5. MUNICIPAL CORPORATIONS-IMPROVEMENT OF STREETS-LEGISLATIVE DISCRETION. A vote of the property tax-payers is unnecessary to authorize a street improvement in the city of New Orleans. It is matter within legislative discretion, under the provisions of article 46 of the constitution.

6. SAME-PAVING CONTRACT-PERFORMANCE-BURDEN OF PROOF.

Section 3 of act 73 of 1876 makes the certificates of designated city officials prima facie proof of the contractor's compliance with his contract, and of his due performance of its obligations; and such contract, when evidenced by a notarial act, is prima facie proof of the due observance of antecedent forms and requirements of law, hence the onus probandi is cast upon the resisting front proprietor to disprove the same.

7. SAME-CONSTRUCTION OF STATUTE.

The majority of owners, within the meaning of sections 32, 33, and 34 of act 20 of 1882, are construed by section 35 of that statute to be the owner or owners of a majority of running feet of property fronting on the street, or portion of the street, to be paved, and this interpretation applies with equal force to the petitioning property owners as to opposing memorialists.

8. SAME.

The statute provides that a street shall be a unit, for the purposes of all computations. 9. SAME-PAVING NEUTRAL GROUND STREET-PROPORTIONATE SHARE OF COST.

The law fixes the proportionate share of the cost of paving to be borne by the abutting property owners and the city, respectively, in case the work is done upon a neutral ground street, and there was no necessity of a provision to that effect being incorporated in the specifications or the contract, and same are not void for the want of it.

10. SAME-INTEREST.

The right of the city to stipulate, in a paving contract, for the payment of 8 per cent. per annum interest by a defaulting front proprietor on the amount due by him on his proportionate share of the cost of its construction is implied from her power to adjudicate the work, and to make a contract therefor. The stipulation of any rate of interest not exceeding 8 per cent. is an incident of the property owner's obligation, and is as binding as any part thereof.

11. SAME-RIGHTS AND REMEDIES OF CONTRACTOR.

In case the contractor for street paving relies for his remedies in the enforcement of his contract and for the ascertainment of the proportionate share of the cost of the work due by the abutting proprietors on one statute, and upon another as to all matter of form only, it is expedient and proper that the latter alone should have been mentioned in the proceedings. Vide paragraph 1, supra. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; MONROE, Judge. Braughn, Buck, Dinkelspiel & Hart, for appellant. Leovy & Blair, for appellee.

WATKINS, J. Claim is made by the plaintiff for $2,164.65, as two-thirds of the contract price of laying a sheet asphalt pavement on St. Charles avenue, in front of the defendant's premises, with 8 per cent. interest from the 1st of August, 1885. It avers that on the 13th of October, 1883, by an act passed before a notary, it made a contract with the city of New Orleans, through her mayor, who was duly authorized thereto by ordinance, to lay sheet asphalt paving on St. Charles avenue in said city; and that said contract was made, and said paving done, in accordance with and in pursuance of sections 21 and 32 of act 20 of 1882, act 73 of 1876, ordinances numbered 239 and 451, council series, and other laws and ordinances on the same subject-matter in force at the time. It further avers that previous to making said contract the property holders on said avenue having the legal requirement of feet front petitioned for the construction of a sheet asphalt pavement, and said petition was duly and legally advertised, as recited in ordinance No. 239, C. S. That at the time of the adoption of said ordinance, the execution of said contract, and the prosecution of said work, the defendant was a front proprietor on said avenue, and owned a front on the south side thereof, between Carrollton avenue and Dublin street, of 325 feet, and is liable for the paving, curbing, and other work done under said contract in front of his property as far as the neutral ground, to the amount of two-thirds of the contract price thereof, v.5so.no.28-54

the capital sum and interest above stated, with lien privilege and right of pledge, as stipulated in act 73 of 1876, duly recorded. It further shows that, upon the completion of the work, a certificate was obtained from the city surveyor and commissioner of public works, duly approved by the mayor, attesting the completion of same according to contract, and which certificates are annexed to and made a part of the petition. This claim is met with no substantial defenses on the part of the defendant, but, on the contrary, by a technical exception to the duplicity of the petition in the first instance, and by sundry technical objections to the formality of the proceedings, and of the manner of plaintiffs' pursuance of them. They may be epitomized as follows, viz.:

(1) An exception that plaintiff's reference to act 73 of 1876 and act 20 of 1882, without specifying upon which it relied as authority for its contract, made its petition vague, and that, as the provisions of those acts are inconsistent, it should be ordered to elect between them.

