. Nash, 45 La. Ann. 1141, 1145, 13 South. | perform their duties. Section 10 of said act 732, 734. fixed the fees of recorders and notaries, and declared:

Article 129 of the Constitution of 1898 reads as follows:

"Art. 129. The General Assembly, at its first session after this Constitution is adopted, shall provide a general fee bill or bill of costs, regulatHalling and fixing the fees and compensation allowed sheriffs, clerks and recorders, justices of the peace, constables, and coroners, in all civil mat

Act No. 203, p. 485, of 1898 is wholly silent as to the fees of notaries, both in the title LAND, J. The administrator of the sucand in the body of the statute, and the parcession of Mrs. Whitney filed an account, in ish of Orleans is excepted, not only in the tiwhich he allowed and proposed to pay "Wtle, but in every section fixing fees and costs. Morgan Gurley, notary public, for inventory, $500."

side of the parish of Orleans. Hence the act, on its face does not embrace all officers entitled to fees under the laws of the state, and has no application to officers of any kind in the parish of Orleans.

In State ex rel. Barrow v. Ogden, Clerk, 50 La. Ann. 982, 24 South. 593, this court held that Act No. 104, p. 133, of 1884, relating to the fees of shorthand reporters, was not repealed by Act No. 203, p. 485, of 1898. This decision was based on the theory that the subject-matter of the statutes was not a general fixing of fees and costs, but the compensation of particular officers.

No. 17,501.

(124 La. 759)

UNION FERRY CO. v. SOUTHERN IM-
PROVEMENT & FERRY CO.

(Supreme Court of Louisiana. Oct. 18, 1909.
Rehearing Denied Nov. 29, 1909.)

1. CONTRACTS (§ 162*)-CONSTRUCTION OF CONFLICTING SENTENCES.

Where, in a stipulation contained in a contract, there are two sentences which in some respects appear to conflict, they should be construed together and with reference to the stipu be placed on them which does least violence to lation as a whole, and that interpretation should the rules and presumptions which are ordinarily applied with respect to conduct of individuals dealing with each other.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 744; Dec. Dig. § 162.*]

The act contains no reference to notaries public, district attorneys, and some other officers in the country parishes. Did the Legislature intend to starve such officials out of office by depriving them of all fees and emol-2. uments? Such an intent is hardly presumable under any circumstances that can be imagined.

We concur with the learned counsel for the opponent in the view that Act No. 101, p. 161, of 1870, is antiquated and defective in many respects.

But the remedy for such defects in the statute must be applied by the legislative department of the government.

While counsel for defendant argues, or rather intimates, that Act No. 101, p. 161, of 1870, was never intended to apply to the parish of Orleans, the statute reads "throughout the state," and there is but one construction that can be placed on such plain English.

The act of 1870 was enforced in Succession of Caballero, 25 La. Ann. 646, and in Succession of Harris, 29 La. Ann. 743. In Printing Co. v. Furniture Concern, 108 La. 262, 32 South. 469, the act was not cited as bearing on the issues.

A charge for a round sum in a notary's account for taking an inventory is illegal and contrary to the tariff in succession matters. Robouam's Heirs v. Robouam's Ex'r, 12 La. 73. See, also, Walton v. Creditors, 3 Rob. (La.) 438; State v. Atchafalaya Co., 7 Rob. (La.) 198; Hawford v. Adler, 12 La. Ann.

241.

CONTRACTS (§ 162*)-CONSTRUCTION - CONFLICTING SENTENCES.

self to provide for the payment to the retir
The city of New Orleans having bound it-
ing lessee of the Canal Street ferry for certain
improvements, and having made a new lease
containing a stipulation that the new lessee
should indemnify the retiring lessee in accord-
ance with the terms of his lease, a subsequent
sentence in the same stipulation, specifying cer-
tain things to be paid for, is held not to impose
upon the new lessee the obligation of paying the
retiring lessee for a sidewalk and pavement laid
in a public place, and not included among those
things for which the retiring lessee was entitled
to be paid under his lease.

