70 So. 487 | La. | 1915
Lead Opinion
Having paved Parkerson avenue from Mill street to the north side of Court square, the plaintiff brought this suit to compel the parish to pay the proportion of the cost of the work assessed against Court square, which is surrounded by the paved avenue. The demand is for $7,857.51. The defendant’s only objection to paying it is that the assessment is out of proportion and not according to the front-foot rule provided in the statute authorizing the work to be done at the cost of the adjacent property owners. The plaintiff has appealed from a judgment of nonsuit.
The defendant contends: (1) That the assessment is excessive and unfair to the property owners because the city has left unpaved spaces called neutral grounds in the center of the avenue, and that the city should therefore pay that proportion of the cost of the paving which the lineal measurement of both sides of these neutral spots bears to the lineal measurement of all property fronting or abutting the paved avenue; and (2) that in other respects, the system of assessment of this local tax, adopted by the municipality, is not one of equality and uniformity, and is not in accord with the statute authorizing it.
Parkerson avenue is the principal thoroughfare in the city of Crowley. It is 115 feet wide between property lines extending north from Mill street to and across the main line of railway of the Southern Pacific Company, thence continuing to and across Front, First, Second, Third, Fourth, and Fifth streets, to the center of the south boundary of Court square, where, with a width of 57% feet, it surrounds the square, and, resuming its original width of 115 feet at the center of the north boundary of the square, it continues on to' the northern limit of the city.
When the city was laid out in 1887, small trees were planted in the center of Parkerson avenue; but there is no record nor written evidence of a dedication of neutral ground within the avenue, nor does the official map or plat of the city show such dedication. About 20 years ago, the municipal authorities had the trees cut down, and, from that time until this paving was done, there was no evidence of neutral grounds in this broad avenue.
As a matter of economy to the property owners, and to beautify the avenue, the municipal authorities have laid off and sodded and left unpaved spaces 35 feet wide in the center of Parkerson avenue, between the intersection of Front street and First Street, and of First and Second streets, and so on as far as the paved avenue retains its width of 115 feet. The sidewalks are 14 feet in width from the property line along the avenue, and the new pavement of the thoroughfare is 26 feet in width on each side of the grass plots between the intersecting streets from Front street to the point where the avenue branches off east and west and passes around Court square.
On account of the congestion of traffic around the Southern Pacific depot, the pavement from Front street to the south boundary of the railroad right of way extends the entire width of 87 feet between the sidewalks. And, on account of the manufacturing establishments on the avenue from the south boundary of the Southern Pacific right of way to Mill street, the sidewalk on the east side of the avenue is only 9 feet wide, the new pavement on that side is 34 feet wide, the grassgrown space is 29 feet wide, the new pavement on the west is 29 feet wide, and the sidewalk on that side is 14 feet wide. Thus this central avenue of the city has a uniform width of 115 feet between property lines, extending north and south from the' center of Court square. The pavement on the four sides of Court square is 26 feet in width. The sidewalks adjoining the square are 21% feet wide, and .those along the private property lines, opposite Court square, are 10 feet wide.
The petition signed by the property owners and by the president of the police jury, requesting the municipal authorities to pave Parkerson avenue, contained no restriction regarding the width of the space to be paved. The proposition was that, if the city would pave the avenue- from Mill street to the north side of Court square and pay that proportion of the cost which the area of the intersections of the streets crossing the avenue bear to the total area paved, the property owners would pay the balance of the cost in proportion of the front measurement of their properties abutting the paved portion of the avenue, according to the provisions of Act No. 131 of 1904. It was not contemplated that the city should pay more of the cost than the proportion which the area of the intersections of the streets crossing the avenue would bear to the total area paved. Nor was there any protest against sodding and leaving unpaved these beauty spots in the center of the avenue. If the defendant’s contention is correct, that these sodded spaces are to bear the same proportion of the tax that is borne by the private property abutting the paved avenue, the city will be compelled to pay, not only for the area of the intersections of the cross streets, but also one-half of the cost of paving the remaining area between these intersections.
