156 Iowa 161 | Iowa | 1912
The plaintiff is owner of lot 4 in block 14 of the original plat of the town of Cedar Falls, situated at the corner of Clay and Fifth streets, and on May 11, 1909, the council of defendant city adopted a resolution that a permanent sidewalk five feet wide be made on the north side of Fifth street along said lot, to be constructed of cement, and that, unless built within thirty days, the city would cause the same to be constructed and assess the expense against the lot. Of this, the plaintiff was duly notified, and through her attorneys requested that the proper grade be established. The mayor responded: “Will give you grade any time your contractor is ready for permanent walk, lot 4, block 14.” On June 19th following, the street committee of the city council advertised for the bids for the construction of 4,530 squares of permanent cement sidewalk on six different streets, including Fifth street between Clay and Olive streets, but not .particularly describing that to be put in along plaintiff’s lot. The Cedar Falls Cement Company obtained the contract, and, though duly notified that plaintiff would resist any attempt to assess the cost of constructing a sidewalk along the lot, proceeded to put in the same according to specifications.
The city council was about to assess the cost against plaintiff’s lot, when this action to enjoin that body from so doing was begun. The petition alleged the foregoing facts, and “(5) that,, by provision of ordinances and resolutions of the city council of the city of Cedar Falls, no person is authorized or permitted to construct such cement sidewalks in the limits of said city of. Cedar Falls, except they have therefor obtained a license to make such constructions, for which a certain fee is demanded and a bond required, conditioned that such licensee will, in the , prosecution of. his work, observe all the regulations and
The answer admitted these paragraphs of the petition' and also admitted “that the officers of said city have insisted that, in- the construction of sidewalks in front of corner lots, the owners should build the walk from the corner of said lot to the curb line, and, in order to compel the owners of such property to build a walk in front of their property, the city council has passed a resolution, and enforced the same, making direction and regulation in such respect, forbidding the engineer employed by the city to establish and point out grades, unless such owners shall agree to construct and pay for the walk, as above described.”
By ordinance No. 221, “owners of corner lots are required to construct and continue sidewalk at the radius up to the established curb lines of the street.” Section 4
Numerous objections are raised against these proceedings; but all of these, save such as may be regarded as jurisdictional, were waived, unless fraud was shown; for that such objections were not filed with the. city clerk. Section 791-a Code Supplement. This disposes of all but two objections.
It is not merely a case of a void ordinance, but of an attempt on the part of city officers to compel obedience thereto, and extort the payment of money, without the semblance of authority for so doing. That such a course amounted to a fraud is a proposition too clear to require argument, and because thereof the court should have enjoined the levy of the assessment against plaintiff’s lot.- — Reversed.