(263 F.) "In determining whether an improvement does, or does not, benefit property within the assessment district, the land should be considered simply in its general relations and apart from its particular use at the time; and an assessment, otherwise legal, for grading, paving, and curbing an adjoining street, is not void under the Fourteenth Amendment because the lot is not benefited by the improvement owing to its present particular use. * A statute like the present manifestly might lead to the assessment of a particular lot for a sum larger than the value of the benefits to that lot. The whole cost of the improvement is distributed in proportion to area, and a particular area might receive no benefits at all, at least if its present and probable use be taken into account. If that possibility does not invalidate the act, it would be surprising if the corresponding fact should invalidate an assessment." [7] Nor is the salability or nonsalability of property at any given time a true criterion. The real estate market has been notoriously dull for some time past, owing partly to the prohibitive cost of building. Conditions of this sort may convey superficially the false impression that property of substantial value is, in effect, of no value whatever. It would be idle to say that a substantial improvement of this nature, without which the real estate in question would be of little practical use or desirability, does not very materially add to its intrinsic value. Neither courts nor councils are held to exact computations. It is a matter of common knowledge that the exact, or even the approximate, benefits accruing from improvements of this nature, are not susceptible of precise ascertainment. On that account, systems of public improvement proceed upon standards largely conventional; the limitation being that the result shall be neither unreasonable nor confiscatory. In Egyptian Levee Co. v. Hardin, 27 Mo. 495, loc. cit. 499 (72 Am. Dec. 276) Judge Napton made this observation, which may well be adapted to the present situation: "Equality of taxation may, however, be regarded as one of those Utopian visions, which neither philosopher nor legislator has ever yet realized. Approximation may be arrived at, and ought to be, and to a reasonable extent attained; but such is the infinite variety and complexity which human transactions assume, that it surpasses the ingenuity of the political economist and practical politician to foresee exactly where and how the pressure of a proposed tax will fall." "A system of delusive exactness should not be extracted from the very general language of the Fourteenth Amendment, in order to destroy methods of taxation which were well known when the amendment was adopted, and which no one then supposed would be disturbed." Louisville & Nashville R. R. Co. v. Barber Asphalt Pav. Co., 197 U. S. 430, 434, 25 Sup. Ct. 466, 467 (49 L. Ed. 819). "The honest legislative action of the council raises a conclusive presumption that the benefits received from the improvements will equal the charge imposed. The law presumes that the council has made careful investigation before it acted. To say that the courts have the right of review would substitute their discretion for that of the Legislature, and would practically deprive the city of the legislative powers conferred upon it." Morse v. Westport, 136 Mo. 276, 286, 287, 37 S. W. 932, 934. From the facts before me, and the law, as already stated, I am unable to find that the board of public works and council acted arbitrarily, unreasonably, and oppressively in ordering the paving of this street in the manner it did. We have not here a business improvement upon a street obviously and concededly residential in its nature, nor a section of pav 126 ing located in an uninhabited portion of the city and disconnected with any other street or similar improvement, as was the case in Corrigan v. Gage, supra. We have a natural extension in kind of an improvement already existing and related. [8] Neither can I find from the record that the assessment is so excessive, imposing a burden upon the citizen without any corresponding benefit to him, or the community of which he is a constituent, as to amount to confiscation, and to render the action of the common council so unreasonable and oppressive as to justify the interference of this court. Proceedings in invitum are not to be upheld merely because parties in good faith have performed work or expended money in reliance upon their validity; but, on the other hand, such proceedings, apparently regular, are not lightly to be set aside because of varying opinions upon matters confided to official judgment and discretion. Otherwise public improvements must be wholly arrested, or prosecuted at prohibitive cost commensurate with the risk. fraud on the part of the city government is undisclosed in pleadings or In the case at bar, proof. It follows that the finding must be for the defendants, and a decree may be entered accordingly. UNITED STATES v. KENDALL (District Court, E. D. Louisiana, New Orleans Division. February 24, 1920.) Nos. 8305, 8955. 