, revocable at the pleasure of the council. In such f cases the question whether they are forfeited for non-user, etc., does not arise'. r • (Authorities cited in brief.)
    7. Parol testimony is not admissible in a collateral proceeding to show parties to a judicial record other than those there in named.
    S. A contract with a municipal corporation is governed as to its interpretation . 'meaning and scope by the same rules of evidence as are applied to contracts between private persons.
    Obvious errors or omissions can be supplied by parol testimony.

      W. B. Soymi&rville, Assistant City Attorney, for Defendant and Appellee:
    1. Where the evidence shows a steady increase in the yearly receipts of plaintiffs, over receipts of former years, certainly no damage for losses daring the years of increase is proved. Plaintiffs, therefore, have no case.
    2. The Council of the City of New Orleans is without pbwer to grant an exclusive right of way on the streets to a railroad company. Constitution, Art. 48, par. 14; Act No. 7, E. $. of 1870, Sec. 12, pai's. 2 and 11. pp. 35 and 36; Brown vs. i>uplessis, 14 An. 854; Canal & Claiborne St. R. R. Co. vs. Orescent City R. R. Co.,41 • ■ An. 561; 6 So. R. 849; Canal & Claiborne St. R. R. Co. vs. Orleans R. R. Co., 43 An —; 10 So. R. 390; New Orleans City R. R. Co. vs. Crescent City R.R. Co., 12 Fedv. R. 308: Elliott on Roads and Streets, pp. 566, 567, 568 and 573.
    3. Plaintiffs can not plead ignorance of the law, and have judgment in damages for the violation of a contract which is based upon an act ultra vü'es of the municipal council.
    4. Plaintiff had full knowledge of the grant to operate street railroads conferred upon Seymour and others, and of the full operation of those grants at the time it came into existence, on June 94, 1893. It could not possibly have been deceived . into believing that it was obtaining an exclusive right of way, and it therefore has no cause for complaint.
    5. The right granted by the council to the Crescent City R. R. Co. to connect their upper and lower termini by laying a track for that purpose for a very short distance, even on a street set apart for the exclusive use of plaintiffs, can not be construed into a violation of such right. Plaintiffs may he called upon at any time by those administering the affairs of the community to suffer some slight inconvenience or loss, when the whole community is to he benefited thereby. A street railroad is a nocessity as well as a convenience in a large city. ; „ .
    6. To recover damages, plaintiffs must make their claim certain; to make it only probable is not enough. Smith vs. Thiellen, 17 An. 239; Vidalat & Co. vs. City of N.O., 43 An. —.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff, the successor of the New Orleans City Railroad Company, sued the City of New Orleans for damages for an alleged violation of contract entered into between the city and the New Orleans City Railroad Company.

The plaintiff claims that the New Orleans City Railroad Company, whose right it acquired, had the exclusive right under said contract of operating a street railway on Camp street between Pelicity and Clio stree s, and that the City of New Orleans granted the right to another company, to which the Orescent City Railroad Company is the successor, to operate a street railway on Camp street over the same territory granted to the plaintiff.

In the grant to, or a contract with plaintiff, which was for a valuable consideration, there is the following clause:

“The City of New Orleans binds herself not to grant during the period for which said franchises are sold a right of way to any other company upon the streets through which said right of way is herein sold, unless by mutual agreement between the city and the purchaser or purchasers of this franchise.” The New Orleans City Railroad Company paid a price for the sale of the exclusive privilege stated in the contract.

There was judgment against the plaintiff corporation, which has appealed.

When this privilege was sold to plaintiff’s assignor there was in existence a grant to Shelby Seymour and associates, to whose rights and privileges the Crescent City Railroad Company succeeded, and which corporation is now operating a street railway over the street to which plaintiff claims the exclusive right to operate its road.

This privilege is attacked by plaintiff as having no existence prior to its grant, having become inoperative, null and void.

The plaintiff alleges that the grant was never accepted and its conditions never complied with. The grant was accepted before a notary December 14, 1871.

