Saunders v. City of Opelousas

105 So. 608, 159 La. 527, 1924 La. LEXIS 2268

• Court: Supreme Court of Louisiana
• Decided: November 3, 1924
• Docket: No. 25431.
• Status: Published

Opinions

By the WHOLE COURT.

On Motion to Dismiss.

ROGERS, J.

Appellee moves to dismiss defendant’s appeal on the ground that this court is without jurisdiction ratione materise.

Plaintiff’s suit is to recover a balance of $586.50, with interest, due on a certificate of indebtedness, issued by the defendant municipality for the construction of sidewalks. The defense is that the statute (Act No. 147 of 1902) under which the certificate was issued is unconstitutional; and, alternatively, that the claim sued on is prescribed under the provisions of Act 46 of 1918.

Prom a judgment in favor of plaintiff as prayed for, defendant appealed.

The amount in dispute is clearly insufficient to vest jurisdiction in this court, and if no other issue was involved we would be powerless to make any order except one dismissing the appeal or one transferring the cause to the Court of Appeal.

Defendant, however, has set up the unconstitutionality of the statute under which the certificate of indebtedness was issued. Plaintiff contends this plea is insufficient to confer jurisdiction on this court because the statute was not “declared unconstitutional” by the court below.

The certificate, which is annexed to and' made part of the petition, shows on its face that the obligation which it evidences is’"to be discharged only out of the funds- derived from the special assessments levied by ordinance of the board of aldermen of the defendant municipality against certain property owners on account of sidewalk construction abutting their properties. The ordinance was adopted pursuant to.the provisions of Act 147 of 1902. The attack on the constitutionality of the statute 'necessarily involves the validity of the ordinance levying the special assessments to defray the cost of the construction of the sidewalks.

Under the provisions of paragraph 6 of section 10 of article 7, page 40, of the Constitution of 1921, appellate jurisdiction is conferred upon this court—

«* * * jjj an cageg wherein the constitutionality or legality of any tax, local improvement assessment, toll or impost levied by the state, or by any parish, municipality, board, or subdivision of the state is contested * * * whatever may be the amount thereof. * * * "

The motion to dismiss is therefore denied.