Barber Asphalt Paying Company v. Gogreve

• Decision Date: 01 March 1889
• Docket Number: 10,239
• Court: Louisiana Supreme Court
• Parties: BARBER ASPHALT PAYING COMPANY v. H. R. GOGREVE

5 So. 848

41 La.Ann. 251

BARBER ASPHALT PAYING COMPANY v. H. R. GOGREVE

No. 10,239

Supreme Court of Louisiana

March 1, 1889

APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

Leovy &amp Blair, for Plaintiff and Appellee.

Braughn Buck, Dinkelspiel & Hart, for Defendant and Appellant,

B. R Forman, on the same side.

OPINION

WATKINS J.

Claim is made by the plaintiff for $ 2164 65, as two-thirds of the contract price of laying a street asphalt pavement on st. Charles avenue, in front of the defendant's premises, with eight per cent interest from the 1st of August, 1885.

It avers that, on the 13th of October, 1883, by an act passed before a notary, it made a contract with the City of New Orleans, through her Mayor, who was duly authorized thereto by ordinance, to lay street asphalt paving on St. Charles avenue, in said city; and that said contract was made and said paving done, in accordance with and in pursuance of Sections 21 and 32 of Act 20 of 1882, Act 73 of 1876, ordinances numbered 239 and 451, Council Series, and other laws and ordinances on the same subject-matter, in force at the time.

It further avers that, previous to making said contract, the property holders on said avenue having the legal requirement of feet front, petitioned for the construction of a street asphalt pavement, and said petition was duly and legally advertised, and as recited in Ordinance No. 239, C. S.

That, at the time of the adoption of said ordinance, the execution of said contract, and the presentation of said work, the defendant was a front proprietor on said avenue, and owned a front on the south side thereof, between Carrollton avenue and Dublin street, of three hundred and twenty-five feet, "and is liable for the paving, curbing and other work done under said contract in front of his property, as far as the neutral ground, to the amount of two-thirds of the contract price thereof -- the capital sum and interest above stated -- with lien, privilege and right of pledge, as stipulated in Act 73 of 1876, duly recorded.

It further shows that, upon the completion of the work, a certificate was obtained from the City Surveyor, and Commissioner of Public Works, duly approved by the Mayor, attesting the completion of same according to contract, and which certificates are annexed to and made a part of the petition.

This claim is met by no substantial defenses, on the part of the defendant, but, on the contrary, by a technical exception to the duplicity of the petition, in the first instance, and by sundry technical objections to the formality of the proceedings, and of the manner of plaintiff's pursuance of them.

They may be epitomized as follows, viz:

1. An exception, that plaintiff's reference to Act 73 of 1876, and Act 20 of 1882, without specifying upon which it relied as authority for its contract, made its petition vague; and that, as the provisions of those acts are inconsistent, it should be ordered to elect between them.

2. That Act 73 of 1876 was repealed by Act 20 of 1882.

3. That the contract provided for the laying of a patented pavement, in violation of the letter and spirit of Section 21 of Act 20 of 1882, which requires that all such work shall be awarded to the lowest bidder.

4. That plaintiff's demand for a forced assessment is a tax, in the sense of Article 209 of the Constitution, and the power of the city to levy taxes thereunder, for the year in which said contract was made, was exhausted before same was made, and it is ultra vires and unconstitutional.

5. And that the work contemplated in said contract was one of public improvement, in the sense of said Article 209, which could not be undertaken at their expense, without a vote of the property taxpayers; and for this reason the demand is illegal.

6. That St. Charles avenue is, in fact and in law, two streets, separate and distinct from each other, with a strip of land between them, of about thirty or forty feet in width, which is designated as "neutral ground," and owned by the corporation, and used by the New Orleans and Carrollton Railway Company, under a contract with the City Council; but, in the petition of the property holders, and all subsequent proceedings, the same were treated as one single street -- the property holders residing on any and all parts of either, signing same indifferently -- and, that such petition and subsequent proceedings were thereby vitiated, and did not create forced liability on the property holders, on either of said streets.

