City of Shreveport v. Prescott

On Motion to Dismiss Appeal. The opinion of the court was delivered by Watkins, J. The motion to dismiss -is grounded on the want of jurisdiction of this court, ralione maleriae — the amount in dispute being less than two thousand dollars. ■ The contention of the defendants and appellants is, that this court has jurisdiction, for the reason, that the question at issue is, the constitutionality and legality of an assessment, or forced contribution for street improvement, which -was levied by compulsion of l.nv, and without the consent of the abutting proprietors. That the assent of the property owners was, in no way, required, ■;.nd that they had no voice whatever in the matter. That the law under which the proceedings complained of were liiken, authorized the city council to levy the charge, by simple ordinance, without any precedent application of the property owner. Act 10 of 1896. Their contention further is, 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 p>aviiig contract, aggregating.-eventy or eighty thousand dollars in value — the portion of no one . i the taxpayers amounting to a sum equal to two thousand dollars. — 1898 — Tho foregoing contentions are predicated upon the principles announced in State ex rel Hill vs. Judges, 46th Ann., 1297; and Railroad vs. Sheriff, 47th Ann., 706. Tho purport of the contention of appellants’ counsel is, that such a local assessment is a tax within the jurisdictional sense of Article 81 of the Constitution of 1879, and Article 85 of the Constitution of 1898. On the other hand, the contention of appellee’s counsel is, that the principles announced in Fayssoux vs. Denis, 48th Ann., 850, are different from those announced in the decision relied upon by appellants’ eopnsel, and should control; but appellants’ counsel insists that tho same are not in conflict, for the reason, that the assessment under discussion in Eayssoux vs. Denis was predicated upon the assent of the property 'holders, and that the proceedings for its assessment were inaugurated by them. That in such case, the assessment not having been levied solely and alone on the authority of law, either by an ordinance of the city council, or an act of tho legislature, it does not possess the characteristics of a tax, even in a jurisdictional sense; but the one in question here, having been levied by compulsion of the law alone, is a forced contribution, and a tax within the contemplation of the aforesaid articles, defining the jurisdiction of this court. This suit is one -brought by the City of Shreveport, for the use of the street contractor, against the defendants, who refuse to pay the amount charged to them for paving the street with vitrified brick, in front of their respective properties; and the amount claimed from each is less than two thousand dollars ($2000.00), and in the aggregate does not exceed five hundred dollars ($500.00), against all three defendants. • • ’The petition alleges, that in pursuance of law, the city entered into a contract with one Talbot, after observance of all due and legal formalities, to pave Texas street, part -of Common street, and Texas avenue, up to Jordan street, at the rate of $1.87 per square yard. That said paving provided for in the contract had been completed, and that the city has accordingly levied local assessments on the abutting properties, so as to aportión two-thirds of the contract price on the said real estate, on the basis of their respective frontages, according to law; and that the portion due under said assessment charged against the defendant, Prescott, is $408.27, less $324.13, already paid; that against J. S. Rendall, is $415.85, less $33-3.18. al — 1899 — ready paid; that against Mistress H. Simon, is $411.40, less $212.00, already paid. The further averment of the petition is that the local assessments against said properties have been duly recorded, and are privileged! on same, and against the owners thereof; and that the partial payments were mado by said defendants as aforesaid; but they refuse to pay the balance, on the ground that the law does not charge their properties to the extent of two-thirds of the contract price, and that the city council has no authority to levy a local assessment to that extent on said properties. That said amounts are justly due, and for which thejr pray judgment against the defendants, with recognition of privilege on the-said properties, and for the enforcement thereof. The parts of the appellants* answer, responsive to the motion to dismiss, are, that “they allege that certain .of the property holders on Texas street, relying on representations made by the city officials that the assessments made against their property on account of .this improvement, were only such as the law contemplated and allowed,, have paid same; but the respondents and other property holders * * i:' object to the