City of Fairfield v. Ratcliff

20 Iowa 396 | Iowa | 1866

Lowe, Ch. J.

i. mxtoxoipbathxn?’ segments. Action to recover of defendant $10.46, the price of labor performed and material furnished by plaintiff, in improving the sidewalk in front of defendant’s lot in the city of Fairfield. The p0wer 0f the city to do the work, and collect the’ price and value thereof from the proprietor of the lot, is founded upon an ordinance passed by the city authorities on the 4th day of May, 1864, which inter alia provides that, when the public interest shall require the same, the city council may order lot owners to construct, in front of their premises, sidewalks, specifying the manner in which the same shall be done, and if it is not constructed within one month after notice given by the owner of the lot, the city supervisor may proceed to do so; and the costs thereof will stand as a special lien or assessment against the lot, which’may be collected as other city taxes, or by suit in the name of the city.

The competency of the city to pass such an ordinance and to impose special charges of this description against lots and lot owners under its charter, is denied. And the court holding the non-existence of the power, the plaintiff appeals.

Section 11 of the charter provides that “ said corporation shall have power to regulate and improve all streets, alleys, sidewalks, drains and sewers; to .sink and keep in repair public-’wells, remove nuisances and regulate markets, &c.”

Counsel for plaintiff insists that the-'power in question is derivable from this clause of the charter, not expressly, to be .sure, but by fair implication, in view of the ordinary incidents and powers usually exercised by all similar corporations. The unsoundness of this .position is apparent from the fact that the exercise, of powers by implication is never to be indulged except when necessary to carry out and make operative that which is expressly granted. By its charter, the city is, in this case, expressly authorized to improve sidewalks, and the means afforded it for doing so are the same as that which may be employed in improving the streets and alleys, namely, that of a tax annually assessed for corporation purposes.» It follows,, therefore, that special assessments for sidewalks, chargeable to particular lots, are not necessary to execute the above express grant of power on the same subject; and therefore not allowable to be exercised b.y implication or otherwise in the absence of any express authority in the charter for so doing. Between this right to make special assessments for sidewalks, and that of taxation for general corporation purposes, there is, in the judgment of courts, a clear distinction, involving in their exercise essentially different powers and principles, the one being an ordinary tax for defraying the expenses of the municipal government and the general improvement thereof; whilst, the other is a special imposition or liability arising out of the benefit conferred upon the property assessed. Hence one is not included in the other, nor can one be any more exercised than tbe other, without a grant of authority from the legislature, which frequently and not unwisely confers both powers upon the same city.

Affirmed.