155 Iowa 492 | Iowa | 1912
To dispose of these questions it will be necessary to refer to the statutes on the subject. The city is -given plenary power over the streets by chapter 6, title 5, of the Code. The chapter following relates to their improvement
Cities shall have power to improve -any. street, highway, avenue or alley by grading, parking, curbing, paving, graveling, macadamizing and guttering the same -or any part thereof, and to provide for the making and reconstruction of such street improvements, and to la&sess the -costs on abutting property as provided in this chapter; but the construction of permanent parking, curbing, paving, graveling, macadamizing or guttering shall not be d-one until after the bed- therefor shall have been graded, so that such improvement, whe-n fully completed, will bring the street, highway, avenue or -alley up to the established grade; provided that only so much of the cost of the removal of the earth and other material as lies between th§- subgrade and the -established grade -shall be assessed to abutting property.
, The manner of exercising a power if possessed is seldom jurisdictional and it is not so declared here. The design evidently was to east upon the city the burden of bringing the bed of the street to- a condition such that the added improvement when completed will be at grade. Neither the preparation of the bed nor -the establishment of the grade even is essential as a condition precedent to the adoption of a resolution of necessity or the ordering of the improvement. This was decided in Allen v. City of Davenport, 107 Iowa, 90, where the court said:
We are constrained to hold that neither the law nor the -city charter makes the establishment of the grade a condition precedent to the passage of the resolution for the work, and, >as the purpose and intent of the law are to make such improvement permanent and not subject to change after it is once completed, without liability for damages by reason thereof, it is sufficient if the -grade is established at such time as that the improvement may be made with reference thereto. In other words, -an ordinance
These matters relate to the manner of making the improvement and not to the power of the city council to order it. This may be exercised only upon petition of owners of a majority of 'the lineal feet .abutting on the Street to be improved or in the absence of petition when directed by three-fourths of all the members of the council. Sections 163, 764, Code. Section 810. provides that:
When the council of .any such' city shall deem it advisable or necessary to make or reconstruct any street improvement or sewer authorized in this chapter, it shall, in a proposed resolution, declare such necessity or advisability, stating the kind of material proposed to be used and method of construction, whether abutting property will be assessed, and, in case of sewers, the kind and size, and what adjacent property is proposed to be assessed therefor, and in both cases designate the location and terminal points thereof, and cause twenty days’ notice of the time when said resolution will be considered by it for passage to be given by four publications in some newspaper of general circulation published in the city, the last of which shall not be less 'than two or more than four weeks prior to the time fixed for its consideration, at which time the owners of the property subject to assessment for the same may appear and make objection .to the contemplated improvement or sewer and the passage of said proposed resolution, ait which hearing the Siam© may be amended and passed or paisseld as proposed. (Section 811.) Upon compliance with the preceding section, the council may, by ordinance or resolution, order the making or reconstruction of .such street improvement or sewer, but the vote shall be by yeas or nays, and entered of record and the record shall show whether the improvement was petitioned for or made on the motion of the council.
The manifest design of these statutes is to afford abutting property owners an opportunity to
In Indiana in construing statutes somewhat like those of this state, the courts hold that, inasmuch as the city has plenary authority over the streets and their improvement and assessments for the payment thereof, such provisions are directory, and, if afforded an opportunity to be heard at some time before the levy, the proceedings will not be 'declared invalid for irregularities in relation to the resolution of necessity or notice thereof. Barber Asphalt Paving Co. v. Edgerton, 125 Ind. 455 (25 N. E. 436); Hughes v. Parker, 148 Ind. 692 (48 N. E. 243); Pittsburg, etc., Ry. v. Fish, 158 Ind. 525 (63 N. E. 454).
We are not inclined to go to this extent, but do agree with that court in recognizing the plenary powers of cities and incorporated towns over the streets, and probably -the Legislature might have authorized the rule which prevails in that state. The statutes quoted seem to contemplate a preliminary resolution of necessity together with notice 'amid an opportunity to be heard as ia Condition precedent to ordering the improvement, -and these, as said, we regard as jurisdictional. In Comstock v. City of Eagle Grove, 133 Iowa, 589, notice to bidders was not published as required by statute and this was held to be jurisdictional, but the decision has since been overruled. Clifton Land Co. v. Des Moines, 144 Iowa, 625; Nixon v. Burlington, 141 Iowa, 316; See Lightner v. Greene Co., 145 Iowa, 95. In Bennett v. Emmetsburg, 138 Iowa, 67, several irregularities were pointed -out, but the decision may be sustained because of failure to adopt a resolution of necessity. In Carter v. Cemansky, 126 Iowa, 506, the improvement was not such' as may be assessed against abutting property. In Gallaher v. Garland, 126 Iowa, 206, the assessment, in so far as it included grading of the bed of the street prepar
Had the city council undertaken -to order any improvement such 'as contemplated in section 792 of the Code at other than the established grade as in McManus v. Hornaday, 99 Iowa, 507, the decision in the Hubbell case might be sound, but the defect, as pointed out, was not that the council acted in excess óf its powers but in the manner
We are of the opinion that appellant’s exclusive, remedy was through objections filed with the city council and by appeal from its ruling if adverse, and, as this holding is inconsistent with Hubbell Sons & Co. v. Bennett Bros., that decision is overruled. — Affirmed.