124 Iowa 267 | Iowa | 1904
Plaintiff states his alleged cause of action in three counts,» as follows: (1) It is alleged that the city of Keokuk, acting under its charter powers, caused Orleans street to be curbed, guttered and macadamized, and that the cost of the improvement thus made was duly assessed against the property abutting upon said street. It is further alleged that the defendant was at the date of such improvement the owner of a certain lot fronting upon said street, against which lot there was assessed its due proportion of the cost of said improvement, and a certificate for the amount of such tax was issued to the plaintiff. Said certificate is still the property of the plaintiff, and the tax or claim represented by it is due and unpaid, and defendant refuses to pay the same. (2) The second count is in all respects a repetition of the first count, except that the date of the city ordinance under which the improvement was ordered and the date upon which the certificate was issued are left blank. (3) -The third count adopts the allegations of the first and second counts, and alleges that “ plaintiffs or their privies” furnished the materials, work and labor required for said improvement, and that the reasonable value thereof, chargeable to the defendant’s property, and payable by him, was $117.03; being the same amount or debt represented by the certificate declared upon the first and second counts.
On these allegations, judgment is demanded against defendant for $117.03, with interest and costSj and for an
For answer the defendant, (1) denies the power of the city to cause its streets to be paved, curbed, guttered, or macadamized at the expense of the abutting property, or to make certificates issued for such improvement a lien upon such property, except when such improvement is made in accordance with the duly established grade of the street; denies that the alleged improvements upon Orleans street were made in accordance with the established grade, but that they were in fact laid upon the natural surface, far above such grade; and alleges that said work was done without authority of law, and without defendant’s consent or acquiescence. (2) He further alleges that on April 7, 1894, in the superior court of the city of Keokuk, the plaintiff brought a suit against the defendant upon the same certificate now declared upon, resulting in a decree in said court in plaintiff’s favor for the recovery of the amount claimed. Thereafter defendant appealed from the decree so entered to this court, where, upon a full hearing on the merits, said decree was reversed; it being held and decided that said special assessment and certificate were void and conferred no right of recovery upon the plaintiff. Said judgment of reversal having been entered, a procedendo was issued from this court to the superior court of Keokuk, and thereupon, on August 3, 1897, the latter court entered final judgment dismissing the plaintiff’s bill, and taxing against him the costs of the proceeding. By reason of all these facts it is alleged that the plaintiff’s pretended cause of action has been fully and finally adjüdicated. Replying to the foregoing answer, the plaintiff admits the bringing of the former suit, the judgment in his favor in the trial court, the reversal of such- judgment by this court, and the subsequent judgment dismissing the petition. He next alleges that said reversal arid the dismissal of his petition were by reason of certain irregularities' and illegalities..” in the ordering of
To this reply the defendant demurred on the ground that the legalizing act of the Twenty-sixth General Assembly is unconstitutional and void; that the legalizing ordinance by the city council is also unconstitutional, and cannot have retroactive effect, or give life or validity to a tax or certificate already adjudged to be void; and because said enactments are an unauthorized interference with judicial proceedings, and constitute, in effect, an attempt to grant a new trial by special legislation. The demurrer being overruled, and defendant electing to stand thereon, judgment was rendered as demanded by plaintiff, and defendant appeals.
In Moser v. White, supra — a Michigan case — a village council, having authority to levy a tax by resolution or by-law, proceeded to levy the same by parol vote. The plaintiff recovered judgment before a justice of the peace against the village authorities for trespass in seizing and selling his property to pay the tax thus illegally or irregularly levied. This judgment was reversed on certiorari by the circuit court, and plaintiff sued out a writ of error to the Supreme Court. After the judgment was rendered by the justice of the peace, and before the case had been disposed of by .the Supreme Court, the Legislature, by special act, attempting to legalize the tax roll and cure- all the
In the judgment of the writer of this opinion, the decision in Iowa S. & L. Ass’n v. Heidt, supra, goes to the utmost allowable limit in recognition of the power of the Legislature to affect the relations and rights of litigants in pending suits, and the rule there laid down should not be extended; but giving that precedent full force and effect, it falls much short of the proposition which appellee asks us to affirm. In that case , the legalizing act eliminating the plea of usury went into effect before the appeal from the judgment below had been submitted to this court, and we, trying the case de novo, recognized and gave effect to the legalizing statute. But if the plaintiff therein had first pursued its foreclosure suit to this court, and had here been finally defeated because of the usury in its contract, we think no one would seriously contend that a legalizing act passed after such final adjudicátion had been reached could restore life to that particular contract, and clothe plaintiff with the right to maintain another suit thereon; and yet, if the appellee’s claim in the present case be correct, there is no logical stopping place short of that conclusion -— a conclusion utterly destructive of the constitutional barrier which protects the functions and powers of the judiciary from legislative interference.
It is not necessary for us to follow counsel in consideration of the general powers of the Legislature to pass legalizing acts, nor as to the effect of such statutes upon rights
II. The legalizing act upon which appellee relies contained a proviso to the effect that nothing contained therein should be held to affect pending litigation. At that date, as we have said, the former suit between the parties hereto had been decided in this court. McManus v. Hornaday, 99 Iowa, 507. But judgment upon the procedendo issued to the trial court was entered at a later date. There is some discussion in the briefs of counsel whether the former litigation could be considered as still pending at the date of said act, but we think the determination of that point is immaterial. If that suit was still pending, then by its terms the legalizing statute does not apply to this controversy.; and if, on the other hand, it was not then pending, but said controversy had been fully and finally adjudicated, then it was beyond the power of the Legislature to reopen it for another trial.
For the reasons stated, the judgment of-.the trial court must be reversed. Final decree may be entered in this court at the option of the defendant, or, if he so elect, the cause will be remanded to the ,trial court for judgment in accordance with the views here expressed. — Reversed. ¡..