Guillory v. Avoyelles Railway Co.

• Court: Louisiana Supreme Court
• Writing for the Court: BLANCHARD, J.
• Citation: Guillory v. Avoyelles Railway Co., 104 La. 11, 28 So. 899 (La. 1900)
• Decision Date: 01 January 1900
• Docket Number: 13,519
• Parties: GUSTAVE GUILLORY ET ALS. v. AVOYELLES RAILWAY CO., SHERIFF, ET ALS

28 So. 899

104 La. 11

GUSTAVE GUILLORY ET ALS. v. AVOYELLES RAILWAY CO., SHERIFF, ET ALS

No. 13,519

Supreme Court of Louisiana

January 1, 1900

APPEAL from the Tenth Judicial District, Parish of Avoyelles -- Edwards, J., ad hoc.

Adolph Vallery Coco and G H. Couvillon & Son, for Plaintiffs Appellants.

Howe Spencer & Cocke and William H. Peterman, for Defendants Appellees.

OPINION

BLANCHARD, J.

This action seeks to have declared void a levy of special taxes in favor of defendant company.

The tax assailed is a five-mill tax for ten years -- from 1895 to 1904, both inclusive -- upon the taxable property in the Parish of Avoyelles.

The object of the tax was to secure the construction of a railway through the parish.

The railway was constructed, is now in operation and has been for the last several years.

The position of defendants is that the tax in aid of the railway enterprise was duly petitioned for by one-third of the property taxpayers of the parish; that this petition addressed to the police jury, was favorably considered by that body; that an ordinance was duly adopted submitting the proposition to the vote of the property taxpayers; that the directions of the law relative to this submission were duly observed; that the tax election was held and a majority of the property taxpayers in number and amount of property, voting at said election, voted in favor of the proposition; that this result was duly declared by the returning officer of the parish and by proclamation of the police jury; that predicated upon the election and its result an ordinance was adopted by the jury levying the tax; that the conditions prescribed in the grant of the tax were fulfilled by the construction of the railway in the manner designated and within the limit of time fixed; and that thus the tax has been earned, is exigible and the railway company is entitled to the avails thereof.

The position of the plaintiffs, who are property taxpayers of the parish, is that one-third in number of the property taxpayers did not petition the police jury to order the tax election and submit the proposition of the railway company to the voters of the parish owning property; that at the election which was held a majority in number and amount of the property tax-payers did not vote for the tax, but against it; that the proclamation of the result was false and fraudulent and served as no sufficient basis in law for the levying of the tax; that the railroad was not constructed between the points indicated within the time designated; that, therefore, the tax was not legally earned and is not due the company; and that the beneficiary is estopped to claim the tax by reason of certain conduct subsequent to the holding of the election and the levying of the tax.

From a judgment rejecting their demand plaintiffs appeal.

The date of this tax election was July 26, 1894, and the date of the promulgation of its result July 30, 1894.

The date of the ordinance of the police jury levying the tax was August 21, 1894.

The limit of time fixed within which the road was to be completed and put in operation was twenty months from the date of the election -- July 26, 1894. It, therefore, expired March 26, 1896.

This is the third suit that has been brought contesting this tax election.

The first was instituted by George W. Sentell and other taxpayers on October 23, 1894.

This was within three months of the date of the promulgation of the result of the election and was timely.

The suit having been dismissed on exception, an appeal was prosecuted here, with the result that the judgment was reversed and the cause remanded for trial on its merits.

Sentell vs. Police Jury, 48 La.Ann. 96.

Following this, a compromise was entered into between plaintiffs and defendants by the terms of which the Railway Company released and abandoned the five-mill tax for ten years on the property owned by those in whose behalf the Sentell suit was brought, in consideration of which the suit was discontinued. This compromise, which is stated to have been entered into upon the authority of C. C. 3071 et seq., was made the judgment of the court and the suit formally discontinued April 24, 1896.

In a little more than thirty days later J. M. Watson and five other taxpayers instituted a second suit seeking to avoid the tax levy.

It is stated in the petition that the action is brought not alone on behalf of the petitioners but also of 500 other taxpayers whose names are not included in the petition owing to the inconvenience which would result therefrom.

This suit remained on the docket without issue joined until February 6, 1899, when on motion of plaintiffs' counsel it was dismissed at their costs.

The reason of the long delay is explained in this way: -- That the road had been placed in the hands of a receiver and to save the tax from passing under the receivership it was allowed for the time being to be tied up in court by the then pending suit and the injunction which had been issued therein.

It is shown that the final dismissal of the suit was the result of a compromise by which the railway company, while maintaining the validity and binding effect of the tax and securing the acknowledgement by the plaintiffs in that suit of its validity, agreed to release and remit in favor of all the taxpayers of the parish the special tax of and for the year 1895, together with interest and penalties, and the payment of a reasonable amount as fees to plaintiffs' attorneys.

The instant suit -- the third of the series of contesting actions -- was filed April 29, 1899. This was less than three months after the discontinuance of the Watson suit.

Besides setting up the regularity of all proceedings leading up to the levy of the tax, defendants pleaded as estoppel that plaintiffs participated in the election and acquiesced in its result by waiting, before taking action to contest the tax, until large sums of money had been expended in the construction, completion and equipment of the road.

They, moreover, pleaded the limitation of Act 106 of 1892 in bar of plaintiff's suit.

This statute gives the right, and the only right the law accords, to contest elections held to take the sense of property taxpayers on a proposition to grant a tax in aid of a railway enterprise. By its terms such an election may be contested by taxpayers in interest on grounds of "fraud, illegality and irregularity." But the suit must be brought within three months after the promulgation of the result of the election.

The words "illegality or irregularity" are broad in their scope and embrace all matters preceding the election and leading up to it, as well as matters affecting the election itself -- i. e., the holding of the election, the casting and counting of the votes, and the ascertainment and promulgation of the result.

Thus, if it be charged that the police jury, in ordering the election, did so on petitions of property taxpayers less than one-third in number of all the property taxpayers of the parish, this is good ground for contest under the statute, but must be taken advantage of within the time limited by the act -- three months from the promulgation of the election -- otherwise the right to contest on that ground, as well as on all other grounds affecting the legality and regularity of the tax, is lost.

This is the effect of the decisions of this court in Taxpayers vs. Police Jury, 52 La.Ann. 466; Railroad Co. vs. Sheriff, 52 La.Ann. 524; and Taxpayers vs. Tax Collector, 49 La.Ann. 1039.

The reason of the law is that if there be grounds for contesting the tax, those who complain should bring the matter to the attention of the courts within a reasonable time -- not wait until the railway company, acting upon the faith of what has been done and of the inducement held out, has gone ahead and expended large sums of money in prosecuting the...