Town of Minden v. Glass
| Decision Date | 06 January 1913 |
| Docket Number | 19,469 |
| Citation | 132 La. 927,61 So. 874 |
| Court | Louisiana Supreme Court |
| Parties | TOWN OF MINDEN v. GLASS |
On Rehearing, May 12, 1913.
Appeal from Second Judicial District Court, Parish of Webster; Ben P. Edwards, Judge ad hoc. Action by the Town of Minden against Alberta Glass. From the judgment, plaintiff appeals.
Judgment below reversed, except in so far as it nonsuited defendant's reconvention demand for damages, and plaintiff's suit dismissed as in case of nonsuit.
(Syllabus by the Court.)
On Motion to Dismiss.
1. COURTS (§ 224*) -- SUPREME COURT -- CONSTITUTIONAL QUESTION -- LEGALITY OF TAX -- ORDINANCE.
Where a city counsel has passed an ordinance for the paving of sidewalks, and seeks to compel a property owner to pay for the sidewalks laid before his house, in default of his doing so, there is a constitutional question raised regarding the legality of a tax, where the defendant alleges that the ordinance under which the sidewalk was laid had been improperly passed.
On the Merits.
2. MUNICIPAL CORPORATIONS (§ 407*) -- SPECIAL ASSESSMENT -- STATUTES -- STREET IMPROVEMENT.
Statutes giving to municipal corporations the right to exercise the power to tax for municipal improvements should be strictly construed, and, when the power is sought to be exercised, there should be a full and strict compliance with all the requirements of the statute creating the right.
3. MUNICIPAL CORPORATIONS (§ 335*) -- STREET IMPROVEMENT -- VALIDITY OF CONTRACT -- NOTICE.
Where the law requires that ten days' notices should be given for inviting the submission of bids for public improvements, a bid accepted before that time cannot form the basis of an enforceable contract. A contract thus made in disregard of the requirements of the law is null and void.
4. MUNICIPAL CORPORATIONS (§§ 488, 489*) -- STREET IMPROVEMENT -- ILLEGAL CONTRACT -- ACQUIESCENCE OF PROPERTY OWNER.
As the defendant protested against the town accepting the bid of the contractors on the ground that it was illegal to do so, he can hardly be said to have acquiesced in the placing of sidewalks before his property under the illegal contract. This lack of acquiescence on defendant's part is further shown by his belief that the sidewalk was a damage rather than an improvement to his property.
On Rehearing.
5. MUNICIPAL CORPORATIONS (§ 336*) -- STREET IMPROVEMENT -- LETTING OF CONTRACT.
Act No. 147 of 1902 conferred on the town of Minden full authority to pave and improve sidewalks and curbings by contract let to the lowest responsible bidder. Held, on the facts of the instant case, that the paving contract was properly let.
6. MUNICIPAL CORPORATIONS (§§ 469, 514*) -- COST OF PAVING -- APPORTIONMENT.
The same statute provides as follows: "That the owners of real estate so abutting shall pay the entire cost of such work, on the basis of the respective frontage of the property on the sidewalk or curbing to be paved or improved." Held, that the entire cost of construction on each street should have been apportioned on the basis of frontage, and that the assessment against the defendant of the entire cost of the work done in front of his particular lots was illegal; but that the failure to properly apportion the cost of the work does not preclude the plaintiff from hereafter making a proper assessment.
7. MUNICIPAL CORPORATIONS (§ 365*) -- PAVING WORK -- ACCEPTANCE -- EFFECT.
Where paving work was performed by the contractor and accepted by the municipal authorities, such acceptance, in the absence of fraud, is conclusive that the work was performed in accordance with the terms of the contract.
W. R. Percy, of Minden, for appellant.
Stewart & Stewart and Roberts & Roberts, all of Minden, for appellee.
BREAUX, LAND
Plaintiff instituted this suit to recover three different amounts, less than $ 2,000, and interest, for the use and benefit of contractors, Dejersey and Barnard, for paving sidewalks opposite defendant's property. Plaintiff also asked for the recognition of a lien and privilege as securing payment of the amount.
Plaintiff derived its right in the first place for entering into the contract by Act 147 of 1902, also by authority conferred by the town charter.
