nisher of supplies, be held to be a movable; and the general public, therefore, have to frame their contracts from that standpoint. There is no more stretch of legislative power in making a crop standing by the roots upon an owner's land held to be for some purposes and under some circumstances a movable than there is in making the crop of a lessee standing by the roots upon property of another person a movable. Houses, though declared by the Code to be immovable by their nature (Rev. Civ. Code, art. 464), are sometimes held to be movable; and things essentially movable in their nature are by the force and power of the law frequently made to become immobilized. The law has guarded with great care the rights of all parties, and sought to make private interests and the public good concur. It was essentially necessary that the farmers and planters of this state should be able to obtain advances to cultivate their property, and to that end be placed in position to offer proper security to parties so advancing. The plan adopted by the general assembly, by which the prior mortgage creditor could enforce his mortgage and receive his payment unaffected by the existence of the privilege on the crop, and the party holding the privilege on the crop maintain his rights unaffected by the sale, does justice and equity to all as far as it can be effected. Bank v. Wiltz, 31 La. Ann. 245; Pickens v. Webster, Id. 875. The plaintiffs do not assert a claim of personal indebtedness against either Beary or the Abby & Highland Planting & Manufacturing Company, Limited. If either or both have come under obligations by reason of a privilege upon the crop, it is by reason of their voluntary act in becoming purchasers of the same cum onere. It was the duty of the sheriff, in offering the property for sale, to give notice that the property was sold subject to all privileges and hypothecations, of whatsoever kind they might be. Code Prac. art 679. The public was bound to know that there might, and probably would, be a privilege upon the crop, and that, though the purchaser of the property would take the crop as part of the realty, and would not come under any personal liability therefor, yet he none the less would take the crop cum onere. Any one buying the property would do so fully advised of the situation.

The district court was of the opinion that registry was not necessary to preserve plaintiffs' privilege, but sustained an exception of no cause of action upon the ground that the proper action was not resorted to. In his reasons for judgment the district judge says: "I understand that the crop, subject to this privilege, passes cum onere with the planta. tion seized and sold upon which it stands at the time of the adjudication. The privileged creditor has the same right to assert his privilege against the crop as if no adjudication had taken place; but he had no personal action against the adjudicatee or his assigns, into whose hands the crop lawfully passes by

the adjudication and mesne conveyance. Indeed, the case of Howe v. Whited, 21 La. Ann. 4,95-497, seems to relegate the privileged creditor to his pro rata of the price of adjudication, to be ascertained by a separate appraisement of the crop from the plantation with which it passes. Inasmuch as the crop passes with the plantation under the adjudication, and the price of adjudication is based both on the plantation and the crop hanging by the roots, this would seem to be the most just and equitable rule of the case. At any rate, it is clear to me that the only action of the privileged creditor against the adjudicatee and his assigns to enforce the privilege is one essentially in rem. The present action is not in rem. The thing itself is not proceeded against,-not brought in custodia legis. The action, as determined by the prayer of the petition, is a personal one against the exceptors to compel them to render a full and faithful account of all the sugar and molasses and other products raised on the plantations in question during the year 1899, and to turn the proceeds over to plaintiffs to the amount of their claim, and in default thereof that plaintiffs may have judgment against the exceptors for the full amount of the indebtedness of Kent & Weill to plaintiffs. Such an action I am decidedly of the opinion cannot, under the facts set forth, be maintained against the exceptors." We understand, from these expressions, that, had the plaintiffs accompanied their demand by a sequestration of the crop, under which sequestration it would have been placed in the sheriff's hands, the court would have held the action to have been properly brought. We do not see the necessity, as between the parties to this litigation, that the crop upon which the plaintiffs claim a privilege should have been placed under a seizure or sequestration to have enabled the court to have passed upon their respective rights and obligations. That remedy might have been a proper and an important one to have guarded plaintiffs' rights on the crop or its proceeds, as against adverse claims which might be advanced upon the same by creditors of the defendants; but there were no such parties before the court, and no issue of that character had to be determined. The parties defendant resided within the jurisdiction of the court, the plantation and the crop were also within the jurisdiction, and the matters in dispute such as fall within the cognizance of the district court. Truxillo v. Delaune, 47 La. Ann. 14, 16 South. 642.

