(dissenting).
It is no longer open to question that statutes conferring upon municipalities the authority to impose special or local assessments are in derogation of common rights and must be strictly construed. Bell v. City of Shreveport, 234 La. 607, 100 So.2d 883 (1958); Barber Asphalt Paving Co. v. Watt, 51 La.Ann. 1345, 26 So. 70 (1899). See also Gamburg v. City of Alexandria, 85 So.2d 276 (La.App.1956).
The legislation under consideration (LSA-R.S. 33:3301-33 :3319) is such an enactment which authorizes municipalities to construct street improvements and to levy and collect local and special assessments “on the real property abutting the improvements.” By that legislation detailed regulations are prescribed concerning the type of street improvement which is authorized; the resolutions requisite for the giving of notice of the improvement, their publication and posting; the advertisements and contents of notice; the procedure for awarding contracts; the contents and preparation of statements of costs against the abutting property owners; the payment of assessments and lien installments; the issuance of certificates for the payment of costs; the participation of the municipality in the payment of the costs and the prescriptive period to question the validity of proceedings had under the authorization contained in the legislation.
*98If one thing is certain from the language of this enactment, it is that the municipality is authorized to levy assessments only against abutting property owners.
The pleadings which form the basis for this decision unmistakably disclose that the plaintiff’s property is not abutting on the street improvements for which it has been assessed. The sole issue, as the majority opinion discloses, is whether plaintiff’s right to question the assessment of his property is prescribed by LSA-R.S. 33:3319, which provides that no contest or proceeding to question the validity or legality of any resolution or ordinance adopted or proceedings had under the provision of this legislation shall be begun after the expiration of thirty days from the date when the resolution, ordinance or proceeding was published.
It is my opinion that the prescription sought to be invoked here applies to the regularity or validity of resolutions, ordinances or proceedings had under the general authority of the pertinent sections of the Revised Statutes. I cannot agree that it was ever intended that this prescription could be invoked against the owners of property who are clearly not contemplated by the act. For the section dealing with prescription refers to resolutions, ordinances or proceedings had “under the provisions of this Sub-part”. The pertinent sub-part, dealing as it does with assessments against property abutting the improvements, does not apply to other property and because the property of plaintiff is other property, which is not abutting, the prescription applicable to proceedings dealing with abutting property cannot be applied to plaintiff’s-property. The assessment under these circumstances constitutes a jurisdictional defect.
The error committed by the majority in permitting the thirty-day prescription to be invoked against this non-abutting property owner is as fundamental as the error which all fair-minded men must concede would' exist if the municipality sought to assess-against property in another town miles away. It is not the degree of remoteness of the property from the improvement which creates the fatal error of the assessing municipality; it is the fact that it does not abut the improvement which is the vital factor. Manifestly, because the property must abut the improvement, that fact is a prerequisite to the right of the municipality to assess against it.
What I hold is that the action of the municipality is not merely an improper exercise of granted authority, it is the exercise of power for which there is no authority. The action is therefore ultra vires and constitutes a defect of such a fundamental and substantive nature that, insofar as the plaintiff’s property is concerned, the action of the municipality is void ab initio (LSA-Civ. Code Art. 12), not merely voidable as would *100be the case with some other less basic irregularity against which the prescription could properly be invoked. Under this view, the city had no jurisdiction over plaintiff’s property for assessment purposes, and the mere failure of plaintiff to act within thirty days could not alter the effect of the improper assessment and clothe that action with legality for which no authority existed. Morrow v. Barber Asphalt Paving Co., 27 Old. 247, 111 P. 198 (1910). See also Grier v. Kramer, 62 Okl. 151, 162 P. 490 (1917) ; City of Henderson v. Lieber, 175 Ky. 15, 192 S.W. 830 (1917), 9 A.L.R. 620; Steinmuller v. City of Kansas City, 3 Kan.App. 45, 44 P. 600 (1896) ; 63 C.J.S. Municipal Corporations §§ 1465, 1476d.
The majority is of the opinion that the purpose of the prescriptive statute is to protect the public fisc and permit investors to rely upon the integrity of their security. But the investor does not and cannot rely upon property as security when that property is not contemplated by the statute authorizing the assessment.
It occurs to me that the investor is at least charged with the precaution of making inquiry into the basic authorization granted by the legislature for creating the security upon which he relies.
I doubt the correctness of the majority assertion that the law sanctions the idea that governmental authorities benefit by being able to obtain funds for public improvements in a case such as this when the property which must ultimately bear the burden of the assessment does not benefit by the improvement and the investor is fully informed by the legislative enactment that he cannot lawfully look to that property for his security. Certainly the legislature never intended that such a benefit should exist and reason and justice persuade me to conclude that such a benefit to a municipality is an unjust one.
It is significant, too, that this suit does not seek to declare the ordinances creating the assessment void in toto, but only insofar as plaintiff’s property is concerned. The other assessments resulting from the ordinances of the municipality will remain in effect, and the security of the invest* '* will not be destroyed but simply limited to property properly contemplated by the act.
The thirty-day prescription was not designed to cure action of the municipality devoid of any semblance of legality.
I respectfully dissent.