Kearns v. City of New Orleans

• Citation: 160 So. 470
• Decision Date: 15 April 1935
• Docket Number: 14943
• Court: Court of Appeal of Louisiana — District of US
• Parties: KEARNS et al. v. CITY OF NEW ORLEANS

160 So. 470

KEARNS et al. v. CITY OF NEW ORLEANS

No. 14943

Court of Appeal of Louisiana, Orleans.

April 15, 1935

Rehearing denied May 13, 1935.

Geo. A Dreyfous, Percival H. Stern, and Frank B. Twomey, all of New Orleans, for appellants.

E. M Robbert and Henry B. Curtis, both of New Orleans, for appellee.

OPINION

JANVIER Judge.

Plaintiffs, the owners of a certain piece of improved real estate in the city of New Orleans, alleging that the said city through its properly constituted authorities is attempting to sell for paving charges the said property, that the said charges which the city claims are installments for the years 1921 and 1929 and that the said installments, if they are unpaid, are prescribed, seek to enjoin the sale of the said property, and also pray for the erasure from the public records of the inscription of the said lien claimed to result from the said charges. Plaintiffs also allege, in the alternative, that if the said installments are due and collectible the delinquency charge which the city is attempting to collect is illegal and null, and that the city should be limited to the collection of the legal charges with proper interest.

In the district court there was judgment in favor of the city of New Orleans, the court holding that the installments had not prescribed, and also that the additional charge made because of the failure to pay the charges within the time limit fixed by law is legally authorized.

The paving in question was completed under an ordinance adopted November 19, 1919.

Apparently, all installments except those for the (2) years 1921 and 1929 were paid.

Plaintiffs contend that a lien for paving prescribes in three years from the last day of the year in which the installment becomes due. If this view is sound, both installments have prescribed. This prescription of three years is claimed to result from article 19, §19, of the Constitution of 1921, and also from the provisions of Act No. 46 of 1918. The constitutional provision referred to reads in part as follows: " (3)5C Such tax liens, mortgages and privileges shall lapse in three years from the 31st day of December in the year in which the taxes are levied, and whether now or hereafter recorded." But it is now definitely settled that a paving charge is not a tax, a mortgage, or a privilege, within the meaning of that provision of the Constitution. In Clade v. La Salle Realty Co., 144 La. 989, 81 So. 598, 600, the Supreme Court, in discussing the distinction between a paving charge and a tax, said: "Our conclusion, then, is that, whilst the lien here in question being, as it is, a charge imposed by the government upon the property of the applicant without his consent may, under the broad language of article 85 of the Constitution, and for the purposes of an appeal to this court, be regarded as a tax lien (State ex rel. Hill v. Judges, 46 La.Ann. 1292 1300, 16 So. 219; City of Shreveport v. Prescott, 51 La.Ann. 1895, 26 So. 664, 46 L.R.A. 193; Town of Minden v. Stewart, 142 La. 467, 77 So. 118), it cannot be so regarded in the sense in which that term is used in the proviso contained in article 186; and hence did not "lapse' at the expiration of three years, but remains effective until the claim secured by it shall have been paid (Rosetta Gravel Co. v. Jollisaint, 51 La.Ann. 804 808, 25 So. 477, and authorities there cited; Kelly v. Chadwick, 104 La. 719 722, 29 So. 295; Bacas v. Adler, 112 La. 806, 812, 36 So. 739)." But plaintiffs maintain that the doctrine to which the Supreme Court adhered in the Clade Case is not applicable here, for the reason that there the court was considering a lien in favor of the contractor who had done the paving and for whom the city had undertaken to assess and to collect the charge, whereas here the charges are due to the city itself.

It is contended that where the charge is due to the contractor no prescription should run because the collection of the charge is made by the city and, therefore, it would be inequitable to hold that, by the laches of the city in failing to collect the charge, the right of the contractor might be lost, whereas here there is no reason why the city, which has failed to protect its own rights by proceeding to make collection, should not be held to have lost those rights as the result of its own neglect. But in either case the collection is to be made to meet the obligation of the city. In all of the statutes authorizing the issuance of paving certificates and authorizing the deferred payment method for property owners, it is provided that the primary obligation shall always remain upon the city.

