Gooden v. Police Jury of Lincoln Parish

• Decision Date: 30 November 1908
• Docket Number: 17,322
• Citation: 48 So. 196,122 La. 755
• Court: Louisiana Supreme Court
• Parties: GOODEN et al. v. POLICE JURY OF LINCOLN PARISH et al

48 So. 196

122 La. 755

GOODEN et al. v. POLICE JURY OF LINCOLN PARISH et al

No. 17,322

Supreme Court of Louisiana

November 30, 1908

Rehearing Denied January 18, 1909.

Appeal from Fourth Judicial District Court, Parish of Lincoln Robert Brooks Dawkins, Judge.

Suit by J. W. Gooden and others against the Police Jury of Lincoln Parish and others. Judgment for plaintiffs, and defendants appeal. Reversed, and suit dismissed.

Barksdale & Barksdale, for appellants.

Barnette & Roberts, for appellees.

OPINION

NICHOLLS J.

The plaintiffs alleged that they are residents, citizens, and taxpayers of ward 1, Lincoln parish; that about the month of January, 1908, one-third or more of the citizens and taxpayers of ward 1, Lincoln parish, La., who were authorized to vote under the Constitution and laws of this state, petitioned the police jury for Lincoln parish to order a special election for said ward of said parish to vote upon a proposition of levying a special ad valorem tax of five mills on the dollar upon all the assessable property in said ward, for the purpose of aiding in the building and construction of the proposed line of railroad through a portion of Lincoln parish, to be known as the "Ruston, Natchitoches & Northeastern Railroad Company," for a period of time not to exceed 10 years; that the said police jury failed to order said election as prayed for, whereupon the courts of said parish were appealed to for a writ of mandamus to compel the police jury to order said election. After trial of said cause the courts granted the writ, whereupon the said election was ordered, same being ordered held according to law, at the regular polling places in said ward, which election was duly held on the 5th day of May, 1908.

Petitioners represent that they are citizens and taxpayers of said ward and have a right to appear and contest this tax; that they have interest in same being annulled and set aside; that the said tax as above alleged is illegal, null, and void, and should be set aside for the following reasons, to wit:

First. That the petition praying for the election did not set forth the amount to be raised each year; that only a rate of five mills was stipulated to be raised each year.

Second. That the petition did not set out any definite number of years that said tax should run, but only that it should not exceed the constitutional limit of 10 years, this pretended limitation having no effect whatever, for the stipulation would have been written therein by the Constitution of this state, had said petition been silent upon this point. Petitioners aver that for the two reasons above stated the said tax is an absolute nullity; that both the amount to be raised each year and the exact time that the tax shall run must be set out in said petition, under the pain of nullity; that this suit is filed within three months from the holding and promulgation of this election; that the act of the said police jury in ordering this election upon this fatally defective petition is illegal, null, and void; that the said police jury should be cited to answer hereto; that each member should be so cited, and served in accordance with law; that said Ruston, Natchitoches & Northeastern Railroad Company should also be cited to appear and defend whatever interest it may have in the result of this suit.

In view of the premises, petitioners prayed for service hereof and citation in accordance with law upon the members of the police jury of Lincoln parish, La., also upon the said Ruston, Natchitoches & Northeastern Railroad Company, a corporation also domiciled in Lincoln parish, with J. C. Nolan, of same residence, as its president, and, after due and legal trial had, for judgment in their favor, annulling, avoiding, and setting aside the tax as above alleged, and enjoining the police jury from levying said illegal tax. They prayed for all needful orders and decrees, and for costs and general relief.

Defendants answered. After pleading a general denial, they admitted that more than one-third of the property owners entitled to vote in the election in question petitioned the police jury according to law to order said election as alleged; that said election was regularly held in accordance with said petition and according to law on May 5, 1908, the returns regularly canvassed, and result promulgated according to law. Defendants alleged that said petition in all respects fairly, substantially, and completely complied with the law. They prayed that plaintiffs' demand be rejected with costs, and for general relief.

The district court rendered judgment in favor of the plaintiffs, annulling, avoiding, and setting aside the tax voted to the Ruston, Natchitoches & northeastern Railway Company on May 5, 1908, in ward 1, Lincoln parish.