The act was not signed, by the city authorities, but it was unnecessary for the city to sign the same, as she had already made the grant by a city ordinance. In 1872 a petition was filed praying for an injunction restraining Seymour and associates from building their street railway by the St. Charles Street Railway Company. In 1880 the injunction issued as prayed for, but on June 2 of the same year the suit was discontinued.

In November, 1879, the Oity Council, in ordinance 6192, administration series, after reciting the delays caused by litigation in the construction of said street railway, also that the Contractor was then able to undertake the construction of the same, ordered and directed the city surveyor to furnish the lines and levels for the road. The grant to the plaintiff was made October 2, 1879.

The plaintiff in setting up this exclusive privilege to operate a street railway on Camp street can not take advantage of any laches if there were any, which affected the city only, and of which it had the only right to complain. The city had never declared the grant forfeited for non-compliance with the ordinance.

It was a legal and valid grant so far as it authorized the construction of the street railway. It was in existence when the privilege to plaintiff’s assignor was granted. The city had never by ordinance declared the grant forfeited, and if it remained silent and the road was built, even “ out of time,” the city can not complain and afterward urge the forfeiture of the grant for non-compliance with the conditions. If the city is thus estopped, the plaintiff is also, and can not set up any adverse claim to the privilege granted to Seymour and associates. Railroad Company vs. Sledge, 41 An. 896.

Seymour and associates or their assignees had the right to construct the road and fulfil the conditions subsequent as long as no effort was made by the city to forfeit the grant. Mower vs. Kemp, 42 An. 1007.

The prior privilege to Seymour and associates is a complete bar to plaintiff’s action. When the grant was made to the plaintiff it had reference to, and was made under existing ordinances relating to the control and regulation of the streets over which its line of cars was to run.

But, independent of the above facts, the City Council was without power to grant the exclusive use of the streets to any person or corporation. 41 An. 561; Canal & Claiborne Street Railroad Company vs. Crescent Railroad Company, recently decided; 14 An. 842.

The City of New Orleans has permanent control of the streets, but only so far as to regulate their use. The streets are the common property of all the inhabitants of the city, and the corporation holds them in trust for their use and benefit.

The City Council is without power to sell for even a limited time an exclusive privilege to use the streets.

It can only regulate their use and management, which involves the exercise of the police power of the city, which is inalienable. Every inhabitant has the right to the free enjoyment and use of the streets, and may employ for his service and pleasure any mode of conveyance which he may deem necessary, subject to this police regulation. Por his convenience in going from one part of the city to another! the City Council may authorize the construction óf a street railway, which may travel the same route which he would take to his destination. It may have to cross the lines of other roads, and may for short distances be compelled, in going from one street to another, to use. their tracks. That the City Council has this power we have affirmed in the cases reported in the 41, 43 Annuals, and the recent decision in the case of Canal & Claiborne Street Railroad vs. Crescent Railroad.

In the instant case the road of the Orescent City Railroad Company occupies that portion of Camp street unoccupied by plaintiff and runs on said street a distance necessary for it to reach its destination on another street. '

It does not occupy plaintiff’s track.

The plaintiff corporation contends that the Legislature conferred upon the City of New Orleans full power to grant the exclusive use of a street for a limited time to operate a street railway.

In refering to the city charter, under which plaintiff claims the privilege, Act No. 7, Section 12, paragraphs 2 and 11 of 1870, we do not find any such power granted to the city.

The power conferred is restricted to the regulation and improvement of the streets.

The grant of the exclusive privilege claimed by plaintiff was not an act of legislation on the part of the City Council, but a contract, made without authority so far as it relates to the granting of the exclusive right to operate a street railway on Camp and other streets, and is therefore ultra vires.

If the contract was maintained it would deprive the City of New Orleans of the police regulation of the streets, a power granted to the city under the'charter of 1870.

The City of New Orleans cannot be held in damages for the breach of a contraet'made by the City Council without the authority of law, and which is ultra vires.

