Town of De Quincy v. Wood , 210 La. 504 ( 1946 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant is appealing from a judgment enforcing a local assessment of a town lot by the Town of DeQuincy for the paving of a street and its sidewalks.

The paving was done under authority of Act No. 92 of 1934, which authorizes municipal corporations to construct, pave and surface, or otherwise improve, streets, roads, sidewalks and alleys, or any part thereof, and to pay for the work by levying and collecting a local or special assessment according to the front-foot rule, on each lot or tract of land abutting the street, road, sidewalk or alley to be improved. The Mayor and Board of Aldermen, being the governing authority, of the Town of DeQuincy, paved a number of streets and sidewalks in the town, including Yoakum Avenue, on the south side of which the defendant's lot, being Lot 12 of Block 2 of the Frisco Addition to the Town of DeQuincy, has a frontage of 150 feet. The cost of paving Yoakum Avenue and its sidewalks averaged $1.80 per foot of the frontage of all of the property abutting the avenue. The assessment of the defendant's lot therefore amounted to $270.

The appeal comes to this court under the provision in the fifth paragraph of Section 10 of Article VII of the Constitution that the Supreme Court "shall have appellate jurisdiction in all cases wherein the constitutionality or legality of any tax, local improvement assessment, * * * levied by the State, or by any * * * municipality, * * * is contested, * * * whatever may be the amount thereof." The legality of a tax or local improvement assessment levied by a municipality is in contest, in the meaning of the fifth paragraph of Section 10 of Article VII of the Constitution, when the question is whether the tax or local improvement assessment, as levied by the municipality, was authorized by the statute, and when the determination of that question requires an interpretation of the statute. Adler, Goldman Co. v. Board of Assessors, 37 La.Ann. 507; State ex rel. Scheff v. Cullom, 49 La.Ann. 1744, 23 So. 253; Roy v. Schuff, 51 La.Ann. 86, 24 So. 788; State v. Rosenstream, 52 La.Ann. 2126, 28 So. 294, citing City of New Orleans v. Clark Meader, 42 La.Ann. 9, 7 So. 58; Kelly v. Chadwick, 104 La. 719,29 So. 295; Chadwick v. Kelly, 187 U.S. 540, 23 S. Ct. 175, 47 L. Ed. 293; Moody Co. v. Spotorno, 112 La. 1008, 36 So. 836; Town of Minden v. Stewart, 142 La. 467, 77 So. 118.

The rule for determining, in any given case, whether this court has jurisdiction on the ground that the constitutionality or legality of a tax is in contest, is the same in cases where the tax is levied directly by the State, by an act of the Legislature, as in cases where the tax is levied by a municipal ordinance under authority of an act of the Legislature. If the issue is such that a judicial interpretation of the tax statute is necessary to determine whether the defendant owes the tax, the constitutionality or legality of the tax is in contest and the supreme court alone has appellate jurisdiction. State v. Rosenstream, Weiss Co., 52 La.Ann. 2126, 28 So. 294; State v. Orfila, 116 La. 972, 41 So. 227; State v. Wenar, 118 La. 141,42 So. 726; Downs, Tax Collector, v. Dunn, 162 La. 747, 111 So. 82; State v. Cedar Grove Refining Co., 178 La. 810, 152 So. 531; State v. Whitehead Motor Co., 179 La. 710, 154 So. 912; State ex rel. Grosjean, Supervisor, v. Standard Oil Co. of La.,182 La. 577, 162 So. 185. In the latter case the court quoted with approval from the Cedar Grove Refining Company's case this:

"It is well settled that, in a suit to collect a tax, if the defense be such that a judicial interpretation of the tax statute is necessary to determine whether the tax demanded is levied upon the defendant, the legality of the tax is in contest, and the Supreme Court has appellate jurisdiction. Downs, Tax Collector, v. Dunn, 162 La. 747,111 So. 82." [178 La. 810, 152 So. 533.]

