202 N.W. 748 | Iowa | 1925
On the 30th day of December, 1920, the defendant town levied 1. MUNICIPAL special assessments against the property of CORPORA- plaintiff, as follows: On four lots, $175 each; TIONS: on two lots, $87.50 each. This was on account of street a sanitary sewer and disposal plant constructed improve- by the defendant town. ments: excessive The plaintiff brings this action to enjoin the assessment: town and county treasurer, to whom said taxes appeal as were certified, from collecting the same, exclusive bottoming his right thereon on the allegation remedy. that the said special assessments are wholly void and of no effect.
These four lots, against which the assessment of $175 per lot was levied, vary in width from 60 to 70 feet; and it is claimed that the assessment is void because of the statute hereinafter referred to. Plaintiff prays that said assessment be declared void and of no effect, and that he may have an injunction against the treasurer, preventing the sale of said property for taxes.
Plaintiff has paid no part of these taxes, and makes no tender of what he admits to be the amount that should be assessed against said property.
To the petition setting up these facts, a demurrer was sustained, on which ruling the plaintiff stood when plaintiff's petition was dismissed. The statute involved is Section 819 of the Code of 1897, which, so far as material, reads as follows:
"The cost, or any part thereof, of making or reconstructing sewers, including that provided for in the second preceding section, may be paid from the district sewer fund * * * and the portion thereof not so paid, and not in excess of three dollars per linear foot of sewer, shall be assessed against the property abutting on such sewer in proportion to the number of linear front feet of each parcel thereof, and upon adjacent property in proportion to the benefit thereto * * *."
It will be noted that these four lots against which the $175 per lot is assessed, vary in size, the narrowest lot being 60 feet, and the widest being 70 feet in width; and plaintiff's contention is that the largest amount that could be assessed against the *803 widest of these lots is $105, and against the narrowest, $90. This amount is arrived at by a construction of the aforesaid statute, wherein the proposed assessment must not exceed $3.00 per linear foot on the sewer, and by dividing this between the corresponding front feet of the adjoining lot on either side of the street, which would make $1.50 per front foot.
We have repeatedly held that, where an assessment is made for public improvements with a levy larger than the amount provided for by statute, the assessment is excessive, and the remedy of the party is by objection to the assessment before the governing body and appeal from an adverse ruling therein; and have said that, under such circumstances, injunctive remedy will not lie. This is well illustrated by the case of Evans v. City of DesMoines,
There are some underlying principles of equity which do govern this case which seem to have been overlooked by the appellant. Under the contention that he makes, he does, or must, admit that his property is assessable to the extent of 2. MUNICIPAL $1.50 per front foot. He might have paid this CORPORA- $1.50 per front foot and resisted the collection TIONS: of the balance; or he might have tendered it, street and then sought injunction for the amount in improvements excess of $1.50; but, so long as he did neither, and sewers: he violates the rule that "he who seeks equity excessive must do equity." He does not ask to have the assessment: amount in excess of $1.50 per front foot held injunction void, but asks that the whole assessment be set as remedy: aside and held for naught. He was not entitled failure to to do equity. *804 this relief, under the pleading, and the demurrer was, therefore, properly sustained.
Whether plaintiff is entitled to another and different remedy is not before the court. All we determine herein is that he is not entitled to the injunctive remedy, under his pleading. Reedv. City of Cedar Rapids,
FAVILLE, C.J., and EVANS and ARTHUR, JJ., concur.
