Hinkle v. McGuire

Decision Date30 May 1938
Docket Number34399
Citation182 So. 551,190 La. 397
CourtLouisiana Supreme Court
PartiesHINKLE et al. v. McGUIRE et al

Rehearing Denied July 1, 1938

Appeal from Fourth Judicial District Court, Parish of Ouachita; D I. Garrett, Judge.

Suit by E. G. Hinkle and another against Mrs. L. C. McGuire and others to subject certain lots to a lien for a street-paving assessment. From a judgment in favor of defendants plaintiffs appeal.

Affirmed.

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

Hudson, Potts, Bernstein & Snellings, of Monroe, for appellees.

OPINION

O'NIELL, Chief Justice.

The purpose of this suit is to subject four lots, fronting on the west side of Trenton street, in the city of West Monroe, to a lien for a street-paving assessment. The assessment was levied upon a narrow strip of land on the east side of the street, opposite the four lots, and between the street and the Ouachita river. The plaintiffs, appellants, are the city of West Monroe and E. G. Hinkle, to whom the alleged lien was assigned. The claim is not represented by a certificate of indebtedness or promissory note. The defendants, appellees, are Mrs. L. C. McGuire and the Monroe Building and Loan Association. Mrs. McGuire owned the four lots on the west side of Trenton street, as well as the narrow strip of land opposite the four lots, between the street and the river, when the street-paving project was commenced and for nearly three years after the work was completed and the assessments werelevied. The building and loan association afterwards, on June 14, 1929, acquired a mortgage and vendor's lien on Mrs. McGuire's four lots on the west side of Trenton street, and, on January 25, 1932, bought the four lots at a sheriff's sale, in foreclosure of the mortgage and vendor's lien.

The amount in contest -- for which the plaintiffs are proceeding in rem to enforce the alleged lien -- is less than $ 2,000. The appeal comes to this court by reason of the provision in the 5th paragraph of section 10 of article 7 of the Constitution, that the supreme court shall have appellate jurisdiction in all cases in which the constitutionality or legality of a tax or local improvement assessment is contested. In this case the defendants, appellees, contest the constitutionality and legality of the assessment, so far as it is sought to be imposed upon the four lots on the west side of Trenton street; and they contest the constitutionality and legality of the ordinance, No. 828, levying the assessment, and the constitutionality of Act No. 288 of 1928, under authority of which the ordinance was enacted -- as construed by the plaintiffs in this suit.

Act No. 288, of 1928, according to its title and its text, provides an additional method by which a municipal corporation (except New Orleans) having a population exceeding 1,000, or being a parish seat, may pave or otherwise improve a street bordering upon or in close proximity to a stream or canal, by levying an assessment and creating a lien upon the property abutting on the side of the street farthest from the stream or canal, to defray the cost of the work. Section 1 of the act provides that, in such cases, where the property between the street and the stream or canal is not of sufficient value to warrant the imposition of a paving assessment under existing laws, and is in fact worth less than its proportionate share of the cost of the proposed paving, the municipal council shall have the authority, in addition to all such authority as is conferred upon the council by other laws, to pave or otherwise improve the street, for a distance not less than one block, and to levy and collect a special tax or local assessment against the property abutting on the side of the street farthest from the stream or canal; provided that the owners of not less than sixty per cent of the front-footage of the property abutting on that side of the street shall petition therefor, in writing, and shall express in writing their opinion that the property between the street and the stream or canal is not of sufficient value to warrant its being assessed for the paving under existing laws; and provided further that, on such a petition and expression of opinion, the property on both sides of the street may be assessed for the cost of the paving "as now provided by existing laws", and, if the property between the street and the stream or canal "should not be bid in at Sheriff's sale in foreclosure of such paving assessment for an amount sufficient to pay the assessment against it, then, and in that event, the entire cost shall be paid by the owners of the property on the side of said street farthest from said stream, or canal." The statute provides that, in that event, the municipality or its transferee shall have a lien on the property on the side of the street farthest from the stream or canal. Section 2 of the act provides that if there is a railroad bed on the street the railroad company shall pay the proportion of the cost of the paving that the area of the railroad bed bears to the total area of the pavement. Section 3 provides that the municipality shall pay the proportion of the cost of the work that the area of the street intersections bears to the total area of the pavement. And section 4 provides that the abutting property owners shall pay the balance of the cost of the paving according to the front-foot rule -- provided that the entire cost, except as stipulated in sections 2 and 3, shall be paid by the owners of the property abutting on the side of the street farthest from the stream or canal. Section 5 provides for the making of the plans and specifications and the letting of the contract to the lowest responsible bidder. Section 6 provides that, on satisfactory completion of the work, the municipal council shall accept the work, by an ordinance or resolution, and assess, as provided in the act, all abutting property and railroad beds, for the amount due by the owners thereof, according to the rules of apportionment adopted, and as stipulated in the act. It is declared in this section of the act that a certified copy of the ordinance levying the assessment shall be filed for record in the mortgage office within ten days, and when so filed and recorded shall create a lien in favor of the municipality and its transferees against the property assessed, which shall rank all other liens except tax liens. Section 7 of the act provides that the amounts assessed shall be due immediately, and that if an assessment be not paid within ten days the municipality or its transferee may proceed by suit against the assessed property and the owner thereof to collect the amount, with 6 per cent interest and 10 per cent attorney's fees. Section 8 provides that a taxpayer may pay 10 per cent of the amount of his assessment in cash and the balance in 9 equal annual installments, represented by promissory notes. Section 9 allows the municipality to transfer the notes to the contractor, without recourse, and declares that any transferee shall have the benefit of the lien. Section 10, being the last section of the act, declares that it shall not repeal or modify any statute on the subject, but shall merely provide additional means by which municipalities may provide for paving or improving their streets.

