tion of trustee to the warrant holders which it did with respect to the assessments upon private property.

The argument that the city repudiated its trust by the abandonment of the work of drainage in 1876 is untenable. Indeed, by the very act of February 24, 1876, under which the city was authorized to purchase the canal company's plant, the city was giv en exclusive control of all the rights, pow.

canal company, and authorized to do all the drainage work required to be paid for by assessments upon property, or from the city treasury. What was this purchase made for if not to continue the drainage work? It can scarcely be supposed that the city purchased this plant with a view of discontinuing such work. If it were abandoned at that time it might readily be supposed that such abandonment was temporary, and that the purchase was made in good faith, and for the purpose for which it should have been purchased, namely, the prosecution of the work.

actions by cestuis que trust against an express trustee, the statute of limitations has no application, and no length of time is a bar. While that relation continues, and until a distinct repudiation of the trust by the trustee, the possession of one is the possession of the other, and there is no adverse relation between them. Perry, Trusts, § 863, In Oliver v. Piatt, 3 How. 333, 411, 11 L. ed. 622, 657, it is said that "the mere lapse of time constitutes of itself no bar to the en-ers, and franchises formerly invested in the forcement of a subsisting trust; and time begins to run against a trust only from the time when it is openly disavowed by the trustee, who insists upon an adverse right and interest, which is fully and unequivocally made known to the cestuis que trust." To set the statute in motion the relation of the parties must be hostile, and so long as their interests are common, or their relations fiduciary, as in the case of landlord and tenant, guardian and ward, vendor and vendee, tenants in common, or trustee and cestuis que trust, the statute does not begin to run. Zeller v. Eckert, 4 How. 289, 11 L. ed. 979; Seymour v. Freer, 8 Wall. 202, 19 L. ed. 306; Lewis v. Hawkins, 23 Wall. 119, 23 L. ed. 113. This doctrine has been applied in Louisiana in favor of an administratrix having claims against the estate, in which it is held that, as she cannot sue the estate, the statute will not run against her on her claims against the estate, so long as she is administratrix. Farmer's Succession, 32 La. Ann. 1037; McKnight v. Calhoun, 36 La. Ann. 408. A like ruling was made with respect to taxes levied for a particular purpose, as to which the city was held to be a trustee, in Parish Bd of School Directors v. Shreveport, 47 La. Ann. 1310, 17 So. 823. This trust has never been repudiated by the city. In fact, one of the defenses set up in the answer was that the city had applied itself with great diligence, and to the 2. A defense of res judicata, not noticed by full extent of its ability, to improve and the court below, is set up as arising from the [131jmake serviceable the drainage work and to decree of the circuit court, affirmed by this proceed with the collection of drainage taxes, court in the case of Peake v. New Orleans, and did all in its power to prosecute the col-139 U. S. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. lection of the same, extending the drainage work on its regular tax bills, which were asserted and claimed in every account filed in the courts by administrators, executors, syndics, and other persons exercising like authority. By these modes and others, collections were made and accounted for. Indeed, the whole gist of the answer is that the city has executed its trust faithfully, so far as it was possible to do so, by collecting assessments against private persons, but has not accounted for taxes assessed against itself, because it is not legally responsible therefor. There is no claim throughout the answer that the city disavowed the trust.

At the time the assessment rolls were homologated and the judgments against the city were rendered, there was no claim made that the city was not responsible, or that the public grounds, streets, and squares were not assessable for these improvements; and in so far as the collection of these judgments is concerned, the city stood in the same rela

We deem it entirely immaterial whether the assessments *against the city for the[133] drainage of public property were reduced to judgments or not. When put in this form they were none the less obligations of the city-debts which it owed to the drainage fund, was bound to treat as assets collected, and such as were held by it as trustee for the benefit of the warrant holders. Perry, Trusts, § 440; Stevens v. Gaylord, 11 Mass. 269; Sigourney v. Wetherell, 6 Met. 557; Leland v. Felton, 1 Allen, 533. The debts of private owners it agreed to use due diligence to collect, and as to these it was a trustee. Its own debts it was bound to pay, and as to these it was equally a trustee. By reducing its own claim to judgment it neither ceased to be debtor nor trustee.