Plaintiffs had the undoubted right to bring a personal action against their debtors, Joseph Weill and T. D. Kent, and to claim a reeognition of the privilege which their claim carried upon the crop; and inasmuch as it (the latter) had passed into third hands subject to the same, it was necessary, for the protection of plaintiffs' rights, that their demand should have gone to judgment contradictorily with all the parties in interest. The suit was brought and citation issued while

the crop was on the plantation, still hanging by the roots and subject to the privilege, in the possession of the Abby & Highland Planting & Manufacturing Company, Limited. The citation upon it as effectually bound the company itself from that time forward not to dispose of the crop to the prejudice of plaintiffs' rights as if it had been enjoined to that effect, even though assignees or purchasers of the crop from it after that date could have successfully urged as against the plaintiffs that they took the crop free from the privilege. In Welsh v. Barrow, 3 La. Ann. 133, where the plaintiff brought suit for the recovery of wages as an overseer, claiming a privilege on the proceeds of a crop received by the defendant, the owner of the plantation from which the crop was sold, the court said "that the services were rendered, that they bore a privilege on the crop, that the crop was sold, and the proceeds were received by the defendant, is conceded. It is urged for the defendant that by the sale of the crop by Barrow the privilege was extinguished under article 3244, Rev. Civ. Code. By article 3184 (now article 3217) the salary of the overseer for the year last past is priv ileged on the product of the last crop, this presupposing that the planter would not keep his crop, but sell it; and the privilege is affixed specifically on the proceeds. Such is the construction given to this article by the supreme court in the cases cited, and in Succession of Johnson, 3 Rob. 216, the court held that this privilege on the last year's crop may be exercised upon the proceeds after the crop has been sent to market and sold. If the proceeds were in a court of justice, or in the hands of the defendant's factor, the plaintiff would have his privilege over the other creditors; and we do not understand on what principle he can be deprived of it when the proceeds are in the defendant's pocket." See, on this subject, Garcia v. Garcia, 7 La. Ann. 526.

The privilege in the case at bar is one resting, not only on the crop, but on its proceeds. The litigation here is not between contesting adverse creditors, but between the party entitled to a privilege against the person having still possession of the property subject to it, who under the law stands, quoad the privileged creditor, in the shoes of the original owner of the crop. It would make no difference, after service of citation on it, whether the defendant company should sell the crop or not; for, should it sell it, the proceeds in its hands (money) would be subject to plaintiff's present demand. Hewitt v. Williams, 48 La. Ann. 742, 17 South. 269. It may be that the plaintiff would not be entitled to call upon the defendant for an account, and would be forced to make direct affirmative allegations as to the amount of the crop which had been received by it, and establish the allegation by proof; and it may be, when the case goes to trial, defendant may defeat plaintiff's demand, either from some weakness in his evidence, or some cir

cumstance not now disclosed, or from some defensive fact which the defendant will then advance; but those are matters which will be determined on the trial, and we are now dealing exclusively with an exception of "no cause of action." It may not be amiss for us to say that the case is not one calling for a separate appraisement of plantation and crop. A mistake made by a plaintiff as to his remedy, or his urging some relief in his demand that he is not entitled to, does not lead up necessarily to a dismissal of his action upon an exception of "no cause of action." See Wolf v. Pants Co. (recently decided) 27 South. 893. If plaintiff had or has any privilege at all, it is one upon the crop, and not upon the land,-a privilege upon the crop considered as an object separate and distinct from the realty. It is a privilege supporting plaintiff's debt upon, not a portion of the crop, but the crop in its entirety for the payment of the privilege claim to its full extent, unless other established, concurrent or preference claims should force a reduction.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment of the district court be, and the same is hereby, annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that the exception of no cause of action, filed in the district court and sustained by it, be, and it is hereby, dismissed, and the cause, so far as it has been dismissed, be reinstated, and the cause remanded to the district court for further proceedings according to law.

(52 La. Ann. 2089) REDERSHEIMER v. FLOWER, Mayor, et al. (No. 13,539.)1

(Supreme Court of Louisiana. June 4, 1900.) MUNICIPAL IMPROVEMENTS INJUNCTION BY TAXPAYER-DECREE OF NULLITY.

A taxpayer and abutting proprietor has a right of action, on sufficient cause alleged, to enjoin the proposer and the bidder from signing a public contract to carry out the terms and conditions of the award.

On the Merits.

Where the circumstances render it proper to set aside all steps taken to award a bid to an asserted lowest bidder, the nullity may be decreed without trenching upon contracts that have been accepted and are being executed. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; John St. Paul, Judge.

