126 Iowa 680 | Iowa | 1905
As these cases are now presented to us — an opinion written on a former hearing having been withdrawn on petition for rehearing — the issue involved is simple, although the arguments have taken a great range, and properly so, as we are asked to pass upon a question substantially new with us, and on which the decisions of other States throw light only by way of illustration. We shall confine ourselves, however, to the announcement of the conclusions reached with reference to the very case presented, and avoid elaboration as to many matters which'have properly been urged in argument and fully considered, but which need not be passed upon, in view of the grounds on which this opinion is based.
The essential facts are that in May, 1901, the city council of Oskaloosa, by a “ resolution of necessity,” ordered the paving of a street in front of the premises of these three plaintiffs; making provision as to the material to be used, and manner of construction, and that the cost be “ assessed against the abutting properties, as provided by law, except the intersections of said street, which shall be paid out of the improvement fund.” At this time the ordinance regulating street improvements was No. 166 of the ordinances of the city which had been passed in 1896. Section 4 thereof provided for the levying of such assessments by the front-foot rule. This method of levying assessments had, however, been
The substantial contention for the property owners is that Ordinance No. 166 had become void by reason of the enactment of the statute in effect annulling section 4 thereof; that, without a valid ordinance, no steps could be taken looking to an assessment; and that, as the assessment was entirely without authority of law, no reassessment could be made. For the city it is contended, first, that no ordinance was necessary to authorize the city to act in accordance with the provisions of the statute; second, that, although section 4 of Ordinance No. 166 had been invalidated, the remainder of the ordinance was in force, and effectual to authorize the city to proceed in ordering an improvement to be made, the cost of which could be assessed to the property owners; and. third, that whatever invalidity or irregularity may have existed in the proceedings prior to the reassessment, they were not'such as to prevent the city^from making a valid reassessment of the improvement to the property owners.
But we do not regard the distinction between ordinance and resolution as material in this case. If a general ordinance was necessary, and Ordinance No. 166 was invalid, then the attempt by the city to proceed by means of a resolution in the particular case was without authority, and the proceedings were void.
It may be conceded that,. under the general statutory authority conferred upon cities in the Code of 1878, no proceeding for the making of street improvements' and levying assessments upon abutting property could be instituted, except in pursuance of some general ordinance prescribing the
Considering in greater detail the provisions of chapter 7, we find that in section 792 cities are given power to improve any street, and to assess the cost on abutting property, “ as provided in this chapter.” By section 793 it is required that the construction of such an improvement shall not be ordered made, except by a three-fourths vote of all the members of the council, unless petitioned for by the owners of the majority of the linear front feet of the abutting property. By section 810 a proposed resolution declaring the necessity or advisability of the improvement, the kind of material proposed to be used, and the method of construction, is required, with notice, etc. And by section 811 the council is authorized by ordinance or resolution to order the making of the improvement proposed in the preliminary resolution. Subsequent sections provide specifically as to the contract for the improvement, bids, contractors’ bonds, and the lien of the proposed assessment In section 818 it is provided that the cost of making any street improvement “ authorized in this chapter,” except so far as the same involves the expense of improvement at street intersections, and the cost which may be assessed to street’ railways, “ shall be assessed as a special tax against the property abutting ” on the streets improved. And by sections 820 — 825 specific provision is made as to how the cost is to be ascertained, and the assessments to abutting property owners made. We cannot discover that anything is left to be provided for by. general ordinance, nor that Ordinance No. 166 of defendant city contains any essential provisions not found in the Code. Wo therefore reach the conclusion that it is immaterial whether that entire ordinance was rendered invalid by the statutory abrogation of section 4 thereof, or whether it re-
. The conclusion already indicated as to the validity of the steps taken by the defendant city, without regard to
The cases relied on by counsel for appellee are those in which some essential authority or step in the proceedings was wanting, as in Zalesky v. Cedar Rapids, 118 Iowa, 714, and Allen v. Davenport (C. C. A.) 132 Fed. 208. The view which we have taken with reference to the existence of the authority on the part of the city to order the improvement, and the taking of .the essential steps to authorize an assessment, renders it unnecessary to discuss these and other cases which are relied upon by.counsel. They do not call attention to any omission of the essential steps which the statute provides for, and the record shows, directly or by implication, all that is required for a valid assessment. Wé can presume that there was ample notice of the reassessment, .for it appears from the records of the council that a resolution for a reassessment was passed January 6, 1902; that objection to the reassessment on the part of the plaintiffs in these cases was made to the council on the 31st of the same month; and that thereupon the council passed a resolution making the reassessment.
We reach the conclusion that the reassessments were valid, and that the decrees of the lower court in favor of. plaintiffs were erroneous. They are therefore reversed.