100 So. 2d 883 | La. | 1958
The plaintiffs, citizens and taxpayers of the City of Shreveport, are appealing from a judgment dismissing their suit against the City and against Dozier B. Webster, the Clerk of Court and Ex-Officio Recorder of Caddo Parish, seeking judgment decreeing the nullity and illegality of the City’s Ordinance No. 79 of 1956, under which certain local improvement assessments were made, and ordering the cancellation and erasure from the Parish mortgage records of any and all assessments against them or their property made pursuant to said ordinance.
The City Council of the City of Shreveport, availing itself of the provisions of R.S. 33:330l through 33:3316, as amended (covering the subject of municipal street improvements at the instance of the governing authority), by Resolution adopted on June 14, 1955, resolved that notice be given of intention to pave Jewella Avenue from Greenwood Road to Lakeshore Drive, the said work to be done under private contract awarded after competitive bidding, and the total expenditure to be paid in the following proportion: by the owners of real property abutting such improvements, an amount not to exceed two-thirds of the cost of a 36 foot wide strip of paving, and by the City, the remaining cost. The notice of intention, containing a verbatim copy of the Resolution as adopted by the City Council, was duly published,
The trial judge, in a well reasoned opinion, correctly recognized the law to be that statutes conferring upon municipalities the authority to impose special or local assessments, such as the' one under which the City of Shreveport proceeded,. are in derogation of common right and therefore, as a general proposition, are to be accorded a strict construction, and that failure to comply with those requirements which are sacramental is fatal to the validity of the acts of the municipality; but he also pointed out that where a statute is substantially followed, mere informalities and irregularities in the procedures employed by the municipality in attempting to comply with such statutes do not necessarily render the whole null and void — this being in fact conceded by counsel for the plaintiffs, but it is their contention that the alleged non-com-pliances of the City in carrying out the project were so gross as to invalidate the City’s power and authority to levy the assessments in this case. In resolving that issue, the trial judge held, and we think properly so, that there was substantial, if not literal, compliance with the requirements of the applicable statute, and that plaintiffs are not entitled to the relief sought.
The plaintiffs-appellants, in complaining of the trial judge’s conclusions,
The plaintiffs’ complaint with respect to the notice of intention
The final asserted violation of sacramental statutory requirements arises because the total cost of the work exceeded the bid price by some $14,369, due to the addition of items not included in the plans and specifications, nor in the advertisement for bids, the bids accepted, the contract entered into — also said to result from the “unit price” contract. On the basis that there was lack of compliance with the formalities of law requiring all items of work and cost to be determined in a process of competitive bidding, it is contended that
For the reasons assigned, the judgment appealed from is affirmed.
. R.S. 33:3302 declares: “Any municipality taking advantage of this Sub-part, shall adopt a resolution giving notice of its intention to make the proposed improvements, which notice shall contain a general description of the improvements contemplated, the manner of paying for them, and shall state whether the improvements shall be constructed under private contract or undertaken by the municipality. The notice shall be signed by the authorized officer of the municipality, and shall contain substantially all things set forth in the resolution, and shall set forth further that the authority ordering the giving of notice will, in open session, at the date and at the hour and place named, hear all objections to the proposed improvements, the manner of paying for them, and the manner in which the improvements shall be made. After hearing and passing on the objections, the governing authority may order the improvements constructed in the manner hereinafter provided. The notice of intention shall be published once a week for three consecutive weeks, the first publication being not less than fifteen days before the date fixed for the hearing of objections. The notice shall be published in a newspaper published in the municipality, or if there be none, then in some newspaper published in the parish where the municipality is located, or by posting in three public places, within the corporate limits of the municipality, fifteen days before the date of the hearing.”
