Farraher v. City of Keokuk, 111 Iowa 310

Farraher v. City of Keokuk

111 Iowa 310 | Iowa | 1900

Gtvfn, J.

I. The city of Keokuk existed under special charter, but the sections of the Code to which we will refer are made applicable thereto by section 958. Section 779 confers “power to provide for the construction, reconstruction and repair of permanent' sidewalks and to assess the cost thereof on the lots or parcels of land in front of which the same shall be constructed.” It is further provided in said section: “But unless the owners of a majority of the linear 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.” Section 780 is as follows: “Cities and to.wns shall have power to repair sidewalks without notice to the property owners, and assess the expense thereof on the property in front of which such repairs are made, and the same shall be certified and collected as other taxes.” Section 441: The Revised Ordinances of the city provides as follows: “There is hereby created and established the office of sidewalk commissioner. The duties of said office *312shall be performed by the city engineer.” Section 442: “It shall be the duty of the city engineer, acting as said commissioner, to perform all the duties devolved upon him by the chapters relating to sidewalks and have all labor upon the sidewalks ordered by the city council performed in accordance with the chapter relating thereto; make all ordinary repairs on sidewalks as the city ordinances provide, and see that the same are kept in good safe condition for the public travel, subject to instructions and directions of the sidewalk committee; to oversee the construction and maintenance of all sidewalks now in, or that may be ordered by the city council. And whenever it is necessary to rebuild or construct any sidewalk he shall report the same to the sidewalk committee, who shall, if in their judgment such improvement is necessary, prepare and offer a resolution to the city council ordering such improvement as provided for by ordinance. He shall report all violations of ordinances relating to sidewalks to* the sidewalk committee, and be authorized and empowered under the instructions of the sidewalk committee to employ competent men and procure necessary material' to make any repairs or; construct any walk that may have been ordered as herein provided.” On December 11, 1896, and again on April 14, 1897, the city engineer caused notice to* be served on the plaintiff as follows: “You are hereby ordered to repair brick walk in front of the above-described property on Fifth street by general repairs and placing in good condition, and drain water from ice-house so* it will not injure the sidewalk. Said repairs to be made within ten days after service hereof. By order of sidewalk committee. G. M. Walker, City Engineer.” The plaintiff disregarded the notice, and thereupon the city engineer caused the walk to be* put in order by Mr. Van Ausdall, who reported the cost to be forty-eight dollars and forty-four cents, and the lot was assessed that amount. It will be observed that the city engineer had authority “to repair sidewalks without notice to the property *313owner, and assess the expense thereof,” but in case of construction or reconstruction a petition from the owners or a vote of the council is required. There was no such petition or vote, and the question discussed is whether this sidewalk was repaired or reconstructed.

II. As to the condition of the walk the city engineer testifies: “I examined sidewalk, and found same in great need of repair, from near the curb' line of Des Moines street, one hundred and thirty-four feet towards the alley, between Des Moines street and Timea street. Bricks were in numerous places broken and crushed. The walk was low, and covered with mud and clay. Holes which held water existed all over said walk. Part of said walk had been used for the purpose of driving heavy ice-wagons over, and the walk was crushed, broken, and in dangerous condition.” Mr. Van Ausdall testifies to the same effect. He also testifies: “We took up the entire sidewalk for 134 feet, and redug the trench again, and put back what old sand was left, which was very little, and put in 11 cubic yards of new sand; that is, there wasn’t any sand there went back in there. There was nothing in it but mud. No sand went back only what we put in. There was none of the old sand went back. We took out all the old bricks, threw out the old sand, redug the trench, and put new sand back in there, under the bricks. Then we relaid the walk entirely for a distance of 134 feet, and in that we used about 2,100 new brick.” Again he says: “We probably used some of the old bricks in the end in every other row. Taking the walk as a whole, there wasn’t many of the old bricks used.” “Repair. To mend, add to, or make over.” “Reconstruct. To construct again; rebuild.” Standard Dictionary. “Repair. Restoration to a sound or good state after decay, waste, injury, or partial destruction; supply of loss.” “Reconstruct. To construct again; to rebuild.” Webster Dictionary. The old sidewalk was not mended, made over, nor restored, but was rebuilt, reconstructed ; which seems to have been the only proper rem*314edy. There are no special equities in the plaintiff’s claim, and- yet the law is unquestioned that in exercising the taxing power the city must pursue the manner pointed out in the statute. Chicago, R. I. & P. R. R. Co. v. City of Davenport, 51 Iowa, 451; Tallman v. Treasurer of Butler County, 12 Iowa, 531; McManus v. Hornady, 99 Iowa, 507. There are manifest reasons why the cost of mere repairs is allowed to be assessed in a more summary manner than the greater cost of reconstructing sidewalks. The decree of the superior court is in accordance with the law, and it is AFFIRMED.