Hinkle v. City of West Monroe

• Decision Date: 03 February 1941
• Docket Number: 35976
• Court: Louisiana Supreme Court
• Parties: HINKLE v. CITY OF WEST MONROE

200 So. 468

196 La. 1078

HINKLE v. CITY OF WEST MONROE

No. 35976

Supreme Court of Louisiana

February 3, 1941

Appeal from Fourth Judicial District Court, Parish of Quachita; J T. Shell, Judge.

Action by E. G. Hinkle against the City of West Monroe to recover the balance due on a paving contract. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Sholars & Gunby and G. Allen Kimball, all of Monroe, for plaintiff and appellee.

John F McCormick, of Monroe, for defendant and appellant.

PONDER Justice. O'NIELL, C. J., does not take part.

OPINION

PONDER, Justice.

The question presented on this appeal is whether the defendant, the City of West Monroe, is liable for the balance due on a paving contract to plaintiff, E. G. Hinkle, as assignee of the contractor. The plaintiff in this suit seeks to recover from the defendant the sum of $ 17,335.16, representing the balance due on a paving contract together with court costs advanced by him and 10% attorney's fees. The paving contract was let under the provisions of Act No. 288 of the General Assembly of this state for the year 1928. The defendant interposed a plea attacking the constitutionality of Act No. 288, a plea of pre-maturity, and exceptions of no right or cause of action. After the defendant filed an answer to the suit, the pleas and exceptions were submitted by consent of counsel in the lower court with the understanding that they would be passed on prior to the consideration of the case on its merits. The case was then submitted on an agreed statement of facts and the testimony of the plaintiff. The pleas and exceptions were denied and overruled by the lower court, and judgment was given in favor of the plaintiff and against the defendant as prayed for. The defendant has appealed from this judgment.

River Front or Trenton Street, hereinafter referred to as Trenton Street, in the City of West Monroe, runs in a northerly-southerly direction for a distance of eleven blocks, some 4,565 feet in length between its intersection with Vernon Street on the south and Claiborne street on the north. Between the easterly side of Trenton street and the steep or bluff bank of Ouachita River is a long narrow strip of ground of varying width, not exceeding approximately fifteen feet at any point. In 1928 the city and the owners of the property on the side of the street farthest from the river, hereinafter referred to as the west side of the street, being cognizant of the fact that the narrow strip on the river side of the street, hereinafter referred to as the east side of the street, was not worth its proportionate share of the cost of the paving, and of insufficient value to warrant the imposition of paving assessments under the then existing laws, secured the passage and enactment of Act No. 288 of 1928. This act provides an additional method by which a municipal corporation may pave a street bordering upon a stream by levying assessments and creating liens upon property on the side of the street farthest from the stream to defray the cost of the work. It provides that where the property on the side nearest to the stream is not of sufficient value to warrant the imposition of assessments under existing laws, being worth less than its proportionate share of the cost of the proposed paving, that the municipality shall have the authority to levy and collect the tax or assessment against the property abutting on the side of the street farthest from the stream on petition of property owners owning 60% of the front footage abutting the street on that side. In other words, the act provides for the payment of the entire cost of paving by owners of property abutting the street on the farthest side of the stream in event the property on the stream side is of insufficient value, when petitioned for in accordance with the act. The owners of the property of the required footage abutting Trenton street on the west side petitioned the governing authorities in conformity with Act No. 288 of 1928 and requested that the paving be done under the alternative method, viz., by imposing assessments on the property on both sides of the street with the imposition of liens on the lots on the west side of the street to secure the payment of the assessments on the east side of the street. The Mayor and the Board of Aldermen of the city adopted Ordinance No. 814 ordering the paving under the provisions of Act No. 288 of 1928. It was provided therein that the city was to pay for the paving of the street intersections and the balance of the cost of paving was to be assessed on the property abutting on both sides of the street by proration according to front footage. The property owners were given the option of paying one tenth of their assessments in cash and executing notes for the balance with interest at 6% per annum if they did not desire to pay the entire assessment in cash. The ordinance also provided that upon completion of the paving and the estimate of the cost by the engineer, after deducting the incidental expenses from the cash payments received from the property owners, the remaining cash, if any, together with the certificates of the property owners, be turned over to the contractor in payment of the amount due him. It provided that the city would assign its rights, liens, and privileges against the property and the owners thereof if the contractor so desired. After advertisement the paving contract was awarded to J. L. Humble. The work was completed and accepted by the city. The balance due the contractor as estimated was $ 44,446.30. The total cost of the work including the engineer's fees and other incidental costs amounted to $ 49,086.30. The cost of the paving of the intersections of streets to be borne by the city amounted to $ 5,288.11 leaving a balance due the contractor of $ 43,798.19 to be assessed to the abutting property owners.

The lots on the west side of the street were assessed in addition to the prorata cost of the paving by the lineal foot, the cost of the concrete curb and gutter in front of each lot as well as the individual cost of concrete driveway aprons where such led into the lots. There was no concrete curbing, gutters, or driveway aprons on the east side of the street and the assessments on this property were made on the basis of a prorata cost of the front footage for the street pavement alone, thereby making the assessments thereon considerably lower than the assessments on the opposite side of the street. Only one assessment was made on the property on the west side of the street and no provision was made to disclose that this property was liable for a corresponding amount assessed against the property on the east side of the street. In other words, there was nothing to show that the property on the west side of the street was contingently or secondarily liable for the amount assessed against the property on the east side of the street. The strip of land on the east side of Trenton street, between the street and the river, was appropriated by the Tensas Basin Levee Board in 1935 in its entirety and used as a base and site for a concrete sea wall. The sea wall is now located about three to five feet from the edge of the paved portion of Trenton street. This strip of land had little, if any, merchantable value in 1928, at the inception of the paving proceedings, and by reason of the appropriation it is now out of commerce.

The plaintiff furnished material and funds to the contractor in connection with the paving work and in satisfaction of this indebtedness the contractor assigned to the plaintiff all his interests in the contract. The contractor directed and authorized the city to pay the plaintiff all monies, considerations, and other things of value inuring to him under the contract. The city acknowledged the assignment and agreed to pay such to the plaintiff instead of the contractor.

All of the owners of the property on the west side of Trenton Street have either paid their assessments in cash or have availed themselves of the option by paying one tenth in cash and have executed notes for the balance except six of such property owners, who have failed and refused to make any payments or execute any notes therefor. The assessment against the six property owners who have refused to pay or execute notes therefor, amounts to $ 2,091.65.

Only eighteen of the property owners on the east side of the street have either paid their assessments or availed themselves of the option. The notes executed by these eighteen property holders have been partially paid and there remains a balance due on them uncollected of $ 1,319.00. All of the remaining property holders on the east side of the street have refused to pay the assessment or execute any notes therefor.

It is conceded that it was in the contemplation and understanding of all the parties to the paving project, including the plaintiff herein, that the strip of ground on the east side of the street was of insufficient value to warrant the imposition of paving liens against it and that the assessment levied against it would be secured by a legally enforceable lien and privilege on the property on the west side of the street.

The city through its attorney instituted proceedings in an endeavor to secure the recognition and foreclosure of the delinquent paving assessments not represented by notes or certificates for the benefit of the plaintiff. A number of suits were filed resulting in judgments in rem against the property only and after the property was seized advertised, and offered for sale by the sheriff no bids were received therefor. Other suits were filed in 1932 upon all the remaining delinquent assessments, with a few exceptions, resulting in judgments in rem and the portions of...