In support of this contention, the defendant’s counsel cite the decision of this court in the case of City of Shreveport v. Weiner, 134 La. 800, 64 South. 718. In that case, however, it was observed that the grass plots left unpaved in the center of the street did
In that case, the court referred to the decisions in Marquez v. City of New Orleans, 13 La. Ann. 319, Correjolles v. Succession of Foucher, 26 La. Ann. 363, Fayssoux v. De Chaurand, 36 La. Ann. 547, Barber Asphalt Co. v. Gogreve, 41 La. Ann. 259, 5 South. 848, and State ex rel. City of New Orleans v. N. O., C. & Lake R. R. Co., 42 La. Ann. 555, 7 South. 606, which, in our opinion, do not support the defendant’s contention in this case.
In the case of Marquez v. New Orleans, without any petition or request from the property owners, the city graded and shelled only that side of Claiborne street north of the wide neutral ground, and it was decided that the owners of the property fronting on the unimproved street on the south side of the neutral ground were not obliged to pay for improving the street on the opposite side of the neutral ground. To the same effect is the decision in Correjolles v. Succession of Foucher, where the police jury of Jefferson parish constructed a shell road along the north side of the land occupied by the New Orleans & Carrollton Railroad, and it was decided that the property fronting on the unimproved road on the south side of the property occupied by the railroad could not he taxed for the construction of the road on the opposite side.
The decision in Fayssoux v. Succession of De Chaurand has no application whatever to the present case. It was decided there that the tax which the city attempted to impose upon the property fronting on Bienville street to pay the cost of paving it was invalid because there was no petition on the part of the property owners nor publication of the intention of the municipal authorities to pave the street. The city pretended to proceed under authority of Act No. 73 of 1876, the first section of which, referring only to streets having no neutral ground, provided that the municipal authorities might pave such streets and assess all of the cost to the abutting property, after publication of a petition from a majority of the property owners. The second section of the statute, referring only to streets having a strip of neutral ground in their center, authorized the governing authorities to proceed on their own motion to pave such streets provided the city should pay one-third of the cost. Although there was no neutral ground on Bienville street, the city proceeded without the petition or request from the property owners, paved the whole street, and sought to compel them to pay the entire cost.
The cases cited above were referred to approvingly in Barber Asphalt Paving Co. v. Gogreve, but the latter decision itself has no application here.
All that was decided in State ex rel. City of New Orleans v. N. O., C. & L. R. R. Co. was that the condition in the grant of the franchise, that the street railway company should keep in good condition the streets through which its tracks passed, did not apxfiy to the neutral grounds on Canal, Rampart, and Esplanade streets.
The entire space between the property lines on Parkerson avenue was dedicated for a street. The spaces in the center, which have been sodded and left unpaved, form yet a part of the street. They are only ornamental, it is true, as would be a space occupied by a monument, a statue, or a fountain; but
Considering that Parkerson avenue has more width than is necessary for its traffic, and that the setting apart of the ornamental spaces in its center will not interfere with, but will perhaps facilitate, the observance of the rule of the road, the mayor and aider-men had ample authority to adopt that plan of improvement, under their general control and supervision over the streets of the city.
Our conclusion is that the city of Crowley is not, as the owner of property on Parkerson avenue, required to bear half of the cost of the pavement adjoining the neutral ground or ornamental spaces in that street.
Taking up the defendant’s second objection, however, we find that the assessment of the cost of this street improvement was not made in conformity with the statute, and that it does not distribute the burden of the tax with equality or uniformity.
Section 5 of Act No. 131 of 1904, under authority of which these proceedings were had, provides that the entire costs, including costs of culverts, headers, filling, engineering, labor, material, etc., of the paving shall be apportioned as follows: The city shall pay that proportion' of the total'cost which the area of the intersections of the streets crossing the street that is to be paved bears to the total area to be paved. If a railway occupies any portion of the street to be paved, the railway company shall pay that proportion of the total cost which the area of the space occupied by its roadbed bears to the total area to be paved. The remainder of the cost of the entire work is to be borne by the owners of the property abutting the street to be paved “according to the front-foot rule provided for in section 5” of the act. This reference to section 5 of the act is an error, because that is the number of the section containing the expression, and it does not contain an explanation of the front-foot rule. We assume that the Legislature intended to refer to the front-foot rule provided in section 4 for apportioning the cost of paving sidewalks. That rule is described and applied “by ascertaining the entire expense of the improvement and charging it upon each lot or parcel of real estate in the proportion that its frontage or abutment bears to that of all the abutting lots or parcels of real estate to be improved.”
