107 Iowa 90 | Iowa | 1898
This action was originally commenced' by Ann B. Allen. After it had been pending some time, Mrs. Allen died, and plaintiffs succeeded to her interests. Mrs. Allen and her husband, Thomas Allen, some time deceased,.
Again, it is argued that the ordinance is void because not signed or recorded as provided by the city charter and the laws of the state. Section 3 of the charter provides that all ordinances shall be recorded in a book kept for that purpose, and “the book, or a copy of any ordinance, * * * with the certificate of publication, * * * certified to by the clerk to be a true copy of [the] * * * ordinances, -x- * * shall be sufficient authentication to allow the same to be read * * * in evidence * * * in any court in this state, or when * * * the ordinance * * * shall be published in book or pamphlet form, purporting to be printed and published by authority, * * * the same shall be received in evidence in all courts * * * without further proof.” Appellants offered in evidence what were known as and agreed to be the “Revised Ordinances of the City,” consisting of 151 chapters, which were attested as follows: “Be it enacted by the city council of the city of Davenport: Section 1. That the foregoing shall constitute and be denominated the ‘Revised Ordinances of the city of Davenport of 1893/ said Revised Ordinances being chaptered and headed as follows: [Here follows ‘Chapter V to ‘Chapter
This also appears in the minutes of the proceedings of the city council: “The ordinance committee reported an ordinance for the grading, paving, curbing, graveling and guttering streets, highways, avenues and alleys (No. 125), and the manner of paying for the same. On motion, the rules were suspended, and the ordinance adopted by the following vote: Ayes: Beyer, Bischoff, Klein, Korn, Lerch, Leonard, Malloy, Parkhurst, Kehling. Nays: None.” The city clerk also testified that the ordinance was printed in the minutes of the council proceedings; that he kept a book in which the ordinances are posted; and that this ordinance is found in that book. Thus, it is shown that the ordinance was duly passed, and a copy of it is printed, not only in the proceedings of the city council, but it also appears, duly certified, in the printed Kevised Ordinances of the city. The section of the chapter quoted does not seem to require the recording of the ordinance in order to give it validity. That provision seems to relate to the method of making it proper and competent evidence, and, in any event, it is simply directory. Failure to comply with a directory statute with reference to the recording of ordinances does not affect their validity. Irrigation Dist. v. De Lappe, 79 Cal. 351 (21 Pac. Rep. 825); Whalin
But he further contends that the ordinance fixing the grade was binding on the city from the time of its passage, and that it was in fact passed before the contract for the improvement was finally consummated. He further contends that there is nothing in the law, the charter, or the ordinances ■of the city requiring the establishment of a grade at any particular time before the improvement is made, and says that, as the improvement was made with reference to the only grade which ever was established, appellants have no cause for complaint. The contract provided that the streets should be excavated-ten inches below.the grade line, so that the ten inches of brick, sand, and foundation making up the pavement material would still leave the street at grade. It was manifestly made with reference to the grade fixed in the ordinance of September 2d, and, as the contractors complied with the terms of their contract, it is clear that appellants’ •objection is merely technical. We are constrained to hold that as neither the law nor the city charter makes the éstablishment of the grade a condition precedent to the passage of the resolution for the work, and as the purpose and intent of the law are to make such improvement permanent and not subject to change after it is once completed, without liability for damages by reason thereof, it is sufficient if the grade is established at such time as that the improvement may be made with reference thereto. In other words, an ordinance fixing •the grade is not jurisdictional, and need not precede the resolution ordering the improvement.' If passed so that the work
III. The next point made is that the contract between the city and the contractors was illegal because it created an indebtedness in excess of the constitutional limit. We pass this for the present, as it is the main question in the case, to dispose of some other preliminary matters.
VII. It is said the statutes authorizing the assessment are unconstitutional and void, because they do not provide a uniform method of assessment, because they are not based, ■upon benefits conferred, and because no notice is given the property owner of the filing of the assessment plan. These questions have all heretofore been determined by this court adversely to appellants’ contention, and need not be further considered. Dewey v. City of Des Moines, 101 Iowa, 416; City of Burlington v. Quick, 47 Iowa, 226; Farwell v. Manufacturing Co., supra; Ford v. Town of North Des Moines, 80 Iowa, 626; Amery v. City of Keokuk, 72 Iowa, 701.
To sum up the whole matter, it seems to us that the bonds and the special assessments levied by the city are not
■ The contract being void, the bonds issued and the assessments levied to procure funds with which the city might xe-imburse itself are also invalid, and should have been so •declared by the district court.- — Reversed.