We fail to see the reason for the asserted distinction. If the charge is a tax, then it has prescribed under the authority of the constitutional provision; if it is not a tax, then that provision has no application. Whether it is a tax or not cannot be made to depend upon whether the city collects it for its own benefit or collects it for transmittal to some one else. The Supreme Court in the Clade Case declared that it is not a tax, and it follows that the constitutional provision has no bearing on the matter. The question was also considered in Standard Oil Co. v. Joy, 179 La. 151, 153 So. 675, 676, a case in which, on writ of certiorari, the Supreme Court upheld the views expressed by this court and which case involved a charge which, so far as the record shows, was due to the city itself. The court held that the word "tax" does not include a special assessment for paving. It was also held that a paving charge is a local assessment and is not ordinarily included in the word "tax" or the word "taxes." Note the following language:

"We think that the word "assessments,' taken in connection with the rest of the clause, shows that what is meant by the word is "local or special assessments' and not governmental taxes. These are provided for clearly in the preceding part of the clause, and the parties to the contract would hardly have used so inappropriate a word as "assessments' following the word "taxes,' to make clearer, as it were, what they had already made as clear as words could accomplish. Their intention was to broaden what they had already said by adding another kind of charge against property, namely, local assessments, which otherwise would not have been included. The word "taxes' is not synonymous with the word "assessments,' although the word "or' is used between them. They are words of different meaning."

The next point made is that the prescription provided by Act No. 46 of 1918 is applicable here. The pertinent portion of that statute reads as follows:

" (3)5C claims, liens and privileges for paving streets, alleys and sidewalks shall prescribe by ten years from the date of the certificates or other evidences of such claims, liens and privileges; provided, that in all cases where the cost of the paving shall have been advanced by any Parish, City or Town, to be refunded in annual installments in accordance with existing laws, the claims, liens and privileges shall prescribe in the same manner as now provided by the Constitution and laws of this State for the prescription of taxes, tax liens, and privileges. (3)5C"

If there were no other legislative enactments to be considered, that statute might be conclusive. But it is at once apparent that that act is what is termed a general law on the subject of street paving and it is well settled that, where there is apparent conflict between a general law and a special one on the same subject, the latter must prevail in the particular locality or in the particular matter to which it applies. Even though the general law may have been passed after the special law, it does not repeal the special law by implication, but it affects it only if it refers to it expressly. In 1912, by Act No. 159, the Legislature enacted a charter for the city of New Orleans which was a special law and which specially referred to and provided for the paving of streets in the city of New Orleans. In that statute, on page 280, it is provided that the lien resulting from the inscription of paving charges "shall remain in force for the amounts due for principal and interest (3)5C until final payment has been made. (3)5C" Therefore, since the earlier statute (the city charter) is a special one referring particularly to paving in the city of New Orleans, it was not repealed by the later general law of 1918, for in State ex rel. City of New Orleans v. Louisiana Tax Commission, 171 La. 211, 130 So. 46, 49, the court said: "Section 10 of Act No. 231 of 1920 is a general law; and Act No. 10 of that year is a special or local law, applicable to the parish of Orleans only. Local or special laws are not repealed by implication by general laws relating to the same subject-matter." To the same effect is State ex rel. Texada v. Capdevielle, 140 La. 229, 72 So. 946.

Act No. 159 of 1912 was later amended by Act No. 105 of 1921 (Ex Sess.), and this later act, in section 48, provides that in the city of New Orleans installments of paving assessments, when inscribed, "shall remain in force (3)5C until final payment has been made." If it be contended that since the paving in question here was completed prior to the enactment of the Act of 1921, that act can have no bearing on the matter, the answer is that nevertheless that statute is applicable because it in no way affects the substantive rights of the property owner. A change in a prescriptive period is not an interference with a substantive right. It merely affects the remedy. Had the prescriptive period provided by the prior legislation (if there was such a period) entirely expired, then it might be contended that a substantive right had been acquired and that the change in the prescriptive...