Mayor of New Iberia v. Weeks

The opinion of the court was delivered by Blanchard, J. Plaintiff sues to recover of defendants, jointly and severally, an amount expended in the construction of a sidewalk and curbing along the front of property owned by them jointly. An ordinance of the Town Council is pointed to as authorizing the demand made. This ordinance makes it incumbent upon property holders to construct and keep in repair the curbings and sidewalks along streets in front of their property. It is provided that when in the judgment of the street committee a sidewalk or curbing should be constructed or repaired, and they so determine, the mayor is to notify the property owner to construct the same, or repair the same, as the case may be, within twenty days. This notice must be in writing. If the construction or repairing is not done by the owner within twenty days, it is made the duty of the mayor to have it done at the expense of the owner. A bill of the cost is then to be presented to the owner, and if he does not pay the same within ten days, the ordinance directs that suit shall be brought. The allegation is made that the street committee judged it necessary that a new sidewalk and curbing should! be constructed along the front of defendants’ property, and having so determined, the notice required by the ordinance was served upon them; that notwithstanding this notice defendants failed and neglected to have the work done; that after [491] the lapse of the twenty days’ delay, the town authorities proceeded to construct the improvements mentioned and paid for the same; and that due demand had been made in vain upon defendants for reimbursement. There was. judgment for plaintiffs and defendants appeal. The defense against the action is that a municipal corporation cau exercise only such powers as are granted to it expressly in its charter, or derived from the terms of the same by necessary implication; that under the charter of plaintiff corporation no grant of authority to it, expressly or impliedly, exists sanctioning such an ordinance as the one referred to; and that the ordinance, assuming powers not granted, is ultra vires, illegal and void. Opinion. Plaintiffs refer the court to Act No. 130 of the Acts of 1898 as being the present charter of the town of New Iberia. An examination of the Act shows it is one amendatory of previous Acts of the General Assembly relating to the town and its government, and also of certain sections of an amended charter of the town adopted by vote of the people at an election held on the 28th of December, 1880. No copy of this charter adopted by the people appears in the transcript. Indeed, no reference is made on behalf of plaintiffs to any charter or grant of authority to the municipality other than the Act of 1898. An attentive reading of that Act fails to reveal either directly, or by implication, the vesting in the town or town authorities, of any such power as that claimed for the enactment and enforcement of the ordinance in question. In fact, the language of the statute appears rather to withhold from, than to grant to, the municipality the authority to impose the burden of the construction and repair of the sidewalks of the town upon the owners of abutting property. The intention seems to have been that the expense of improvements of this character should be a charge upon the common treasury. For instance we find this: “It (meaning the municipality) shall have' the power and right of raising money by imposing and levying taxes and licenses upon all kinds of property, movable and immovable, and (on) all persons, associations of persons, and corporations pursuing any trade, profession, business or calling, except such as may be exempt from taxation and [492] license under the Constitution of the State, which money so raised shall be applied to its improvements of the town, to maintain the police thereof and an efficient fire department, to make openings and repairing streets, sidewalks and bridges in and around the town, and to making and repcdring every other improvement which said corporation may deem necessary amd proper, and to all other purposes to which the Board (of Trustees) may be authorized to apply them by the corporation charter.” (Italics ours.) Sec. 1, Act 130 of 1898. It indubitably .appears from this that the authority conferred upon the corporation is the right only to levy a general tax for and on account of the constructions, improvements and repairs mentioned — the cost of same tó be paid for out of monies derived from this general taxation. Not a word there or elsewhere in the charter to the effect that the cost of putting down.a sidewalk and its curbing may be assessed against the abutting property or its owner. This would be in the nature of a forced contribution and for it there must be undoubted authority delegated to the municipality, which is, at last, but an agency of the sovereign power. It is a principle universally declared and admitted that municipal corporations can levy no taxes, general or special, upon the inhabitan Ls or their property, unless the power be plainly and unmistakably conferred. This power must be given in either express terms or by necessary implication, and it is not to be collected by doubtful inferences from other powers, or powers relating to other subjects, nor deduced from any consideration of convenience, expediency, or advantage. Dillon Mun. Cor. (3rd Ed.) § 763. The authority to municipalities to impose burdens of any character upon persons or property is wholly statutory, and as its exercise may result in a divestiture. and transfer of property, it must be clearly given and strictly pursued. Ib. As the authority to levy taxes or to make local assessments does not exist unless conferred by some provision of the Constitution or by an Act of the Legislature, so.it can be exercised no further than it is clearly given, and if the mode in which the authority shall be exercised is prescribed, that must be pursued. Dillon, § 769, Since, therefore, all the powers of the corporation are derived from Wre law and its charter, it is evident that no ordinance or by-law of the corporation can enlarge the same. [493] It follows that the authority to impose contributions or exactions upon abutting- property to meet the expense of sidewalks and curbings being withheld by the law and its charter, the Town of New Iberia, its Mayor and Board of Trustees, had no warrant to enact the ordinance upon which the demand of this suit is predicated. See Fayssoux vs. Succession of De Chaurand, 36 La. Ann. 547; Barber Asphalt Paving Co. vs. Watt, 51 La, Ann. 1345. Act 136 of 1898, entitled “An Act for the creation and government of municipal corporations throughout the State and defining their powers and duties”, etc., has no applicability to the corporation of New Iberia, for the reason, that the electors of the town have never voted to bring the municipality under the provisions of the Act, .as required by See. 40 thereof. Neither can. the corporation act in this instance under the authority of Act No. 127 of 1890, which is a general law conferring powers on municipal corporations and limited to certain purposes, for the reason that Section 6 thereof expressly excludes the space allotted for sidewalks or banquettes from the operation of the statute. The judgment appealed from is erroneous and must be reversed. Accordingly, it is ordered and decreed that the same be avoided and annulled, and that the demand of the plaintiffs be rejected, with cost in both courts.