136 Iowa 458 | Iowa | 1907
The bond sued on was filed in pursuance of section 1940 of the Code, and was “ conditioned to pay all costs and expenses incurred in case the board of supervisors refuse to grant the prayer of the petition.” This prayer was for the establishment of a drainage district and excavation of a ditch. Preliminary to a decision by the board, the statute provided for a survey and report by a competent engineer, notice to abutting owners, and presentation of claims for damages; and to assure the payment of the costs and expenses incident thereto such bond is exacted. This statute and those following were declared unconstitutional after the proceeding in which the bond was given had been begun, for that they authorized the assessment and levy of taxes on the land benefited without notice to the owner or affording an opportunity of being heard. Beebe v. Magoun, 122 Iowa, 94; Smith v. Peterson, 123 Iowa, 672. Appellants, who are the sureties on the bond, now contend, as it was executed in pursuance of an invalid enactment and they derived no benefit or advantage therefrom, there should be no recovery on condition broken. On the other hand, ap-pellees insist (1) that the bond should be upheld as valid and