City of New Orleans ex rel. Nicholson & Co. v. Halpin

Howede, J. The defendant has ax>pealed from a judgment condemning him to pay the cost of paving the street in front of his property. The answer, besides the general issue, denies that the paving is made in conformity with the adjudication and ordinance, and denies the constitutionality of the law and the proceedings under it, by which defendant is made liable for the work. On motion for a new trial it is urged: 1. That the law under which the paving has been done is unconstitutional. 2. That there was no evidence offered by plaintiff that all proceedings under the act had been complied with. The first point we do not consider an open question, the constitutionality of this legislation having been long recognized in our jurisprudence. See 10 An. 59, and authorities there cited, The second point might present some difficulty under the full and specific allegations of the petition and the general denial, had not the answer virtually admitted the passage of the ordinance and the adjudication to plaintiff and joined issue specially on the allegations as to the manner in which the work is done and the constitutionality of the laws and ordinances, while it is silent as to the observance of these formalities. It has been held that, in the absence of proof to the contrary, it will be presumed that the city authorities have complied with the law in this respect. 15 A. 376. . Everything up to signing the contract has to be done by or under the direction of public officers, in whose favor such presumption exists ; and, as the law requires a public officer to accept the work, and certify to its being rightly done, it is considered that, in the absence of proof of fraud, the acceptance by such officer of the work, which the city is authorized to contract for, is prima fade evidence as to its completion and the manner in which it is done. 14 A. 297. In this case, the contract and specifications, the certificate of the city surveyor and his testimony are in evidence, and until some rebutting proof is adduced, the defendant must, under the pleadings and the foregoing principles, be bound. This is not a case in which damages should be allowed for a frivolous appeal. Judgment affirmed, with costs.