Our interpretation of the statute is that it provides for two alternative methods of levying the assessment, according to the front-foot rule. If the owners of sixty per cent or more of the front-footage of property abutting on the side of the street farthest from the stream or canal request it in their petition, the entire cost of the paving less the deductions for the street intersections, and for the railroad bed if there be one, shall be assessed against the property abutting on the side of the street farthest from the stream or canal, according to the front-foot rule. The rule is well recognized and defined in the statutes on the subject of street paving. On the other hand, if the petitioners request it, the cost of the paving, less the deductions mentioned, shall be assessed equally against the property abutting on both sides of the street, according to the front-foot rule; but in that case, the assessment shall be so levied that each and every lot abutting on the side of the street farthest from the stream or canal shall be not only liable for the amount of the tax assessed against it, but also liable, contingently or secondarily, for the same amount for the tax assessed against the property on the opposite side of the street. If the assessment is to be distributed against the property abutting on both sides of the street, each and every separately-owned lot or piece of land abutting on the side of the street nearest to the stream or canal must be assessed for its share of the total cost of the paving, according to the front-foot rule, and each and every separately-owned lot or piece of land abutting on the side of the street farthest from the stream or canal must be so assessed as to disclose, not only its unconditional liability for the amount of the assessment against it, but also its contingent liability for...

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5 cases
  • Harnischfeger Sales Corporation v. Sternberg Dredging Co
    • United States
    • Mississippi Supreme Court
    • June 3, 1940
    ... ... 14; 88 A. L. R. 574; Harding Co. v. Harding, 352 ... Ill. 417, 186 N.E. 152; Ludeling v. Chaffe, 40 La ... Ann. 645, 4 So. 586; Hinkle v. McGuire (La.), 182 ... So. 551; Harnischfeger Sales Corp. v. Sternberg Co., 180 La ... 1059, 158 So. 556 ... There ... is no ... ...
  • City of Alexandria v. Shevnin
    • United States
    • Louisiana Supreme Court
    • January 9, 1961
    ... ... R.S. 33:2843; Hinkle v. McGuire, 190 La. 397, 182 So. 551 ...         We do not find that the above jurisprudence has been overruled; we are constrained to ... ...
  • Hinkle v. City of West Monroe
    • United States
    • Louisiana Supreme Court
    • February 3, 1941
    ... ... of the opinion that the requirements of Act No. 288 had been ... sufficiently complied with to charge the lots on the west ... side of the street with liens to secure the payment of ... assessments on the property on the east side of the street, ... instituted suit against Mrs. L. C. McGuire who owned property ... abutting on both sides of the street, and her subsequent ... vendee of lots on the west side of the street, Monroe ... Building and Loan Association, seeking to have liens ... recognized and enforced against the lots on the west side to ... secure the payment of ... ...
  • City of Kenner v. Jo, Inc., 88-CA-694
    • United States
    • Court of Appeal of Louisiana — District of US
    • March 15, 1989
    ... ... LSA-R.S. 33:3421 et seq. Hinkle v. McGuire, 190 La. 397, 182 So. 551 (1938); Guaranty Mortgage & Securities Co. v. Millsaps, 178 La. 255, 151 So. 197 (1933). Accordingly, the ... ...
  • Request a trial to view additional results

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