
    NO. 7351.
    GRASSER CONTRACTING CO. VS F. RIVERS RICHARDSON.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P I N I O N.

3y Ilia Honor John St. Paul.

Appeal from tho Civil District Court, Divisor ”3" Ko. 110S10.

HRs existing charter oí tbs City of ITS / 0; Is mo. is Act 159 of 191.3. .

Soction 42 of that -act provides tí.it v'henever 52 pe; cent of the abutting property ovni oro shall petition the city jouueil to pave or repaftt. any street or banquette, sett inf forth the character of laving desired, the council shall publish r ».l" petition for four woeke, uni if thara he no objection shall or far the raving cr repaUing petitioned for.

!Che a consent, the paving m.y hr. flora entirely Kt their expense; if they do not all consent then they shall hoar only a certain portion of the cost and the City shall hear the rest, it also provides that if nothing he said as to the térros of payment then the share of the property holders shall ho payable cash, hut tho property holders Kay in their petition fix the terns of payment at one fifth cash and the balance in four equal annual inst.KLi'.onts. urae section provides thrr li the property Y. To 'Id ore all

fho rest of the section prescribes the method of collecting the portion due by the property holders rice the itens of work which shall he included in paving and reps Wing.

Section 47 and 48 of said act provide That the City Council may in its disco stion order the pavin'} or repaWiny of any street or banquette and nay levy upon abutting property holders a certain portion of the cost, which is the some as fixed by section 42 when all the property holders do not consent to bear the whole cost; that the items of work included in paving and repaving and the method of collecting from property holders shall be the same as in section 42.

Section 49 provides that in such ease notice of intention to pave shall he published for four weeks and a majority of the property holders may thereupon select the quality of pavement to be laid, and on their failure to do so the oounoil nay itself select; that the portion due by the property holders shall then be payable áne fifth cash and the balance in four equal annual installments.

Some time prior to .June 24th Ifü 1913 the City aouncll was presented with a petition purporting to be signed by 52 per cent of the property holders, asking that lowerline Street between St. Charles ard Jeanette be paved, designating the kind of pavement, and fixing the terms of payment at one fifth cash and the balance in four equal- annual installments.

fhis petition was duly published -and on June 24th the council was officially notified of the publication. Ho objection having bean made by anyone, the council on September lóth ordered the pavement, designated the kind of pavement as petitioned for, assessed against the property holders that portion of the cost allowed when all do not consent to bear the whole oost, and fixed the terms of payment at one fifth cash and the balance in four equal annual installments.

thereupon the work was advertised and on December 3rd the contract was let to plaintiff and others, who began the work early in February 1914 and. later on completed it.

2his is & suit to collect from defendant his share of the cost.

The first personal notice which defendant appears to have had that, the street was to ha paved,was about February 9th when the work had just begun; and a day ob two afterwards he filed with the city his protest against the pavement based upon the ploa that the petition for paving had not been signed by a majority of the property owners, and this seoms to be a fact.

hut it can avail defendant nothing.

As we have seen the council needs no petition of property holders to order the paving or pepaving of any street or banquette; Euoh a petition only makes it compulsory on the council to do so.

And since in according the petition such as it was, the council levied only that assessment and fixed only those terms whieh the lair allowed when proceeding without a petition^the petition may he wholly disregarded. Jpor the council simply acted "in its discretion.”

JL. One who may "in its discretion" do this or that, nay do it simply because he thinks it should he aone though no one asks it, or because he is asked to do it and still thinks it should be done; the fact being that tlie right to use one's discretion is the right to act for reasons deemed satisfactory by one’s Belf, to act without assigning any reasons whatever, to act without having one’s reasons investigated or reviewed by any other authority.

It might he said perhaps that the counoil exercised- none of its discretion since apparently it acted under the supposition that the petition was binding upon it and therefore, as it were, under compulsion.

But it is shown hy the record that the council had written evidence before it showing that a majority of the property holders had not signed the petition, and moreover it could have ascertained from the public records with the same facility as defendant did, that the petition did not represent a majority of the property holders. So that it is olear that the.council was not averse to paving the street, but on the contrary quite willing to do so, since it accorded the petition without further inquiry and doubtless because it thought the street should be paved.

Row it is true the lav/.requires that when the council designs to paws a street without being petitioned by the property holders, it shall publish notice of it's intention to do'so; but-the law requires no special form of notice, and certainly no clearer notice of intention to pave o street -can he.-given than hy publishing what purports to he a petition by a majority of the property holders asking for such paving, and seemingly compulsory on the' council to order it.'

November 11th, 1918.

She fact of the matter is, in view of the clear right of the council to order paving in its discretion and assess part of the cost to the property holders, that the proceeding by petition tías, intended for no other purpose than to give property holders a right to compel the council to pave, and if need he, a'llcrr them to assume the whole cost of paving when for want of funds to pav the city's share there might ff§ lack bidders for the work.

And the council ordered the paving unon the petition of a A large proportion of the property holders, even though it might he less than a majority, and when there appeared to he no opposition whatever, would seem to he a very conservative use of very sound discretion, and not at all an abuse of it.

She judgment appealed from is therefore reversed and it is now ordered that there he judgment in favor of plaintiff Crasser Contracting Co and against defendant 7. ‘Rivers Richardson, for the full sum Righty eight 77/lOJ hollars, with lien and privilege on defendant's property fronting 120 feet on Rowerline Street in the square bounded bySLnple, Rim and Pine Streets; and for the further sum of Cwo .hundred and twenty-one 92/RJO hollars with lien and privilege on defendants property fronting 51 i fo.-t on Rowerline Street in the sou a’e bounded by limpie, '¿Cc and ChCrwhec streets; all with five per cent interest, from April 28th 1914 <m.’ the costs both, eoa-ts, including v„. cost of re.-ordir.-r, -and with 11» for eo>:ts o;. both pr--pc: lies.

1 hi v jm'gv.ont to bn o recutory only eg -.inst the property subject to the lie;, i.nf no f'li'thor; said property being r.ore fully described in the petition.

Rev Orleans, Re,  