Judgment affirmed.


author: Breaux, J. Breaux, J. Breaux, J.

text:
    No. 10,819.
    C. H. Parker, State Tax Collector, vs. New Orleans Gas Light Company.
    The Board of Assessors is authorized, if property be omitted in the assessment of any year or improperly described, to assess it, provided three years have not elapsed, and the assessment shall appear upon a supplemental roll, and be filed as a regular tas roll.
    ’The tas payer having, by his return of property he claimed to own, obtained an esemption to which he had no right, on discovering the error, it can be corrected.
    ‘The misdescription having resulted in the omission of the property from the roll, the Board of Assessors had the power to assess it on a supplemental roll after due notice.
    PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Wynne Bogers for Plaintiff and Appellee.

      Buck, Dinkelspiel & Hart for Defendant and Appellant:
    1. The only body that has the power to increase the amount of assessments in the parish of Orleans is the Assessment Committee of the City Council. Act of 1838, Sec. 26.
    The Board of Assessors has power to assess on supplemental [rolls, omitted property, property improperly described or assessed in the wrong name. Id., Sec. 11.
    3. It has no power to increase assessments; ¡this power is vested in others. Id., Secs. 23-26.
    4. The City Council committee has no authority to make an original assessment. 38 An. 958.
    Its powers are only to increase or reduce assessments; ergo, the Board of Assessors has no such power.
    5. An assessment without law, or in violation of law, is void. 35 An. 845; 42 An, 428.
   The opinion of the court was delivered by

Breaux, J.

The State tax collector of the first district of New Orleans, proceeded by rule, under Sec. 54 of Act No. 85 of 1888, against the New Orleans Gas Light Company to compel the delivery to him of property to pay taxes and interest, claimed to be due to the State for 1889, amounting to $9321.21.

The defendant denies any indebtedness, and alleges that it has paid all taxes for the year 1889 that were properly assessed, and that part of the taxes paid were those upon an assessment of its capital stock against the stockholders of the company.

The defendant company furnished a statement under oath, and returned it to the assessor before the 1st day of May, 1889, of amounts to be deducted from value of stock.

All property owned by the company was assessed directly to it, and that, with the assessed value of property returned as exempt, was deducted from the shares of stock.

After the deduction of property owned by the company and property exempt had been made the stock was assessed at $6.45 33-100 per share, making an aggregate of $24,200 as the assessed value of the stock.

The property owned by the company amounted to $2,189,914.

The property the company claimed was exempt amounted to $1,282,886.

This last sum is represented by stock owned by A. H. Sieward personally, and carried in the company’s return as “ stock and bonds of corporations,” amounting to $781,470, and 5380 shares of the New Orleans Gas Company stock, amounting to $503,030, belonging to D. D. Withers.

The assessors, in making up the original assessment in the returned list of the defendant company, made á deduction of these two items from the shares of stock of the corporation. The assessment for that year was closed. Some time, after the Board of Assessors discovered that the Gas Company had, by its sworn statement, obtained the exemption of property to which it had no right.

The incorrectness of the return was acknowledged by the defendant, and the fact that it did not then, nor at any time prior, own the exempted property.

The shares of “stock in other corporations,” amounting to $781,-470, had been assessed and the taxes paid by the companies. Also the 5380 shares of the New Orleans Gas Company were deducted from value of property belonging to the company,.although not its property.

In October, 1889, the Board of Assessors notified the defendant to furnish a sworn detailed statement, to serve as a basis of a supplemental assessment, of all property held by it and to explain why exemption from taxation was claimed on the shares of stock in the name of D. D. Withers.

No statement or explanation was made and the acknowledgment of wore-ownership remained.

November 13, 1889, a reassessment was ordered, after a notice of twenty days had been given to the defendant to make a supplemental return.

The reassessment was made, increasing the assessment against the shares of stock of the defendant company from $6.45 33-100 to $40.66 36-100 per share.

Notice was given of this assessment to the stockholders by publication in two of the city papers.

Prom a judgment maintaining the legality of this assessment the defendant appeals.

It is necessary to determine whether this is an increase of assessment on property originally listed, valued and assessed.

If it was, the assessors had no right to increase the amount. Property can not be reassessed for the purpose of increasing the evaluation.

If it was not included in the original assessment the supplement was proper and legal.

The shares were susceptible of division or of being assessed in part, and the remainder could be exempted from the payment of the taxes.

The part of the stock exempted, at the active instance of the company, never was assessed.

There was an error of fact on the part of the Board of Assessors, brought about by an improper return.

