157 Iowa 250 | Iowa | 1912
— By preliminary proceedings in every respect regular and valid, so far as this record discloses, the council of the defendant city ordered the paving of Seventeenth street in that city from Twelfth Avenue South to Third Avenue North, according to plans and specifications calling for a double roadway from Twelfth Avenue South to Fifth Avenue South, each roadway sixteen feet in width, with a parking in the center of the street thirteen feet in width, and a single roadway thirty feet in width from Fifth Avenue South to Third Avenue North. A contract was let for the laying-of this paving in accordance with these plans and specifications at a specified price per square yard.
After the contract was let, two petitions were presented to the city council, signed by all the owners of property abutting on Seventeenth street between Fifth Avenue South and Third Avenue North, except the plaintiffs, asking that the plan of paving that portion of the street 'be changed and that between these limits the street be boulevarded in the same manner as the portion of the street south of Fifth Avenue South; that is, that between the limits prescribed there be a double roadway of sixteen feet in width, with parking thirteen feet in width along the middle, except at street and alley intersections. The city council adopted a resolution granting the prayer of the petitions, subject to the written approval and consent of the contractor. Although the contractor did not file a written consent to this modification of the contract, he did, in fact, orally, before the city council, accept such modification, and he proceeded to construct the entire pavement in accordance with the plans and specifications, with the modification above indicated.
There is also a provision in the Code, relating to appeals from the council in such cases, as follows: “Sec. 839. Any person affected by the levy of any special assessment provided for in this chapter may appeal therefrom to the district court within ten days from the date of such levy, by serving written notice thereof upon the mayor or clerk and filing a bond for costs, to be fixed and approved by either of said officers. Upon such appeal, all questions touching the validity of such assessment, or the amount thereof, and not waived under the provisions of this chapter, shall be heard and determined. The appeal shall be tried as an equitable action, and the court may make such ■assessment as should have been made, or direct the making of such assessment by the council. The costs of the appeal shall be taxed as in other actions.”
In 1900 the General Assembly enacted an additional statute, relating to special assessments (28 G. A., c. 29), requiring that such assessments shall be in proportion to the special benefits conferred upon the property thereby, and not in excess of such benefits, and not in excess of twenty-five per centum of the actual value of the property at the time of the levy; and, further, that the excess of the cost over the special assessment which may be levied on abutting property shall be paid out of the general fund of the city. In this statute sections 824 and 839 of the Code, above quoted, are reaffirmed as applicable to all special assessments, with this additional provision, that, “upon appeal, the court shall determine all questions, including that of benefits to the property assessed.”
The purpose of the statutory provisions above referred to clearly seems to have been to relegate the property owner to his remedy by objection and appeal in all cases where the city council has not exceeded its jurisdiction; and the holding of the Shaver case, just cited, is, in effect, that in the case of a mere departure from the plans and specifications, not substantially changing the nature of the improvement, the council does not lose jurisdiction to make assessment for the improvement as constructed, but may, on objections, grant' the property owner such relief as he should have, and that on appeal the district court may review the action of the council and grant the relief which should have been granted by it.
The plaintiffs are attempting to escape any assessment whatever for a beneficial improvement in front of their property on account of a change of plan made by the city council, which, so far as it appears from this record, does not deprive the improvement of its beneficial character, so far as plaintiffs are concerned. Plaintiffs have been relieved by the council of the additional burden imposed by the change in the increase of the number of square yards of paving involved. Had the plaintiffs objected that by reason of the boulevarding of the street the improvement was of no substantial benefit to them, they might have been relieved entirely of the obligation to pay for it. But we are unwilling to hold that a mere departure in plan, not affecting the substantial character of the improvement, and not rendering the contract under which it was made invalid, will justify an annulment of the assessment in toto.
The conclusions above indicated make it unnecessary that we discuss the question whether plaintiffs are estopped by acquiescence in the improvement from raising the objection that the assessment is invalid.
The decree of the trial court is therefore, — Reversed'.