1. JUDGMENT 760-FEderal court JUDGMENTS NOT LIENS INDEPENDENT OF STATUTE. Federal court judgments are not liens independent of statute, as the mere entry of judgment created no lien at common law. 2. JUDGMENT 766-FEDERAL COURT JUDGMENT NOT A LIEN IN PARISH OF ORLEANS. Under Rev. St. § 967 (Comp. St. § 1608), providing that federal court judgments shall cease to be liens in the same manner as those of state courts, and Civ. Code La. arts. 3321, 3322, 3388, and Code Prac. La. art. 545, making state court judgments liens only after recording in the parish of Orleans, etc., a judgment rendered by a federal court in New Orleans did not, prior to August 1, 1888, become a lien until recorded as required by the state statutes. 3. JUDGMENT 770, 868(1)—CREATION OF LIEN OR REVIVAL MAY BE EFFECTED WITHOUT ISSUING EXECUTION. Under Civ. Code La. § 3547, providing that prescribed judgments may be revived by issuing citations, it is unnecessary that execution issue upon a judgment to create a lien or to keep it alive. 4. EQUITY 85-LACHES NOT IMPUTABLE TO GOVERNMENT. Laches is not imputable to the federal government. 5. LIMITATION OF ACTIONS OR STATE GOVERNMENT. 11(1)-STATUTE DOES NOT RUN AGAINST FEDERAL Statutes of limitation do not run against either the United States or the state of Louisiana. 6. JUDGMENT 766-UNRECORDED JUDGMENT OF FEDERAL COURT BECAME LIEN AFTER ACT AUG. 1, 1888. Judgments entered by a federal court in Louisiana, which were not liens prior to August 1, 1888, because not recorded with the proper state offiFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (263 F.) cers as required by Rev. St. 967 (Comp. St. § 1608), Civ. Code La. arts. 3321, 3322, 3388, and Code Prac. La. art. 545, became liens when recorded with the clerks of the federal Circuit and District Courts in the manner prescribed by Act Aug. 1, 1888. 7. CONSTITUTIONAL LAW ITY. 48-CONSTRUCTION OF STATUTE AGAINST INVALID Repeal of a statute will not be construed to affect vested rights. 8. JUDGMENT ~753—LIEN not affected by REPEAL OF STATUTE, Act Aug. 17, 1912, repealing Act Aug. 1, 1888, § 3, making certain recorded federal court judgments liens on real estate in Louisiana, did not affect the lien of judgments that had been previously recorded under the repealed act. 9. JUDGMENT 766-WHEN Federal COURT JUDGMENTS ARE A LIEN IN LOUISIANA. Under Rev. St. § 967 (Comp. St. § 1608), Civ. Code La. arts. 3321, 3322, 3388, and Code Prac. La. art. 545, relating to the lien of judgments, federal court judgments rendered prior to August 1, 1888, or after January 1, 1913, do not become liens, unless recorded as provided by the Louisiana statutes. 10. JUDGMENT 766-FEDERAL COURT JUDGMENT LIEN WHEN RECORDED IN CLERK'S OFFICE. Under Act Aug. 1, 1888, federal court judgments recorded with the clerk of the Circuit and District Courts at New Orleans between August 1, 1888, and January 1, 1913, became liens on real estate in New Orleans owned by the judgment debtor during that period. At Law. Action by the United States against Peter J. Kendall. On rule by Julius D. Tchopik on the clerk of the District Court to show cause why judgments in favor of the United States against Kendall should not be declared inoperative. Rule discharged. Solomon Wolff, of New Orleans, La., for plaintiff in rule. FOSTER, District Judge. This is a rule by Julius D. Tchopik on the clerk of the District Court, contradictorily with the United States, through the United States attorney, to show cause why two judgments in favor of the United States against Peter F. Kendall should not be declared inoperative as liens on certain property at one time owned by Kendall. [1, 2] On February 1, 1878, and on May 14, 1881, the United States obtained judgments against Kendall for $1,430 and $10,304.42, respectively. It is settled that judgments of federal courts at law are not liens independent of statute, as the mere entry of judgment created no lien at common law. At that time the statute of the United States controlling the lien of a judgment was the Act of July 4, 1840, c. 43, § 4, carried into the Revised Statutes as section 967 (Comp. St. § 1608), reading as follows: "Judgments and decrees rendered in a Circuit or District Court, within any state, shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such state cease, by law, to be liens thereon." Construing this, the Supreme Court held that judgments of the Circuit and District Courts became liens in the same manner as judg For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ments of the state courts. Cooke v. Avery, 147 U. S. 375, 13 Sup. Ct. 340, 37 L. Ed. 209. The law of Louisiana then in force, and substantially the same as now, required judgments of the state courts to be recorded in the office of the recorder of mortgages in the parish of Orleans and in the offices of the clerks of court as ex officio recorders of mortgages in other parts of the state, in order to become liens, or judicial mortgages, as they are termed in Louisiana. Civ. Code, arts. 3321, 3322, and 3388; Code of Practice, art. 545. As the judgments in favor of the United States were not recorded in the state office, they did not at that time become liens on any property that might have been owned by Kendall. U. S. v. Honor No. 1657, U. S. Circuit Court of Appeals, 5th Circuit (unreported). Thereafter Congress passed Act Aug. 1, 1888, 25 Stat. 357 (Comp. St. §§ 1606, 1607). The act reads as follows: Section 1: "That judgments and decrees rendered in a Circuit or District Court of the United States within