541. This plea is based upon the fact that in that case one James Jackson appeared by intervening petition as the holder of eight purchase warrants, identical in character with those sued upon by the complainant,-part of those given in payment of the purchase price of the drainage plant from the canal company and Van Norden; that the decree in the Peake Case was a dismissal of complainant's bill and of all intervening peti tions; and that the decree upon the warrants sued upon by Jackson was decisive of the whole series of purchase warrants. It is a sulicient reply to this plea to say that the com plainant Warner was neither a party nor a privy to this litigation, and that the decree was binding only upon Peake and such others as actually intervened. Hook v. Payne, 14 Wall. 252, 20 L. ed. 887. Indeed, the attempt to identify these warrants with those which were made the basis of Jackson's intervention was evidently an after-thought, as the city in its answer, while setting up

the decree in the Peake Case, makes no mention whatever of the intervening petition of Jackson, and relies upon the final decree of this court (139 U. S. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. 541), which turns only upon defenses applicable to the Peake claim.

such fund, deliberately abandon that duty,
take steps to prevent the further creation of
the fund, and plead in defense to a liability
on the warrants that it had, prior to the pur-
chase, paid off obligations theretofore cre-
ated against the fund.

But the case, so far from being res judi- For these reasons we hold that there is not cata of this, is not even a decisive authority. only no room for a plea of res judicata, but The complainant Peake was a holder of war-that the Peake Case is not to be considered rants issued to the Mississippi & Mexican as a controlling authority. [133]Gulf *Ship Canal Company under the act of 3. The gravamen of the bill is that, after February 24, 1871, which authorized the the purchase of the drainage plant, the city canal company to undertake the drainage became possessed of the sole power of comwork, required the boards of drainage completing the system of drainage, that it missioners to transfer to the board of admin- became its duty to do so or to establish some istrators all their assets, and required the lat- other system; but that from the very date of ter to collect the drainage assessments and the purchase the city ceased all work, sold place them to the credit of the canal com- some of the boats and machinery purchased, pany. This court held that, under this act, diverted the proceeds of taxes to other purthe city, though a trustee, was a compulsory poses than that of the payment of drainage trustee and its obligations strictly statutory, warrants, allowed other boats to rot and such as placed upon the city only a limited sink, and also permitted the canal dug by the responsibility for that which the board of company to fill up with sediment. Further, administrators might do or omit to do; that that the city did nothing to enforce payment it had been denuded by the legislature of all and collection of the drainage taxes, but freedom of action; that it had no choice of adopted an ordinance advising drainage taxcontractor or price; that neither the prop-payers not to pay, whereby, by reason of her erty to be taxed nor the means or method of conduct in abandoning her system of draincollecting its assessments were intrusted to age, the supreme court of Louisiana in Daits discretion, and that by providing an of-vidson v. New Orleans, 34 La. Ann. 170, deficer for the collection of the assessments it cided that such taxes could not be enforced had discharged its duty in that particular. In the intervening petition of Jackson he avers that he is the holder of eight warrants, similar to those described in the bill of Peake, upon which he had obtained judgment; and it is only by looking at the orig-answer that it had performed its full duty inal petition on the law side of the court that it appears that these warrants were is sued in favor of Van Norden, transferee of the ship canal company, and that they were indorsed by him. They were evidently treated by this court as standing upon the same footing as the Peake warrants. But, however this may be, the whole opinion of this court is based upon the Peake warrants, which, as before said, were not purchase warrants at all, and no allusion is made in that opinion to the Jackson intervention.

and collected. That by this and other means
it destroyed the drainage fund, until now the
same has become unenforceable and worth-
less to the holders of the warrants.