There is no question of fact in this case, nor question of regularity of the proceedings had by the municipal authorities in levying the local improvement assessment. The only defense made in answer to the suit is the complaint that, although the defendant's lot abuts the avenue as dedicated, the lot does not abut that part of the avenue or sidewalk that is covered by the concrete pavement. The municipal authorities did not pave the avenue to the extent of its entire width, but left unpaved a grass-grown strip of land, 15 feet 9 inches wide, between the concrete pavement on the sidewalk and the private property line of all of the lots abutting on both sides of the avenue. The defendant therefore contends that his lot does not abut Yoakum Avenue, in the meaning of the statute, but abuts this vacant strip of land, 15 feet 9 inches wide, between his property line and the edge of the concrete pavement. He contends that, as this 15-foot-9-inch strip of land belongs to the town and abuts the concrete pavement, the town should bear the cost of paving the avenue.

Yoakum Avenue, as dedicated for a public street, is 70 feet wide and is near the outskirts of the town. It is the widest street in the town and wider than the traffic requires. The Mayor and Board of Aldermen, therefore, after due consideration, and after calling and holding a public meeting on the subject, decided that there was no good reason why the owners of the lots along the avenue should have to pay for paving the roadway for its entire width. The paving was part of a comprehensive program for the paving of a number of streets and sidewalks in DeQuincy. The Mayor and Board of Aldermen decided that the pavement on Yoakum Avenue should be only 27 feet wide, from curb to curb, and that the concrete pavement on the sidewalk should be 4 feet wide. These widths were adopted by the Mayor and Board of Aldermen as being all that the traffic on the avenue called for, and as being therefore a matter of economy for the owners of the property abutting the avenue, in comparison with the paving of the whole 70 feet of width of the avenue. There is nothing extraordinary in the widths which were adopted by the municipal authorities, as far as we see. For the paved roadway, or space for vehicle traffic, 27 feet from curb to curb seems wide enough. The concrete surface on each sidewalk being 4 feet wide, the edge nearest the curb being 21 inches from the curb, puts the other edge of the sidewalk pavement 15 feet 9 inches from the property line. The total distance therefore from the curb to the property line, on each side of the 27-foot paved roadway, is 21 feet 6 inches. The 15-foot-9-inch grass-grown strip of land, between the edge of the concrete pavement on the sidewalk and the property line, is not all waste space, because it is customary in the residential districts of all municipalities to leave some grass-grown space between the concrete pavement on the sidewalk and the property line.

The only question in this case is a matter of interpretation of the statute under authority of which the street paving was done, namely, Act No. 92 of 1934. Section 6 of the act provides that, in proceedings such as this, the governing authority of the municipality shall adopt an ordinance levying the local or special assessment, according to the front-foot rule, on each lot or parcel of real estate "abutting the street." There is nothing doubtful in the term "abutting the street." It means abutting the street as dedicated for the purpose of a street. It does not mean abutting that part of the street which the pavement actually covers, where the pavement does not extend to the edge of the street. There would be no ground for argument about this, but for the fact that in the title and in the first section of the statute the abutting property, on which the municipal authorities are authorized to levy and collect the local or special assessment, is referred to as "the real property abutting such improvements." If we should give that expression a literal construction it would mean that a lot "abutting the street," as stated in section 6, and on which the municipal authorities are authorized to levy the local or special assessment, must abut not the street, as dedicated, but the improvement itself. To construe the statute as meaning that a lot must actually abut or adjoin the pavement or other improvement of the street or sidewalk in order to be subject to the local or special assessment for street improvement would be contrary not only to section 6 of the statute but also to the concluding sentence in section 17, which provides: "This Act shall be liberally construed to promote the purposes for which it is enacted."

