175 Iowa 30 | Iowa | 1916
Lead Opinion
“Sec. 1. Whenever, after January 1, 1914, any city or town council, including the councils of cities acting under special charter, levies any special assessment for street improvement as provided by Section 792 of the Code and amendments thereto and supplementary thereof, the same shall be made in accordance with the provisions of Section 792-a of the Supplement to the Code, 1907, and shall be limited to the amount to be assessed against private property, against all lots and parcels of land according to area so as to include one half of the privately owned property between the street improved and the next street whether such privately owned property abut upon said street or not but in no ease shall privately owned property situated more than 300 feet
‘1 Sec. 2. All acts and parts of acts in conflict herewith are hereby repealed.”
The assessment in this case was for street paving, the pro'ceedings having been begun by the passage of a resolution of necessity by the city council of defendant city, on February 14, 1913. Notice was ordered, and, on the same day, the city engineer directed to prepare plans and specifications on the same day, and on March 26, 1913, the street improvement was ordered. On April 11,1913, the plans and specifications prepared and prescribed by the city engineer were approved, and on the same day, the city clerk was directed to advertise for bids. On May 12, 1913, the bid of the Kaw Paving Company was accepted, and the contract awarded to it; and on the 15th of the same month, a formal contract was entered into between the city and the paving company. This contract was also secured by a bond, signed by proper sureties. By the terms of the contract, time was made the essence thereof, and the work was to be completed to the satisfaction of the city on or before November 1, 1913, the paving company agreeing to pay as liquidated damages the sum of $50 per day for each and every day the work remained uncompleted and unfinished after that date. Delays incident to strikes or other causes beyond the control of the paving company were excepted. A modification of the contract was made on September 16, 1913; and on November 3,1913, the paving company asked an extension of time for completing the paving, the reason therefor not appearing in the record. On December 2d, the council granted the paving company an extension from November 1, 1913, to July 1, 1914, provided the bondsmen consented thereto. The sureties consented to this extension on Jan-
On July 6th, the council passed a resolution making a levy for the improvement, and also passed a resolution authorizing the issuance of city improvement bonds. It also, at the same meeting, directed the city clerk to give notice of the assessments. Notice was given of a hearing on July 31st, and on July 28th, plaintiff herein filed his objections to the proposed assessment against his property. These objections were overruled, and the assessment confirmed. Plaintiff appealed to the district court, and upon that appeal, the assessment was set aside, because not made under the provisions of Chapter 76, Acts of the Thirty-fifth General Assembly, and the. court ordered the council to make a new assessment, after giving the proper notice to all parties in interest, under the provisions of the last mentioned act. The appeal is from this last order and decree. In all the resolutions, notices and proceedings, it was stated that the expense of the improvement was to be assessed against the property abutting on the streets improved. The contract with the paving company also provided that it was to accept assessment certificates against abutting property, levied according to benefits, and the assessments were made by the council against abutting property. The trial court was of opinion that the assessment should have been made under Chapter 76, Acts of the Thirty-fifth General Assembly, and this raises the principal issue in the case. This latter act was approved April 19, 1913, but did not go into effect until July 4th of that year, for it had no publication clause; and it will be noticed that the contract for the paving was let and the rights of the parties became fixed not later than May 15, 1913. The work was to have been
It will be noticed that the legislature did not intend the new act to -have immediate and present operation. By the express terms of the statute, its operation was postponed until January 1,1914, and the repealing clause certainly did not go into effect until the affirmative part of the act became operative. The act is not, in form or substance, a curative one, nor
We would not lay great stress upon the fact that the two neighboring properties, which we have herein specified, were actually improved and that that of the plaintiff was not. We think the mere fact of improvement, or the failure to improve, is hot the controlling question. Otherwise, one might be' heavily assessed because he had constructed his improvements, and another might escape because he had deferred the construction of improvements upon his property until the paving assessments were fixed. We think, however, that suitability for the purpose of present improvement's always an appropriate consideration. And it may be conceded in this ease that plaintiff’s property was suitable for substantial and valuable present improvements, although it was on the outside limit of the business district of the town. We are clear also that, where property abuts upon an improved street and is thereby rendered assessable for the improvement, the depth to which such property extends is a consideration which ought not to be overlooked. It is a factor in the area of the property, and such area necessarily affects the benefit to be acquired from the street improvement by the abutting property. That
In so far, therefore, as the trial court held the assessment to be governed by the new statute, its order is reversed; in so far as it set the assessment aside, the order will be affirmed, on the ground that the assessment is not proportioned according to benefits. — Affirmed in part and Reversed in part and Remanded.
