47 Iowa 222 | Iowa | 1877
This action is brought under section 178 of the Code, which, among other things, provides: “ Such charge (for the matters referred to in the petition) may be collected and such lien enforced by a proceeding in law or equity, either in the name of such corporation, or of any person to whom it shall have directed payment to be made.”
The city, by ordinances and a resolution duly passed by the council, directed the improvement to be made. It was advertised and let to certain bidders, and when the work was finished the city, having, as it is claimed, assessed in the manner provided by ordinance the amount to be paid by each owner of abutting property, paid the amount due the contractors, and this action is brought to recover the amounts so paid, assessed to and due from each property owner. The several questions urged by counsel will be considered in the order made.
The power of the city to make the improvement and assess the expense on owners of abutting property is derived from three sections of the Code. Sec. 466 provides that the city shall ' have power to curb, pave, gravel, macadamize and gutter any highway or alley therein, and levy a special tax on the lots and parcels of land fronting on such highway to pay the expenses of such improvement; Sec. 467 gives the power to repair sidewalks and assess the expense thereof on the property in front of which the repairs are made, and Sec. 478 provides that “ each municipal corporation may, by general ordinance, prescribe the mode in which the charge on the respective owners of lots or lands, and on the lots or lands, shall be assessed and determined for the purposes authorized by this chapter. Such charge, when assessed, shall be payable by the owner or owners at the time of the assessment personally, and shall also be a lien upon the respective lots or parcels of land from the time of the assessment.”
If sections 466 and 467 stood alone, it might be claimed with a considerable degree of propriety the assessment could only bo made by ■ the council. At least, under the doctrine of strict construction that prevails in this class of cases, there would be serious doubt whether such power could be delegated to the auditor, and yet, if the duty to be performed was merely clerical, it would seem the auditor could better perform it than a city council composed of fourteen members. But these sections must be construed with reference to Sec. 478, or rather all ■three sections must be read together, and construed as if the matter in all was contained in only a single section., If this
By the resolution the council.did in fact levy and assess the cost of the improvement as a special tax, and delegated the power to apportion the whole cost or rather the amount levied and assessed among the several owners of abutting property, in accordance with the number of feet front owned by each.
This the council could well do, and find ample authority therefor in the statute. "What was done by the auditor was merely a clerical duty.- This assessment was made and based by the auditor on the estimates of the city engineer, and the estimates on the contracts and prices therein fixed, and was at so much per front foot for the improvement of the street on which the property-assessed abutted.
At the time the assessment was made there were two ordinances in relation thereto, the one under which the auditor acted, and another providing that the council should by resolution levy and assess these special taxes, and it is insisted the assessment should have been made by the council under the latter ordinance. If such ordinance covers the clerical duty performed by the auditor, then there are two ordinances upon
__. lien of tax. II. A decree was entered making the amounts found due a lien on the respective lots and a' personal judgment was also rendered against the respective owners. It is insisted that “ any law or ordinance which creates a personal liability for local special assessments is unconstitutional.” See. 578 of the Code, above quoted, it will be seen expressly authorizes just such a judgment as was rendered. Is such a law unconstitutional? Counsel have not cited any provision of the constitution with which the statute conflicts. Nor have we been cited to any adjudicated cases, except two, in which it is claimed such a statute has been held to be unconstitutional. One of these is Nunan v. Smith, 50 Mo., 529. An examination of that case will show the ruling was based on the ground that the statute under which it was claimed did not authorize a personal judgment. The other case is Palmer v. Taylor, 31 Cal., 240. This decision is based on a provision in the constitution of California; which is not contained in the constitution of this state. It is hot applicable. In Cooley on Taxation, 472-3, it is said: “But the practice of making these assessments a personal charge against resident owners has been almost universal. The English statutes go so far as to make them a personal charge against “ the present or future owner of the property assessed until paid.” In the United States personal assessments of this nature have been enforced in a great number of cases. How much of this may be due to the fact that the right to make a personal assessment was not contested, • can only be a matter of conjecture; but at present it must be conceded the overwhelming weight of the authority is in favor of the right.” In support of this view many authorities are
We are content to follow what we recognize as the decided weight of authority, without attempting to vindicate its correctness.
Conceding these several propositions to be true, they are each supported in an ingenious and able argument, and some of them at least under the decisions of this court seem to be meritorious. See Hager v. Burlington, 42 Iowa, 661; Starr v. Same, 45 Id., 87, and cases there cited.
It is proper attention should be called to the fact: first, that
. The statute under which this action is brought, Code, §479, provides: “In any such proceeding, where the court trying the same shall be satisfied that the work has been done, or materials furnished, which, according to the true intent of the act would be chargeable upon the lot or land through or by which the street, alley or highway improved, repaired or lighted may pass, a recovery shall be permitted, or a charge enforced to the extent of the proper proportion of the value of the work or materials which would be chargeable on such lot or land, notwithstanding any informality, irregularity or defect in any such municipal corporation or any of its officers.”
This statute was held not to be applicable in Starr v. Burlington. In the present case the resolution ordering the improvement was passed in October, 1874. This being after the adoption of the Code, this case is within the statute and the effect thereof is for the first time before this court for determination.
The improvement has been made. It is such as the city was authorized to have done. The determination of the city authorities is conclusive, and not the subject of judicial review, that the improvement was necessary and required for the convenience, comfort and welfare of the city and the inhabitants thereof. The statute is broad, equitable and remedial, and should not receive a narrow or strained construction. On the contrary it should be so construed as to carry out the object, intent and spirit the General Assembly evidently had in view in its enactment. If the improvement is such as the city was authorized to make, according to the time intent .of the law, then all errors and irregularities should be disregarded and a recovery permitted for the proper proportion of the value of
Affirmed.