amount claimed by the city as excessive, exorbitant and unwarranted by law and oppressive. * * * * *■ They show that the city council and city officials have put a forced, strained and illogical construction or interpretation upon the paving statute, aforesaid, claiming under it the right to appropriate to the cit5r, as a credit on tlio one-third of the expense of paving, which the law declares it must pay, the amount exacted from the street railway company, whoso tracks occupy the several streets.” Respondents aver, there is no warrant in law for this; on the-contrary they shows that the language of the statute is plain and clear, to the effect that whore street railways occupy a part of the street paved, two-thirds of the costs of improvement is to be borne by the abutting property owners, and the railroad; the latter paying in I>roportion to the space it occupies, compared with the width of the-street. And, “that this leaves the city (as the law says it shall) one-third' of the expense of tbe improvement. *' * * “That die city officials decline to accept either of these interpreta- , fcions, and arbitrarily demand more .than tbe law permits to be ex — 1900 — acted from tlie property owners. That respondents, and a large number of property holders similarly situated resist this exaction; .and that not more than one-third of the abutting property owners on the three streets included in the paving contract, have paid tire amount demanded by the city; and those who have paid it, did so in error. “They show further, that the city council of Shreveport, by ■ ordinance, has reduced, or attempted to reduce, tire space for which the railroad company must pay, from 16 to 9 1-4 feet; and they allege, that this can not be done at the expense of abutting property holders on said streets.” Lastly, “respondents aver the unconstitutionality and illegality of the statute under which the city claims to act; and of the city ■ordinance under which these pretended assessments were made — the same contravening the provisions of Articles 1, 6, 48, 203, 209, 218 and other articles of the Constitution of 1879; and, because this is an attempt to enforce, a system of local improvements without reference to the assent of property owners, for whoso benefit the paving is supposed to be done.” Therefore, the question is, whether this court has, or can, eutor'tain'jurisdiction of this case. The language of the Constitution relied upon, is, that the appellate jurisdiction of' this court, shall extend, “to all eases in which the “constitutionality, or legality of any tax, toll or impost whatever “ * * * * shall bo in contestation,” etc. Art. 81, Const., 1879. The language of the present Constitution is the same. Article 85, •Constitution of 1898. Hence,- the only question to be determined is, whether the local assessement sought to be enforced is a lax, within the sense of that •constitutional provision. 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 ten thousand, 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. — 1901 — Section one provides, that the municipal authorities of any such town or city “shall have the power to pave, plank, gravel, macadamize or otherwise improve tlie streets and alleys, or any part thereof, * * and shall have the power to levy and collect special taxes on the real estate abutting the street or alley to be improved for the • purpose of defraying a part of the cost of such work of improvement.” Section 2, declares, “that the owners of real estate so abutting, shall pay two-thirds of the entire cost of such work or improvement, and the corporation shall pay one-third out of its general resources, provided that where a railway bed and track occupies a portion of the street, it shall pay in proportion to the space occupied by its road-bed, compared to the entire width of the street.” Section 3, provides, “that whenever the city council of cities herein described shall resolve to pave or improve any portion of streets- or alleyways not less than one block, or any street or alley, it shall pass an ordinance calling for bids for the work, of which ten days’" notice shall be given in a newspaper, published in said city, 'and shall let the contract to tlie lowest responsible bidder * * * i:‘; and after the contract has been awarded, the council shall provide, by ordinance, for an assessment on real estate abutting the street or-alley, and on railroad tracks as aforesaid, a portion whereof is to be paved or otherwise improved, in such manner as to apportion two-thirds of tlie contract price on tlie basis of the respective frontage of the real estate so abutting, and on the railroad track, in the proportion as set forth in section two hereof.” Section i, provides, “that the sum assessed against said real estate and railroad track and road bed, shall be due and collected within ten days after the completion of the work and its