Town of Minden v. Stewart
| Decision Date | 26 November 1917 |
| Docket Number | 20939 |
| Citation | 77 So. 118,142 La. 467 |
| Court | Louisiana Supreme Court |
| Parties | TOWN OF MINDEN v. STEWART et al |
(Syllabus by the Court.)
Where a local assessment for street improvements is made or levied by compulsion of law, without regard to the assent or dissent of the abutting proprietors, it presents the case of a 'tax,' in the sense in which the word is used in the article of the Constitution (Const. art. 85) conferring jurisdiction upon this court.
Where the answer impeaches the validity of the city ordinance on the ground that it imposes a greater burden on the abutting property than the paying statute (Act No. 147 of 1902) authorizes, there is presented the issue of legality vel non of the tax sought to be collected, and this court has jurisdiction without regard to the amount involved.
Peremptory exceptions founded on law do not go into the merits of the cause, and should be passed on before passing on the merits.
A defendant may pray for a jury in his answer, or previous to the suit being set down for trial. And if the court erroneously orders an exception to stand as part of an answer, the defendant has the right to pray for a jury at the time of filing his answer, although the case may have been erroneously set down for trial prior to the time of the filing of such answer. O'Niell, J., dissenting in part.
Roberts & Roberts and R. C. Drew, all of Minden, for appellants.
W. R Percy, of Shreveport, for appellee.
O'NIELL, J., dissents from the ruling that this court has jurisdiction.
The town of Minden proceeds against the several defendants under Act 147 of 1902, p. 261, for the collection of taxes or local assessments for the paving of sidewalks abutting the premises of the defendants. There was judgment in favor of the plaintiff, and against defendants, from which judgment defendants appealed to the Court of Appeal of the Second Circuit, which court has transferred the cases to this court for want of jurisdiction in said court.
The defendants here move the court to remand the cases to the Court of Appeal on the ground that this court is without jurisdiction; the amount involved being under the lower limit of the jurisdiction of the court, and the legality of a tax, toll, or impost not being involved in the cases.
On Exception to Jurisdiction.
The Court of Appeal in declaring that it was without jurisdiction, and that the Supreme Court had jurisdiction, quote the third article of the answer of the defendants, which distinctly calls in question the legality of the tax or forced contribution which is sought to be collected in this case. That article of the answer is as follows:
'Defendants specifically and specially deny all the allegations contained in paragraphs 3, 4, and 5 of plaintiff's petition, and especially deny that any legal and correct assessment has been made against the property on said streets in accordance with the frontage of the private property and the proportionate cost of laying the walks in front of same; and especially deny that the assessment or charges made against defendant's property are in accordance with the frontage, or are correct and legal in any particular, or that defendants or their property owes the same, and shows that no assessment has been made against any other property on said streets but your defendants, and that it is incorrect, illegal, null and void.'
Article 85 of the Constitution declares:
'The Supreme Court, except as hereinafter provided, shall have appellate jurisdiction only * * * to all cases in which the constitutionality or legality of any tax, toll or impost whatever * * * shall be in contestation, whatever may be the amount thereof. * * *'
It has been repeatedly held that a local assessment of the kind now under consideration is a tax within the meaning of the article just quoted from. In this very case when it was appealed previously by Alberta Glass, one of the defendants here, it was said with reference to the quotation above noted in the answer in this case:
'A denial that an assessment is properly apportioned raises a question of the legality of the assessment, and creates an appealable issue.'
The motion to dismiss the appeal for want of jurisdiction was overruled. Town of Minden v. Alberta Glass, 132 La. 927, 61 So. 874.
Act 147 of 1902, p. 261, under which the town of Minden laid the sidewalks upon which these suits have been brought, imposes 'special taxes or local assessments' on property holders without a petition on the part of the property owners for such improvements. It is therefore a forced contribution, in the nature of a tax; and as the legality thereof has been questioned by the defendants, the appeal was properly transferred to this court.
In the case of State v. Rosenstream, 52 La.Ann. 2126, 28 So. 294, which was a suit by the state for an additional license to the one already paid by the defendant, we say:
'The interpretation and construction of a tax law, with reference to whether or not the tax claimed under it is due, necessarily brings in question the legality of the tax.'
In the case of City of Shreveport v. Prescott, 51 La.Ann. 1895, 26 So. 664, 46 L. R. A. 193, where the city of Shreveport was attempting to collect taxes or forced contributions for street improvements from abutting property holders, and there was a motion to dismiss on the ground that the amount involved was less than $ 2,000, this court held that the contention of the plaintiff was:
'That the ordinance of the city council imposes a tax or local assessment upon the property holders on three streets, which are included in the paving contract aggregating $ 70,000 or $ 80,000 in value; the portion of no one of the taxpayers amounting to a sum equal to $ 2,000. * * *
'The legislative act upon which the ordinance of the city of Shreveport is founded is, as its title declares, one to empower cities and towns (the city of New Orleans excepted) having a population exceeding 10,000 to pave or otherwise improve the streets and alleys thereof, and to levy and collect special taxes and local contributions on real estate abutting the same; to defray part of the cost of such work of improvement, etc. * * * The decisions of this court have repeatedly held that local assessments were not taxes eo nomine -- that is, in the ordinary sense of that term as it is employed in the Constitution; but that they are taxes in the more general signification that they are a charge put upon property by authority of the lawmaking power.
'The general distinction that is taken between taxes and local assessments, by courts and authors, is that the former are forced contributions, levied by the government alike upon all property for the purpose of raising revenue for the support of the government, without reference to the benefit that the taxpayers may derive therefrom; while the latter are also forced contributions which are levied by the government, but upon certain particular property, and with a view of raising revenue for certain designated purposes, having direct reference to the special benefits that will inure to the property thus taxed.
'It will serve no useful purpose to examine and analyze those authorities.
'It has also been held, with practical unanimity, in numerous decisions of this court, that while the portion of the cost of paving and improvement of streets and banquettes in cities and towns which are, under the law, chargeable to abutting property owners, are local assessments, yet they are taxes in the sense of the article of the Constitution which confers appellate jurisdiction on this court; but the reason for so holding evidently was that under the provisions of different city charters such assessments were based primarily upon petitions signed by such abutting property owners, and, consequently, not predicated upon the fiat of the General Assembly, notwithstanding same were levied upon the theory of local benefit conferred upon the property of abutting proprietors. * * *
'The local assessment under consideration was levied by the city of Shreveport, but by the authority of a legislative enactment, which required no consent on the part of property owners residing upon the streets to be paved. * * *
'The feature which distinguishes local assessments for public state purposes from those for city street improvement is the assent of the property owner; same being a since quo non to the latter, but not to the former. * * *
'All of the foregoing decisions are entirely consistent and all of them equally favor the constitutional right of this court to assume appellate jurisdiction of all cases in which is involved any tax, toll or impost whatever, when same is levied in pursuance of the law alone. * * *
'Viewing our jurisprudence in this light, we are of the opinion that we should entertain jurisdiction of this cause, and, being of this opinion, the motion to dismiss the appeal is denied.'
In the case of Kelly v. Chadwick, 104 La. 719, 29 So. 295 which involved the collection of taxes or forced contributions for street improvements in the city of New Orleans, where the assent of property owners had not been had, and a motion to dismiss the...
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