Stewart v. City of Council Bluffs

50 Iowa 668 | Iowa | 1879

Adams, J.

1. municipal iC)owe"-saíf°c'ity: damages. The city doubtless had the power to make the improvement if necessary for the health or safety of the city, an<^ ^ so ^ ^a<^ ^ie Power to incur such reason-a^e expense as might be necessary to obtain á right of way. We see no objection to the city’s agreeing to issue a warrant to the plaintiff to reimburse him for his expenditure or service in procuring a right of way, and that is as far, we think, as the city had the power to go. It appears to us indeed to be doubtful whether the city intended to obligate itself to the plaintiff to complete the improvement, and in case it did whether there was any consideration for entering into such obligation. But, conceding all that the plaintiff claims in this respect, we think that there was a lack of power to enter into such obligation. Whether a city should make a given improvement or not often calls for the exercise of a wise discretion, and we do not think that the city government can be allowed to divest itself of such discretion. It should, we think, be at liberty at all times to correct its mistakes, if it makes any, and especially to change its action or determination when required by a change of circumstances. •

The making of an improvement may seem to be expedient at one time and inexpedient later. The price of labor and materials may advance. Unforeseen difficulties may arise in the character of the work. Some shift may be discovered that will answer at least a temporary purpose. The city treasury may be depleted by fire, robbery, defalcation, or .some ’extraordinary and unforeseen expenditure. Of course, if a work is let by contract and abandoned, the contractor must be allowed to recover his damages. This results from the nature of the case. The power to let work to be done by contract is a necessary power, and, whenever a city exercises it, it exposes itself to the liabilities necessarily incident to the exercise of such power. But there is no necessity for a city to obligate itself to a citizen to make an improvement. The necessity of obtaining a right of way does not create a necessity to enter into such obligation. If a city needs a right of way for an improvement it should obtain it, as it obtains other things which it needs, by paying its money value, and not by contracting to do something whereby it •shall become subjected to an indefinite liability for failure. 'The power contended for is not only unnecessary, but its ■exercise might be disastrous to a city, especially if the rule of damages contended for were to be sanctioned. There is no pretense that the power iá expressly granted. Being of the ■opinion that it is not implied we have to say that we think that the demurrer was rightly sustained.

Affirmed.

Mr. Justice Seevers, while concurring in the result, does so upon the ground that he thinks that the city did not ■attempt to enter into the alleged contract, and expresses no opinion as to whether it had the power to do so.