182 Iowa 811 | Iowa | 1918
Thereupon, the street and alley committee entered into
T. Section 779 of Code Supplement, 1913, authorized the council to provide for the construction, reconstruction, or. repair of permanent sidewalks. “But unless the owners of a majority of the lineal feet of the property fronting on the improvements referred to in this section petition the council therefor, the same shall not be made unless three fourths of all the members of the council shall by vote order the making thereof.”
The council was not petitioned, nor was there a vote taken with reference to the particular improvement. What was done was ordered by the street committee only in pursuance of the general powers sought to have been conferred by the council. To authorize the construction or reconstruction of a permanent sidewalk, in the absence of a petition, three fourths of all the members must have voted so to do with reference to the particular walk proposed to be constructed or rebuilt, and the power to determine may not be delegated to a committee or others. The proceedings are ad inmtwm, and must be strictly pursued. If, then, the walk was reconstructed, this was done without authority, and the assessment was void.
Plaintiff had negotiated with Downing to repair the walk, and had so informed a member of the streets and alleys committee, who objected to repairs, and remarked that “We are not going to stand for any repairs on this walk. It has to be torn out and a new walk put in.” Downing testified that the committee wanted the “old walk broken, torn out, and put in newthat he put in 904 square feet of walk'.
“I dug out parts of the old walk entire and dug the ground down two inches and pounded in a small amount of old material for a foundation, and then put in new concrete walk six inches thick where I had torn out the old. The old was four inches thick. I also put in a curb six inches and ten inches deep along the front of the walk. This extended down four inches below the level of the street. Mr. Cook, the town marshal and street commissioner, told me how to build the walk, and I had a written contract. He also directed me what squares of the old walk they wanted taken out. I took out all squares where the facing was cracked loose from the concrete: the squares left were practically good. The facing was from one-fourth to one-half inch thick. Also took out the squares where the squares themselves were broken up. The concrete in the old walk was not good. * * * I used some of the old facing, pounded it up as a foundation for the new walk, but none in the concrete itself. * * ® No square was removed unless it was broken or cracked on the top. * * * The curb that that I put in did not make the. work cost Mr. Clark any more.”
The street commissioner testified that:
“We removed all of the old work we thought was necessary to make the walk stable to walk upon, so that the new parts and the old parts left, we had good serviceable walk. * * * The new portions of the walk were two inches thicker, and also had more cement in it. A six-inch walk*815 would cost more than a four-inch walk. No new walk at all was put in at that time in front of Lot 5. ' That was in good condition at that time. In front of Lot 7, all of the old walk was taken out, and an entire new walk put in. In front of Lots 6, 8, 9, 10, and the north 24 feet of 11, there was part new and part old walk, after the work was done.”
Plaintiff had testified to having examined the walk shortly before the trial, and that:
“There was no new walk in front of Lot 5; in part of Lot 6, the walk is part old and part new; in front of Lot 7, it is all new walk; part of Lot 8 is all new, with exception of about 4 feet square, 16 square feet. Part of Lot 9 is all new except one block, 4x8, 32 square feet. In part of 10 and in 24 feet of 11, it is about half new. All of the front half of 10 next to the street is new; also 11. All the back along the lots is old, except 5 feet at each end.”
“To reconstruct” means “to rebuild, to construct again, or to rebuild or reconstruct again.” See above decisions, and 34 Cyc. 574. Reconstruction presupposes the demolition, or at least the nonexistence, of the thing to be reconstructed as an entity; and'to reconstruct is to construct again that which, as an entity, has been lost or destroyed. Fuchs v. City of Cedar Rapids, supra.