Rosetta Gravel Paving & Improvement Co. v. Adler

ON APPLICATION FOR REHEARING. Blanohard, J. The judgment of the court heretofore sustained plaintiff’s motion to dismiss the appeal on the ground that the court was without jurisdiction raiione materias. The application for rehearing is predicated upon the allegation of error in the judgment of the court, and as grounds therefor it is contended that the constitutionality of Act 73 of 1876 was attacked in the .answer, and thus the constitutionality and legality of a tax was the issue presented here, and it is claimed that under the authority of *693 City of Shreveport vs. Prescott, et als., 51st La. Ann. 1895, this court has jurisdiction. The former opinion of the court held, and correctly so, that the Prescott ease, supra, was not in point as an authority in the instant case. Here the answer of defendant attacked only that part of ’Sec. 3 of Act 73 of 1876 which prescribes that the owner or owners of property upon which an assessment is due, under a paving contract, shall, in addition to the pledge on his or their property, be personally bound for the assessment. Acts 113 and 119, respectively, of 1886, being- statutes relating-to the paving of streets later than that of 1876, are not assailed in the answer, nor is the constitutionality or legality of the paving ordinance and contract in question, or of plaintiff’s assessment thereunder, challenged under the aforesaid statutes of 1886. It seems that the paving contract in this case was predicated more particularly upon Act 119 of 1886, and that the Act 73 of 1876 is not drawn in question, except that the contract sued on declares that the contractors shall have a lien and privilege under Act 119 of 1886 “and all other laws on the same subject matter” — it being the contention that Act 73 of 1876, being on the same subject matter, thus becomes involved. But the judgment of the court a quo seems to have sustained defendant’s contention with regard .to the Act of 1876 by expressly excluding in its decree any personal liability on part of the defendant, thus making the judgment, in effect, one in rem against the property. Plaintiff has not appealed from this judgment and has not asked that the judgment must be amended here so as to charge defendant with personal liability. It thus appears that the question of the constitutionality and legality of the .paving ordinance contract, and assessment, so far as the Act of 1876 has any bearing on the same, is not in issue in the case before this court. This being so, it is clear that the constitutionality and legality of no tax, toll, or impost is involved in the controversy as it presents itself here, and the amount being less than $2000, this court has no jurisdiction. For these reasons it is ordered and decreed that the application for rehearing be denied.