In this connection the city averred in its in relation to the collection of assessments against private property, but admits that the proclamation referred to in the bill advising property owners not to pay drainage assessments was issued by the mayor under authority of an ordinance of the city. It further alleged that the drainage plans made by the canal company were so defective that their completion would have been of no benefit to the property attempted to be drained; [135] that the work done under them was also defective and of no value, and that for these In the case under consideration the com- reasons the city was justified in suspending plainant bases his suit upon $6,000 of war- the further prosecution of the work, which rants given for the purchase of the drainage resulted in the decision of the supreme court plant. The obligations of the city with re- in the case of Davidson v. New Orleans, 34 spect to these are measured, not by the act La. Ann. 170, declaring judgments for drainof 1871, but by the act of February 24, 1876, age assessments void for failure of considerauthorizing such purchase, and by the con-ation, and that this decision had become the tract of sale, wherein the city agrees to facilitate by all lawful means the collection of the drainage assessments, and to apply the same to the liquidation of these warrants. In respect to these warrants we held, when this case was first before this court (167 U. S. 467, 477, 42 L. ed. 239, 242, 17 Sup. Ct. Rep. 892), that the city acted [134]voluntarily; that it was not, in reference to these warrants, as it was to those in the Peake Case, a compulsory trustee, but a voluntary contractor; and that it could not, when purchasing property and contracting to pay for it out of a particular fund, and issuing warrants therefor payable out of

settled rule of law in the state, rendering
further collections impossible; but that, not-
withstanding this decision, the city had con-
stantly and at all times endeavored in every
way possible to realize the assessments; and
the city filed an account showing the collec-
tions made in 1871 to June 20, 1891, inclu-
sive, and the disposition thereof, as a suffi-
cient compliance with its duty as trustee.
The answer further set up and pleaded that
the city had discharged itself from all lia-
bility for drainage taxes which it had col-
lected, or ought to have collected, for the ben-
efit of the warrant holders, by the issue and
delivery of bonds to the amount of $1,672,-

105.21 to take up drainage warrants issued under the act of 1871, all of which were used and applied at various times between May 10, 1872, and December 31, 1874, to the redemption of drainage warrants.

That the city is estopped to plead the issue of bonds as a discharge of its obligation to the holders of these purchase warrants was settled upon the prior hearing of this case. Warner v. New Orleans, 167 U. S. 467, 42 L. ed. 239, 17 Sup. Ct. Rep. 892. In this connection we said "that one who purchases property, contracting to pay for it out of a particular fund, and issues warrants therefor payable out of that fund,-a fund yet partially to be created, and created by the performance by him of a statutory duty,-cannot deliberately abandon that duty, take active steps to prevent the further creation of the fund, and then, there being nothing in the fund, plead in defense to a liability on the warrants drawn on that fund that it had, prior to the purchase, paid off obligations theretofore created against the fund."

another ordinance was adopted in July re-
quiring three boats which were then in bad
condition to be broken up and the ma-
terial stored. Subsequently, and in April,
1881, the mayor was authorized to issue and
did issue a proclamation advising the people
not to pay their drainage taxes until the
question was decided by the supreme court,
although the validity of these taxes had been
determined in the case above cited. This ex-
pected decision was delivered in March, 1882,
in the case of Davidson v. New Orleans, 34[187]
La. Ann. 170, in which the court found that,
owing to the fact that plaintiff derived no
benefit from the contemplated drainage, the
abondonment of all drainage work, the dis-
posal of all drainage apparatus, the impo-
tency of the city to resume the enterprise,
and the fact that the property assessed was
worth but one tenth of the amount claimed,
the taxes could not be collected. The prior
case was cited, and the decision put upon
the ground that "causes occurring subse-
quently to the rendition of judgments may
render their execution illegal and inequitable
and violative of rights not within the con-
templation of the court when the judgment
was rendered, and not intended to be fore-
closed thereby.
Here would be fail-