. According to the provisions of R.S. 33:-3306, “ * * * A certified copy of the ordinance levying the local or special assessments on the real estate shall be filed with the clerk of court in the parish in which the municipality is situated, who shall forthwith record the same in the mortgage records of the parish, and when so filed and recorded, shall operate as a lien and privilege against all real estate therein assessed. * * * ”
. Counsel for plaintiffs, in brief filed here, state that the facts set out in the petition fall generally into three categories of complaint, “namely: (a) abuse of discretion on the part of the Council of the City of Shreveport, so gross as to constitute a confiscation of plaintiffs’ property without due process of law, and so gross as to demand the intervention ■of the Courts to prevent its exaction; (b) discrimination against plaintiffs, arbitrary and unreasonable in nature, in the expenditure of the public funds voted for this improvement purpose; (c) sacramental failure to comply with the mandatory requirements of the statute under which the improvement was constructed and the assessments complained of herein, levied.” It is also said: “Since the Trial Judge permitted no evidence to support categories (a) and (b) above, this appeal is based on category (c) above and the principles of law set out in syllabus hereto.” In the Reasons of the trial judge the contentions set out in categories (a) and (b) were discussed and shown to be without substance, on the basis of rulings of this Court in the cases of Kelly v. Chadwick, 104 La. 719, 29 So. 295; City of Shreveport v. Shreveport Traction Company, 134 La, 568, 64 So. 414; and Palmer v. Mayor and Board of Aldermen of Town of Ponchatoula, 195 La. 997, 197 So. 697.
. Supra, note 1.
. Under the caption “Notice To Property Owners” as printed in the Shreveport Journal at the required intervals appeared notice that “The following Resolution was adopted by the City Council of Shreveport on 14th June, 1955 * *
“Be It Resolved by the City Council * * * That notice is hereby given of its intention to pave Jewella Avenue from Greenwood Road to Lakeshore Drive, and to pay for same under the authority and all in accordance with * * * R.S. 33:3301 through 33:-3316 * * *
“The work to be performed contemplates grading, concrete paving, concrete curbing, gutter and sidewalks, storm sewers and pipe drainage.
“The work will be done under private contract, awarded after proper competitive bidding, and the total cost thereof, including street intersections and all engineering and other incidental costs, shall be paid for by the owners of real property abutting such improvements, to the extent of not to exceed more than two-thirds based upon the cost of 36 foot paving width, and the City to pay the remaining cost. * * *
“Be It Further Resolved, that the City-Council will meet, in open session, at 10 o’clock A.M. 12 July, 1955, at the City Hall, Shreveport, La., in order to hear, consider and pass upon any and all objections that may be made to the proposed improvements and the manner in. which they shall be made, and payment therefor and, if it should so determine,, to order such improvements constructed., * * »
.In passing, the trial judge noted “the anomalous situation * * * that plaintiffs assail the very fact that such plans, and specifications were on hand and assert that the fact that they were is evidence that the City Council had already-foreclosed their minds and would not have heeded any objections or protests, had these plaintiffs presented themselves, and offered complaint or protest.”
. It appears from tlie record that the Engineer’s plans and specifications -were confected on a unit basis, giving quantity estimates, and bids were required to be submitted on the same basis; e. g., on excavation there was an estimated quantity given, and bids were invited at a given price per cubic yard; on the concrete paving slabs, as well as on curbing and culverts, estimated quantities were given and bids invited at a price per square yard; etc. The invitation for the bids provided that the final cost of the work, either more or less than the estimated grand total, would be determined at the completion of the work when an accurate figure could be ascertained.
. It.S. 33:3305, as it read at the time of these improvements, declared, in part: “The municipality upon the award of any contract under the provisions of this Sub-part * * * shall forthwith require of the engineer of the municipality a duly certified statement or report, showing in detail, the total cost of the improvements, including street intersections, engineers’ and attorneys’ fees, and all other expenses incidental to the cost. The report shall also show the amount of the cost chargeable to each lot or parcel of real estate abutting the improvements in proportion that its frontage bears to all of the abutting lots or parcels of real estate to be improved and shall give a brief description of each parcel or lot of real estate with sufficient clearness to identify it; * *