Hawley v. City of Fort Dodge

103 Iowa 573 | Iowa | 1897

Granger, J.

The Defendants, other than the city, are the treasurer of the city and the treasurer of the county. In 1873 the city council of Fort Dodge adopted an ordinance of which the following is a part: “The city council may, by resolution passed by two-thirds of the whole number of councilmen composing such council, order the laying of a temporary plank sidewalk at a cost not to exceed forty cents per lineal foot, and may require the same to be kept in repair. Such temporary sidewalk shall be laid upon the natural surface as near as practicable without regard to grade, until the street wherein they are laid shall have been permanently improved, and the cost of such temporary sidewalk shall be assessed against the property in front of which the same shall be laid, and the resolution therefor shall describe the kind and character of said walk, and the material of which the same shall be constructed, and the time within, and the street and place along which the same shall be constructed.” In 1877 the city council amended the ordinance of 1873, and the following is a part of the amendment: “Section 1. Be it ordained by the city council of the city of Fort Dodge, that whenever such construction, improvement or repair is ordered as provided in section first, second and fifth of the above named ordinance, snch resolution shall be served, by the city marshal upon resident lot owners, and agents of non-resident owners, and if there be none, then by publication for two consecutive weeks, on non-residents, in some newspaper printed in said city, and in case the owner of the property along the said street or highway, where such construction, improvement or repair is ordered, shall fail to make the same within the time fixed in such resolution, then the same shall be constructed as provided by said resolution, and the officer, contractor or person under whose supervision such construction, improvement or repair shall have been made, shall return to the city council a detailed statement of the cost thereof, opposite each lot, or part of lot, parcel of land along which the sai'd construction, improvement or repair shall have been made, with the name of the owner or owners thereof, when known to him, and thereupon the city council shall, by resolution, declare an assessment against such lot, part of lot, or parcel of land, and the owner or owners thereof, if known, of the costs of such construction, improvement or repair, together with all the costs and expenses- connected therewith.” In March, 1892, the following resolution was adopted for the construction of the sidewalk in question: “Be it resolved by the city council of the city of Fort Dodge, that there is hereby ordered temporary sidewalks from west end of Farley street bridge along blocks 33 and 37, Duncombe’s subdivision of West Fort Dodge, Iowa; thence running along the south side of the street on the north side of block 10, and on the west side of block 10 of West Fort Dodge, Iowa”

It will be seen that the ordinances of the city under which the council proceeded specify the notice to be given to lot owners where it is sought to make the cost of sidewalks a burden on the lots. There is something, of a showing of the service of a notice by the' marshal of the city, but it is too slight to be entitled to- credence. His testimony- amounts to no more than saying: “I guess I did serve the notice, but I have no knowledge on the subject.” The service of the resolution in one of the ways provided in the ordinance was a condition precedent to a right to have the walk constructed on contract at the expense of the owner of the lots. The city was as much required to observe the ordinance as the lot owner. The. ordinance contemplates the right of the lot owner to construct the walk himself, after notice. The lot owners, whether resident or non-resident, must take notice of the ordinances as they may operate for or against them; and the city must, to justify the imposition of such burdens by virtue of such ordinances, do the things necessary to give them effect. The giving of the notice in the way and of the kind specified in the ordinances is precisely what the city had engaged to do by its enactment, of which all persons were required to take notice. This case is not within the rule of Gatch v. City of Des Moines, 68 Iowa, 718; Ford v. Town of North Des Moines, 80 Iowa, 636; or Trustees of Gris-wold College v. City of Davenport, 65 Iowa, 633, and like cases. They treat of an absolute right to notice before the assessment can be made effective. In this case there is a failure to give a prescribed notice. It is not necessary to consider other questions. The judgment is affirmed.