Prior to the purchase of the ship canal
company's plant from Van Norden, the legal-
ity of these drainage assessments had been
affirmed by the supreme court of Louisiana.
Re First Draining Dist. Comrs. 27 La. Ann.
[136]20. *This was a proceeding by the city board ure of the only possible consideration of such
of commissioners praying for the homolo- judgments, and it could not be doubted that
gation of certain assessment rolls for such failure would furnish just ground to
drainage taxes to which opposition enjoin their execution." But the court did
was made upon different grounds. The not hold that the city itself could set up this
court, however, sustained the assess-defense,-its own dereliction of duty.
ments, and, in the opinion, remarked that We do not appreciate the equity of now
"the state in ordering the draining is exer- permitting the city to set up this decision
cising sovereign power, and can, of course, as an excuse for its failure to collect these
direct or authorize the work to be done in assessments, since the decision itself is based
such way and compensation made on such upon the fact that the city had been derelict
terms as in its discretion may seem best, re-in abandoning the work, and failing to carry
strained only by the fundamental principles
upon which the government is to be conduct-
ed; and we find nothing in them inhibiting
the state from having the means provided for
such a work, in the way it is done in the
present system of drainage in the city of New
Orleans. On this question we see no room
for judicial interference with the discretion
of the state, and we think the existing laws
authorize the collection sought herein to be
enforced." So far, then, as the law is con-
cerned, there would seem to have been no
doubt of the validity of these assessments,
had the city continued the work and lived up
to the obligations of its contract with Van
Norden.

out in good faith its contract with Van Norden. The court of appeals further found that, so far as the answer attempted to fasten the responsibility for the alleged defects in the drainage plant upon Van Norden, its transferee, as a defense to this action, it was entirely unsupported by the evidence, as counsel for the city very frankly admitted in their argument at the hearing. Under the act of February 24, 1871, authorizing the ship canal company to undertake the work, power was reserved to the city board of administrators to designate the location of the canals and levees to be built by the company subject to certain specifications provided by the act to build and run all the pumps and With reference to its alleged neglect in this drainage machinery necessary to lift the waparticular the court of appeals found that ter from the canals into Lake Pontchartrain, all the facts averred in the bill had either and to keep the water in the canals at the been admitted by the answer, or abundantly proper level for the work of excavation, and established by evidence. When the city pur-at the same time assist the drainage of the chased the drainage plant it seems to have adjacent lands. It was further made the[138] been in good condition, and, although the duty of the city surveyor to examine the work had been about two thirds completed, work each month, certify to the administrathe city not only abandoned the work, but tors of accounts the number of cubic yards proceeded to disqualify itself from undertak-excavated and the number of yards of levees ing it. In April, 1878, an ordinance was built, for which warrants were to be drawn adopted instructing the administrator to advertise the dredge boats for sale. Although this does not seen to have been carried out,

upon the administrators of finance, and to be
paid from the funds to the credit of the canal
company. In fact, the city by ordinance lo-

Asphalt Paving Co. v. Gogreve, 41 La. Ann. 251, 259, 5 So. 848.

cated these canals, put the matter in charge the center of the street opposite the paved of the administrator of improvements, and, read. It was held that the city should pay through its officers, exercised supervision one half of the entire cost of paving, upon over the work. The testimony is that it was the ground of its ownership of this public done strictly in accordance with the specifi- ground. This case was subsequently apcations furnished. If, as testified, it was not proved in the similar case of Correjolles v. sufficiently extensive to meet the require-Foucher, 26 La. Ann. 362, and in Barber ments of the city, or the plant was in any respect defective, such faults were due to the city itself, rather than to the contractors. In this connection the conclusion of the court of appeals was that the plan under which the work was done by the canal company and its transferee would, if carried out as contemplated, have sufficiently accomplished the drainage of the lands within the several districts to render the assessments available, if the city had kept the work in a serviceable condition, as the law required. Indeed, the fact that the city had abandoned the work, and, so far from facilitating by all lawful means the collection of the drainage assessments as provided by law, not only did nothing in this direction, but advised the taxpayers not to pay such assessments, is really too clear for argument.