Cent. Dig. § 744; Dec. Dig. § 162.*]
[Ed. Note.-For other cases, see Contracts,

(Syllabus by the Court.)

of Orleans; George H. Théard, Judge. Appeal from Civil District Court, Parish

the Southern Improvement & Ferry ComAction by the Union Ferry Company against pany. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

James C. Henriques, for appellant. Frank E. Rainold, for appellee.

Statement of the Case.

MONROE, J. Plaintiff sues for the recovery of the sum of $4,350, alleged to be due by defendant as the value of a certain Shillinger (or artificial stone) sidewalk, extending from the depot of the Louisville & Nashville Railroad Company to the Canal Street ferry

We are informed by the record that the statute in question has been uniformly disregarded by notaries public of the parish of Or-landing, and certain square block paving, adleans, and that two of our learned Brothers of the civil district court have held that it is no longer in force.

We are not able to concur in this view, and think that the best way to hasten the modification or repeal of a defective law is to enforce it strictly.

The administrator has not prayed for an amendment of the judgment, and we are therefore relieved of the task of calculating to what extent (if any) the amount allowed exceeds the fee bill.

Judgment affirmed.

jacent to the ferry house at said landing, under a contract whereby defendant acquir ed from the city of New Orleans the franchise of the Canal Street ferry for a period of 15 years from January 1, 1907. The defense is, in substance, that no obligation to pay for said sidewalk and paving is imposed upon defendant by the contract relied on.

It appears that Thomas Pickles was the lessee of the Canal Street ferry for a term of 10 years, ending December 31, 1886, and that the lease was again adjudicated to him for a like term ending December 31, 1896,

Shillinger.

under an ordinance which contained the fol- | be paved, throughout its entire length, with lowing, among other, provisions, to wit: That the entire expense of the improvement proposed shall be paid by the lessee of the Canal Street ferry."

"Art. 10. That the lessee or his assigns shall pave, within nine months after the promulgation of this ordinance, with square granite block paving, the prolongation of Canal Street from the present pavement of the depot of the Louisville & Nashville Railroad to the ferry landing, the width (including pathways) to be not less than 30 feet, and all of which to be done according to plans and specifications to be furnished by the city surveyor; the said lessee, or his assigns, also binding himself to keep said pavement in perfect repair during the continuance of this privilege.

The city engineer, under date May 18, 1893, certified that, with certain exceptions, the work required by the ordinance thus quoted had been done; his certificate, so far as the paving and banquetting were concerned, reading as follows:

ment."

lease last above mentioned the ferry privilege Some time before the expiration of the was again adjudicated to Capt. Pickles for a term of ten years, ending December 31, 1906, and a lease was entered into which contained the following stipulation, viz.:

"The old roadway leading to the ferry landing has been removed, and the stone from this portion relaid in front of the ferry house, according "Art. 11. That said Thomas Pickles, his suc- to the directions of this department. There has cessors and assigns, shall and will, on the last been laid in front of the new ferry house more day of the term of his present leases, respective- pavement than was contained in the old roadly, or of the additional time or lease hereby way. There has been laid a Shillinger bangranted, peaceably and quietly, leave, surrender quette, 18 feet wide, from the Louisville & Nashand yield up the said ferries and the premises ville Railroad depot to the rock road on the and the ferry property and boats, respectively, levee, with a substantial curbing on either side, with the rights, privileges and appurtenances all according to the direction of this departthereto belonging, with the bulkheads, piers, docks, floats, bridges and other fixtures and improvements which may have been erected for the use of said ferries, in good order and condition, into the possession of said city, its successors or assigns, without delay; and said city does, for itself, its successors and assigns, covenant and agree to and with said Pickles, his successors and assigns, and upon the surrender and yielding up of said premises, as hereinbefore provided, said city shall purchase, or cause to be purchased by the next lessee or lessees, of said Pickles, his successors or assigns, at a fair appraised valuation, the boats, buildings and improvements, wharves, docks, bridges and floats, and other property of said Pickles, his successors or assigns, used upon, or for, said ferries, respectively, and actually necessary for the purposes of said respective ferries, said valuation to be fixed by two appraisers, one to be appointed by said Pickles and one by the city, or the next lessee or lessees; and, in case of disagree ment of said two appraisers, they, said appraisers, shall appoint an umpire, who shall decide between them; and the provisions and rights in this section set out, stipulated, or granted shall be substituted and taken as repealing, annulling and avoiding all conditions, terms and stipulations in the said existing leases, or contained in any ordinance or resolution of the city council on the subject-matter of the destination or disposition of the improvements, boats, buildings, wharves, bridges, floats and property of said Pickles, his assigns and successors, connected with said ferries, or any of them."