any state shall be liens on property throughout such state in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such state: Provided, that whenever the laws of any state require a judgment or decree of a state court to be registered, recorded, docketed, indexed, or any other thing to be done, in a particular manner, or in a certain office or county, or parish in the state of Louisiana, before a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such state shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed, or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the state." Section 2: "That the clerks of the several courts of the United States shall prepare and keep in their respective offices complete and convenient indices and cross-indices of the judgment records of said courts, and such indices and records shall at all times be open to the inspection and examination of the public." Section 3: "Nothing herein shall be construed to require the docketing of a judgment or decree of a United States court, or the filing of a transcript thereof, in any state office within the same county, or parish in the state of Louisiana, in which the judgment or decree is rendered, in order that such judgment or decree may be a lien on any property within such county." Section 3 was re-enacted by Act March 2, 1895, c. 180, 28 Stat. 814, but without material change or adding anything to the law. It is unnecessary to attempt to construe the proviso of section 1, as the law of Louisiana, as interpreted by the Supreme Court at that time, provided for the registration of federal judgments with like effect as state judgments. Adams v. Coons, 37 La. Ann. 305, decided April, 1885. Subsequently the Louisiana Legislature adopted Act No. 133 of July 5, 1916, giving to federal judgments the same effect as state judgments when recorded; but it was perhaps unnecessary, in view of the decision in Adams v. Coons, supra. Upon the passage of the act of 1888 the clerks of the Circuit and District Courts for the Eastern District of Louisiana established judgment record books, with the proper indices and cross-indices, as required by the act, and the two judgments against Kendall were properly recorded therein. (263 F.) On January 17, 1901, Kendall acquired a certain lot of ground and improvements in the city of New Orleans, which of course is coextensive with the parish of Orleans. By article 3328 of the Civil Code a judicial mortgage, or lien, attaches to after-acquired real property of the judgment debtor. On March 17, 1905, Kendall sold the said property to Peter J. Untereiner, and later, on July 21, 1905, Untereiner sold it to Julius D. Tchopik, the plaintiff in rule herein. On August 17, 1912 (37 Stat. 311), Congress repealed section 3 of the act of 1888, the repeal to take effect on and after January 1, 1913. [3-6] By article 3547 of the Civil Code, judgments in Louisiana prescribe by the lapse of ten years from their rendition, but any party in interest may have the judgment revived by simply issuing a citation, and this revival may be repeated indefinitely. Under the law of Louisiana it is not necessary that execution should issue upon a judgment to create a lien, or to keep it alive. The judgments against Kendall were not revived, but it is elemental that laches is not imputable to the government, and statutes of limitation do not run against either the United States or the state of Louisiana. U. S. v. Thompson, 98 U. S. 486, 25 L. Ed. 194; Bright v. New Orleans Railways Co., 114 La. 679, 38 South. 494. It is contended on behalf of plaintiff in rule that the judgments against Kendall were not liens, and the act of 1888 could not make them so. With this I do not agree. The judgments were potential liens under R. S. § 967, and only required recording in the office of the recorder of mortgages for the parish of Orleans to become judicial mortgages under the law of Louisiana. Congress, by adopting the act of 1888, substituted recording in the office of the clerk of the Circuit Court for recording in the mortgage office in the parish of Orleans. It is evident, therefore, that the lien of the judgments in favor of the United States attached to and continue to burden the real estate purchased by Kendall in 1901, unless they have become void by the repeal of section 3 of the act of 1888. [7, 8] Repealing statutes are not to be construed as affecting vested rights. Memphis v. U. S., 97 U. S. 293, 24 L. Ed. 920; Wabash & Erie Canal Co. v. Beers, 2 Black, 448, 17 L. Ed. 327; Steamship Co. v. Joliffe, 2 Wall. 450, 17 L. Ed. 805; Hall v. Wisconsin, 103 U. S. 5, 26 L. Ed. 302; Society, etc., v. New Haven, 8 Wheat. 493, 5 L. Ed. 662. Therefore I do not think it was the intention of Congress, in repealing the third section of the act of 1888, to affect judgments that had been properly recorded in the offices of the clerks of the federal courts, although the operation of the act is postponed a few months. Rather is it to be considered that Congress wished to draw the line, on a convenient date, between judgments then in existence and those to be later rendered, and selected January 1st for that pur pose. [9, 10] From a consideration of this case it appears that judgments in the Circuit and District Courts of the United States in New Orleans fall into three classes: 263 F.-9 |