32 Iowa 271 | Iowa | 1871
Chapter 65, acts thirteenth General Assembly, empowers cities and towns, whether organized under special charter or under chapter 51 of the Revision of 1860, “ to provide by ordinance for the grading, paving or macadamizing of any street, avenue or alley, or'any part of the same,” * * * and bestows upon them “ full power and authority to provide, by ordinance, for the levy of a special tax upon the lots, parcels of ground, or any part of either of the same fronting upon, or lying along, the street, avenue or alley,- which is improved or to be improved under the powers herein conferred, for the purpose of paying the expenses of the improvement.”
An ordinance of the city council of Iowa City, passed April 25, 1870, provides, that the council may, by resolution concurred in by two-thirds of its members, provide and direct for the grading and improvement of any of the streets .of the city, prescribing thereby the character of the improvement, work to be done, etc., and whether the whole or a part of the cost of the improvement shall be assessed against the owners of the adjacent property. The ordinance further directs that whenever the improvement shall have been required by resolution to be done at the expense of adjacent property owners, and proper report is made thereof to the city council, it shall assess the proper amounts to the several owners of the property abutting on the street. The amount so assessed, it is provided, shall be a lien upon the property and be recovered by action in the name of the city. A subsequent ordinance, passed August 5,1870, provides that the assessments, made under the first ordinance, shall be certified to the county auditor and collected and paid over by the county treasurer in the same manner as city taxes. It is provided that this ordinance shall be applicable to assessments for improvements
A resolution of the council of May 9, 1870, directed the improvements of the street in question at the expense of the abutting lot owners. The report required by the first ordinance was made August 30, 1871, and tjie council adopted a resolution assessing the costs of the improvement to the several lot owners in accordance with the prior resolution and the ordinance above referred to.
The objections, as set out in plaintiffs’ petition, to the proceedings of the city, are founded upon the fact that the assessments and the improvements were made under a resolution of the city council, and not by ordinance, as provided for by chapter 65, acts thirteenth General Assembly; and also upon irregularities in the acts of the city, under-the ordinances and resolution pertaining to the improvement and assessment. It is not expressly denied in the petition ,that if proper legislation had been had by the city council the property could be sold by the county treasurer, but an objection, founded upon the denial of such power, is made upon the argument. The question thus raised we will first briefly consider.
Chapter 14, acts thirteenth General Assembly, authorizes municipal corporations organized under chapter 51 of the Revision of 1860, to cause “ delinquent charges, assessments and taxes made and levied under and by virtue of and for the purposes specified in sections 1068, 1069 and 1070 of the Revision of 1860, or c referred to therein,’ to be certified to the county auditor, to be collected and paid over by the county treasurer cin the same manner as taxes are authorized to be certified, collected and paid over, by section 3, chapter 25, laws of tenth General Assembly.’ ”
The character and extent of the improvement of streets are left to the discretion of the city authorities. This discretion, however, is not arbitrary and irresponsible, but must be exercised with due regard to the interest of the public, and without wanton oppression to individuals. Within these bounds, however, the city authorities are free to determine all matters pertaining to the improvement. If, in the exercise of such a discretion, they decide that the public good requires less than the whole width of the street to be graded and macadamized, and it is not shown to be to the injury or oppression of the owners of property adjacent thereto, we know of no grounds upon which then-action can be held void. In this case, it is not shown that plaintiffs were injured by the improvement; it must be presumed that, as the expense was less than it would have been had the improvements extended the whole width of the street, plaintiffs are really favored by the city so’ limiting the work, and consequently diminishing the expense incurred thereby.
IY. But it is insisted that the improvement, as made, is less valuable to plaintiffs than it would have been had it covered the whole width of the street. The power of the city to perform the work does not depend upon benefits to be derived by property owners. See Warren v. Henley et al., 31 Iowa, 31. The work is done for the benefit of
An elementary principle of equity is applicable to the objections here presented. It is not denied that under the rule of assessment as fixed by the council, if applied as contended for by plaintiffs, certain sums are due from the lot owners which are charges upon their lots. These sums the respective plaintiffs are bound by law and in equity to pay. Before plaintiffs can claim relief as to the sums which they insist are over-assessed upon their property, they must pay or offer to pay the sums lawfully and justly due, according to their own theory of the assessment; for he who seeks equity must do equity; but this plaintiffs have not done.
It clearly appears from the petition that all of the plaintiffs do not complain of the amounts assessed to their property, and from the nature of the case some (the number cannot be known from the record) are not over-assessed, and cannot complain of the double assessment. These parties of course cannot ask, and do not claim as we under
We understand that it is a settled rule in equity that where a party is in conscience bound to pay a certain sum of money which, together with an amount that he is not legally bound to pay, is brought as a legal claim against him, equity will not restrain the collection of the whole, unless he pay or offer to pay, by tender, the sum which he justly and legally owes. Stringham, adm'r, v. Brown, 7 Iowa, 33; Sloan v. Coolbaugh, 10 id. 31; Casady et ux. v. Bosler et al., 11 id. 342; Stanley v. Gadsby, 10 Pet. 521; Brent, survivor, etc., v. Bank of Washington, id. 596; The City of Annapolis et al. v. Gilmore et al., 30 Ind. 415.
This doctrine, based upon the maxim above stated, is peculiarly applicable to this case. The plaintiffs separately owe sums of money, which are charges upon their several lots. It is insisted that, on account of irregularity in the assessments, certain of the plaintiffs are charged with an undue proportion of the whole sum. The plaintiffs do not ask that the assessments be equalized among them, nor do they furnish to the court sufficient data that this may be done, but ask that the whole assessment be annulled for the alleged irregularity, without paying or making tender of the sum justly due from them. It is clear that, in this action, plaintiffs cannot be relieved from the alleged over-assessment. It would be an extremely unsafe rule, and subject the government of the city to such control^ as to
The objection made, that a part of the plaintiffs are subjected to double assessments upon their lots, which is in violation of the rule adopted by the ordinance and resolution of the city council, does not appear to be supported by the facts. The rule adopted by the council is, that the cost of the work should be levied upon the lots in proportion to their frontage upon the streets improved. Some of them are corner lots, and are so situated that the streets bounding each one of them upon its end and side are improved. These lots, in fact, front on two streets— have a double frontage, and are, therefore, properly so assessed. City of Des Moines v. Dorr, 31 Iowa, 89.
"We should have before remarked, that all of the objections considered in this division of our opinion are not directed at the power of the city to make the assessment, but are simply based upon alleged irregularities in the exercise of power. The relief asked is not the correction of these irregularities or effects following them, but that the acts of the city, in the execution of its lawfully conferred power, on account of these irregularities, be annulled and held for naught. We know of no principle of law that will permit this to be done.
In our opinion the demurrer of defendants to the petition was properly sustained.
Affirmed.
A rehearing was allowed in this case, and it was again argued. . Upon a reconsideration the conclusions of the foregoing opinion are adhered to, the court resting upon the discussion thereof above appearing.