130 Iowa 66 | Iowa | 1906
The appellees are the owners of lots abutting on an alley, the grade of which was duly established some years ago. The city of Des Moines decided to pave this alley and after taking the necessary preliminary steps let the contract therefor to the defendants, Bennett Bros., who constructed the pavement. Their contract with the city required them to construct the pavement on the estab
The work was accepted by the city and the cost thereof was levied on the lots of the appellees, and the city shortly thereafter issued to B'ennett Brothers assessment certificates therefor. Still later, these suits were brought to have the assessment declared void and to enjoin the. collection of the certificates. A few days thereafter the city passed an ordinance changing the grade of the alley so that it would conform to the paving. The real question for determination is whether the city had power to make the assessment. If it had such power, it is conceded by the appellees that they have mistaken their remedy and that these actions will not lie because of their remedy by appeal.
Cities shall have power to improve any street, highway, avenue or alley by grading, parking, curbing, paving, graveling, macadamizing, and guttering the same or any part thereof, and to provide for the making and reconstruction of such street improvements, and to assess the costs on abutting property as provided in this chapter; but the construction of permanent parking, curbing, paving, graveling, macadamizing, or guttering shall not be done until after the bed therefor shall have been graded so that such improvement, when fully completed will bring the street, highway, avenue, or alley up to the established grade.
This section confers the power to pave, but expressly provides that it shall not be exercised until after the street or alley shall have been graded so that such improvement
It was held that the city had no power to change the grade of the street by resolution, and that the property owners were not liable for the improvement because it did not conform to the legally established grade. See, also, Cascaden v. City of Waterloo, 106 Iowa, 673; Kepple v. City of Keokuk, 61 Iowa, 653. If the city acted beyond its power its acts are void, not merely irregular, and an injunction will issue to restrain the enforcement of the tax. Owens v. City of Marion, 127 Iowa, 469; Rood v. Board of Supervisors, 39 Iowa, 446. In Allen v. City of Davenport, 107 Iowa, 90, relied on by the appellants the ordinance was passed before the work was done and we held that it was not jurisdictional to the extent that it must precede, the resolution ordering the assessment.' If the city had no power to levy the assessment its act in so doing was absolutely void and it could not be given life by the subsequent passage of
The trial court reached the right conclusion, and the judgment is affirmed.