Although we have no authority to make a rule of equality and uniformity for the assessment of a tax, it is necessary that we put an interpretation upon the front-foot rule referred to in section 5 of this statute. And we must do this assuming that the Legislature intended to say section 4 when they said section 5.
Our interpretation of the rule of apportionment is this: Every item of expense, including the cost of culverts, headers, curbing, gutters, filling, engineering, labor, material, etc., is to be added together and the sum divided by the total number of square yards or square feet of pavement to ascertain the cost of the improvement per square yard or per square foot. The cost per square yard or
There is error to tbe defendant’s prejudice in tbe assessment according to tbe measurement of tbe abutting property lines, without regard to the width of tbe pavement in front of or opposite each lot of ground. It is also an error to tax each lot for tbe cost of tbe curbing and gutters in front of it. Tbe cost of curbing and gutters should be included with all other costs of tbe improvement, and tbe total sum distributed as directed by tbe statute. For example, assuming that tbe engineer's figures are correct, tbe cost of tbe headers, curbing, and gutters, and of tbe engineering and extra work, amounting in all to $5,859.48, should have been added to tbe cost of tbe 19,662.59 square yards of paving at $2.58 per square yard, $50,729.48, and tbe total cost, $56,588.71, divided by tbe number of square yards gives tbe basis of every assessment; i. e. $2.8779+ per square yard, or $.3197+ per square foot. So that tbe defendant and other owners of property abutting tbe avenue at Court square, where tbe pavement is 26 feet wide, should be assessed at tbe rate of $4.1565 per front foot. Tbe difficulty suggested with regard to tbe lots in what are called tbe inverted corners, diagonally opposite tbe corners of Court square, such as lot No. 8 and lot No. 21,’ each having a front of 17% feet on tbe paved street, is only imaginary. Each of these lots should be assessed for 17% feet front at say $4.-1565, tbe same as if they were on opposite sides of tbe same street. And, on this basis, tbe property fronting on Parkerson avenue, from Court square to Front street, should be assessed at $8,313 per front foot, from Front street to tbe south line of tbe Southern Pacific right of way, at $13,909, and thence to Mill street, at $10.0715 per front foot. These rates, although carefully calculated and perhaps correct, are subject to any errors that may be found in tbe calculations or in tbe figures of tbe engineer. They will serve to illustrate our interpretation of the front-foot
The judgment is affirmed.
Rehearing
On Rehearing.
We deem it unnecessary to add anything to what was said in the original opinion herein, except concerning the proper interpretation of section. 5, and as to the proper rule of apportionment.
“The requirement of apportionment is absolutely indispensable to any exercise of the power to tax. There can be no such thing as valid taxation when the burden is .laid without rule, either in respect to the subject of it or to the extent to which each must contribute.” Cooley, Taxation (2d Ed.) p. 243.
What is here said of a tax is equally applicable to a local assessment for street improvement, for such an assessment is imposed by an exercise of the power of taxation, and not by an exercise of either of the other powers of government by which the property of the citizen may be taken against his will — • the eminent domain and the police power.
“A very important species of taxation is that which is laid in the form of special assessments. * * * It is like a tax in that it is imposed under an authority derived from the Legislature * * * in that it must be apportioned by some reasonable rule among those upon whose property it is levied.” Cooley, Taxation (2d Ed.) pp. 606 and 607.
“First there must be competent legislative authority. The district of assessment must either be prescribed by the Legislature or some method of determining it must be given, and the rule of apportionment must be laid down.” Cooley, Taxation (2d Ed.) p. 653.
“The exaction of such contributions is an exercise of the taxing power in its broadest sense. There is nothing' in this case to support the assessment as an exercise of the police power or of the power of eminent domain, and unless we are to attribute it to some vagrant power-, there is no other source from which it can spring except the power of taxation.” Charnock v. Levee Dist., 38 La. Ann. 323.
In our original opinion we said that we would interpret the front-foot rule provided in section 5. But how can we interpret the front-foot rule provided in section 5 when none is there provided?
“Mere verbal inaccuracies, or clerical errors in statutes in the use of words, or numbers, or in grammar, spelling, or punctuation, will be corrected by the court whenever necessary to carry out the intention of the Legislature as gathered from the entire act.” 36 Oyc. 1126.