The board acted on the mistaken belief in the existence of title, where there was none, not even the semblance of one.

It is not a question of under-valuation, nor an error as to the quality, or as to the substance of the property, but a void exemption.

It has never been assessed, owing to a return made by the defendant; the incorrectness of which, when shown, makes it impossible for it to maintain the position that it has been assessed.

How could property have been assessed the defendant declared was not assessable and whose declaration was accepted as correct, until discovery was made that it was incorrect?

The defendant relies on the case of Mercier vs. City of New Orleans, 38 An. 958, in which it was decided that the City Council of New .Orleans had power to revise valuations and correct de - scriptions of property actually assessed and entered upon the rolls by the Board of Assessors, but that it is not authorized to make original assessments or to list property which the board has omitted from the rolls.

The omissions, the court holds, in said case are to be corrected by the Board of Assessors.

In the pending case also there was omission.

The defendant contends that the assessment is a judgment, and that if it be a judgment it is binding on the State.

Granted that it has all the effect claimed. It only embraced the property assessed and settles questions relating to its listing, assessment and taxation; but it is not so far reaching as to protect from taxation property that would not have been exempted had a correct return been made by the tax payer.

It is contended that payment had been made.

This payment did not include omitted property.

There is no identity in so far as relates to taxation between the property assessed and that erroneously exempted.

Payment was made on the former only.

The statute directs, if property be omitted in the assessment of any year, the same when discovered shall be assessed, provided three ye*ars have not elapsed; further, that such assessment shall appear upon a supplemental roll, filed as a regular tax roll.

Similar direction is made if the property is improperly described.

Whether the property is absolutely omitted from the roll or described to escape assessment the result is the same, and in both cases the statute applies.

The time to make the reassessment is only limited by three years.

The authority can not be questioned.

“ Statutes authorizing a reassessment and a levy of taxes for a former year where property has been omitted from the rolls can not be objected to upon the ground that they unlawfully divest the title to property or impair the obligation of contracts.” Wade on Retroactive Laws, Sec. 253; 17. How. 456.

The notices have been given; the defendant was called upon to make another return; the roll was filed, and advertisement made.

There was no ground for the exemption.

The first item did not belong to the company; the second being the shares of a stockholder could not be deducted for the purpose of securing exemption.

The judgment must be affirmed.

It is affirmed at appellant’s costs.

On Motion to Remand.

Breaux, J.

The defendant has filed in this court a rule to remand this cause to the Civil District Court, in order that the fact of the readjustment of the assessment against it may be established by proper evidence and in order that such proceedings may be had thereafter as the nature of the case requires.

The plaintiff opposes the rule.

An assessment was made originally based on the list of taxable property, sworn to and returned by the defendant company.

It is contended by the plaintiff that the list of taxable property was accepted as correct; that deductions of the total value of said-property was made, and the amount assessed shareholders was fixed.

The gas company paid taxes on this assessment.

Some time after the roll had been delivered the Board of Assessors-questioned the correctness of the omission from the assessment roll of 5380 shares of the Tlew Orleans Gas Company, and notified the-company that they did not belong to it; that it was the property of D. D. Withers, and that the stock and bonds of $781,470 belonged to the president of the company individually.

It was proven, the plaintiff urges, that the defendant company did not own these values.

After due notice the Board of Assessors, under the provisions of See. 11 of Art. 85 of 1888, made a supplemental assessment of this-omitted property.

A rule was filed to compel the defendant to pay taxes on this-supplemental assessment.

The defendant filed an answer denying the right of the plaintiff to recover, and alleged payment of the tax as assessed.

The District Court maintained the supplemental assessment.

The judgment was affirmed on appeal.

It is pending before this court on an application for a rehearing.

Since the decision it is alleged, by rule, that the whole assessment has been readjusted, and application is made to remand the cause-in order that the readjustment may be proven.

We will not remand the cause on this separate rule.

. We will consider the questions presented together, those made on the application for a rehearing and those made in support of the question to remand.

If it appears on the reconsideration of the cause that it should be-remanded, as moved for, in the rule, or that an error has been committed in our opinion, the cause will be remanded or a rehearing will be granted, as the case may require. One hearing will suffice. In thus deciding we refer to 48 An. 219, in point.