acceptance ]iy the mayor and city engineer; and if not paid within the said ten days, the municipal authorities shall have the power to proceed by suit against the said owners and said real estate and railroad company and track to collect the delinquent assessment, and the said municipality shall have a privilege on said property or properties, to secure the payment of the sum assessed, * * * which privilege shall be-a first privilege over all other claims, except taxes.” From the provisions of the foregoing statute, it is perfectly clear, that tlie municipal authorities of the cities and towns specified, were given plenary power to pave, or otherwise improve, the streets — 1902 — .and alleys thereof, and to charge .the abutting- proprietors two-thirds of the entire cost of such work of improvement, without, in any way, consulting their wishes, or, obtaining their consent either by petition or at a special election held for the purpose. This statute is sui generis, and differs in that material respect from statutes in regard to street improvement generally. Therefore, it is equally clear that the point is well taken by appellants’ counsel, that the street paving-, and the resulting local assessment on their properties, was by the operation of the statute .and the ordinance exclusively, and without the concurring- assent of the abutting proprietors. We make the following quotations from the brief of defendants’ and appellants’ counsel, as best and most accurately stating the .grounds of their resistance to the motion to dismiss their appeal, viz. : “Undoubtedly, what is involved in this suit, is a charge upon “property, a forced contribution, levied by compulsion of the law. ■“The abutting property owners had no voice whatever in the matter. “Nolens volens, an enormous exaction, a heavy imposition, is assessed “against them and their property. It is for a public purpose, viz.: -“the paving of a public street, the mam thoroughfare of the city, “two and a half miles long. The evidence shows the work is to cost “about $120,000; more than two-thirds of which the city seeks to “impose upon the abutting property. This is a test case. Its de“eision affects the most valuable property in the city and hundreds “of taxpayers, many of them with small holdings, unable to meet “the exaction. “And yet we are told it is not a tax, and wc can not have reviewed by this high court, that part of the imposition challenged ■“for illegality: “The fact that the assessment is levied upon abutting property “upon the theory of supposed benefits, does not make it any the less ■“a tax. The hand of the law roaches out and enforces the exaction, “determining, alone and independent of the property owner, that the “improvement benefits his property, and he must pay. This is absolutely as much ‘a tax,’ in the broad sense of that term, as it is “possible for anything to be. * * * * * x *- * “The State Constitution declares, that the appellate jurisdiction — 1903 — “ of the Supreme Court shall extend ‘to all cases in which the con- “ stitutionaiity or legality of any lax, toll or impost whatever shall “ be in contestation, whatever may bo the amount thereof.’ ” Const. 1819, Art. 81. Const. 1898, Art. 85. “Observe the broad scope of the words, any lax whatever; any iin- “ post whatever. “They include any and every exaction, charge, contribution, bur- “ den, or tribute levied on the citizen, or his property. Whenever “money or funds are demanded by the law from the citizen, or “ assessed against his property, no matter what the form or method “ of taxation; whether for general purposes or for local benefits, the “language of the constitution is intentionally made broad enough “ to eover it, and this Honorable Court may' review its constitutional “ and legal features.” Again: “Whatever the constitutions of other States may have intended, “ or not intended by the words tax or taxes, as used in them, it is “ clear that when the constitution of Louisiana came to define the “ appellate jurisdiction of this court, it used language of the most “ iatitudinous significance, in vesting this court with the right of " review of all eases where the legality of any kind of tax, or tribute, “ or exaction, or burden placed upon the citizen or his property is in “ contestation, without regard to the amount in dispute.” After having made an examination and analysis of the pertinent decisions of this court in regard to its constitutional jurisdiction in cases involving the legalty of local assessments made by authority ui the general assembly for levee purposes, counsel say: “There can be no difference or distinction in principle between “foi-ced contributions for levee purposes, and forced contributions for “ other improvements. All alike, to he valid, must be for public “ purposes. “Where the charge is put upon the property of the citizen by the “law, where it is in this sense