Grasser Contracting Co. v. Richardson ( 1918 )

ON REHEARING .

In deciding this case, «e cas» to the conclusion that the City Council, in the exercise of its discretion, under Sections 47 and 48 of the City Charter of 1912 had passed an ordinance ordering the pavement to be done, des» ignated the kind of pavement, and assessed against the property holders their proportion of the cost; that the action of the council was legal, and that, accordingly , the property of the defendant was liable for its proportion of the cost of paving under the ordinance.

The defendant has applied for a rehearing and has called our attention to the fact that it results from our decision that the claim against him for the paving ordered by the Council, in its discretion, is a "tax*, within the meaning of Article 85 of the Constitution conferring jurisdiction upon the Supreme Court whatever may be the amount thereof, and that the Court of Appeal has no jurisdiction of the case, inasmuch as the defendant, by his answer, has contested the legality of. ths paving claim or tax imposed by the municipal corporation. We had anticipated this suggestion.

In Town of Minden vs Stewart 142 La., 467 the Supreme Court said:

"Where a local assessment for street improvements is made or levied by compulsion of law, without regard to the assent or dissent of the abutting proprietors, it presents the case of a "tax" in the sense in which the word is used in the Article of the Constitution conferring jurisdiction upon this Court".

Affirming the leading case of the City of Shreveport, 51 A., 1895.

See Also: 104 La., 719, 718; 108 La., 66; 109 La. 439; 112 La. 1008; 132 La., 927.

In State ex Rel Hill, 46 A., 1292, it was said that assessments to build levees were "taxes" within the purview of Aft. 81 of the Constitution conferring jurisdiction upon the Supreme Court in all cases involving the legality, of any tax whatever. Also 47 A., 706.

Even if we have been in error in determining that the paving was not done in pursuance of a petition of the property owners, but was done under an ordinance adopted by the Council, "in its discretion", this very question upon which this case turns may be one to be investigated and determined by the Supreme Court. State vs Rosenstream 52 A., 2126.

We have therefore reached the conclusion that we have no jurisdiction in the case and under Act No. 19 of 1912 we transfer it to the Supreme Court.

It is therefore ordered that this cause be transferred to the Supreme Court of this State; provided, that before said transfer is made, the appellant, or his attorney of record, shall make oath that his appeal was not made for the purpose of delay; and provided that said appellant shall file in said Supreme Court a transcript of this cause including his affidavit and a copy of the two opinions and decrees herein on or ■3/ before January dñth. 1919; the costs of appeal in this Court to be paid by appellant.

Decenher 23rd. 1918.