(2) That act 73 of 1876 was repealed by act 20 of 1882.

(3) That the contract provided for the laying of a patented pavement, in violation of the letter and spirit of section 21 of act 20 of 1882, which requires that all such work shall be awarded to the lowest bidder.

(4) That plaintiff's demand for a forced assessment is a tax, in the sense of article 209 of the constitution, and the power of the city to levy taxes thereunder for the year in which said contract was made was exhausted before same was made, and it is ultra vires and unconstitutional.

(5) And that the work contemplated in said contract was one of public improvement, in the sense of said article 209, which could not be undertaken at their expense, without a vote of the property tax-payers, and for this reason the demand is illegal.

(6) That St. Charles avenue is in fact and law two streets, separate and distinct from each other, with a strip of land between them of about 30 or 40 feet in width, which is designated as "neutral ground," and owned by the corporation, and used by the New Orleans & Carrollton Railway Company, under a contract with the city council; but in the petition of the property holders, and all subsequent proceedings, the same were treated as one single street, the property holders residing on any and all parts of either signing same indifferently, and that such petition and subsequent proceedings were thereby vitiated, and did not create forced liability on the property holders on either of said streets.

(7) That said petition was not signed by the requisite number of owners prescribed by section 32 of act 20 of 1882, whether said section is construed to mean one-fourth of the owners in number or the owners of one-fourth of the property fronting on the street; and this is particularly true of the south or river side of the avenue.

(8) That many of the signatures affixed to the property holder's petition were unauthorized, and cannot be counted in ascertaining the number of front feet. (9) That St. Charles avenue, from Lee Circle to Madison avenue, Carrollton, is four or five miles in length, and that his property is situated near or at the upper end of Carrollton, and that it is not the spirit or letter of the law that the full length of the same should be considered and treated as a unit, on which the one-fourth frontage is to be calculated, as, in so considering and treating it, property holders exclusively at one end "might bind the owners of an extension of three times more the distance; * * * and that for a distance of one mile, at least, from his property, much less than one-fourth in number or amount of frontage is represented in said petition."

(10) That the contract is null and void, because the property holders' petition called for sheet asphalt pavement, according to specifications of the city of Washington, and this condition was not observed therein; the pavement contracted for differing therefrom in essential particulars.

(11) That said petition "was intended to and did ask for the paving of St. Charles avenue from Lee Circle to Madison avenue, Carrollton; * * *and the contract, as now sued on, was awarded and executed for the paving of certain portions of said avenue, the whole of the road-way on the swamp side from Louisiana to Carrollton being excluded and not paved."

(12) That after the publication of the petition material changes were made in the width of the road-ways that were paved.

(13) That the specifications for the work, and the contract on which publication for bids was made, were not adhered to in many particulars, and the bond and security stipulated were not given.

(14) Neither the specifications nor the contract stipulate the respective proportions payable thereunder by the city and the property holders; and the city was without authority to contract for a rate of interest in excess of 4 per cent.

(15) That, if act 73 of 1876 be held not to have been repealed by act 20 of 1882, he insists that the provisions of the former were not within the contemplation of either of the parties at the commencement of proceedings, and that all acts were expressly and in terms set forth, in all ordinances and publications done or intended to be done, under sections 21 and 32 of the latter.

(16) That there was never an absolute or independent vote taken by the council for the paving of St. Charles avenue, as contemplated in the act of 1876, "and the alleged passage of ordinance No. 239, C. S., by a two-thirds vote, if true, is not an independent expression of the legislative will of the council" for the purposes defined in the act.

(17) That if it be held to have been passed by such a two-thirds vote, same is absolutely null, because the "notice of intention" contemplated by said statute was not given, and that same was a condition precedent thereto.