This rule being the one prescribed by the statute, must be followed unless it be unconstitutional, and the contention is that it is unconstitutional, because of the supposed inequality of making a lot fronting on the street at its narrow part pay as much as one fronting on the wider part.
Of this mode of apportionment Cooley on Taxation (2d Ed.) p. 644, says:
“Such a measure of apportionment seems at first blush to be perfectly arbitrary, and likely to operate in some cases with great injustice; but it cannot be denied that in the case of some improvements, frontage is a very reasonable measure of benefits; much more just than value could be; and perhaps approaching equality as nearly as any estimate of benefits made by the judgment of men. However this may be, the authorities are well united in the conclusion that frontage may lawfully be made the basis of apportionment.”
This mode of apportionment was approved in French v. Barber Asphalt Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879.
It may be well to mention that in every case that has come up involving the legality of this mode of apportionment, and their number is so great that they might almost be said to be innumerable, the reason why the point was litigated at all was that in the particular case the said rule operated unequally. The present case presents nothing new therefore when the argument is made that if the lot- owner on the narrow part of the street were made to pay as much as the lot owner on the wider part, this rule would operate unequally.
There is nothing opposed to the foregoing in the case of Town of Minden v. Glass, 132 La. 927, 61 South. 874.
In the first place, the work there in question had been done under Act 147 of 1902, which differs from the later act under which the work in the instant case was done in this fundamental particular. That, whereas, under this former ■ law,' the determination of what street should be paved, or, in other-words, the fixing of the limits of the taxing, or assessment, district, was left to the discretion of the municipal authorities; it, under the later law, is a matter of consent on the piart of the lot owners. It is they -who, in, and by, their petition, determine what street shall be paved; or, in other words, fix the limits of the assessment district. And, of course, the assessment must be “equal and uniform throughout the territorial limits of the authority levying the” •same. Const, art. 225. It must be uniform throughout the taxing district.
In the second place, by reference to the very full statement made of the pleadings in the original opinion, and to the record and the briefs in the case, it will be seen that this question of wider and narrower street was not involved in it; and that, therefore, the expressions there made use of by the court, which seem to fit the present case, must be understood in a different sense, namely, in the sense that the proper mode of apportionment is as prescribed in said statute, and not, as there attempted, to charge each lot with the cost of the work done in front of it.
But even if the said statute were susceptible of that interpretation, the proper time for the lot owners on the narrower parts of the street to object to being included in the same contract, or work, with those on the wider parts, would be when the contract is being given out; not after the work has been completed.
This is so because the work can be done only with the consent of the lot owners, or, which is the same thing, of a majority of them. Section 2 of the act expressly so provides. And when they have thus consented to the doing of a certain work of which the cost is to be apportioned in a certain way, it is too late, after the work has been done without objection from any quarter, for any one to come and endeavor, without their consent, to change the work or the mode of apportionment. Every one of them could say: “I have never consented to this work being done according to the change which you are now asking to be made in it.” It is perfectly evident that one who has signed a petition for the paving of an entire street, the cost of the work to be apportioned according to frontage along the entire street regardless of width, cannot be said to have petitioned for the paving of only the wider, or the narrower, part of the street, or consented that the width of the street should , be taken into consideration in apportioning the cost. The rule of apportionment under the said statute being simply according to frontage, a petition for work to be done under it, means that the apportionment of the cost is to be simply according to frontage. And such was the petition in this case.
The paving work in question in this case was done under contract at so much per square yard, with nothing said as to the wider or narrower parts of the street. . Defendants would let the work stand as a whole for the purpose of ascertaining the cost per square yard, but would divide it into three parts for making payment. They do not show that the expense per square yard of paving a narrow street is the same as that of paving a wide street; or, that this work would not have cost more if instead of being let out as one it had been let out as three. So that, for all the court knows, the success, of defendants in this suit might have the effect of making the lot owners on the wider part of the street pay more for their paving than they would have had to pay if the narrower part of the street had not been included in the contract.
The conclusion which we thus reach on this point disturbs the figures by which the amount claimed of the defendants has been arrived at, and necessitates a recasting of them. As w;e do not feel called upon to do this expert work, we will remand the case for that purpose.
The judgment appealed from is therefore set aside, and the case is remanded for judgment to be in due course entered in accordance with the views herein expressed. The defendant to pay the costs of this suit.
