(61 South. 874.)

No. 19,469.

#### TOWN OF MINDEN v. GLASS.

(Jan. 6, 1913.

On Rehearing, May 12, 1913.)

*(Syllabus by the Oourt.)*

On Motion to Dismiss.

1. Courts (§ 224*) — Supreme Court — Constitutional Question — Legality oe Tax — Ordinance.

Where a city counsel has passed an ordinance for the paving of sidewalks, and seeks to compel a property owner to pay for the sidewalks laid before his house, in default of his doing so, there is a constitutional question raised regarding the legality of a tax, where the defendant alleges that the ordinance under which the sidewalk was laid had been improperly passed.

[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 608, 609, 614, 616, 617; Dec. Dig. § 224.*]'

On the Merits.

2. Municipal Corporations (§ 407*) — Special Assessment — Statutes — Street Improvement.

Statutes giving to municipal corporations the right to exercise the power to tax for municipal improvements should be strictly construed, and, when the power is sought to be exercised, there should be a full and strict compliance with all the requirements of the statute creating the right.

[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1003, 1004; Dec. Dig. § 407.*]

3. Municipal Corporations (§ 335*) — Street Improvement — Validity oe Contract — Notice.

Where the law requires that ten days’ notice should be given for inviting the submission of bids for public improvements, a bid accepted before that time cannot form the basis of an enforceable contract. A contract thus made in disregard of the requirements of the law is null and void.

[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 860, 861, 863; Dec. Dig. § 335.*]

4. Municipal Corporations (§§ 488, 489*)— Street Improvement — Illegal Contract— Acquiescence oe Property Owner.

As the defendant protested against the town accepting the bid of the contractors on the ground that it was illegal to do so, he can hardly be said to have acquiesced in the placing of sidewalks before his property under the illegal contract. This lack of acquiescence on defendant’s part is further shown by his belief that the sidewalk was a damage rather than an improvement to his property.

[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1147-1152; Dec. Dig. §§ 488, 4)89.*]

On Rehearing.

5. Municipal Corporations (§ 336*) — Street Improvement — Letting oe Contract.

Act No. 147 of 1902 conferred on the town of Minden full authority to pave and improve sidewalks and curbings by contract let to the lowest responsible bidder. *Held,*on the facts of the instant case, that the paving contract was properly let.

[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 862; Dec. Dig. § 336.*]

6. Municipal Corporations (§§ 469, 514*)— Cost oe Paving — Apportionment.

The same statute provides as ifollows: “That the owners of real estate so abutting shall pay the entire cost of such work, on the basis of the respective frontage of the property on the sidewalk or curbing to be paved or improved.” *Held,*that the entire cost of construction on each street should have been apportioned on the basis of frontage, and that the assessment against the defendant of the entire cost of the work done in front of his particular lots was illegal; 'but that the failure to properly apportion the cost of tlie work does not preclude the plaintiff from hereafter making a proper assessment.

[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1113-1117, 1207-1215; Dec. Dig. §§ 469, 514.*]

7. Municipal Corporations (§ 365*) — Paving Work — Acceptance—Eeeect.

Where paving work was performed by the contractor and accepted by the municipal authorities, such acceptance, in the absence of fraud, is conclusive that the work was performed in accordance with the terms of the contract.

[Ed. Note. — For other .cases, see Municipal Corporations, Cent. Dig. § 898; Dec. Dig. § 365.*]

Breaux, C. J., dissenting.

Appeal from Second Judicial District Court, Parish of Webster; Ben P. Edwards, Judge ad hoc.

Action by the Town of Minden against *930Alberta Glass. From the judgment, plaintiff appeals. ■

Judgment below reversed, except in so far as it nonsuited defendant’s reconvention demand for damages, and plaintiff’s suit dismissed as in case of nonsuit.

W. R. Percy, of Minden, for appellant. Stewart & Stewart and Roberts & Roberts, all of Minden,, for appellee.

BREAUX, O. J.

Plaintiff instituted this suit to recover three different amounts, less than $2,000, and interest, for the use and benefit of contractors, Dejersey and Barnard, for paving sidewalks opposite defendant’s property. Plaintiff also asked for the recognition of a lien and privilege as securing payment of the amount.

Plaintiff derived its right in the first place for entering into the contract by Act 147 of 1902, also by authority conferred by the town charter.

