Barber Asphalt Paving Co. v. King

GrODCHAUX, J. This is a suit upon a street paving certificate issued'against the property for paving, under the provisions of Act 73 of 1876, as amended by Acts 119 of 1886 and 142 of 1894. There having elapsed more than ten years since the certificate of completion had been recorded in the Mortgage Office, the following defenses are urged and will be considered seriatim: I. It is claimed that plaintiff’s rights have prescribed by the lapse of ten years, under the provision of R. C. C., 3544. Section 3 of the Act of 1876 provides that the cost of paving shall constitute a real charge against the property which shall be deemed pledged for the payment thereof and that “the said cost * * * shall constitute a lien and privilege upon the said abutting property till paid, and that it shall be sufficient to record the certificate of assessment or performance of the City Surveyor in the office of the Recorder of Mortgages within sixty days of its issuance.” In Davidson vs. Lindop, 36 Ann., 766, and in numerous other cases, the Supreme Court declared that city taxes, and the lien securing same were imprescriptible, basing this conclusion upon the fact that the taxing statute (Section 20 of Act 7 of the Extra Session of 1870) declared that the tax should constitute a lien and privilege upon the property which, “shall exist until the same shall be fully paid.” ; In view of the marked similarity between the language [52] implied in the paving Act of 1876 and the taxing Act of 1870, it is impossible to escape the conclusion that the claim and privilege in favor of the paving’ contractor are imprescriptible in the same extent that the city taxes were- held imprescriptible under tile taxing statute aforesaid. See Moody vs. Sewerage & Water Board, 117 La., 366. Moreover, R. C. C., Article 3544 ,has no application for its provisions expressly refer to the prescription applicable to personal actions, while paving claims are strictly claims in rem. II. It is further claimed that the plaintiff’s lien and privilege or right of pledge has perempted for failure to have the evidence thereof reinscribed within ten years. The.question whether or not such reinscription was required in order to preserve the lien and privilege secur- .- ing the payment of city taxes levied under authority of the Act of 1870 aforesaid, was directly construed in a • very able opinion.by the late Judge Parlange, in the case of the Gulf States.Land Company vs. Parker, reported, in the 60th Federal Reporter, p. 974, and it was held that the language of. the act, to the effect that the lien and • privilege “ shall exist until the same shall be fully paid,” . expressly dispenses with the necessity of reinscription. The provisions of the paving act of 1876 are even-stronger than the taxing act in this respect, for it provides not only that the lien shall exist until paid, but de? dares that all that is required to be done by the contractor is to record a certificate in due season. Assessment. matters áre sui generis, as held in Moody vs. Sewerage & Water Board, supra; and the Court is of the opinion that the language of the act of 1876 was intended to relieve. the contractor of the necessity of reinscribing his claim and to withdraw such claims from the general rule prescribed by R. C. C., 3369, with respect to reinscription.' , [53] November 20, 1911. Rehearing refused December 4, 1911. Writ granted by Supreme Court January 15, 1912. in. The attack on the ordinance upon which the paving claim is based, on the grounds of irregularities in the enactment thereof, and its variance with the terms proposed in the petition of the property holders, cannot be considered, for these are objections which should have been urged prior to the performance of the work. Rosetta Gravel & Improvement Company vs. Ivy, No. 2295, Court of Appeal. The further defense that the right to enforce the paving claim has been forfeited because .rebates to certain property holders were granted in violation of Section 119 of Act No. 45 of 1896 (City Charter), is not well founded. For it does not appear that these discounts were made pursuant to any previous understanding that might have unduly influenced those interested in the work, and in fact the record discloses that they were made for such amounts and under such circumstances as would bring them strictly within the principle an-' nounced in the case of Ayers Asphalt Company vs. Hill, 118 La., 640. As to the complaint that the subpoena duces tecum against the plaintiff to produce certain books and papers should have been taken for confessed, it is sufficient to state that plaintiff, in answer to the subpoena made a full disclosure and apparently produced all data in its possession. The judgment of the lower Court was in favor of the plaintiff and, finding no error therein, the said judgment is accordingly, affirmed. .