City of Alexandria v. Shevnin
| Decision Date | 09 January 1961 |
| Docket Number | No. 44713,44713 |
| Citation | 126 So.2d 336,240 La. 983 |
| Parties | CITY OF ALEXANDRIA v. Theus M. SHEVNIN. |
| Court | Louisiana Supreme Court |
Frank H. Peterman, Alexandria, for plaintiff-appellant.
Provosty, McSween, Sadler & Scott, Nauman S. Scott, Alexandria, for defendant-appellee.
The question herein presented for our determination is whether a paving lien can be asserted against a taxpayer's property (which property abuts the involved paved street) where the petition for paving did not comply with pertinent statutory law, LSA-R.S. 33:3381 through 33:3391.
On April 27, 1954, some owners of property abutting upon St. James Street from Seventh Street to Tenth Street in the City of Alexandria petitioned the Commission Council of the City of Alexandria to cause the paving of St. James Street between designated points with cement concrete together with necessary concrete curb and gutter and drainage structures; the work to be done and paid for in accordance with the ten-payment plan. Among the eight signatures appearing on the petition were the following:
Property Frontage Signatures
------------------- -----------------------------------
106.66 ft........... Chester Gonzaque by Mattie Gonzaque
106.66 ft........... Rose of Sharon Baptist Church
J. W. Daniels
106.66 ft........... Mary Francis Berry Foster by Louis
Berry
On June 4, 1954, the Acting City Engineer, Charles W. Cook, wrote to the Commission Council, City of Alexandria, stating that the petition had been checked and found to be signed by 52.84% 1 of the abutting property owners. The paving work was completed and after its acceptance (January 4, 1955), Local Assessment Ordinance No. 616 was adopted by the City Council. The ordinance assessed the various property owners with their respective portions of the cost of the paving. Under Assessments Nos. Thirteen and Fourteen thereof Theus M. Shevnin, owner of Lots Nos. One and Four of Square 68 of the City of Alexandria, having a frontage of 106.66 feet each on St. James Street, was assessed the sum of $2,175.78 as his portion of the cost of paving--$1,087.89 bearing against each one of his lots. The assessment ordinance was recorded, and it operated as a lien and privilege in favor of the City of Alexandria for the amount of the paving due against the property affected thereby.
Shevnin, who had not signed the petition for paving, made no payment under the assessment; the present suit was brought for an in rem judgment recognizing the alleged lien and privilege of the City of Alexandria for the amount of the assessment, together with interest and attorney's fees. Defendant Shevnin answered, averring that the petition for paving was null and invalid because it had not been signed by more than 50% Of the abutting property owners as required by LSA-R.S. 33:3381 through 3391. He further averred that the petition had neither been signed nor executed by him, and that as a consequence the City of Alexandria, plaintiff, had no legal right to enter into a contract for the paving of St. James Street.
From a judgment of the trial court, which held that Assessments Nos. 13 and 14 of Local Assessment Ordinance No. 616 of the City of Alexandria were null, void, and of no effect, and which ordered and authorized that said assessments be cancelled and erased in full from the mortgage records of Rapides Parish, Louisiana, the City of Alexandria appealed.
In his reasons for judgment, the trial judge stated that he found no evidence of record which tended to show that the signatures of Mattie Gonzaque, J. W. Daniels, and Louis Berry, supra, were authorized. He said,
We have carefully reviewed the record and are in complete accord with the findings of the trial judge that the evidence does not disclose any authorization for the three signatures, supra, and that without such signatures the paving petition was not signed by the owners of more than 50% Of the lineal foot frontage. 2 Since the City of Alexandria does not seriously deny the correctness of the findings of the trial judge, we do not find it necessary to review the facts supporting the conclusions.
Appellant contends that even if it be conceded that those who signed for Gonzaque, Foster, and the Church did not have authority to do so, it is perfectly clear that the owners are satisfied and have acknowledged the authority of those who signed and have ratified their action since they have paid or are paying their pro rata of the cost of the paving. 3 Appellant further contends that the paving statutes, supra, were substantially followed, and that if any error was committed it was only an informality or irregularity which could not render the assessments of defendant's property null and void. It argues that after the City of Alexandria entered into the paving contract and work was commenced, defendant was aware of such work and did not enjoin its continuance and should not now be permitted to avoid paying what is justly due by him. Town of Ruston v. Adams, 9 La.App. 618, 121 So. 661, 664. 4
We must determine herein whether a deficiency of signatures in the paving petition is a jurisdictional question; that is, whether the City of Alexandria was without jurisdiction to initiate the proceedings for paving St. James Street, except under the authority of a petition which had been duly signed by the required number of abutting property owners.
In Louisiana it is elementary that all statutory liens are stricti juris and that a party claiming the benefit of one must show that he has complied strictly with the provisions of the law which created it. Hicks v. Tate, La.App., 7 So.2d 737; Moore Steel, Inc. v. Wright's Succession, La.App., 79 So.2d 118; Patterson v. Lumberman's Supply Co., Inc., La.App., 167 So. 471. '* * * It is well recognized in our jurisprudence that liens and privileges are stricti juris and that the party who claims or asserts one must be able to put his finger on the law under which it is granted. * * *' Grand Lodge Knights, Ladies Auxiliary, Juveniles of Honor of America v. Charles, 224 La. 785, 70 So.2d 684, 686; Blasingame v. Anderson, 236 La. 505, 108 So.2d 105. Privileges are granted only in pursuance of law and not from considerations of equity; one who asserts a privilege has the burden of establishing it. In re Liquidation of Canal Bank & Trust Co., 181 La. 856, 160 So. 609, 99 A.L.R. 473; In re Liquidation of Hibernia Bank & Trust Co., 182 La. 856, 162 So. 644. See, Boone v. Brown, 201 La. 917, 10 So.2d 701.
'Laws that provide for the coming into existence of liens and privileges are strictly construed, and where it is provided that they may arise only after the performance of certain definite acts by a governing authority, strict adherence to such requirements is mandatory as a condition precedent thereto. * * *' City of Natchitoches v. Kile, La.App., 54 So.2d 834, 836. See, dissertation in Graeme Spring & Brake Service v. De Felice, La.App., 98 So.2d 314; Thompson v. City of Alexandria, La. et al., La.App., 77 So.2d 584; LAS-Civil Code, Article 3185.
The instant proceeding is in rem and asserts a statutory lien. LSA-R.S. 33:3387. We believe that under the above jurisprudence the question is jurisdictional; a strict compliance with the law creating the lien was mandatory. Cf. State ex rel. Higgins v. Aicklen et al., 167 La. 456, 119 So. 425. In the early case of Grasser Contracting Co. v. Richardson, 147 La. 612, 85 So. 609, 610, this Court held:
'As the property owners' petition in this case was not signed by 52 per cent or more of the owners of property on Lowerline street, it was illegal, null, and void, and could not serve as a foundation for the contract here sued upon, particularly as defendant in the cause filed a timely protest against entering into said contract.
'Plaintiff in this court has filed a plea of estoppel, based on the allegations that defendant was fully aware of the contemplated paving of the street fronting his property by the physical conditions of said street, anterior to his protest and by the published petition of the minority of the property holders; and it urges that he cannot now be heard to charge irregularities in the proceeding.
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