Action by George Redersheimer against Walter C. Flower, mayor, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Buck, Walshe & Buck, for appellant Spinks. Samuel L. Gilmore, City Atty., and Walter B. Sommerville, Asst. City Atty., for appellant City of New Orleans. E. Howard McCaleb, for appellee.

1 Rehearing denied June 26, 1900.

BREAUX, J. Plaintiff, a citizen, taxpayer, and owner of land on the street it is proposed to pave, instituted this action and sued out an injunction to prevent defendants from carrying out a contract for the paving with asphalt of St. Charles street, from Canal street to the terminus of the present asphalt pavement around Lee Circle. The grounds of complaint are that defendants required, in the proposal for bids, that all rock asphalt used in the pavement be mined from one or more of the natural deposits; that that from the Sicilian mines at Ragosa should equal in quality and composition that mined by the United Limmer & Vervohle Rock-Asphalt Company, and that that from the Swiss mines at Val de Travers should equal in quality and composition that mined by the Neuchatel Rock & Asphalt Company, or that that coming from the French mines at Seysel should equal in quality and composition that mined by the Compagnie Générale des Asphaltes de France. The ground of complaint, in the second place, is that, under the head of "Sample" in the specifications, the successful bidder was required to deposit as a model a sample, not less than one foot square, of the wearing surface of the sheet asphalt which had been in actual use in a street, together with a written account of its composition, and a certificate from the city officials where it had been in use showing the time it had been used on the street in which it was laid, and setting forth that the number of square yards laid was not less than 1,000. And, lastly, the successful bidder was required to satisfy the proper municipal authorities that the third course or wearing surface of the sheet asphaltum or of the rock asphalt was all that it is represented to be, by furnishing testimony of its having been in successful use in roadway pavements in one or more cities for a period of at least five years. The proposal was for the construction of a pavement of sheet or rock asphalt, the one being considered of equal value to the other, and the specifications, as relates to the proposals for bids, were intended for both. They were both treated as being on the same footing and as being of equal grade. It appears that the difference between the two, the rock and the sheet asphalt, is not considerable. The sheet asphalt has very nearly the same proportion of ingredients as the rock asphalt. When laid in a pavement, they amount, as relates to use, to about the same thing. One is the natural product of the mines, and the other is artificial,-an imitation of equal value to the original. The adjudicatee of the contract is H. C. Spinks, who proposes to furnish Sicilian rock asphalt on six-inch concrete at $2.58 per square yard. The lowest bidder was J. M. Kelly, who proposed to construct the pavement of sheet asphalt on six-inch concrete at $2.40 per square yard. The third bidder was the Barber Asphalt Company, whose bid was larger in amount than either of the two just named. The defendants severed in their defense. The city and the mayor filed

a plea of general denial, while Spinks filed an exception of no cause of action and the general denial. We think that the foregoing is a sufficient outline of the case. In the course of the discussions, we will state such other facts as may be deemed needful.

As relates to the exception of no cause of action, we know of no good reason why the action of the lower court in overruling this exception should not be sustained; for if, as charged by the plaintiff, the statute has not been complied with, plaintiff, who is a taxpayer and owner of property abutting on the street to be paved, has a standing in court to prevent its infringement and sustain his allegations of injury to his interests. The right of the property owner to sue out an injunction and compel obedience to a statute has always been recognized upon allegations of threatened injury made in apparent good faith. Where the charter requires that a contract be awarded to the lowest bidder, and it has not thus been awarded, the taxpayer may enjoin and prevent the consummation of the contract, and bring about a readvertisement for bids. The exception is overruled.

On the Merits.

At the outset of the discussion, we are confronted with the statutory provisions requiring that the contract be awarded to the lowest bidder. To the council is given the right to advertise for bids to construct pavements. The Sicilian rock asphalt was, in view of the guaranty offered, considered the lowest bid for work advertised by the council. The testimony shows that the material in question is of a superior quality. The difficulty grows out of the fact that it is obtained from one of the few mines mentioned in the specifications (that is, by special mention in the specifications), and in that way, plaintiff urges, competition was stifled. It is true that rock asphalt is obtained in large quantities in many places. It is also true that it varies in its composition, and that much of it is of inferior quality. For this reason defendants contend, in support of the specifications which plaintiff asserts are offending and injurious, that a standard must be adopted in order to protect the city against worthless materials. We are not inclined to deny the truth of the proposition. In view, however, of the provisions of the charter requiring competition in matter of bids, we are disposed to think that the specifications in question should be expanded a little and liberalized somewhat. While the lowest bidder should not be afforded the opportunity of using untried and worthless materials, on the other hand the standard or grade of materials required should be broad enough to embrace, if not absolutely all, at least a goodly portion, of the first-class material offered for sale. Rock asphalt is not res incognita. has been known from time immemorial, and surely a standard of quality can be adopted without limiting bids to three or four mines. We are informed by the evidence that the

