State ex rel. Bailey v. Sewerage and Water Bd. of New Orleans

• Decision Date: 12 May 1958
• Docket Number: No. 21183,21183
• Citation: 102 So.2d 874
• Parties: STATE ex rel. Mr. and Mrs. August V. BAILEY v. SEWERAGE AND WATER BOARD OF NEW ORLEANS.
• Court: Court of Appeal of Louisiana — District of US

Page 874

102 So.2d 874

STATE ex rel. Mr. and Mrs. August V. BAILEY v. SEWERAGE AND WATER BOARD OF NEW ORLEANS.

No. 21183.

Court of Appeal of Louisiana, Orleans.

May 12, 1958.

Rehearing Denied June 9, 1958.

Writ of Certiorari Denied Oct. 10, 1958.

George Piazza, Sp. Counsel, Sewerage and Water Bd. of New Orleans, New Orleans, defendant and appellant.

Jorda S. Derbes, New Orleans, for relators and appellees.

McBRIDE, Judge.

Relators filed these proceedings seeking a mandatory injunction to compel the Sewerage & Water Board of New Orleans to install, without charge to them, a sewerage connection to their premises located on three lots of ground in Plum Orchard Subdivision, east of the Industrial Canal, known by the Municipal No. 4857 Tulip Street. The Board refuses to make the sewerage connection unless relators agree to pay the same charge therefor as was paid by some 73 percent of the owners of property in Plum Orchard Subdivision who were instrumental in having the sewerage mains extended to said subdivision by participating in the costs of installing such service.

As its authority for demanding that relators contribute to the costs of the sewerage line, defendant points to a 'rule' or 'policy' adopted by it, the gist of which is as follows: In the fringe or outlying sections of the City, where no sewerage lines are located, the property owners of any given area may petition the Board for sewerage lines. The cost of such construction is to be borne partly by the property owners in the area (about 33 1/3 per cent) and partly by the Sewerage & Water Board (approximately 66 2/3 per cent) providing a majority of the property owners agree to contribute on a basis of $2 per front foot for developed property having a septic tank, and $5 per front foot for undeveloped property up to 60 feet, and $2 per front foot for frontage in excess of 60 feet, provided only one connection is required. These contributions are made with the distinct understanding that those property owners who fail to contribute shall not be entitled to a connection until they pay on the same basis as their neighbors who contributed.

After a trial of the case on its merits, the rule nisi for the preliminary mandatory injunction was made absolute, and the Board was condemned to make the sewerage connection from relators' property line to the sewerage line either on Prentiss Avenue or on Tulip Street without the payment of any costs by or any charges whatever to relators. The district judge refused a suspensive appeal, whereupon the Board applied to the Supreme Court (No. 43,933 of its docket) for writs of certiorari, prohibition and mandamus to coerce such appeal, but the Court refused the writs 'since the remedy invoked by relator is in aid of the appellate jurisdiction of the Court of Appeal, the application is properly addressed to that court and not to this tribunal.'

We ultimately directed the trial judge to grant the suspensive appeal as defendant prayed for. In the per curiam we stated that whereas the Supreme Court has declared the action to be a 'mandamus proceeding,' it necessarily follows that the right to a suspensive appeal exists.

The interesting history and background of and the purposes for which the Sewerage & Water Board of New Orleans was constituted may be found in State v. Billhartz, 146 La. 855, 84 So. 120, 121, viz.:

'In April, 1899, the requisite number of property tax payers of New Orleans petitioned the mayor and council of that city to call an election upon the question of levying a special tax, and the funding of the same into bonds, the proceeds of which were to be devoted (1) to the acquisition (by construction, purchase, or both) of a system of waterworks, the extension thereof, and the purification of the water supply therefrom; (2) the construction of a free sewerage system and free water therefor; and (3) the completion of the public drainage system, then in process of construction. The petitioner(s) also prayed that, 'when said tax is voted, the council will organize a sewerage and water board * * * for the purpose of constructing, controlling, maintaining, and operating said water and sewerage system,' * * *. The election was accordingly held on June 6, 1899; the proposition to levy the tax, etc., was sustained; * * * and, on June 22, the tax was levied. In order, however, to make effective, in all respects, the action so taken, it was necessary to obtain a ratification thereof by constitutional amendment, and the General Assembly (having been convened on August 8, 1899, in extra session) passed the Act No. 6 of 1899, which by joint resolution (of the same session), was proposed as an amendment to the Constitution (of 1898), and, as such, adopted at the general election held in the month of April following. * * *

'It will be seen, therefore, that the purposes, terms, and conditions for and upon which the property tax payers of New Orleans consented that their property should be subjected to the special tax, which could not have been levied without such consent, were set forth in considerable detail, in an act of the General Assembly, which, by vote of the entire electorate of the state, was incorporated in, and made part of, the Constitution, and which (it may be stated) has so been recognized by this court. State ex rel. Saunders v. Kohnke, 109 La. (838) 861, 33 So. 793; Saunders v. Board, 110 La. 313, 34 So. 457; State ex rel. Sewerage & Water Board v. Michel, 127 La. 685, 53 So. 926; New Orleans Taxpayers' Protective Ass'n v. Sewerage & Water Board, 132 La. 839, 61 So. 843.'

Section 20 of Act 6 of 1899, LSA-R.S. 33:4081, sets forth the power of the Board to regulate the sewerage system and the free water supply furnished therewith and to compel all premises in the City of New Orleans to be connected with said system and to require the closing...