In this instance the interpretation asked for by the defendant would have forbidden the municipal authorities to pave Yoakum Avenue otherwise than for its entire width of 70 feet, including the concrete pavement on the sidewalks. And such a construction would abolish the discretion which is allowed to municipal authorities, as expressed in the title and in the first section of the act, to pave or otherwise improve streets and sidewalks "or any part thereof." Our opinion therefore is that the provision in section 6 of the statute, authorizing the levying of the assessment on lots abutting the street, must prevail, if there is a conflict between that provision and the provision in the title and in the first section of the statute, referring to the abutting lots as "abutting such improvements". The construction which we adopt is that which prevails in other jurisdictions with reference to similar statutes. See Vol. 1 Words and Phrases, Perm.Ed., "Abut; Abutting." Among the cases listed, the most appropriate expression is in City of Joplin ex rel. v. Freeman, 125 Mo.App. 717, loc.cit. 723,103 S.W. 130, loc.cit. 132, where it is said:

"The contention of the defendant is that his lots did not abut upon the sidewalk as constructed. The ordinance of the city authorized the council to levy a special assessment upon lots abutting on such sidewalk. Witnesses stated that there was a space of about a foot between defendant's property line and the sidewalk as constructed. If such was the fact, it would not have the effect of invalidating the tax bills. It is true that the word ``abuts' literally means that the lines of the property owner's lot and the sidewalk should meet or come together. But the ordinance is not to be construed literally. It appears that the walk was constructed upon the sidewalk space which abutted defendant's lots. The city was not required to utilize all such space in laying its sidewalks. The object of the law was to tax the property owner for street improvements upon which his property abutted. We hold that, where it is shown that the sidewalk is constructed upon the space reserved for that purpose and the property owner's lot abuts upon such space, the law has been substantially complied with."

From City of Cincinnati v. Batsche, 52 Ohio St. 324,40 N.E. 21, 27 L.R.A. 536, we quote:

"Where a strip of ground from one side of a street is appropriated for the purpose of widening such street, the lots and lands fronting on the opposite side of the street, at the part widened, will be held to abut on the improvement, although the street may intervene between the abutting lots and lands and the strip of ground appropriated."

The defendant in this case relies upon Jacob v. Mayor and Board of Trustees of City of New Iberia, 163 La. 416, 112 So. 30. In that case the part of a street which was left unpaved by the municipal authorities, between the street which was paved and Jacob's property line, was not a part of the street that was paved, but was a triangular space, described in the opinion as a "park or plaza." It appears that the space was taken from another street into which the improved street entered at an angle. The judge of the district court held that the intervening of that unpaved triangle between the paved street and Jacob's property line prevented his lot from abutting the improved street; and this court, deferring to the more intimate knowledge which the judge of the district court had of the location and the nature of the so-called park or plaza, affirmed his judgment. The striking difference between this case and that case is that in this case the only intervening space between the pavement on the improved street and the defendant's property line is a part of the improved street itself.

The Town of DeQuincy filed a plea of estoppel in this court, pleading that the defendant by failing to make any objection to the paving of Yoakum Avenue in the way in which it was paved, until the work was completed under the contract and accepted by the municipality, was estopped to complain of the assessment of his lot for its proportion of the cost of the work. The conclusion which we have come to on the merits of the case renders it unnecessary to consider the plea of estoppel.

The judgment rendered by the district court in this case is a personal judgment instead of being only a judgment in rem. In that respect the Town of DeQuincy concedes that the judgment should be amended. Although the town, in its petition in the district court, prayed only for a judgment in rem, and not for a judgment in personam, our opinion is that the town should pay the cost of this appeal, for failing to have the judgment corrected in the district court before the defendant appealed from it.

The judgment appealed from is amended by converting it into a judgment in rem, exigible only against Lot 12 of Block 2 of the Frisco Addition to the Town of DeQuincy. As thus amended the judgment is affirmed. The Town of DeQuincy is to pay the costs of appeal and the defendant all other costs of court.

PONDER and HAMITER, JJ., dissent.