It

foreign product of the rock-asphalt mines referred to was selected chiefly for the reason that domestic rock asphalt has not given satisfaction as a pavement. None the less, we do not find in the record sufficient reason for excluding all mines save those mentioned in the specifications. There are many other mines than those before mentioned which produce a pure and durable quality of rock asphalt. Even domestic rock asphalt, although it has not yet found its way freely into the markets, is entitled to a hearing.

The specifications set forth that "all rock asphalt used in this pavement must be natural, bituminous, limestone rock mined from one or more of the natural deposits." (Italics ours.) This positively excludes all rock asphalt, and particularly the domestic, save that before named. It is true that the testimony shows that domestic rock asphalt has never proven a success, unless it has been mixed with other kind of asphalt. To that extent, at least, it might, perhaps, be given some little consideration. But under these specifications the domestic rock asphalt would not have even the scant privilege of being mixed with foreign asphalt, and thereby gain some little success. Those who deal in and control sheet asphalt are permitted to bid on sample and testimonial of successful use in any other city for a number of years. The restriction for the bid is not great, and we believe that, as to the two-years limit, it is entirely reasonable. We understand that, being an artificial product, there was no necessity to limit it as to locality or to certain designated mines, as in the case of rock asphalt. Would it not be reasonable to conclude that, if sheet asphalt is not limited at all as to locality, the rock-asphalt limits as to locality should be made as large as possible, and not restricted to a very few mines, which may be under such control as to hold the material (rock asphalt) at a higher price than it would be held at if brought into regular competition? One being the competitor of the other, the price of one has its influence over the price of the other. In expressing these views, we are not to be construed as holding that any bidder can insist upon the acceptance of his bid without regard to the quality of the material he is to use. He should, above all other considerations, satisfy the authorities that the material he proposes to use is of the quality required. Great care should be taken not to burden the streets with bad pavements.

This brings us to a consideration of plaintiff's objection to certificates to be obtained from those in charge of pavement construction in other cities. In view of the great care and diligence required in the selection of good materials, we are not disposed to find fault with the methods adopted to obtain certificates of good service for two years from some responsible person in authority. We are informed by the testimony that actual use in the streets for at least two years is

the only reliable method of ascertaining whether the paving material is good or bad. Defendants, as a further guaranty from bidders, prior to bidding, inserted another requirement in the specifications; i. e. a requirement regarding the surface of the pavement. This part of the specification calls for evidence of successful use of the pavement proposed by the bidder for five years. We have not found that this last requirement is directly sustained by evidence of the necessity of a so many years' test. From our point of view, after the quality of the asphalt, be it rock or sheet, is ascertained by a laboratory test and satisfactory use of the material for two years, an additional period of three years is a very long time. If there is necessity for additional time to investigate, it might be made, we think, less than three years additional. In Bergoffen v. City of New York, 23 N. Y. Law J. 206, 64 N. Y. Supp. 1082, to which learned counsel for the defendants have directed our attention, the two-years certificate was sustained as legal, and at the same time as ample.

We have expressed our views regarding the specifications. We think that they should be broader and more comprehensive, so as to render it safe beyond all possible question. The lowest bid, that of Kelly, as his bid did not comply with any of the specifications as required, was not accepted for good reason. After it was rejected, as an independent question, it would have been better if the proposal for bids had been readvertised. Now that the questions have been passed upon, the specifications should be broadened. We think that the proposals for bids should be readvertised, and that the Spinks bid should be set aside. That is the extent of our conclusions, although we have decided views, as indicated by our opinion, on the other subjects discussed. They are not intended to, and we do not think that they tend to, invalidate or in any way affect a contract for paving that has been accepted and that is now being executed. We deem it proper to state that no unfairness is charged in the pleadings. If any error has been committed, it grew out of the desire, as we take it, of protecting the interest of the city. In order to avoid error or mistakes, it requires unusual knowledge of such matters. They are full of difficulties. MacAdam, the engineer, and "the Scottish trustee of roads," although he succeeded in acquiring fame, did not establish a system or plan always satisfactory in constructing and macadamizing roadways. Many difficulties arise and are to be considered. The drainage of the soil, the grading, the quality of the material to be used, the skilled workmanship required, the climate, the traffic, and other considerations must be taken into account. Small wonder it is, then, that those in charge find it necessary to insert many requirements in specifications; and for that reason we think that the courts should be slow in setting

aside an accepted contract that is being satisfactorily executed, although it is different before acceptance.

