9 Iowa 438 | Iowa | 1859
The respondents contend that the power to reject the report of the first commissioners, is implied in the ninth section of the amendatory act referred to (page 134). This amendment of the charter gives the council authority to levy (in addition to taxes before allowed,) a special tax for improving the streets and wharves, (section 1;) a special tax on lots, or the owners, for the purpose of curbing, paving and grading the sidewalks; and a special tax on
The power to confirm, may imply the power to reject where the first of these is applicable. But it is to be remarked that this section (9th) relates to several hinds of taxes. The power of affirming or disaffirming the assessment is very properly applicable to some of them. But when the case becomes one between two parties, and the city is one party, seeking to take the property of an individual for the public use, it is claiming too much, that one of the parties should have the option to reject an assessment which may not happen to suit his views. These findings are in the nature of awards between opposing interests, and our statutes go quite far enough in giving one of the parties the authority to appoint the commissioners or jurors, and in other remarkable features of some of them. The authority for one party to set aside such an award, or verdict when it may suit him, is not to be drawn from a doubtful implication. If such a power can stand at all, it is only under an express gift,' or a necessary inference. There are several other taxes and assessments referred to in the above act to which the power of confirmation may apply, without extending it to a case like this.
The respondents give no reason, in their return, for rejecting the report, because they say it is a discretionary power, and they are not called upon to show a reason. Yet the counsel argue the sufficiency of the report, and therefore we will advert to the objections. They are, in substance, that it does not show upon its face, nor do the petitioners show, the qualifications of the commissioners, as that they were disinterested freeholders, residing in the city, sworn; and that in assessing the damages upon the neighboring property they return a part of it as of owners unknown,
In the first place, in answer to these objections to the report ; the report commences, “we the undersigned, appointed and duly sworn to assess the damages and benefits to accrue' to individuals by reason of the extension of Third street, &c., do hereby assess to the several parties interested therein, and to the several parcels of property, as follows, &c.” Then the respondents, in their return, admit that Creel, Oleghorn and Oonnable, were elected by them to assess the damages and benefits to accrue, &c., and that they made their report as alleged. Now, assuming that the city could, under some circumstances, question their qualifications after having appointed them, yet they admit sufficient here to estop them, for they must be presumed to have appointed qualified persons ; and admitting the appointment, they cannot now say they appointed persons unqualified.
Then as to the objection that the commissioners have returned part of the property on which the damages are assessed, as of owners unknown; if this is an obstacle to proceeding legally, the defect is in the statute, in not providing a mode of notice for such a case, and -not in the report. Such a state of case may occur in any assessment list. The statutes relating to assessments and tax lists, recognize this contingency as one which may occur.
But there is another view to be taken. Supposing the council might set aside the report for any of these objections appearing on its face, does it follow that they may set aside the commissioners ? They might, perhaps, refer the report back to that board, to be corrected or perfected, but we see nothing which authorizes them to set aside these commissioners and appoint others in their place. The law cannot intend to place such unequal power in the hands of one of two parties opposed in interest.
To the argument that the city must have some power of action to provide for a case where the assessment of damages is more than the worth of the improvement, we remark that
It is objected that the relators show no right to the writ, and no specific duty to be performed by the city, or its council. Such a right, and such a duty, are shown in the information, in the proceedings to take the property of re-lators. The right is, to their compensation, and„the duty is a corresponding one, to proceed to collect it as directed by law. There is no other process to compel the city to proceed. An action of trespass would assume the proceedings to be void.
The judgment of the court awarding a peremptory writ is affirmed.
