M. L. and B. A. v. Price and Price-Opinion of Court.

number." Johnson gives its meaning as "want, deficiency." And Webster defines it as "want, deficiency, as a deficit in the taxes or revenue."

The word deficit may have either of the significations contended for, and evidence of the surrounding circumstances, so far as they indicate the nature of the subject, is, in the language of the books, "a just medium of interpretation of the language and meaning of the parties in relation to it." (I Greenleaf on Ev., 13th Ed., §286; Canal Co. vs. Hill, 15 Wend., 94.) So also is it true, as insisted upon by plaintiff, that "where the agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms." (I Greenleaf Ev., 13th Ed., $282.) Now the term "deficit" may not only indicate an amount wanting, as shown by the books, to balance the officer's account, but the fact may be that such amount had been then misappropriated by the officer and evidence showing the true state of facts is admissible. We do not in this case, however, see any necessity for any further testimony upon the part of the plaintiff to make out its case. The record discloses that anterior to the execution of this agreement one of the defendants' counsel had been examined as a witness; that he had prepared a statement from the books showing the amount due by the Treasurer at the several dates indicated, and throughout his testimony the term deficit indicates sums shown to be due by the books and not amounts which he, or any one else, knew to have been before that time misapplied. During the progress of the trial, and after the defendants had indicated what was meant by this word in their opinion, through their witness, he being one of their attorneys, this agreement is made. The result is that defendants, by their own witness and attorney, having given a meaning to the

M. L. and B. A. v. Price and Price-Opinion of Court.

word deficit, and their own testimony introduced upon the trial before this agreement was entered into, showing that the excess of "collections" over "disbursements" as shown by the books was the signification given to this word by all the parties anterior to the agreement, it must be given the same signification in the agreement. The case as we view it is, therefore, one in which the finding of the referee and the judgment of the court should as to this sum have been for the plaintiff, and for that reason the judgmen must be reversed and a new trial awarded. As a matter of course the surety may prove upon the new trial that the misappropriation occurred anterior to the execution of the bond. It was contended by the sureties that the meaning of the term "deficit" was fixed by this court in the previous appeal. As applicable to the first deficit we distinctly stated that there was no appeal, and hence the present question was not before us.

With reference to the other periods we did not understand it to be denied that the misapplications had occurred as claimed. The question there was one of law as to admitted misapplications of the society's funds and the defence was laches and failure to hold the annual election of the Treasurer as required by the By-laws.

The judgment here is an entire judgment. It is not for different things separable in their nature and separated in the record. This judgment is upon this record erroneous to the extent indicated by this opinion. We cannot see how it can be divided by us and affirmed as to the second deficit and reversed as to the first, when the sums are not distinguished in the judgment, nor can we send a part of the case back for new trial, leaving one section of the cause disposed of here and the other pending in the Circuit Court. Story vs. New York and Harlem R. R. Co., 2 Selden (6 N. Y.), 91.

Edgerton v. Mayor, &c., Green Cove Springs-Opinion of Court.

The judgment is reversed and new trial awarded, the defendants in the action to pay the costs of each appeal.

THEODORE T. EDGERTON, PLAINTIFF IN ERROR, VS. THE MAYOR AND ALDERMEN OF THE TOWN OF GREEN COVE SPRINGS, DEFENDANTS IN ERROR.

1. Section 12, Chapter 1,868, of the Laws of this State, as amended by Section 2, Chapter 3,024, which authorizes municipal corporations to extend and open streets, and make to the parties injured thereby such reasonable compensation and charge those benefitted reasonable assessments for bencfits accruing to their prop. erty, is constitutional.

2. A municipal corporation may, in conformity to the provisions of such statute, appropriate private property to use as a street, making just compensation to the owner therefor, and the owner cannot object upon a tender of such compensation on the ground that the money was the amount or part of the amount taxed as a benefit to other neighboring proprietors.

Writ of Error to the Circuit Court for Putnam county. to which the case was transferred from Clay county. The facts of the case are stated in the opinion.

MR. JUSTICE WESTCOTT delivered the opinion of the

court.

The proceeding in this case in the Circuit Court was upon a certiorari issuing from that court upon the petition of the plaintiff in error, Edgerton, directed to the defendants in error, the Mayor and Aldermen of Green Cove Springs, commanding a return to the Circuit Court of the records and proceedings of the Mayor and Aldermen of Green Cove Springs in the matter of the extension of Front street in said town over the grounds of the plaintiff in error, Edgerton.

Edgerton v. Mayor, &c., Green Cove Springs-Opinion of Court.

The plaintiff in error, Edgerton, in his petition for the certiorari, claimed that the proceedings in the matter were irregular, and asked such action at the hands of the court as of right and according to law should be done. The proceedings of the municipal corporation were returned, and, upon their inspection and after hearing, the court found that there was no error and ordered that the petition be dismissed. The writ of error in this cause now brings this action here for review.

The grounds of irregularity set forth in the petition before the Circuit Court upon which the certiorari was issued

were:

First. That the amount of damages assessed had never been tendered, or provision made for their payment. Seccnd. That the proceedings are irregular and do not authorize the extension of said Front street over and upon the grounds and enclosure of the petitioner.

The grounds upon which the judgment of the Circuit Court is sought to be reversed here now do not correspond in all respects with those upon which the Circuit Court was desired to base its judgment. We do not understand that it is now denied that the amount of damages had been tendered. The Plaintiff in Error here denies the power of the Legislative Department of the government to enact the statute under which the extension of the street has been ordered by the municipal corporation, questions the regularity of the proceedings as shown by the record, and affirms that the Mayor and Aldermen were not justified by the proceedings in directing the extension desired.

The municipal corporation claims to exercise this powerunder Section 12, Chapter 1868, of the Laws of Florida, as amended by Section 2, Chapter 3024, Laws, approved March 8, 1877.

This section, as amended, read: "The City or Town

Edgerton v. Mayor, &c., Green Cove Springs-Opinion of Court.

Council shall have power to regulate, improve, alter, extend and open streets, lanes and avenues; to cause encroachments and obstructions, decayed buildings and ruins to be removed; to construct drains and sewers, and make to the parties injured thereby such reasonable compensation, and charge upon those benefited such reasonable assessments, as may be agreed upon by the said council and the said party or parties; and in case no such agreement can be made, then the council shall appoint five discreet persons, holders of real estate in said city or town, to ascertain and fix on the one hand a fair and equitable assessment, and on the other a just compensation; and that the said assessment shall be a lien on the real estate improved and assessed; and that every person who enters his particular drain into the main drain or common sewer, and receives a benefit thereby from draining his land, shall pay to the city or town his proportional part of making or repairing the same."

It is insisted that this section conflicts with Sections I and 6, of Article XII., of the Constitution, and that the provisions of the section in the matter of extending and opening this street are void.

These sections of the Constitution are as follows:

Section 1. "The Legislature shall provide for a uniform and equal rate of taxation, and shall prescribe such regulations as shall secure a just valuation of all property, both real and personal, excepting such property as may be exempted by law for municipal, literary, scientific, religious or charitable purposes."

Section 6. "The Legislature shall authorize the several counties and incorporated towns in the State to impose taxes for county and corporation purposes, and for no other purpose; and all property shall be taxed upon the principle established for State Taxation. The Legislature may also