a forced contribution, where he has “no voice in the matter, where it is done without asking his consent, “ or that of his fellow-abutting property holders, where it is a levy “resting on the compulsion of the- law, operating through the State “government, or that of one of its political sub-divisions, it is no “longer an open question that this court has jurisdiction; that it — 1904 — “ comes within the meaning of the words, ‘any tax, toll or impost “ whatever/ that it is a tax, or impost in this sense. “ The forced contribution in the instant ease is for a public pur“posc, to-wit: The paving of a public street in the City of Shreve- “ port.” Per contra, the contention of the plaintiffs counsel is tersely pm in the following’ quotation from his brief, viz: “Therefore, the only inquiry is, is this a suit, or proceeding to “ enforce a tax'? “A suit to recover from abutters their proportion of the cost oí “paving a street has never been held to be a suit to enforce a tax “ On the contrary, it has always been held in tire negative, and iv. “ the face of numerous decisions of this court (one of them in 1896). “ appellants have held up the collection of the judgment against them “by appealing here, and hence, we ask a dismissal with penalty as “prayed for in motion to dismiss. There is an unbroken line of “ opinions of this Honorable Court from 48 A., 852, back into the “ Robinson Reports, declining to take jurisdiction in such suits. “ unless the amount in dispute was more than $2,000. “The latest authority, 48 Ann., 852, should put such question at “ rest.” The decisions of this court have repeatedly held that local assessments were not taxes eo nomini, 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 law-making 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 enure to the property thus taxed. It will serve no useful purpose to examine and analyze those authorities. — 1905 — It bas, also, been held, with practical unanimity, in numerous decisions of this court, that while the portion of the cost of the 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 not taxes in the sense of that article of the constitution which confers áppellate 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 loco I benefit conferred upon the property of abutting proprietors. And that is the theory of our opinion in Fayssoux vs. Denis, 48th Ann., 850. “The tax,” says our opinion, “is levied for the. public benefit; “the local assessment for the improvement of the property of the “individual, and payment is exacted solely on the theory, that- be “receives the benefit, not participated in by the community, at “ least, to some extent. “Taxes are levied, too, solely by virtue of the law conforming t-> “ the constitution. “No system of local improvements is enforced,' without some “ reference to the assent of the owner, for whoso advantage the “ banquette or street paving, or other supposed improvement is “ furnished. “Tt is true the assent of the majority or other proportion of the “ owners, fixed by law, is made to bind thoso who object. But, still, “there is the substitution of the will of the majority, for the consent of all, or other similar requirement to make binding the local “ assessment. “In this respect, the local assessment differs from the public tax, “ effective, simply, and only, because the constitution authorizes, and “ the law directs it, “Under the city charter, the. paving must be petitioned for by “property owners; and, if, after due publication, it-is not opposed “by a majority, it is ordered by the council. While, therefore, the local assessment is deemed a tax, it is distinguished from the .public tax by marked differences.- The fax, as usually understood„ — 1906 — " is levied by the law alone,, not for the individual, but for the “ public good. "• "The local assessment is enforced by the law, bid based on the “ consent of the owners to the extent required by the statute, and is " levied for the advantage, the law presumes, of those on whosé " property the assessment is imposed.” 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. In this important particular, that statute differs from the provisions of the charter of the city of New Orleans which controlled the decision of the case of Fayssoux vs. Denis; and in this respect, that statute under consideration is very closely assimilated to the statutes governing' local assessments for levee purposes. 