Treating the propositions as a whole, the town entered into a contract with the contractors before named to lay concrete sidewalks along certain streets. This contract was directly authorized by the ordinance of July 12, 1909. Plaintiff alleges that the cost of the whole work was assessed against the property owners, and that the amount claimed is the proportion of cost due by defendant for the work done. Plaintiff also alleged that the chairman of its street committee gave the defendant notice to construct his sidewalk, but that he failed to comply with the notice; that he (defendant) never protested but stood by while the sidewalk was being constructed; and that by his conduct he was estopped from objecting to the work and from raising legal defenses not to pay.

Defendant in the first place complained of plaintiff’s failure to comply with his prayer for oyer of certain papers described.

Plaintiff answered the prayer for oyer and alleged that it had complied with defendant’s demand (and in this it is borne out by the returns made), except that it did not return an ordinance, which plaintiff alleged had been repealed.

We may as well state now that the issue raised because of this prayer for oyer and alleged failure to comply therewith has lost importance from our point, of view. Plaintiff has abandoned all claims under the existing ordinance as it is not material to the issues; there is no just ground of complaint on the part of the defendant.

The defendant filed a plea of no cause of action. Defendant also filed a plea of general denial, and, in addition, alleged the illegality and unconstitutionality of all of plaintiff’s ordinances and resolutions made the basis of the suit and of all of its proceedings in matter of the alleged improvement. Defendant further alleged that plaintiff failed to comply with its own laws and regulations, those which it was incumbent upon it to comply with. Defendant further alleged that no bids for the' construction of- sidewalks were ever received by the town and adopted legally, and avers that the contract was not awarded to the lowest bidder; that plaintiff kept no record of its proceedings, gave no notice to construct sidewalks,' levied no assessments; that the ordinance No. 72 is illegal; that members of the council were dual officeholders, had an interest of sonje kind which renders them incompetent, and other objections to the same effect were urged.

The district court rejected plaintiff’s claim, and a judgment was entered, from which the plaintiff appealed.

On Motion to Dismiss the Appeal.

[1] Defendant and appellee moved to dismiss the appeal on the ground that the amount sued for is less than $2,000, and because the constitutionality of a tax, impost, or toll is not in contestation, and no ordinance of a *932municipal corporation has been declared unconstitutional.

The only question for decision is whether special assessment and levy of a tax for local improvement is to be considered as a tax or a mere assessment.

A similar question to that presented here was decided on a motion to dismiss the appeal in Kelly v. Chadwick, 104 La. 729, 29 South. 295. The legality of a local assessment was the issue presented in the cited case. As in the present case, the taxpayers, had never been consulted about the tax for local improvement. The court in the cited case held that the forced contribution was a tax, citing Shreveport v. Prescott, 51 La.. Ann. 1895, 26 South. 664, 46 L. R. A. 193.

The Kelly-Chadwick Case was reaffirmed in Bruning v. Chadwick, 104 La. 718, 29 South. 301. The question came up again in Moody v. Chadwick, 108 La. 66, 32 South. 181. Again the court held that it was a tax. The case of Asphalt Co. v. Loewengardt, 109 La. 439, 33 South. 553, is a parallel case. A denial that an assessment is properly apportioned “raises a question of the legality of the assessment and creates an appealable issue.” Moody v. Sportorno, 112 La. 1008, 36 South. 836.

The question decided in that case was that jhe cost of the work was not apportioned according to the tax.

In the present case as in the cited case the tax is at issue.

The motion is overruled.

On the Merits.

[2]In matter compelling taxpayers to pay for alleged local improvements (without consulting them), there ought to be a full compliance with the laws and ordinances. We quote the paragraph of the syllabus in a pertinent case, to wit, Asphalt Co. v. Watt, 51 La. Ann. 1345, 26 South. 70:

> “Statutes exercising the power of taxation in any of its forms or delegating that power to political subdivisions are to be strictly construed and closely pursued.”

[3] In the case before us for decision, •there was failure as relates to pursuing the plain meaning of the statute, and an open disregard of its requirements. The authorities of the town directed that notice be given inviting bids to pave the sidewalks. That was the requirement of the law, in addition to the ordinance that ten days’ notice be given. Accordingly notice was given for bids to construct concrete sidewalks, as set forth in specifications, time limited to hand in the bids, viz., 7 o’clock p. m. of July 6, 1909. The date for receiving the bid was July 6th, as just stated. The first advertisement was made on June 25th preceding, but the bid was opened on the 5th of July, so that on that day it had not been advertised the required number of days. After the bid had been opened, another bidder presented himself; he met with no encouragement ; it was stated to him that the bid had been awarded. It had been received and opened on July 5th, 24 hours before the appointed time. The contract was entered into with the bidders, Dejersey and Barnard.

