Kelly v. Chadwick

On Motion to Dismiss Appeal. Blanchard, T. The ground of the motion, made by plaintiff and appellee, is want of jurisdiction ratione maieriae appearing on the face of the record, the amount involved being $638.80, or a sum below the minimum jurisdictional limit of this court. [721] The City of New Orleans let a contract to A. J. Christopher to pave Hagan avenue from Canal street to Esplanade avenue. As far as it was possible to do so the contract was executed. It was not wholly executed for the reason that Hagan avenue, for a small part of its line between the points indicated, had not been opened as a street. Christopher transferred his rights and claims under the contract to the plaintiff. Defendant owned certain lots having a frontagé on Hagan avenue along that part of the street paved. An assessment of the amount he was due as front proprietor, under the contract for paving the avenue, was made by the City Engineer and Commissioner of Public Works. He declined to pay and this suit was brought to enforce payment. The petition alleges the contract with Christopher was made, and the paving done, in accordance with Act No. 73 of 1876 and with Sectiou 37 of Act No. 20, approved June 23, 1882, entitled “An Act to Incorporate the City of New Orleans,” etc., as amended by Act No. 119 of 1886, as amended by Act 142 of 1884, and in accordance with City Ordinances Nos. 11,184, 11,349 and 12,136, and other laws and ordinances on the same subject matter. It is further averred that, prior to the making of the contract, the resolution to pave the -street was passed by the City Council by a two-thirds vote, and that notice of intention to pave the street and enact the ordinance relative thereto was published in the official journal once a week for four weeks. A lien and right of pledge upon the property and its proceeds is claimed. The prayer is for judgment against the defendant for the amount sued for, with interest, and with recognition of the lien claimed upon the property, and condemning the property to be sold and the proceeds applied to the payment of the indebtedness. A supplemental and second supplemental petition were filed, which, in so far as the motion to dismiss the appeal is concerned, need not be further referred to. Among other defenses set up, it is averred, on behalf of the defendant, that' the city ordinances under which plaintiff claims are unconstitutional and illegal, and the grounds for this charge of unconstitutionality and illegality are set forth in detail and at length. From the several answers filed by defendant we think it sufficiently [722] and affirmatively charged that the city ordinances, and the contract predicated upon same, transcend the powers and authority granted by the statutes relating to the subject of street paving in the City of New Orleans. This brings the case, so far as the jurisdictional question raised is concerned, within the rule announced in City of Shreveport vs. Prescott, 51 La. Ann. 1895. In that case, as in this, the assessment, or charge upon property for street improvement was made, or levied, by compulsion of law without regard to the assent or "dissent of the abutting proprietors. It was purely a forced contribution, the property owners having no voice whatever in the matter. The law under Vhich the proceeding here was taken (Section 37 of Act 20 of 1882, as amended by Act 119 of 1886, as amended by Act 142 of 1894) authorized the City Council to levy the charge by simple ordinance (a two-thirds vote adopting same), without any precedent application of the owners of property. The law under which the proceeding in the Prescott ease was taken (Act 10 of 1896) was, in this respect, the same, save that a majority, instead of two-thirds, vote sufficed to pass the paving ordinance and levy the assessment. We held, in the latter case, that the forced contribution for street improvement purposes, under such circumstances, was a tax in the sense of the constitutional provision conferring appellate jurisdiction upon this court. So, too, we must hold in the instant case. In the Prescott case the abutting proprietors impeached the validity of the city ordinance on the ground that it imposed a greater burden upon their property than the paving statute, correctly interpreted, permitted. Hence, the illegality of the tax, or forced contribution,- assessed against them. This court, entertaining the view that the ordinance was not in' keeping with the terms of the statute, and to the extent not in keeping with it injurious to the abutting owners, annulled the same, reserving to the City Council of Shreveport the right to reform the ordinance so as to conform to the law. Here the like contention is made — that the ordinance exceeds the authority bestowed by the statute, and injuriously affects the property owner. [723] There is, therefore, presented the issue of illegality, vel non, of the tax sought to be collected, and this court has jurisdiction. Constitution of 1879, Article 81. Constitution of 1898, Article 85. The authority relied upon by appellee’s counsel to sustain his motion to dismiss — the Rosetta Gravel, Paving and Improvement Company vs. Adler, 52 La. Ann. 689- — is not in point. For these reasons it is ordered that the motion to dismiss the appeal be denied.