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 sine qua non to the latter, but not to the former. In State ex rel Hill vs. Judges, 46th Ann., 1292, we had under consideration the legality of a special assessment levied for the benefit of certain lands, which -were subject to inundation and overflow; and the respondents having declined to take jurisdiction of an appeal which involved the determination thereof, mandamus was applied for to this court to compel them to examine and decide the same. In the course of our opinion we said, the Chief Justice speaking for the court: "We are of the opinion that the cases involve the issue of tax and illegal .tax vel non, and that that is an issue which has to be passed upon and determined by this court, and not the Court of Appeals.” And, then quoting tho eighty-first article of the constitution, the 'opinion proceeds thus, viz: “We are of the opinion, that the use of the words 'all cases,’ and “of the'words rany tax, impost or toll whatever,’’ clearly indicates “ on the part .of the framers of the constitution an emphasized indention to give.to, the terms tax, toll and impost the widest mean- “ ing to which they are susceptible, and to allow every citizen to have ■“ submitted to the test of legality and constitutionality by the highest ■“court of the State, any charge upon his property imposed by the — 1907 — '"State or 'its subordinate political agencies, -when claimed to be “ legally and constitutionally imposed by them in aid of govem- “ mental purposes, whether extending over the whole State, or over “ particular localities. “The fact that charges imposed by the State or its subordinate “ agency, may differ and vary from each as to the particular cir- “ oumstances and conditions under which they may be imposed, and “the extent of resulting effect of their imposition, does not prevent,“for the purpose of the special question of the jurisdiction of’ “ courts, in dealing with them, their falling in an extended sense “ under the terms ‘tax, toll or impost.’ “It is for this court, and it alone, finally to determine, whether “ charges imposed upon the property of the citizens are, or are not “taxes, imposts or tolls; and, if so, whether they are legally and “ constitutionally imposed. “As eases arise under differing1 circumstances and under differing' “ pleadings, we will’ determine whether the particular case falls “ within our exclusive, appellate jurisdiction for decision, o-r not.” In the "same case, Hr. Justice Hiller very strongly emphasized the •doctrine, which the Chief Justice, announced, in a concurring- opinion. in the following language, viz: “The jurisdiction of this court under the constitution extends to '“ all cases in which the constitutionality or legality of any tax, toll “ or impost whatever, is involved. It is manifest the word tax in “ this part of the constitution is used in its largest sense. After the “ words describing the jurisdiction of this court as extending- to all “ cases involving- the legality or constitutionality of any tax, toll or “ impost, there is added the word, ‘whatever,’ i. <?., whatever the charr “ acter of that tax, toll or impost.” This, court having- under consideration the same question in Railroad Company vs. Sheriff, 47th Ann., 708, used this language, viz: “The jurisdiction of this court is full and complete. The purport “ of our opinion in Stale ex rel Hill vs. Judges, 46th Ann., 1292, was “ that, notwithstanding forced contributions for levee purposes are “ treated as local assessments not subject to the rule of constitutional “ uniformity applicable to.general taxation, they are taxes, under Art. “SI of the constitution, conferring on this court appellate jurisdic — 1908 — “tion in all cases involving the constitutionality or legality of any “ tax, impost or duty whatsoever.” In State ex rel Tax Collector vs. Court of Appeals, 49th Ann., 1221, we held, that the constitutional provision in question “embraces, “indeed, the whole scope of remedial legislation pertinent to the “ subject of taxation.” 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 eases in which is involved any tax, toll or impost whatever, when same is levied in pursuance-of the law-alone. Considering this new deparlvure which has been taken by the legislature, (1) whereby street paving1 is to be carried on by ex parte proceedings, inaugurated by municipal authority alone; (2) that, by an ordinance of the municipality, ten-fifteenths of the cost thereof is put upon the abutting property owners, without either their knowledge or consent, and, as defendants -insist, in violation of the enabling statute; (8) that, by ordinance, also the remaining five-fifteenths of the cost is to -be apportioned between the city and certain street railroad corporations, in like violation of said statute; and (4) that, while -the proportionate shares of the several defendants of said cost are comparatively small, the total amount charged against them and other property owners-similarly situated, and whose rights would be necessarily affected by the interpretation which this court shall place upon said ordinance and law, aggregate an amount in excess of one hundred thousand dollars — the necessity for this court to entertain appellate jurisdiction of this cause becomes strikingly apparent. 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.