Charles Tolmas, Inc. v. Police Jury of Parish of Jefferson

• Decision Date: 29 June 1956
• Docket Number: No. 42255,42255
• Citation: 231 La. 1,90 So.2d 65
• Parties: CHARLES TOLMAS, Inc. v. POLICE JURY OF THE PARISH OF JEFFERSON.
• Court: Louisiana Supreme Court

Page 65

90 So.2d 65

231 La. 1

CHARLES TOLMAS, Inc. v. POLICE JURY OF THE PARISH OF JEFFERSON.

No. 42255.

Supreme Court of Louisiana.

June 29, 1956.

Rehearing Denied Sept. 28, 1956.

Gerson Z. Tolmas and A. P. Schiro, III, New Orleans, for appellant.

Frank H. Langridge, Dist. Atty., Gretna, for appellee.

PONDER, Justice.

This is a suit to set aside an expropriation by the Police Jury of the Parish of Jefferson of plaintiff's property for a proposed road under the provisions of section 3369 et seq. of the Revised Statutes of Louisiana of 1870, LSA-R.S. 48:492 et seq., and for damages in the sum of $4,526.49 sustained by the plaintiff as a result of the taking; in the alternative plaintiff asks that the amount of $2,000 awarded for the property by the Police Jury be increased to $15,000. From a judgment denying plaintiff's demands as to the setting aside of the expropriation but allowing special damages in the amount of $1,625, the plaintiff has prosecuted this appeal.

On February 16, 1940, the plaintiff-appellant herein purchased a triangular portion of ground fronting Metairie Road in the Parish of Jefferson having a frontage of 204 feet front on Metairie Road, 193 feet, 1 inch front on 42nd Street, and 65 feet 11 inches on the third side of the triangle. During the summer of 1945 plaintiff corporation (Charles Tolmas, Inc.) decided to develop its property by constructing thereon certain commercial stores and in pursuance thereof had drawn certain plans and specifications. In the latter part of October 1945 appellant began the actual construction by removing the stumps, grading the property and digging trenches to lay foundations necessary for the said build. On December 3, 1945 the Police Jury adopted Ordinance No. 904 under the provisions of Section 3369 et seq. of the Revised Statutes of Louisiana of 1870 authorizing a jury of freeholders to trace and lay out a road or roads at the dead-end of 42nd Street, Bonnabel Place, so as to connect same with Metairie Road and to further lay out an additional road to widen 42nd Street from the point of the triangle known as Square 105, to Metaire Road. On Tuesday, January 22, 1946, at midnight, the appellant received a letter from the defendant signed by Mr. Errol E. Buckner stating that the Jury of Freeholders would meet on the site of the property on Thursday, January 24, 1946, at 3:30 p.m. 'to determine the amount of land to be acquired by the Parish to enable it to re-direct 42nd Street.' This letter further read: 'Inasmuch as this project is expected to require Some of the ground you own between 42nd Street and Metairie Road, you are advised that there will be a meeting * * *.' On the morning of Wednesday, January 23, 1946, by special delivery mail, appellant replied to Mr. Buckner advising him of receipt of the letter of January 22nd, and stating that his (appellant's) attorney, Mr. Louis Yarrut, was out of town and would return on Monday and asked postponement of the meeting of the Jury of Freeholders until that time. No reply was received by the appellant. On Thursday, January 24, 1946, the Jury of Freeholders met and approved a road as laid out by the Parish Engineer and placed a value thereon in the sum of $2,000. On Friday, January 25, 1946, the next day, the Police Jury met, without any notice being given to appellant, and adopted Ordinance No. 908 which approved and adopted the recommendations of the Jury of Freeholders expropriating all of plaintiff's property. On the evening of Monday, January 28, 1946, at 8 o'clock, the appellant Charles Tolmas, president of plaintiff corporation, received an anonymous phone call telling him that the trenches that were dug on his property preparatory to pouring the concrete for the foundation which was scheduled to take place on the morning of January 29th, were filled in. Mr. Tolmas testified that he supposed vandals had done this damage and he had his son, an attorney, phone the sheriff and report the damage. On Tuesday, January 29, 1946, Mr. Tolmas received a phone call from his electrician telling him that the construction work on this ground was being levelled by two bulldozers and several tractors. Immediately Mr. C. Tolmas went to the scene with his wife and two sons and found that a deputy sheriff, who ordered him off of the property at gun-point, was supervising the demolition and levelling of the construction on orders of the Police Jury. At the time this occurred, there was a warehouse and toolhouse constructed on the property, the steel reinforcing rods were in place ready for the foundation to be laid, 43,000 bricks were on the lot for the construction with wheelbarrows and tools and the forms were all in place ready for the pouring of the concrete that morning. The ground was completely levelled by the bulldozers and tractors and the tools and construction were ploughed under. The only publication of the adoption of Ordinances No. 904 and 908 appeared in the Jefferson Democrat on February 9, 1946, some eleven days after the physical taking of the property. On February 15, 1946 the Police Jury sent through the regular mails a letter addressed to the appellant informing it of the taking and enclosed a check for $2,000. This check was promptly returned by the plaintiff-appellant and suit was filed to set aside the expropriation on March 1, 1946.