The Ruston, Natchitoches & Northeastern Railway Company have appealed.

The petition of taxpayers referred to in plaintiffs' petition was as follows:

"Ruston, La., Jan. 28th, 1908.

"State of Louisiana, Parish of Lincoln.

"To the Honorable the Police Jury of the Parish of Lincoln, State of Louisiana.

"The undersigned citizens and property taxpayers of ward 1, Lincoln parish, La., being and constituting more than one-third of the property tax payers in said ward 1, Lincoln parish, La., entitled to vote in the election herein prayed for, in number and value, respectfully request your honorable body to order a special election to be held in ward 1, Lincoln parish, La., for the purpose of submitting to the property tax payers of said ward 1, Lincoln parish, La., who are qualified to vote in said election under the Constitution and laws of the state of Louisiana, the question whether they, the said property tax payers, will authorize your honorable body, the police jury of Lincoln parish, to assess, levy, and collect annually from year to year, not exceeding ten years a special tax of five mills on the dollar on all of the assessable property in said ward 1 of Lincoln Parish, La., until the full sum of seventy-five thousand dollars be thereby collected.

"Said tax to be levied for and said sum to be paid to Ruston, Natchitoches & Northeastern Railroad Company, a corporation organized under the laws of the state of Louisiana and domiciled at Ruston, Lincoln Parish, La., for the purpose of aiding in the building and the operating of a railroad from a point within the town of Ruston, La., in a northeasterly direction through the parishes of Lincoln and Union, La., to a point at or near the town of Farmerville, Union Parish, La. Said special tax to be levied and collected during the years 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918, and 1919, and the proceeds thereof up to the aforesaid sum of seventy-five thousand dollars to be annually paid as collected to said Ruston, Natchitoches & Northeastern Railroad Company, its successors or assigns, provided that the said railroad or such railroad as it may form a part of, shall be completed and in operation on or before the first day of July, 1910, from Ruston, La., to a point at or near the town of Farmerville, Union parish, La.

"That said special election be ordered and held pursuant to article 270 of the Constitution of the state of Louisiana, Act No. 202, p. 483, of the General Assembly of Louisiana of the year 1898, and Act No. 23, p. 26 of the General Assembly of Louisiana of the year 1904, and in all respects according to law, not sooner than 30 days after the official publication of this petition and the ordinance of your honorable body ordering said election.

"That the police jury on behalf of ward 1 of Lincoln Parish, La., shall after due and legal delays and the due and legal promulgation of said election immediately pass an ordinance levying such tax for the time and for the years herein above specified, and designating the years for which said taxes shall be levied and collected."

Here follow the signatures of taxpayers.

The police jury of Lincoln parish, La., acted upon this petition in its ordinance No. 66, entitled:

"An ordinance ordering an election in pursuance to petition of the property tax payers of ward 1, of Lincoln Parish, Louisiana, including the town of Ruston, for the purpose of submitting to the property tax payers entitled to vote thereat, the proposition whether or not they will authorize the police jury of Lincoln parish, to levy and collect annually from year to year, a special tax of five mills on the dollar for ten years, on all assessable property in said ward to the amount of seventy-five thousand dollars in favor of the Ruston, Natchitoches and Northeastern Railroad Company for the purpose of aiding said Ruston, Natchitoches and Northeastern Railroad Company in building and operating a standard gauge steam railroad from the town of Ruston, La., to a point at or near to the town of Farmerville, La., the avails of such a tax to be paid annually to said railroad company, its successors or assigns, provided said Ruston, Natchitoches and Northeastern Railroad, or such railroad as it may form part of shall have been completed and in operation on or before July 1st, 1910, fixing the date and providing for the manner of holding said election."

The ordinance so adopted was as follows:

"Be it ordained by the police jury of Lincoln Parish, La., in special session convened for this purpose, that by reason of the foregoing petition an election of the legally qualified property tax payers of said ward 1 of Lincoln Parish, La held on Tuesday 5th day of May, 1908, A. D., at the polling places at which the last preceding general election was held in accordance with the general election laws of the state, so far as applicable, and especially article 270 of the Constitution of Louisiana, and Act No. 202 of the General...