1 I. The point is first presented' that this case is barred by the statute of limitation. The chapter of the Code of 1873 providing for the proceedings by writ of certiorari contains a section as follows: “Sec. 3224. No writ shall be granted after twelve months have elapsed from the time the inferior court, tribunal, board, or officer has, .as alleged, exceeded his proper jurisdiction, or has otherwise .acted illegally.” The resolution ordering the pavement in question was passed by the city council April 7,1893, and the petition in this action was filed August 11, 1894, being more than twelve months after the passage of the resolution. It is, however, said by appellee, that the act of which she complains is the act by which the assessment was made, and not the passage of the resolution authorizing the paving. Shepard v. Supervisors, 72 Iowa, 258, is .a like case in principle. In that case, the board of supervisor® had ordered a ditch dug, under the provisions, of ■the statute, to be paid for by an assessment on real estate benefited thereby. The action was to annul the *570assessment and levy because of defects in the proceeding, by which the making of the ditch was authorized. The question of the statute of limitation arose in that case, and) it is-held that as the action was to- set aside the assessment and levy, and not the order for making the ditch, the action was commenced in time, it not being one year from the date of the assessment and levy, although more than one year from the making of the order for constructing the ditch. Looking to the petition in this case, we find it is the same, — that the court is asked to set aside the proceedings as to the assessment. While it is true, that such a result must be based on the invalidity of the former acts, it is no more so than it was in the cited case; and it seems to be. a conclusive authority against appellants’ claim in this case. The cases seem to be alike in every essential particular for the purposes of this question.
2 II. The court made, among others, the following findings: “(2) That the street running east and west through said block three (3), and on which said lot seven (7) abuts, is Plum street, and is not properly designated as an alley. (3) That there was never any resolution of the city council that Plum street be paved, and the resolution of date April 17, 1893, of the city council, does not refer to or embrace said Plum street; and the same was not contained in any notice to bidders, nor in any contract therefor,and the same was paved wholly without authority.” The resolution passed by the council was for paving alleys in block 3, of the original town of Ft. Des Moines. The record contains a plat of said block, showing streets and alleys, and the strip in controversy is designated “Plum street,” and appears to be thirty-three feet wide; while streets around the block are sixty-six feet wide, and alleys are marked sixteen and one-half feet wide. Evidence was taken as to the condition and use of the strip, how it was kept, and the kind of property *571located along it. It was from this evidence that the court found that it was not an alley, but a street. The finding, numbered 3, that Plum street was not included in the resolution for paving, nor contained in the notice to bidders* nor in any contract, is, as we understand, based on the facts found, that it was actually a street, and so recognized, and did not come within the term, “alleys in block 3, town of Fort Des Moines,” that being the term used in the resolution, notice, and contract. The evidence is in decided conflict, and the finding of the district court is conclusive upon us. It stands as the verdict of a jury. Remey v. Board, 80 Iowa, 470; Code, 1873, section 3223.
3 III. The court made the following finding: “(4) That the notice to bidders contained in the return herein, and shown in the evidence, is not such notice as is contemplated by law, in that it does not invite bids for the paving of Plum street, and does not state as nearly as practicable or otherwise the extent of the work, when the Avork shall be done, or what time the proposals shall be acted upon.” The following is section 3, chapter 14, Acts Twenty-third General Assmbly: “Sec. 3. All such contracts shall be made by the council or the board of public works when such board shall exist, in the name of the city, and shall be made Avith the lowest bidder or bidders, upon sealed, proposals, after public notice for not less than ten days, in at least two newspapers of said city, which notice shall state as nearly as practicable the extent of the work, the kind of materials -to be furnished, when the work shall be done, and at Avhat time the proposals shall be acted upon.” The only language in the notice that could be construed as. an attempt at compliance with the prescribed notice is the following: “Brick paving, consisting of two courses of brick on sand foundation, with top filling as described on pages 9 and 10 of specifications.” In another part of *572the notice it ¡appears- that plans and specifications are on file in the office of the board of public works. The provisions of the law quoted are mandatory, and their observance is a condition precedent to- the right of the council to make contracts in pursuance of them. The notice is fatally defective. The requirements as to “when the work shall be -done,” and “what time the proposals shall be ¡acted upon,” are absolutely disregarded. There is not a reference to either in the notice, and* if the notice could be aided by the plans and specifications, it is to be said there is no- reference to either of them. The same is- true as to- the “extent of the work,” -except the words in the notice, “alleys in block three (3), town of Fort Des Mo-inesi.” The plans -and specifications contain no reference to the place* nor to the -extent of the work. Even an inspection of the block itself would not disclose it, for, -as we have seen in another -division of the opinion, the fact of what were, and what were not, alleys, was not understood by the council. See Coggeshall v. City of Des Moines, 78 Iowa, 235. See, also, Osburn v. City of Lyons, 104 Iowa, 160. These holdings render it unimportant to consider some other questions argued, for they seem conclusive of the case. The judgment of the district court will stand affirmed.
AI-generated responses must be verified and are not legal advice.