In McLean County v. Bloomington, 106 Ill. 209, it was also claimed that public property, being expressly exempt from taxes, was also exempt from special assessments. But, said the court, "we have been too long and too firmly committed to the doctrine that exemption from taxation does not exempt from special assessments, to now admit that it is even debatable. The distinction between taxation and special assessment is also clearly made in our present Constitution (§§ 1-5, 9, art. 9), and while providing that the general assembly may exempt the property of the state, counties, and other municipal corporations from the former, § 3 (supra) makes no provision in regard to the latter, but, on the contrary, 4. If the city be not estopped, by consentauthorizes the general assembly to ing to the homologation of the assessment 'vest the corporate authorities of cities, rolls, in other words, consenting to the towns, and villages with power to make lo-[140] judgments against itself,-to question its lia- cal improvements by special assessments' bility for the assessments upon its streets, without any restriction as to the property squares, and other public places, or by draw-to be assessed." This ruling was followed ing these warrants against the drainage in Adams County v. Quincy, 130 Ill. 566, 6 fund, we think the validity of those assess-L. R. A. 155, 22 N. E. 624; Beach, Pub. Corp. ments sufficiently appears from the opinions § 1172. The rule is different in Massachu of the supreme court of Louisiana, sustain-setts (Worcester County v. Worcester, 116 ing similar assessments upon public property. The argument is that public property, being exempt from taxation, is also exempt from these assessments; but the authorities have long recognized a distinction between general taxes, which are for the benefit of the public generally and which in the nature of things the public must directly or indirectly [139]pay, and special assessments for the benefit of particular property, which are a charge upon the property benefited. If this be private property, then each owner of such property pays his share; if it be public property, the city pays it as the agent of the entire body of its citizens, who are assumed to have been benefited to that extent. Charnock v. Fordoche & G. T. Special Levee Dist. Co. 38 La. Ann. 323.

Mass. 193), and perhaps also in Connecticut (State v. Hartford, 50 Conn. 89, 47 Am. Rep. 622), but, as this is a question of local law, we are bound by the Louisiana cases.

There is nothing in the several statutes of Louisiana upon the subject which indicates that private property only was intended to be affected. It is true that by the act of 1858, § 7, the district court is empowered to decree that each portion of the property situated within the draining limits is subject to a first mortgage, lien, and privilege in favor of the board of commissioners for such amount as should be assessed upon such property for its proportion of the cost of the draining; and that this was obviously intended not to apply to public property. But while it is doubtless true that public propThis was apparently the view taken by the erty was not intended to be chargeable with supreme court of Louisiana in the case of a lien under which it might be sold and title New Orleans Draining Co. 11 La. Ann. 338, pass to private parties, it by no means fol377, in which it is said of similar assess-lows that the city is not liable, and that in ments that "the large portion of the expen- such cases the amount should not be paid ses which, by this view, is thrown upon the out of the treasury. Adams County v. city for the streets, meets in some measure Quincy, 130 111. 566, 6 L. R. A. 155, 22 N. that equity which has been urged upon our E. 624. Indeed, something of this kind consideration, that as this work has been unseems to have been contemplated in the act dertaken for the public good, the public of February 24, 1876, § 4, where the city was ought to bear the charge of it, notwithstand-given the power of doing all the drainage ing the benefit to the owners of the soil." work "required to be paid for by assessments In Marquez v. New Orleans, 13 La. Ann. 319, property owners upon a certain street refused to pay more than one half of their assessments for paving, upon the ground that the city owned a promenade located in

upon property, or from the city treasury." This would seem to contemplate that the drainage work applicable to public property was to be paid for by the public out of the municipal treasury. Indeed, it is improb

ment of 1874, limiting the power of the city of New Orleans to contract debts, was not a complete defense to this suit. This amendment is as follows:

"The city of New Orleans shall not here after increase her (its) debt in any manner or form or under any pretext. After the 1st of January, 1875, no evidence of indebtedness or warrant for the payment of money shall be issued by any officer of said city except against cash actually in the treasury; but this shall not be so construed as to prevent the issue of drainage war

The argument is that the act of February 24, 1876, authorizing the purchase by the state of the drainage plant and franchise, is null and void, because it had the effect of increasing the debt of the city in violation of the supposed prohibition contained in said constitutional amendment of 1874.