We are not impressed with the manner in which the Police Jury sought to expropriate this property and the speed and haste in which it was accomplished. It must be emphasized that the first and only notice given to appellant was on Tuesday, January 22, 1946, at midnight and this notice stated that a portion of the ground was sought to be expropriated and a meeting of the Jury of Freeholders would be held on Thursday, January 24, 1946, at 3:30 p.m. The Police Jury met, without notice to the appellant on Friday, January 25th and resolved by Ordinance 908 to take all of the property owned by appellant by expropriation. Without notice to the appellant, this body dispatched bulldozers and tractors to the property on January 28th and 29th to demolish the construction that had already been begun. Appellant contends that the taking was illegal and unconstitutional because he was not timely notified of the meeting of the Police Jury as well as the meeting of the Jury of Freeholders.

It is to be noted that in Revised Statutes, § 3369 et seq. no provision is made for notice to the landowner and opportunity to appear before the jury of freeholders concerning the laying out of a road. In the case of Police Jury of St. Martin Parish v. Kidder, 4 La.App. 296, it was held in regard to these sections of the Revised Statutes that the law on the subject intends that the owner must have timely notice since the Constitution in Article 1, Sections 2 and 6--lsA Guarantees this procedure. alThough in the Kidder case the landowner received no notice whatsoever, the opinion points out that under the law not only must he be furnished notice of the meeting of the jury of freeholders but notice also of the meeting of the police jury for the reasons as stated by the court: 'these sections of the Revised Statutes contemplate notice to the owner and opportunity for him to appear before the jury of freeholders concerning the course of the road and the damage to be paid on account of the same, before the right-of-way can be taken for the road. And as the police jury has power under the law to revise, correct or change the recommendations of the jury of freeholders, as to the course of the road, also as to the amount of damages which should be allowed on said account, the owner must have notice and opportunity to also appear before them at the time the report of the jury of freeholders is being considered and before acting thereon.' This pronouncement is logical and sound for it may well be that the recommendations of the jury of freeholders would be altered, changed, or entirely rejected. The Constitution, Articles 1, Sections 2 and 6 assures that the essential elements of due process of law are notice and an opportunity to be heard. It is basic law that the essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. 12 Am.Jur., Constitutional Law, sec. 573, pp. 267, 268; Mongogna v. O'Dwyer, 204 La. 1030, 16 So.2d 829, 152 A.L.R. 162. The following language found in Dupuy v. Tedora, 204 La. 560, 573, 15 So.2d 886, 890, is pertinent herein, viz.:

'The 'due process of law' provision in the Constitution is designed to exclude oppression and arbitrary power from every branch of the government. "Due process of law' in judicial proceedings, means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the conduct and enforcement of private rights.' See Due Process of Law, in 13 Words & Phrases, Perm. Ed., p. 584. It means that no person shall be deprived of life, liberty, property, or of any right granted him by statute, unless the matter involved shall first have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings. It forbids condemnation without a hearing.'

The appellee contends that the notice of January 22, 1946 was sufficient. In this we cannot agree. The testimony in the record shows that some members of the jury testified that they were under the impression that the letter of January 23, 1946, written by Mr. Charles Tolmas to Mr. Buckner asking for a postponement, was answered and had they known that it was not answered they may not have proceeded in such haste. Mr. Holtgreve was not called to testify although it is alleged that he had several conversations with Mr. Tolmas. Mr. Buckner likewise was not called to testify and although defendant's counsel stated in argument that every effort was made to locate him this seems highly improbable in view...