For the reasons here assigned, the judgment of the district court is affirmed, in so far as it sets aside the bid of H. C. Spinks and annuls all acts looking to the signing of a contract to carry out the terms of his bid.

(52 La. Ann. 2102)

SCHENCK V. SCHENCK et al. (No. 13,532.)1 (Supreme Court of Louisiana. May 22, 1900.) JUDICIAL SALE-ADVERTISEMENT-SUFFI

CIENCY.

1. Whether or not a Sunday advertisement of a judicial sale is legally sufficient must be determined by the codal and statutory provisions of the law of Louisiana.

2. As to immovable property, the only requirement is that the advertisement must appear once a week for the full term of 30 days. The law does not say 30 judicial days. If it did, then Sundays and legal holidays would have to be excluded. Where the law has made no exception, it is not the province of the court to supply one.

3. The law is fulfilled when the advertisement appears "once a week" during the publication period. Sunday is a day of the week,-the first day of the week. Its appearance, then, on Sunday is an appearance during the week of which Sunday is the first day.

(Syllabus by the Court.)

Action by George Schenck against Jacob Schenck and others. Rule on Henry Bremmermann to compel performance of bid. Judgment for plaintiff was reversed by the court of appeals. Application of George Schenck for certiorari to such court. Judg. ment of court of appeals set aside.

Dart & Kernan (Sambola & Ducros, of counsel), for petitioner. A. J. Lewis, for respondent Herman Bremmermann.

BLANCHARD, J. The question here presented is whether a judicial advertisement of property, ordered by a decree of court to be sold to effect a partition, made or appearing in a newspaper published on Sunday, is a legal advertisement. The court of appeals held it was not. This court, deeming the case of the character and importance justifying its being brought here, granted its writ of review, and the case is before us on the issue stated.

The immediate litigation had its origin in a rule taken on Henry Bremmermann to enforce compliance on his part with the bid he made for the property when it was offered at auction. He was the last and highest bidder, and it was adjudicated to him. He refused to accept title on the ground of alleged insufficiency. Various defenses were raised by him in the district court, including the one based on the Sunday advertisement. That tribunal decided them all against him; whereupon he prosecuted an appeal to the court of appeals, with the result that, while

1 Rehearing denied June 25, 1900.

Rev.

Whether or not a Sunday advertisement of a judicial sale is legally sufficient must be determined by the codal and statutory provisions of the law of Louisiana. The record shows auctioneers in the past have regarded it as sufficient. The practice and usage with them has been to advertise in the Sunday issue of the newspapers just as in the issue of any other day of the week, making no distinction in days, and holding all advertisements, whether on Sunday or Monday or other days, equally efficacious. Many titles to real property in the state would be found to rest in part for security on advertisements appearing in public journals issued on the first day of the week. Immovables require 30 days' advertisement. Civ. Code, arts. 1167, 1339. Their sale can be made only 30 days after the first notice (Code Prac. art. 670); and Sundays are always included in this computation of the time. The rule laid down in McDonough v. Gravier's Curator, 9 La. 532, was that immovable property must be advertised for 30 days, excluding the day when the advertisement commenced and the day of sale, so that 30 clear days must elapse between. All days, therefore, between the date of the first advertisement and the sale, are counted, Sundays as well as other days. Rev. Civ. Code, art. 1117, says: "For those advertisements for which the term of thirty days is fixed, it suffices if they are published in the newspapers once a week during that time." (Italics ours.) Sundays are to be included in the 30-day period, unless expressly excluded. See State v. Michel, 52 La. Ann. 942, 27 South. 565. The lawmaker has not excluded Sundays therefrom. If he had, the advertisement on that day would be insufficient. The only requirement is that the advertisement must appear once a week for the term of 30 days.

If, then, Sunday is to be counted as one of the 30 days, why may not the appearance of the advertisement on one or more Sundays during that time, as was the case here, suffice? Such would seem to be the common sense of the proposition. Suppose no newspaper appeared on any other day; that the only paper published in the parish where the property to be sold is situated was a Sunday paper. What then? The requirement of law is that judicial sales of immovable property must be preceded by advertisement in a newspaper for a term of 30 days. To fulfill this requirement, if a