187 Iowa 1083 | Iowa | 1919
The record discloses that plaintiff was the owner of certain lots in the city of Des Moines, abutting on what is known as West Fifth Street, between Grand Avenue and Chestnut Street. These lots were assessed by the city for benefits assumed to have accrued by reason of certain improvements made upon said street, for which the lots, under the statute, became subject to assessment.
It is conceded that, the schedule of assessment for the opening, widening, and extending of Fifth Street was approved by the city council on the 29th day of December, 1916, and that plaintiff’s assessment amounted to $16,895.75. Thirty days from the date of the assessment were given
By stipulation in the record, it appears that the city clerk did not certify the assessment to the county auditor until the 24th day of November, 1917, and that the same was not spread! upon the tax books and delivered by the county auditor to the county treasurer before that date. The plaintiff appeared before the county treasurer, however, and had him figure the amount of the assessment and accrued interest to May 18, 1917, the date the tender was made to the city clerk and city treasurer. This was, we take it, before the tax had been certified to the county treasurer for collection. The plaintiff then tendered to the county treasurer the full amount of the assessment, with interest figured to May 18, 1917, the date of the tender to the city. The county treasurer refused to accept the same, stating, however, that the tender would be regarded by him as
The question presented is: Had the plaintiff a right to pay to the city the special assessment made by it against his property at any time before the tax was certified to the county treasurer for collection, and was it the duty of the city to receive and accept payment upon tender of the amount of the assessment, with interest to the date of the tender, at any time before it had certified the tax to the county treasurer for collection?
This question involves the proper construction of Section 825, Supplement to the Code, 1913, and Section 828 of the Code of 1897, which read as follows:
“Section 825. The special assessments made in said plat and schedule, as corrected and approved, shall be levied at one time, by ordinance or resolution, against the property abutting on such street improvement * * * and, when levied and certified, shall be payable at the office of the county treasurer. If the owner of any lot or parcel of land * * * the assessment against which is embraced in any bond or certificate provided for in Chapter 8 of this title, shall, within 30 days from the date of such assessment, promise and agree in writing, indorsed on such bond or certificate, or in a separate agreement, that, in consideration of having the right to pay his assessment in installments, he will not make any objection of illegality or irregularity as to the assessment or levy of such tax upon and against his property, and will pay said assessment with interest thereon at such rate, not exceeding six per cent per annum, as shall by ordinance or resolution of the
“Section 828. The owner of any property against which a street improvement or sewer assessment has been levied shall have the right to pay the same, or the unpaid installments thereof, with all interest, as the case may be, up to the time of said payment, with any penalties and the cost of any proceedings for the sale of the property for such special assessment or installments.”
It will be noted that Section 825, supra, provides that the whole of the special assessment shall mature at one time, and be due and payable on the date of such assessment, with interest from the date of acceptance of the work by the city council. This provision of the statute applies to all the assessments. An extension of time for payment is given only to parties who appear before the council within 80 days from the date of the assessment, and file waiver
Now, it is apparent that, if the tax levied matures on the date of its assessment, and is due and payable at that time, the taxpayer so charged has imposed upon him the duty to pay at that time, and if the duty rests upon him to pay, there is someone to whom payment can be made. The city has caused the tax to be levied for the purpose of creating a fund to meet the obligations which it assumes in street improvement. Section 828 provides that the owner of any property against which ¡a street improvement assessment has been levied, shall have the right to pay the same, or the unpaid installments thereof, with all interest, as the case may be, up to the time of said payment. It is not payable at the office of the county treasurer, until it has been certified and reaches the county treasurer for collection. The county treasurer has no authority to collect, until the city has certified the tax to him for that purpose. Up to that time, it remains under the control and jurisdiction of the city, and the city has a right, and it is its duty, to receive payment from all lot owners against whom it has made the assessment.
It will be noted that the tax, when assessed, becomes a lien upon the lot. It will be noted that it bears interest from the time the work is accepted by the city. It will be noted that it matures at once. It will be noted that the property owner has a right to pay the same at once, without any limitation on that right. If he fails to pay it, he is charged with interest. The assessment remains a lien
In the case at bar, the plaintiff tendered the full amount of his assessment to the city on the 18th day of May. It was the duty of the city to receive it. No question is made as to the sufficiency of the tender. If it had been accepted by the city, as it should have been, plaintiff’s obligation under the assessment would be discharged, and his property would be released from the burden of the lien. Its refusal to accept payment does not change the situation, and plaintiff is entitled to have the right acquired by the tender enforced now against the city. The judgment of the district court is, therefore, reversed, and decree ordered in harmony with this opinion. The plaintiff may have a decree entered in the district court, or have a decree entered here, at its election. — Reversed.