The elaborate answer of the defendant is concluded by an alternative averment that in any event his liability cannot exceed one-half the cost of the pavement of the avenue immediately in front of his property. We have been at great pains to critically analyze the answer, and state the various objections urged therein, in order that our opinion should not pass its limits. We will take them up in the order of their proper sequence.

1. Before going into the trial, the plaintiff's counsel caused the following entry to be made upon the minutes of the court, viz.: "Counsel for defendant having called upon counsel for plaintiff to elect, according to defendant's interpretation of his petition, upon which act, namely, act No. 73 of 1876, or act No. 20 of 1882, plaintiff relied. In support of the validity of his contract, as to form, counsel for plaintiff states that, so far as matters of form are concerned, he relies upon act No. 20 of 1882; and so far as the proportion of payments to be made by the property holders is concerned, and for his remedies, that he relies upon act No. 73 of 1876, as stated in the petition and contract." This fully responds to the defendant's exception. Plaintiff's counsel entertained the opinion that the provisions of the two acts were not inconsistent, and, thus believing, they had a perfect right to urge them alternatively in their pleadings, as they are alleged to have done in their proceedings. Their right so to do cannot be tested by a dilatory exception. It is a matter for the merits.

2. Section 1 of act 73 of 1876 designates the method of proceeding on the part of property holders who desire to have street paving done, and also, on the part of the city council, including the petition, advertisement, memorial of opponents, adjudication of the work, the manner of paving, the cost of same, and by whom it shall be paid. It is conceded by the plaintiff that section 32 of act 20 of 1882, covers the same ground, and that the provisions of the former are necessarily superseded thereby, the latter repealing "all laws in conflict, inconsistent with, or contrary" thereto. Section 78. But section

2 of the act of 1876 provides "that whenever * * paving * is made upon a street * * * having a strip of land or neutral ground running through the middle, not private property, with a road-way upon both sides, two-thirds of said * * * paving * * * shall be borne equally by the owners of real property fronting upon the road-ways, according to the running front foot of property abutting upon either of said road-ways; and one-third of the cost shall be paid by the city of New Orleans." Section 3 of that act provides "that all payments shall be made upon the certificate of the administrator of improvements and city surveyor, and which said certificate shall be prima facie proof of a compliance with the contract, and due performance of its obligations, and which said contract, when duly passed before a notary and signed by the mayor, shall be prima facie proof of due observance of all antecedent forms and requirements of law." It further provides "that the cost of said * * * * * paving * shall be and is hereby constituted a real charge in and upon said real property, * * * and the same shall be deemed, considered, and treated as pledged for the payment of said cost, *** and that it shall be sufficient to record the certificate of assessment or performance of the city surveyor," etc.

Upon a critical examination of the act of 1882, there have been found no provisions upon the same subject-matter as that cited in sections 2 and 3 of the act of 1876, and the two cannot be said to be in any sense in conflict, inconsistent with, or contrary to each other, and hence those of 1876 are not, eo nomine, repealed. But it is urged that, inasmuch as the act of 1882 is the city charter, the presumption juris et jure is that it is full and complete, and contains all the powers the legislature intended the city should possess or exercise, and such an interpretation necessarily implies that all the provisions of the act of 1876 on the subject of paving streets of the city are repealed. In this view, it is well to take into consideration contemporaneous legislation, and its judicial interpretation, in order to properly appreciate the purpose of the legislature in enacting the provisions last quoted from that act.

Section 119 of act 164 of 1856, which is identical with section 32 of act 20 of 1882, ipsissimis verbis, was examined and applied by our predecessors in Marquez v. City of New Orleans, 13 La. Ann. 319, to a contract quite similar to the one under consideration, for the grading and shelling of Claiborne street, on the north side of the middle ground or promenade of said street, from St. Bernard avenue to Elysian Fields street. The contractor sued the various front or abutting proprietors for their respective proportionate shares of the whole cost, but resistance was made on the ground "that the city of New Orleans is the owner of the middle ground or promenade located in the center of Claiborne street, and fronting said shell road," and is liable for onehalf of the cost of the work; and judgments were rendered accordingly in the district court, and the same were acquiesced in. Subsequently suit was brought against the city on that theory, and she was held liable by this court for one-half the cost.