Treating the propositions as a whole, the town entered into a contract with the contractors before named to lay concrete sidewalks along certain streets. This contract was directly authorized by the ordinance of July 12, 1909. Plaintiff alleges that the cost of the whole work was assessed against the property owners, and that the amount claimed is the proportion of cost due by defendant for the work done. Plaintiff also alleged that the chairman of its street committee gave the defendant notice to construct his sidewalk, but that he failed to comply with the notice; that he (defendant) never protested but stood by while the sidewalk was being constructed; and that by his conduct he was estopped from objecting to the work and from raising legal defenses not to pay.
Defendant in the first place complained of plaintiff's failure to comply with his prayer for oyer of certain papers described.
Plaintiff answered the prayer for oyer and alleged that it had complied with defendant's demand (and in this it is borne out by the returns made), except that it did not return an ordinance, which plaintiff alleged had been repealed.
We may as well state now that the issue raised because of this prayer for oyer and alleged failure to comply therewith has lost importance from our point of view. Plaintiff has abandoned all claims under the existing ordinance as it is not material to the issues; there is no just ground of complaint on the part of the defendant.
The defendant filed a plea of no cause of action. Defendant also filed a plea of general denial, and, in addition, alleged the illegality and unconstitutionality of all of plaintiff's ordinances and resolutions made the basis of the suit and of all of its proceedings in matter of the alleged improvement. Defendant further alleged that plaintiff failed to comply with its own laws and regulations, those which it was incumbent upon it to comply with. Defendant further alleged that no bids for the construction of sidewalks were ever received by the town and adopted legally, and avers that the contract was not awarded to the lowest bidder; that plaintiff kept no record of its proceedings, gave no notice to construct sidewalks, levied no assessments; that the ordinance No. 72 is illegal; that members of the council were dual officeholders, had an interest of some kind which renders them incompetent, and other objections to the same effect were urged.
The district court rejected plaintiff's claim, and a judgment was entered, from which the plaintiff appealed.
On Motion to Dismiss the Appeal.
Defendant and appellee moved to dismiss the appeal on the ground that the amount sued for is less than $ 2,000, and because the constitutionality of a tax, impost, or toll is not in contestation, and no ordinance of a municipal corporation has been declared unconstitutional.
The only question for decision is whether special assessment and levy of a tax for local improvement is to be considered as a tax or a mere assessment.
A similar question to that presented here was decided on a motion to dismiss the appeal in Kelly v. Chadwick, 104 La. 729, 29 So. 295. The legality of a local assessment was the issue presented in the cited case. As in the present case, the taxpayers had never been consulted about the tax for local improvement. The court in the cited case held that the forced contribution was a tax, citing Shreveport v. Prescott, 51 La.Ann. 1895, 26 So. 664, 46 L. R. A. 193.
The Kelly-Chadwick Case was reaffirmed in Bruning v. Chadwick, 104 La. 718, 29 So. 301. The question came up again in Moody v. Chadwick, 108 La. 66, 32 So. 181. Again the court held that it was a tax. The case of Asphalt Co. v. Loewengardt, 109 La. 439, 33 So. 553, is a parallel case. A denial that an assessment is properly apportioned "raises a question of the legality of the assessment and creates an appealable issue." Moody v. Sportorno, 112 La. 1008, 36 So. 836.
The question decided in that case was that the cost of the work was not apportioned according to the tax.
In the present case as in the cited case the tax is at issue.
The motion is overruled.
On the Merits.
In matter compelling taxpayers to pay for alleged local improvements (without consulting them), there ought to be a full compliance with the laws and ordinances. We quote the paragraph of the syllabus in a pertinent case, to wit, Asphalt Co. v. Watt, 51 La.Ann. 1345, 26 So. 70:
"Statutes exercising the power of taxation in any of its forms or delegating that power to political subdivisions are to be strictly construed and closely pursued."
In the case before us for decision, there was failure as relates to pursuing the plain meaning of the statute, and an open disregard of its requirements. The authorities of the town...
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State v. Standard Oil Co. of Louisiana
...less onerous to the taxpayer must be adopted. Barber Asphalt Paving Company v. Watt, 51 La.Ann. 1345, 26 So. 70; Town of Minden v. Glass, 132 La. 927, 61 So. 874; State v. State Agricultural Credit Corporation, 176 La. 590, 146 So. 159; United States v. Merriam, 263 U.S. 179, 44 S.Ct. 69, 6......
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Town of Minden v. Stewart
... ... 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.' ... ...
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