able that, if the cost of draining the streets and public squares was to be included in the proportion which each parcel of private property was to contribute as its share of the expense, no mention was made of this or of the manner in which the liability of each private owner for his proportion of the expense of draining the public property was to be ascertained. That the city was itself liable was evidently the view taken by the city officers when the assessment rolls were homologated. [141] *One thing in this connection is certain. No general system of drainage could be es-rants to the transferee of contract under act tablished that did not include streets and No. 30 of 1871, payable only from drainage public squares as a part of the territory to taxes, and not otherwise." be drained. Assuming that no provision was made as to how the proportion applicable to public property was to be assessed and paid for, but that elaborate provision was made for the assessment of private property for its proportion of such expense, and for the creation of a lien therefor, enforceable by the courts, what follows? That priAt the time this amendment was adopted, vate property was to be assessed for its con- the act of February 24, 1871, which provides tributory portion of a public expense? Not for the drainage of New Orleans, was in at all. Private owners may be assumed to force. This act authorized the ship canal be interested in draining their own property, company to undertake the drainage of the but in the absence of a special provision to city under the general direction of the board that effect there is no presumption that they of administrators, and to provide funds for are also to be called upon to pay that which the payment of the work, directed the boards prima facie belongs to the public. Indeed, of drainage commissioners to turn over to in view of a recent decision in Massachusetts, it may well be doubted whether the leg. islature could impose the cost of draining public property upon private lotowners. Sears v. Boston Street Comrs. 53 N. E. 876. The expense of keeping streets in order is a public charge, and the same may be said of all other expenses which are for the bene fit of the public. It is true that the expense of paving may be assessed upon the adjoining property upon the theory that such property is specially benefited by the improvement, but a special provision is necessary to create such charge.

*

the board of administrators "all moneys, assessments, and claims of drainage in their hands," including all judgments in favor of the commissioners, authorized the board of administrators to collect from the holders of property within the draining districts the balance due on the assessments, as shown by the books, "which said assessments are hereby confirmed and made exigible, at such time and in such manner as the board of administrators may designate; provided, that the said board shall collect the said assessments herein authorized in time to provide for the[143 payment of the warrants to be issued to the said company at the date of their issue," and place all collections to the credit of the canal company for the drainage of the city. The ship canal company, having become embarrassed by the want of funds in the city treasury to pay the drainage warrants, on May 22, 1872, made a contract with Van Norden, by which he agreed to advance to the canal company $150,000 to meet the expenses of doing the work, upon condition of being reimbursed out of the warrants and money which might be obtained from the city of New Orleans, and to secure the same the company assigned to him all moneys, profits, and benefits that were to be realized by the execution of the work, as well as all certificates and warrants to be received, with authority to collect them. Subsequently, and on November 22, 1872, the company assigned all its property to Van Norden, acknowledging an indebtedness of $161,962.86 for moneys advanced. At the time the constitutional 5. The only other assignment of error we amendment went into effect the work was beare required to notice is that the court erred ing carried on by Van Norden under the in holding that the constitutional amend-above contracts with the ship canal company.

As the boards of drainage commissioners assessed the city for the expense of draining its public property, and the legislature approved all these assessments in the act of February 24, 1871, and the city subsequently assented to the homologation of these assess ment rolls, except in the first district, and to judgments against itself for the amount of the assessments, it is difficult to see upon what principle it can now, after a lapse of more than twenty years, raise the question of its liability. We know of no reason why these judgments should not be treated as conclusive. A judgment for taxes does not differ from any other in respect to its conclusiveness. United States v. New Orleans, 98 U. S. 381, 25 L. ed. 225; Driggers v. Cassady, 71 Ala. 533; Cadmus v. Jackson, 52 Pa. 295; Freem. Judgm. § 135; Mayo v. Foley, [142]40 Cal. 281; *Anderson v. Rider, 46 Cal. 134; Starns v. Hadnot, 42 La. Ann. 366, 7 So. 672.