7. That said petition was not signed by the requisite number of owners prescribed by Section 32 of Act 20 of 1882, whether said section is construed to mean one-fourth of the owners in number, or the owners of one-fourth of the property fronting on the street; and this is particularly true of the south, or river side of the avenue.

8. That many of the signatures affixed to the property holders' petition were unauthorized, and cannot be counted, in ascertaining the number of front feet.

9. That St. Charles avenue, from Lee Circle to Madison avenue, Carrollton, is four or five miles in length, and that his property is situated near or at the upper end of Carrollton, and that it is not the spirit or letter of the law, that the full length of the same should be considered and treated as a unit, on which the one-fourth frontage is to be calculated; as, in so considering and treating it, property holders exclusively at one end "might bind the owners to an extension of three times more the distance; * * * and that for a distance of one mile, at least, from (his) property, much less than one-fourth in number, or amount of frontage is represented in said petition."

10. That the contract is null and void, because the property holders' petition called for street asphalt pavement, "according to specifications of the City of Washington," and this condition was not observed therein; the pavement contracted for differing therefrom, in essential particulars.

11. That said petition "was intended to and did ask for the paving of St. Charles avenue, from Lee Circle to Madison avenue, Carrollton, * * * and that the contract, as now sued on, was awarded and executed for the paving of certain portions of said avenue, the whole of the roadway on the swamp side, from Louisiana to Carrollton, being excluded and not paved."

12. That, after the publication of the petition, material changes were made, in the width of the roadways that were paved.

13. That the specifications for the work, and the contract on which publication for bids were made were not adhered to in many particulars, and the bond and security stipulated were not given.

14. Neither the specifications nor the contract stipulate the respective proportions payable thereunder by the city and the property holders; and the city was without authority to contract for a rate of interest in excess of four per cent.

15. That if Act 73 of 1876 be held to have been repealed by Act 20 of 1882, he insists that the provisions of the former were not within the contemplation of either of the parties at the commencement of proceedings, and that "all acts are expressly and in terms set forth, in all ordinances and publications, done or intended to be done, under Sections 21 and 32," of the latter.

16. That there never was an absolute or independent vote taken by the council for the paving of St. Charles avenue, as contemplated in the Act of 1876, "and, the alleged passage of ordinance No. 239 C.S., by a two-thirds vote, if true, is not an independent expression of the legislative will of the council" for the purposes defined in the act.

17. That, if it be held to have been passed by such a two-thirds vote, same is absolutely null because the "notice of intention" contemplated by said statute was not given, and that same was a condition precedent thereto.

The elaborate answer of the defendant is concluded by an alternative averment that, in any event, his liability cannot exceed one-half the cost of the pavement of the avenue immediately in front of his property.

We have been at great pains to critically analyze the answer, and state the various objections urged therein, in order that our opinion should not pass its limits. We will take them up, and dispose of them in the order of their proper sequence.

I.

Before going into the trial, the plaintiff's counsel caused the following entry to be made upon the minutes of the court, viz:

"Counsel for defendant having called upon counsel for plaintiff to elect, according to defendant's interpretation of his petition, upon which Act, namely, Act No. 73 of 1876, or Act No. 20 of 1882, plaintiff relied in support of the validity of his contract as to form, counsel for plaintiff states that, so far as matters of form are concerned, he relies upon Act No. 20 of 1882, and so far as the proportion of payments to be made by the property holders is concerned, and for his remedies, that he relies upon Act No. 73 of 1876, as stated in the petition and contract."

This fully responds to the defendant's exception.

Plaintiff's counsel entertained the opinion that the provisions of the two acts were not inconsistent, and thus believing they had a perfect right to urge them alternatively in their pleadings, as they are alleged to have done in their proceedings. Their right so to do cannot be tested by a dilatory exception. It is a matter for the merits.

II.

Section 1 of Act 73 of 1876 designates the method of proceeding on the part of property holders who desire to have street-paving done, and, also, on the part of the City Council -- including the petition, advertisement, memorial of opponents adjudication of the work, the manner of paying the cost of same, and by whom it shall be...