Dissenting Opinion
(Dissenting in part.) — I am unable to concur in the majority view as expressed in the first division of the opinion. The general contention of the appellee plaintiff is that the power of assessment conferred upon the municipal corporation is legislative wholly; that the power thus confer
Conceding, that the question at this point is close and difficult of solution, I think that the holding of the trial court should be sustained.
As to the cases cited in support of the majority view, none of the holdings contravened express provisions of the statute. In the Ohio case cited, a constitutional provision was involved which forbade retroactive legislation. The new statute under consideration herein provides in express terms that it shall apply to “any special assessment for street improvement” to be levied “after January 1, 1914.” The majority holding, therefore, necessarily contravenes this express provision of the statute.
We have no constitutional provision forbidding retroactive legislation. True, we will not construe a statute as being retroactive unless its express terms require it. If its express terms do require it, it is beyond our power to ignore it. If such a construction, however, would render the statute unconstitutional, we might then give it construction which would save its validity.
If it be correct, then, that no jurisdiction could be acquired .over non-abutting property at this stage of the 'proceedings, such fact might be a sufficient reason for denying the application of the new statute to the pending proceedings. The notice provided for by Section 810, Code Supp., 1913, is jurisdictional in the sense that, as a statutory .requirement, it was a limitation upon the power of the municipality. A notice at .that particular stage of the proceedings was not required by .reason of any constitutional provision. It was
Section 823 is as follows:
“After filing the plat and schedule, the council shall give notice by two publications in each of two newspapers published in the city, if there be that number, otherwise in one, and by handbills posted in conspicuous places along the line of such street improvement or sewer, that said plat and schedule are on file in the office of the clerk, and that within twenty days after the first publication all objections thereto, or to the prior proceedings, on account of errors, irregularities or inequalities, must be made in writing and filed with the clerk; and the council, having heard such objections and made the necessary corrections, shall then make the special assessments as shown in said plat and schedule, as corrected and approved. ’ ’
The case of Ross v. Board of Supervisors, 128 Iowa 427, is quite in point here. That case involved a drainage proceeding. All the preliminary proceedings, including the construction of the drain, had been had under a statute later.held to be unconstitutional. The legislature passed a new statute providing for special assessments; and special assessments were levied thereunder for this improvement against persons who had no notice of the preliminary proceedings but did.have notice of the proposed special assessment. We quote from the opinion as follows:
“The appellant takes the position that the landowner is entitled to notice and hearing as to the extent of this district, and whether his land shall be included therein and that the*46 failure to provide for such notice and hearing renders the statute . unconstitutional. In our opinion the objection is unsound. The division of a state or lesser municipal territory into districts for the purposes of taxation or public improvement is a legislative matter, and the citizens affected thereby cannot complain because the power is exercised without notice to him. . . . ‘It is settled that if provision is made for notice to and hearing of each proprietor at some stage of the proceedings upon the question of what proportion of the tax shall be assessed upon his land, there is no taking of property without' due process of law.’ In the case before us, there is, under the statute, as amended, ample provision for a notice to every landowner, and opportunity given for the hearing of all objections he may have to assert against the validity and justice of the proposed charge upon his property. This, under the law, is all he can rightfully ask.”
A similar question was involved in Arnold v. City of Fort Dodge, 111 Iowa 152. The plaintiff in that case had no preliminary notice that the cost of guttering and curbing would be assessed against her property. She did, however, receive the notice provided for by Section 823. We said in that case:
“She then had notice and opportunity to be heard before the assessment attached and became a lien upon her property, and this is all the law requires.”
The following from the Supreme Court of the United States bears upon the same, question:
“The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laying out, grading or repairing of a street, to be assessed upon the owners of lands benefited thereby; and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion. ... If the legislature provides for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question what propor*47 tion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.” Spencer v. Merchant, 125 U. S. 345.
Section 2 of the new statute purports to repeal all acts or parts of acts that are inconsistent therewith. It would seem, therefore, that by the express terms of this enactment the requirement of preliminary notice, as provided in Section 810, was dispensed with, so far as new parties were affected by the new legislation. Inasmuch as the notice provided for by Section 823 meets all constitutional requirements, the legislature had constitutional power to dispense with the preliminary notice provided for by Section 810. If it did dispense with such notice as to new parties, the jurisdiction of the municipality is as broad as the legislative permission.
I concur in Division II of the majority opinion.