A disregard of the time was a fatal illegality. Advertisements for bids are of importance. It is the part of municipal publicity required of municipalities. If the law is not observed, the contract awarded is null and void. Redersheimer v. Flower, 52 La. Ann. 2089, 28 South. 299; Dillon on Municipal Corporations,. § 466; 15 American and English Encyclopedia of Pleading, 1093; 51 La. Ann. 1345, 26 South. 70; Cooley on Taxation, p. 419; Tiedeman on Municipal Corporations, § 466; Black on Interpretation of Laws, 37, 300.

[4] Plaintiff urges that these illegalities were cured by the fact, as it alleges, that defendant remained quiescent, did not pro*934test, stood by and allowed tbe work to be done and tbe improvements made.

We have not found that these allegations are sustained by the facts. Sufficient to state it is a fact: The defendant actively protested on the 6th day of July, 1909, against the alleged right and authority to enter into any contract to construct a sidewalk in front of his property, and added that the protest was made to reserve all his legal rights to resist all ordinances adopted with the view of constructing concrete sidewalks. There is no evidence at all of assent on his part. Nothing suggests that he looked upon the work with the least favor. On tbe contrary, he strongly urged that the pavement made, owing to the direction of the sidewalk, was a damage rather than an improvement.

At this point our attention is directed to the complaint that plaintiff did not allege that the contract was left to Dejersey and Barnard “after it had complied with the requirements of law and after open competition for the contract.”

Our attention is also called to the fact that it was not alleged that the work was done in accordance with plans and specifications as the contract demands.

In these omissions it does not appear that plaintiff has not alleged a cause of action sufficient to enable it to recover a judgment.

We are certain that the first point is fatal; that notice should have been given, as above mentioned.

There are other points alleged. We will not dwell upon them, for the point we have discussed is sufficient to dispose of the case. We will state, however, before closing, without specially deciding, that we find no merit in defendant’s point that two members of the board had accepted .other offices, and therefore were not legal members of the town council, and in consequence there was no quorum, and the ordinance was not legally adopted. It is also an objection urged against these members that they were voting to improve their respective properties. Not the least objection was made to the sitting members at the time, and, furthermore, the attack is collateral, and one which cannot be entertained at this time. Villavaso v. Barthet, 39 La. Ann. 249, 1 South. 599.

We are very decided in the view that the first point above must be sustained.

The defendant pleaded in reconvention for $1,000 damages. The, evidence does not show that there is any good ground for awarding damages in this suit. The judge of the district court chose to dismiss this demand and reserve to defendant the right to sue. That was all that could be done in this suit.

It is therefore ordered, adjudged, and decreed that the judgment appealed from is affirmed, rejecting plaintiff’s demand, and that the defendant’s demand for $1,000 damages in reconvention is dismissed as in case of nonsuit, at plaintiff’s costs.

On Rehearing.

LAND, J.

[5] Act No. 147 of 1902 is applicable to this case, and the- main contention of the defendant is that the provisions of said statute were not complied with in the letting of the contract for paving sidewalks.

On June 22, 1909, the mayor and board of aldermen of the town of Minden, pursuant to said statute, adopted an ordinance providing for the paving with concrete of the sidewalks along certain streets and parts of streets in said municipality. This ordinance provided that the mayor and street committee should prepare specifications of grades, materials to be used, and the manner in which said paving shall be done, and said specifications, when prepared and approved by the mayor and said- committee and filed in the mayor’s office, should form the basis upon which bids for said work should be received and contracts let therefor.

*936The ordinance further provided that, after the filing of said specifications, advertisements for bids should be published for ten days in the official journal, and that, if no satisfactory bids were received, the town should have said sidewalks constructed as authorized by the statute.

Specifications for the work were approved by the mayor and board of aldermen on June 22, 1909. Notice to bidders was inserted in the official journal on June 25 and July 2, 1909. The notice recited that bids would be received up to 7:30 p. m. of July 6, 1909. The board of aldermen met on July 5th, and the minutes show the following proceedings :

> “Bids for paving certain sidewalks as advertised for were received and opened, and on motion further action was deferred.”

