160 Iowa 567 | Iowa | 1913
The demand for injunction is based upon the alleged invalidity in the preliminary proceedings of the city council. The specific claim is that the resolution of necessity did not designate “what adjacent property was proposed to be assessed therefor, ’ ’ as required by section 810 of the Code. The case was before us upon a former appeal. Dunker v. City of Des Moines, 156 Iowa, 292. Eeference may be had to the opinion in such case for a more detailed statement. Section 810 of the Code provides that the preliminary resolution of necessity shall state what adjacent property is proposed to be assessed. Upon the record of the case, as presented in the former appeal, it appeared that the resolution of necessity proposed to assess the cost of the sewer against abutting property and “adjacent property.” It did not appear, however, that such adjacent property had been in any manner specified or defined by any action of the city council. The proceedings were held invalid on that specific ground. ■ It was said in the opinion that the term “adjacent” was in itself indefinite and fixed no exact rule by which the particular property to be assessed could be identified, and that it devolved upon the city council to define the same and “to determine what property shall be included as adjacent to the sewer for purposes of assessment,” and that this “should be done before the resolution of necessity is published and thus give all interested
Section 3 of the general sewer ordinance of the city of Des Moines, known as No. 1020, and enacted in 1899, provides as follows: “Adjacent Property Defined. Sec. 3. That adjacent property as used in this ordinance is declared to be such property, not abutting on such sewer, and not otherwise assessed for the cost of a sewer as shall lie within one hundred fifty feet of said sewer and which can be connected with and use the same.”
Upon a retrial in the lower court the ease was again submitted upon a stipulation of facts including the foregoing ordinance. It was made to appear also that on March 27, 1913, a certain curative act enacted by the Legislature became operative, and that such act purported to legalize the proceedings under consideration. Upon the facts thus made to appear the trial court held the proceedings of the city council to be valid and dismissed the petition, and the plaintiff again appeals.
Reading the resolution of necessity in the light of this ordinance then in force, there could be no doubt as to what property would be affected by the proposed assessment for benefits.
In view of our conclusion at this point, we need not consider tbe question of tbe sufficiency of tbe legalizing act heretofore referred to and wbicb is assailed in appellant’s brief.
The decree of the trial court is Affirmed.