The legislature of 1868 enacted a statute authorizing the police jury of the parish of Jefferson, left bank, to direct the construction of a shell road, or Nicholson pavement, from the upper line of the city of Jefferson, on St. Charles street, to the upper line of the city of Carrollton, on the right hand side of the New Orleans & Carrollton Railroad track, and to assess the property owners with the cost thereof. One Correjolles became the adjudicatee of the work, and upon proper certificate of its completion he instituted suit against the succession of Marquis Louis Foucher, whose property fronted on the south or river side of said street, opposite that on which the shell road was constructed. Our predecessors said in that case: "The payment of the plaintiffs' bill is resisted on the plea that the middle ground of the street, which is used by the New Orleans & Carrollton Railroad Company as a train way, is either the property of the railroad or of the public, and, in either case, is

bound to sustain its portion of the expense of shelling the road. The defendant denies that his lands lying south of the street are bound for any part of the taxes.

* * *

It seems that the only question in which the defendant is concerned, presented in this case, was decided in the case of Marquez v. City of New Orleans, 13 La. Ann. 320. In that case the court held that the middle ground of Claiborne street belonged to the city as a locus publicus, and that the city was bound to bear one-half the expense of constructing a road on the north side of Claiborne street, the entire expense of which it was sought to impose upon the proprietors of the north side. That case and the one at bar seem to be identical. With that view of the case, the judge a quo decided in favor of the defendant, and we think correctly." Correjolles v. Succession of Foucher, 26 La. Ann. 362. Yet we find in section 24 of act 7 of 1870, Extra Sess., the identical provisions of the act of 1856, supra, repeated, and they remained in force until the passage of act 73 of 1876, which appears to have embodied in it the substance and purport of the decisions from which we have quoted.

Now, when we consider the fact that section 32 of act 20 of 1882 is identical, mutatis mutandis, with the statutes of 1856 and 1870, the idea of sections 2 and 3 of act 73 of 1876 being repealed, appears to us utterly untenable. Those are the only statutory provisions extant which relate to the paving of unpaved neutral ground streets of the city of New Orleans. If it be repealed, the jurisprudence would be unaffected thereby, and would be strictly applicable to the existing statute, as it was to those preceding it. But the existence of that jurisprudence exhibits a necessity for a statutory regulation on the subject, and therefore it is not correctly assumed by the defendant's counsel that the omission of any such provision from the city charter of necessity implies the repeal of a former statute containing it. In addition to this argument and authority the legislature itself placed an interpretation on the question of this alleged repeal; for in an act amendatory of said section 32 of act 20 of 1882, it was specially provided "that nothing herein shall be construed as affecting act 73, approved March 30, 1876, as to the paving of neutral grounds or streets adjacent to the levee." Act No. 113 of 1886. Vide, Fayssoux v. Succession of Baroness De Chaurand, 36 La. Ann. 547.

3. An important question in the case is whether the contract awarded, and the plaintiff constructed, a patented pavement or not; the theory of defendant's counsel being that, if it was a patented pavement, the city's adjudication was null, because it violated the letter and spirit of section 21 of the city charter, which provides that all contracts for public work shall be awarded at public auction to the lowest bidder, or given to the one making the lowest sealed proposal therefor. Their contention is that there could be no real and practical competition for the work without the observance of this formality, and that effective competition is of the essence of such a contract. there are some well-considered opinions which appear to sanction a contrary view, we prefer to follow that announced in Burgess v. City of Jefferson, 21 La. Ann. 143, which is to the effect that there can be no practical competition for a patented pavement. Accepting this theory necessitates an examination of the evidence in order to ascertain the truth or incorrectness of defendant's charge.

While

On the trial, defendant's counsel introduced in evidence the assignments by E. J. De Smidt to the plaintiff of two patents, and an application for another; but the patents were not introduced, and the application does not appear to have been granted. Patents numbered 236,995 and 237,662, issued to defendant, were offered, but same were accompanied by assignments to other persons than the plaintiff. If either of the first three mentioned patents for improvements in refining asphaltum were assigned to the plaintiff, it should have been produced by the defendant, as the burden of proof was on him.