During the term of the lease under this ordinance, to wit, in 1892, the city passed an ordinance (No. 6,610, C. S.), which, after various recitals, proceeds as follows:

*

*

and

"That permission is hereby granted to Capt. Thomas Pickles to move, at his own expense, the ferry landing from its present position to the prolongation of the north side of Canal street, using the same ground at this point as the present ferry lease embraces. That the said Thomas Pickles, his heirs or assigns, shall make this change at once, that he shall, at his own expense, construct a new, two-story, ferry house, and take up the present paved roadway leading to the ferry, and lay it between the new ferry landing and the roadway built by the wharf lessees at the head of Canal street, * * and that the said Thomas Pickles shall also, in addition to the above, remove the present banquette, leading to the present ferry landing, and shall make a banquette, 18 feet wide, on the prolongation of the north side of Canal street, all the way from the depot of the Louisville & Nashville Railroad to the said ferry house. the banquette to 50 SO.-45

last day of this lease, or at the termination of "The purchaser of this franchise shall, on the and yield the said ferries, as also the ferry propany extended time, peaceably leave, surrender erty and boats and improvements, with all the longing, and other fixtures and improvements rights, privileges and appurtenances thereto bewhich may have been erected for the use of said ferries and the proper maintaining of same in good order and condition, into the possession of the city of New Orleans, or to such party or parties to whom may be adjudicated the privilege of continuing the ferries; shall purchase all betterments and improvements, wharves, docks, floats, pavements, ferry houses and other property of the retiring lessee, which was used upon and for ferries and actually necessary for the purpose of operating said ferries, at a fair appraised valuation, to be fixed by two appraisers, one to be appointed by the said lessee and one to be appointed by the lessor. In case of disagreement of said two appraisers, the said appraisers shall appoint an umpire, who shall decide between them, and the finding of the majority of said board of appraisers shall be binding."

At some time prior to the expiration of the lease thus referred to, Capt. Pickles died, and the defendant now before the court became the assignee of the lease, and at a later date, in view of its prospective expiration, the city advertised a new lease, to begin January 1, 1907; the advertisement containing the following stipulation, which, defendant having become the lessee, was incorporated in, and forms part of, the contract under which it (defendant) now operates the ferry, to wit:

"The purchaser shall purchase from the Union Ferry Company all such property and improvements as are now in use for the purpose of operating such ferry system, and shall indemnify said company, in accordance with the terms of the lease between the city of New Orleans and Thomas Pickles and his assigns, the Union Ferry Company, at a valuation to be fixed by the appraisers, as provided for in the

"The appraisement of said pavement, as made by said board of appraisers, is the sum of $4,350. Now, whereas, it is contended by the "Said appraisers shall be appointed immediUnion Ferry Company that the Southern Im- ately after the acceptance of the bid by the

their appraisement within five days, and the accepted bidder shall pay, in cash, to the Union Ferry Company the valuation fixed by said appraisers upon the boats, buildings, landings, approaches, improvements, docks, bridges, gangways, pilings, pontoons, pavements and all other improvements and betterments constructed by said Thomas Pickles, or his assigns, the Union Ferry Company."