The application to remand is cumulated with the proceedings for a rehearing and will be considered at the same time.

On Application por a Rehearing.

Breaux, J.

The defendant for a rehearing states:

It was error: “In not holding that if the making of the supplemental roll in the manner and form in which it was done was within the power of the Board of Assessors, that same was not clothed with the forms of law in such cases made and provided, and therefore invalid.”

This point relative to form urged in argument has not been overlooked by the court, although not in the pleadings.

The defence is set forth in the answer, in which the company denies all indebtedness, and further, defendant alleges that it has paid to the State all taxes according to the assessments duly and regularly made, including and embracing taxes on assessment on the capital stock as against the stockholders.

On the trial the record discloses the following:

Plaintiff’s counsel offered the supplemental assessment roll for the year 1889, of assessment against the shareholders of the New Orleans Gas Light Company.

Counsel for the defendant objected to “any testimony in this case offered in behalf of the assessors or the State tax collector to show taxes based upon a so-called supplemental or exceptional assessment, on the ground that the rule taken in this case is one simply to point out property to pay taxes assessed against the defendant.”

The court overruled the objection and admitted the roll.

No objection as to the form of the supplemental roll was made.

The matter of form, urged in argument, is only that the notice and delay to make a supplemental assessment was not given and advertisement was not made.

Notice was given to the defendant to show cause in twenty days why a supplemental assessment should not be made.

Instead of showing cause as directed, the defendant’s president admitted that the property exempt from taxation, which was de•ducted from the assets of the company, as so much of its property exempt, did not belong to the company.

The company had, in matter of assessment, received credit for a large amount, to which it had no title.

After the delay granted, and the appearance made as just mentioned, the supplemental assessment was made.

Notice of the filing of the supplemental assessment was advertised ten days.

The defendant contends that it should have been twenty days, the time required it is asserted to advertise the original roll.

Sec. 11 of Revenue Act of 1888 provides that if any property has been omitted, the same, when discovered, shall be assessed by the assessor or tax collector for the period for which it had been omitted ; and that no back taxes for more than three years shall be assessed, and that the assessment appear upon a supplemental roll and shall be filed in the manner as regular tax roll.

Nothing is said of advertisement in said section.

Sec. 21 of the same act applies to the regular roll closed on or before the first day of June in each year, and requires that immediately thereafter notice by publication shall be given for the period of ten days.

Sec. 24 of the said act, to which our attention is directed, makes no mention of publication.

It directs !< and said lists will be exposed in the office of theBoardof Assessors for inspection and correction for a period of twenty days, beginning next after publication of said notice.”

The only applying section is 21 of the said act, in which the duration of the advertisement is expressed in terms too plain to be mistaken.

This section, in so far as it relates to advertisements, applies to the supplemental assessments as well as to the regular rolls.

The defendant for a rehearing urges:

<! As the same law requires the same formalities for the reassessment as for the original assessment, ten days’ publication when the law requires twenty days’ publication, is no more than if no publication had been made at all.”

This ground is untenable, and arises from a mistaken application ■of the period allowed for “inspection and correction” to the “notice by publication.”

With reference to the readjustment alleged to have been made-by the Board of Assessors since the case has been submitted for decision on appeal:

The matter had passed out of the hands of the said board.

The roll was filed in the office of the recorder of mortgages;. in the office of the auditor of the State, and in that of the tax collector.

The assessment and the supplemental assessment had, at the time-of the attempted readjustments, the effect of a judgment, and secured a mortgage in favor of the State.

They could not be annulled or amended by the assessors, from whose hands they had passed.

The defendant pleaded payment of the taxes assessed under the ■ original roll.

Payment of the taxes on that roll admitted its correctness.

The plea of payment protects that roll from amendment or change,, even by the courts.

As to the supplemental assessment, it was no longer readjustable by the said board.

, If the defendant pays more than its share of the common burden-for 1889, it is because it has not made timely objection to the valuation of its property.

At present the only answer- to the argument made is: [ltd lex ■ seripta est.

Rehearing refused.