Reynolds & Henry Construction Company v. Police Jury of Ouachita Parish

• Decision Date: 01 June 1892
• Docket Number: 1261
• Citation: 44 La.Ann. 863,11 So. 236
• Parties: REYNOLDS & HENRY CONSTRUCTION COMPANY v. POLICE JURY OF OUACHITA PARISH
• Court: Louisiana Supreme Court

11 So. 236

44 La.Ann. 863

REYNOLDS & HENRY CONSTRUCTION COMPANY v. POLICE JURY OF OUACHITA PARISH

No. 1261

Supreme Court of Louisiana

June 1, 1892

APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

Boatner & Lamkin, for Plaintiff and Appellee.

F. G Hudson, for Defendant and Appellant.

OPINION

BREAUX J.

The Reynolds & Henry Construction Company, a corporation domiciled in Illinois, sues (as assignee of the Houston Central, Arkansas & Northern Railroad Company) the police jury of the parish of Ouachita.

In order to aid the said railroad in building a line of railway for traffic communication the police jury, at a session held March 13, 1888, ordered an election to be held to determine whether or not a five-mill tax for ten years should be levied, and the amount realized paid over to the said railroad company.

The returns of the election held, show that a large majority voted in favor of the levy of the tax proposed in the ordinance submitted to the property tax payers.

The result of the election was promulgated as required by law.

Plaintiff alleges that the H. C., A. & N. R. R. Co., within the time stipulated in the said ordinance, begun and prosecuted in good faith the building of said railroad in the parish of Ouachita, and continued the said work until January 14, 1889 when it entered into contract with plaintiff to continue the said work to completion. That the road was completed in the parish of Ouachita north and south from Monroe, La., by it under said contract and within the time stipulated in the said ordinance, entitling it to claim from defendant the first of the ten years' five-mill per annum tax.

It prays that it be decreed to have earned, and to be entitled to the one year's taxes, and that the police jury and the individual members thereof be commanded to assess, cause to be collected and paid over to it said five-mill tax on all taxable property in the parish for one year except the property of the Vicksburg, Shreveport & Pacific Railroad Company.

The defendants resist plaintiff's demand on a number of grounds:

1. The said ordinance numbered 634, they contend, is null and void; the property tax payers of the parish of Ouachita having already previously voted a five-mill tax upon all property in the parish in aid of the construction of the New Orleans, Natchez & Fort Scott Railway Company, which was still in force, defendants are without legal power or authority to levy and collect a tax in excess of five mills for ten years in aid of railway enterprises.

2. That said ordinance is null and void because it excepts the property of the Vicksburg, Shreveport & Pacific Railway Company from said tax, thereby contravening Art. 208 of the Constitution and Sec. 2744 of the Revised Statutes.

3. The defendant assails the correctness of the ruling of the district court excluding evidence that minors, tutors, administrators, agents, married women, widows, ladies femme sole, non-residents, absentees and corporations property tax payers of the parish of Ouachita were permitted to vote, and they contend that, but for the vote of these persons, a large majority of the property tax payers of the parish, in numbers and in value, did not vote in favor of said tax.

4. That the H. C., A. & N. R. R. Co. did not begin and continue work in good faith within the time stipulated in the said ordinance 634.

5. That the president of the said H. C., A. & N. R. R. Co. renounced said five-mill tax.

STATEMENT OF THE FACTS.

On the 14th day of January, 1889, it was agreed, between plaintiff and the said railroad company, that, on the completion of fifty miles of railroad, twenty-five above and twenty-five below the town of Monroe, said railroad company would transfer said tax to plaintiff as part consideration for the work.

In an act dated 16th November, 1889, the president, authorized by a resolution of the board of directors of the railroad company, declared that plaintiff had complied with the contract and therefore assigned to the company all rights and interest of the said railroad company to the said tax.

It is not disputed that the plaintiff company has carried out its contract of January 14, 1889, with the H. C., A. & N. R. R. Co.

The police jury, conforming with the petition of more than one-third of the property tax payers, adopted an ordinance as alleged, ordering a special election for the purpose of submitting a proposition to the qualified tax paying electors whether a five-mill tax should be voted.

The election was held as alleged.

By ordinance of January 6, 1890, the police jury declares that the provisions of Ordinance 634, adopted March 13, 1888, have not been complied with by the H. C., A. & N. R. R. Co., and they repeal the said ordinance. When the ordinance repealing the tax was offered in evidence plaintiff objected to its admissibility on the ground that it was an attempt to impair or destroy the contract previously entered into between the police jury and the said railroad company.

Section 8 of the ordinance sets forth that the said railroad company shall not receive any part of the said tax unless the actual work of building shall be entered upon and prosecuted in good faith in the parish of Ouachita within ninety days after the promulgation of the vote authorizing the levy of the tax.

The witnesses for the defendant testify substantially that after the promulgation of the Ordinance 634 and the tax had been voted, the railroad company commenced work with a small force, graded three or four miles and stopped, having no more money, and practically abandoned the building of the road.

Those for the plaintiff testify that the railroad company begun work in good faith within the ninety days; that the work was never abandoned, and that the contract has been complied with.

The property tax payers on the 31st December, 1886, voted a tax of five mills for ten years in aid of the construction of the New Orleans, Natchez & Fort Scott Railway Company.

This tax was not paid; the road was not constructed.

The parish of Ouachita and the Vicksburg, Shreveport & Pacific Railroad Company entered into a contract wherein the police jury agreed to remit to the Vicksburg, Shreveport & Pacific Railroad Company certain taxes, and it was therefore stipulated that no part of Ordinance 645 should be construed to compel the police jury to pay the H. C., A. & N. R. R. Co. any taxes remitted to the V., S. & P. Co. from 1887 to 1894, inclusive.

This ordinance was adopted by the following vote:

For special tax, 1419; against, 84; majority in votes cast on the amount of property represented, $ 1,024,851.80.

The Ouachita Valley Railroad Company, a local company, was organized and had for its object the building of a railroad on or near the line of the H. C., A. & N. R. R. Co.

After about $ 50,000 had been subscribed to the stock of this company and work was about to commence, it is alleged the H. C., A. & N. R. R. Co. became the transferees of the subscription list of the Ouachita Valley Railroad Company, and applied the collections to the building of its road.

The latter company collected about $ 25,000 of the subscriptions. Stock was issued to the subscribers who had paid up in...