Ammen v. City of Pineville

SANDERS, Justice.

This is an action for a declaratory judgment. Plaintiffs, Arthur K. Ammen and Kumalee B. Ammen, seek a decree that a paving assessment levied, by the City of Pineville against five lots owned by them in the City is null and void on the ground that the properties do not abut the improved street. The City of Pineville filed a peremptory exception, pleading that the demands of plaintiffs were prescribed or per-empted by the lapse of 30 days without legal action as provided by LSA-R.S. 33 3319.

The district court overruled the plea of prescription. After granting writs, the Court of Appeal reversed the judgment of the district court and sustained the exception.- See 161 So.2d 284. We granted writs to review the judgment of the Court of Appeal. 246 La. 88, 163 So.2d 360.

The facts are these: Acting under LSA-R.S. 33:3301 et seq., the City of Pineville paved Claiborne Street. On December 4, 1962, the Mayor and Board of Aldermen adopted Local or. Special Assessment Ordinance No. 3 for the year 1962, assessing, the properties that the City found abutting Claiborne Street for the costs of the paving. The paving assessment ordinance included plaintiffs’ lots.

The assessment ordinance was duly recorded in the Mortgage Records of Rapides Parish on December 7, 1962. It was also duly published in the Pineville News, the official journal of the City of Pineville, on December 20,' 1962.

On January 9, 1963, the plaintiffs, through their attorney, directed a letter to the Mayor and Board of Aldermen objecting to the assessment because of an alleged error in the determination of the frontage of their property on Claiborne Street.

The Mayor and Board of Alderman adopted a resolution on February 8, 1963, providing for the issuance, negotiation, sale, and delivery of paving certificates secured by the unpaid assessments. The resolution for the issuance and negotiation of the paving certificates was duly published in the Pineville News on February 21, 1963, and again on February 28, 1963.

On May 1, 1963, the attorney for plaintiffs wrote the City a second letter, and in this letter he disputed the assessment on the ground that the lots did not abut Claiborne Street. The suit followed on June 4, 1963.

LSA-R.S. 33:3319 provides:

“No contest or proceeding to question the validity or legality of any resolutions or ordinances adopted or proceedings had under the provisions of this Sub-part shall be begun in any court by any person for any cause whatsoever, after the expiration of thirty days from the date when the resolution, ordinance or proceeding was published, and after such time the regularity of such resolution, ordinance or proceeding shall be conclusively presumed. If the validity of any certificates issued under the provisions of this Sub-part is not raised within thirty days from the date of publication of the resolution or ordinance issuing said certificates and fixing their terms, the authority to issue said certificates, the-legality thereof and of the local or special assessments necessary to pay the same shall he conclusively presumed and no court shall thereafter have authority to inquire into such matters (Italics ours.)

Plaintiffs filed the present suit more than five months after the publication of the assessment ordinance and more than three months after the publication of the resolution issuing the paving certificates. Presented, therefore, is the question of whether the 30-day prescription of LSA-R.S. 33:3319 bars a suit to annul a paving assessment on the ground that the property does not abut the improved street.

The plaintiffs assert that the statute does not apply to absolute nullities, that the assessment of non-abutting property is a jurisdictional defect rendering the assessment incurably void, and that, therefore, the suit is timely. Alternatively, if the statute is construed to bar this suit, they contend that it takes their property without due process of law and is unconstitutional under Article I, Section 2, of the Louisiana Constitution, LSA and the Fourteenth Amendment of the United States Constitution.

The City of Pineville, on the other hand, asserts that the language of the statute is explicit; that it makes no exceptions; and that it clearly applies to a proceeding attacking the validity of a paving assessment on the ground that the assessed property does not abut the street.

The City of Pineville paved Claiborne Street under a statute authorizing it to assess costs against properties abutting the street.¹ Hence, the assessment of non-abutting property within the City was unauthorized.

The Legislature, however, in LSA-R.S. 33 :3319 has fixed a time within which suits to contest the validity or legality of special assessments must be filed.

The purpose of the statute, as aptly stated by the Court of Appeal, is to protect the public fisc by establishing a reasonable time limit for attacking the validity of special assessments and the certificates that they secure. Investors may thereafter rely upon the integrity of their security. Governmental authorities benefit by being able to obtain more readily funds for public improvements.

The statutory language is clear: It bars proceedings “for any cause whatsoever.” And, if the validity of the certificates is not raised within 30 days of the resolution issuing them, the legality of the certificates and the special assessments securing them is “conclusively presumed.” The language is amply broad to preclude an attack upon a special assessment on the ground that the assessed property does not abut the street.

Basically, plaintiffs’ objection is that their lots derive no benefit from the improvement. They rely upon the criterion of benefit established by statute: whether the property abuts the street. Such an objection may be waived by a failure to urge it at the proper time.²

This Court has sustained pleas of prescription to defects equally serious as that asserted here.³ The constitutionality of such a prescription or peremption is now well established.⁴ We know of no other reason why the statute may not be applied to this proceeding. Hence, we conclude that the present action is barred.

We have reviewed the decisions of this and other courts cited by plaintiffs and find them to be inapplicable to the present case.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

1 . LSA-R.S. 33:3301, 33:3306.

2 . Cowan Inv. Corporation v. City of Florence, D.C., 11 F.Supp. 973; 63 C.J.S. Municipal Corporations § 1476, Subsection c., p. 1269; Annotation, 9 A.L.R. 634, 708-710.

3 . See Daves v. Sewerage District No. 1, 232 La. 679, 95 So.2d 148; McLavy v. American Legion Housing Corp., 227 La. 300, 79 So.2d 316; Morgan’s L. & T. R. & S. S. Co. v. Tax Collector, 142 La. 190, 76 So. 606; and the cases therein cited.

4 . Morgan’s L. & T. R. & S. S. Co. v. Tax Collector, 142 La. 190, 76 So. 606; Crow v. Board of Sup’rs, 141 La. 1017, 76 So. 182. See also Miller v. Town of Bernice, 186 La. 742, 173 So. 192.