The board adjourned until Tuesday night, July 6th, at 8 o’clock. On July 6th the board met pursuant to adjournment, but no action was taken on paving bids. On July 9, 1909, it was moved and seconded that the town attorney be instructed to draw a contract with Dejersey and Barnard to cover such work as might be given them by the street committee; the contract to be subject to ratification or rejection by the council. On July 12, 1909, the board met and adopted a resolution, reciting that Dejersey and Barnard, concrete contractors, had submitted the lowest bid for sidewalk construction, and authorizing the mayor to enter into a contract with them for concrete sidewalk construction in accordance with the contract made part of the resolution.

The contract was made, and the sidewalks were constructed by the contractors, and the town brought these two suits' to recover the cost of construction.

The judge below said that the board of aldermen “met on Monday night, July 5th, and opened the only bid they had received up to that time, then closed the bidding, and they refused to receive any more.” The minutes do not show that the board closed the bidding or refused to receive any more bids on July 5 and 6, 1909; and the evidence shows that the Tooley bid was not brought before the board until July 12, 1909. This bid, so called,' was not accompanied with the required certified check, was not filed with the secretary, but was read out by one of the aldermen, who was opposed to the paving scheme. The Tooley bid was not serious and was properly disregarded by the town council. The evidence shows that the call for bids was published for ten days, and that the contract was let to the lowest responsible bidder, as prescribed in section 2 of Act 147 of 1902. The opening of the bid of ’Dejersey and Barnard on the evening of July 5, 1912, was a wrong to those bidders, but did not prevent other persons from bidding for the work up to 7:30 o’clock p. m. of the next day. The opening of the bid showed that Dejersey and Barnard were offering to perform the work at 9 cents per square foot. Even with this public notice, there was no other bidder. The evidence shows that one contractor in the same line declared that he could not compete with the bid of Dejersey and Barnard.

We conclude that the contract was let in substantial compliance with the provisions of Act 147 of 1902. Section 3 of the act reads .as follows:

> “That the owners of real estate so abutting shall pay the entire cost of such work, on the basis of the respective frontage of the property on the sidewalk or curbing to be paved and improved.”

Section 4 of the act authorizes the municipal authorities to collect the assessment by suit against the owners of the property.

Section 2 of the act vests in the municipal authorities of any town or city, having a population exceeding 2,500 and less than 50,-000, full power and authority to pave and *938improve any portion of the sidewalk or curbing in the municipality by contract let to the lowest responsible bidder, or by the proper officers in case no satisfactory bid is received.

[7] In this case the work was performed by the contractors and accepted by the municipal authorities. In the absence of fraud, this acceptance is conclusive that the work was performed in accordance with the terms of the contract. Kelly v. Chadwick, 104 La. 734, 29 South. 295.

[6] In the same case the court said:

> “If the proportion of contribution was made on a wrong basis, the abutting- owners had the right simply to insist that the proper basis be adopted, and the legal proportion be established on that basis”

—and cited Barber Asphalt Co. v. Watt, 51 La. Ann. 1345, 26 South. 70, as enunciating the correct rule of apportionment where the abutting property is charged with a certain fraction of the cost of the work. The rule stated in the Barber Asphalt Co. Case is that the abutter should be charged with an equal proportion, according to frontage of his property, of the *entire*cost of paving the street, and not the cost of the particular square in which his lot was situated.

In the case at bar, the statute prescribes-that the abutting owner shall pay “the entire cost” of the paving work on the basis of the respective frontage of, the property on the sidewalk or curbing to be paved or improved.” The ordinance in question provided for the construction of concrete sidewalks, differing in width, on certain portions of a number of streets. Under such a scheme, each designated portion must be considered as a paving unit. The work of construction necessitated in some places grading, filling, excavations, retaining walls, etc., in addition to the laying of the sidewalk. The town of Minden seems to have charged the defendant with the entire cost of the work done in front of his lots. The entire cost of the work done on each street should have been apportioned among the abutting owners according to the respective frontage of their lots.

There are a number of issues raised in this case which do not affect the question of the legality of the tax, and over which we have no appellate jurisdiction. Such is defendant’s reconventional demand for property damages, which was dismissed as of nonsuit in the court below.

As the plaintiff did not apportion the cost of the work according to law, the demand is premature.

It is therefore ordered that our former decree herein be vacated; and it is now ordered that the judgment below, except in so far as it nonsuited defendant’s reconventional demand for-damages, be reversed, and it is now ordered that plaintiff’s suit be dismissed as in case of nonsuit, with costs in both courts.

BREAUX, C. J. I adhere to the original decree.