for his property and improvements in accordance with the terms of his contract, and not otherwise. Referring to that contract, we find that it was therein provided that the purchaser of the succeeding lease should purchase all betterments and improvements, wharves, docks, floats, pavements, ferry houses, and other property of the retiring lessee which were used upon and for ferries, and actually necessary for the purpose of operating such ferries, and the question is whether, under such provision, the city was bound to provide for the reimbursement of the cost of the sidewalk and pavement here in question, which had been laid under pre-existing contracts and before the then existing lease was entered into. It is true that they were laid by Capt. Pickles, the holder of the then existing lease; but they were not laid under that lease, and it does not follow that, because he laid them (under other contracts) they thereby became "his property," or that they were "actually necessary for the purpose of operating said ferries."

The fact that, under his lease, he was entitled to be paid for such improvements as were his property and were used upon and for ferries, and actually necessary for the purposes of operating said ferries, carries with it the limitation that he was not entitled to be paid for improvements which were not his property, were not used upon and for the ferry, and were not actually necessary for the operation of the same.

Considering this sentence merely as part of the lease, but without reference to the sentence which precedes it, and it appears to us to mean that the "purchaser” (defendant) is to pay to the Union Ferry Company the valuation placed by the appraisers upon the different items specified, including improvements which had been constructed by the preceding lessee, in his capacity as such, for the use or improvement of the ferry; and this, whether such payment was provided for by the preceding lease or not, with the exception, however, that we do not think it can, reasonably, be held to include any work or improvements of which the city may have become the absolute owner, under a contract with Pickles antedating the preceding lease and not made in connection therewith for the purposes thereof. But the first and second sentences are parts of the same stipulation, in the same contract, and, in order to arrive at the meaning of the stipulation as a whole, we must consider the sentences together, and in their relation to the contract. Bearing this in mind, we are bound to assume that the city was aware of the fact that there would, necessarily, be deducted from the price, in- It would be a very unusual situation uring to it from the sale of the new lease, which would authorize the maintenance of whatever amount might be due to the lessee the view that a sidewalk or pavement, laid under the then existing lease and according in a public street or place, under a contract to the terms of that contract. We are al- with a municipality, remained, under any so bound to assume that the city knew that circumstances, the property of the contractit was under no obligation to sell the new or by whom laid, and we do not find the lease on terms which would diminish the situation resulting from the original lease proportion of the price inuring to it beyond to Pickles (beginning in 1886) and from the the requirements of the then existing lease; modification of that lease, as authorized by in other words, that it was not called on to Ordinance 6,610, C. S. (of August, 1892), to provide for the payment, to the retiring be of that character. Under the original lessee, from the price of the new lease, of lease, Pickles was required to pave "the anything more than his contract called for, prolongation of Canal street, from the and that, just in proportion as such provi- | sion might be made, the amount inuring to it would be reduced. We then ask ourselves the question whether, after distinctly providing, in the first sentence of the stipulation now under consideration, that the retiring lessee should be paid, according to his contract, it was the intention, by the second sentence, to make provision for a further payment, thereby making him a donation les, of an amount which, in the end is deducted ries, respectively" (he being the lessee of from that which the city would otherwise several ferries), "and actually necessary for receive? And we are constrained to an- the purpose of said ferries." swer the question in the negative, and to hold that the specification contained in the second sentence of the stipulation must be construed with reference to the general limitation contained in the first sentence,

*

depot to the ferry landing, the width (including pathways) to be not less than 30 feet"; and it is to be presumed that he did so. And it was provided that, upon the surrender of the ferry at the expiration of the lease, the city should purchase, or cause to be purchased, "the boats, buildings and improvements, wharves, docks, bridges, and floats, and other property of said Pickused upon and for said fer

Under Ordinance 6,610, C. S., “permission" was given to the lessee to remove the ferry landing from the position then occupied by it "to the prolongation of the north side of Canal street." And in that connection it