84 Iowa 12 | Iowa | 1891
Lead Opinion
I. The paving, the payment for which is in controversy in this action, is the same as that which was involved in the case of Coggeshall v. City of Des Moines, 78 Iowa, 235. It is unnecessary to refer to that case further than to say that it was held therein that, because the city council did not determine the kind and quantity of material to be used in the work in advance of advertising for bids of contractors, the contract was void. While the above-cited case was pending, the suit at bar and other actions were commenced by the contractors or their assignees upon the paving certificates which had been issued in pursuance of the contract which was held to be void. These cases, including the one now before the court, had not been tried at the time that the Coggeshall Case was finally disposed of in this court. In the meantime'the city council, by ordinance and other proceedings, made a reassessment of the cost of paving, and issued new certificates, in the belief that such a remedy against abutting owners was authorized under chapter 44 of the Acts of the Twenty-second General Assembly, which was approved April 16, 1888. It appears to us that a proper construction of this act is conclusive of. the whole controversy. We, therefore, set it out in full. It is as follows:
“Section 1. That in cities of the first class, and cities organized under special charter, whenever., by reason of an alleged non-conformity to any law or ordinance, or by reason of any omission or irregularity,*14 any special tax or assessment is either invalid, or its validity is questioned, the city council may make all necessary orders and ordinances, and may take all necessary steps to correct the same, g,nd to reassess and to re-levy the same, including the ordering of work, with the same force and effect as if made at the time provided by law or ordinance relating thereto, and may reassess and re-levy the same with the • same force and effect as an original levy. Whenever any apportionment or assessment is made, and any property is assessed too little or too much, the same may be corrected and reassessed for such additional amount as may be proper, or the assessment may be reduced even to the extent of refunding the tax collected.
“Sec. 2. Any special tax upon reassessment or relevy shall, so far as is practicable, be levied and collected as the same would have been if the first levy had been enforced.
“Sec. 3. Any provision of any law or ordinance, specifying the time when, or the order in which, acts shall be done in a proceeding which may result in a. special tax, shall be taken to be subject to the qualifications of this act.
“Sec. 4. Any and every ordinance or part thereof of any such city, heretofore passed, in substantial conformity with this act, is hereby legalized.”
After this act was passed, the city council passed an ordinance in which all of the proceedings previously had in the matter of the paving in question were ratified, adopted and confirmed, and a reassessment of the amount claimed to be due from the owners of abutting lots was made on the twenty-fourth day of July, 1889, upon which the paving certificate in this case was issued. While these proceedings were pending the defendants and other property-owners presented to the city council a protest, which was as follows:
“The undersigned, who are plaintiffs in the paving suit of Coggeshall v. The City of Des Moines, 78 Iowa,*15 285, recently decided by the supreme court of the state, understanding that the city council propose to reassess against the property of the plaintiffs in that suit the alleged cost of paying the streets in front thereof, under contracts already held illegal and void by the said decision, hereby respectfully protest against any further action upon such illegal and void contracts, and deny that they can be made the basis of any assessment whatever, of any kind or’ nature, against the property of the plaintiffs in that suit.”
It will thus be seen that the question before us involves the validity of this second assessment. The defendants made no resistance thereto on any other ground than that above set out. There is nothing in all this record from which any inference can be drawn to the effect that the paving was not properly done, or that the city council or any of its officers were guilty of finy dishonest practices in the letting of the contracts or the prosecution of the' work. In the Coggesliall Case, above cited, the contracts were void, because the council did not first specify and determine the kind of paving to be laid down. In a petition for rehearing in that case the effóct of the act of the twenty-second general assembly above set out was elaborately discussed, and in view of that fact, and to the end that the opinion of the court might be fairly understood, a short supplementary opinion was filed, in which the following language was used: “It is proper, however, to say that the decree in this case should limit the operation of the injunction to the assessment and levy which are held to be void in the foregoing opinion, and to them only. It is not intended by the opinion to affect any other rights which the contractor or the city may have to enforce payment for the paving, if they have any such rights, a question which we do not now determine.” It is conceded that it is within the power of the legislature to legalize any defect in proceedings of this kind if the defect or omission or want of com
Having determined these preliminary questions we come to the pivotal question in the case, which is, does
It is insisted, however, with great vigor and earnestness, that the contract was void because of the infirmity inhering in it, and that it is not cured by the act under consideration, because the act refers to a void tax or assessment, and authorizes merely a correction and reassessment and relevy. This is the doubtful question in the case. If nothing more was authorized by this act than a mere reassessment based upon a reletting of the work, the acts of the city council in pursuance of the act would not cure the defect in the letting of the contracts. That was impossible, because the work could not be relet. It was already done, and all that remained to be done was payment to the contractors for their material and labor. In our opinion the act was more general and far-reaching in its meaning and scope than the defendants concede. It provides for validating an assessment or proceeding where there is an alleged “non-conformity to any law.” This surely is broad enough to include the omission complained of originally in this case. It further refers to any “omission or irregularity.” This clause is sufficient to include the omission and irregularity in letting the contracts. It empowers the city council to cure these defects by orders and ordinances, even to the ordering of the work, if that is necessary to be done, and, when
Having reached this conclusion, it is not necessary to discuss ' other questions in the case, so far as the validity of the tax is inyolved; and, while we consider that the question thus determined is not free from doubt, it is well to remember that a special assessment for street improvements is now regarded everywhere as a tax, and subject to the same rules in many respects as ordinary taxation for revenue. The defendants are in the position of resisting the payment of taxes. If successful, the inequitable result will be that, while other owners of property on these streets pay their assessments, the property of the defendants is enhanced in value without cost to them. It may be that the paving was let at an exorbitant price, or that it was not properly done, or that there were other reasons why the assessment should be less than it is; but, when the reassessment was made, the only response to the notice upon the defendants was the protest above set out, to the effect that the question was adjudicated, and that under that adjudication the defendants were released from any assessment. A tax, although assessed without any authority of law, may be legalized. Boardman v. Beckwith, 18 Iowa, 292. The assessor represents the sovereignty of the state, and the ultimate question to be determined by the court is whether the property-owner is required by the collector to pay more than his
II. The court allowed the plaintiff a fee of five per cent, as a collection fee. This allowance is complained
Dissenting Opinion
(dissenting). — I cannot concur in. tbe construction placed upon tbe act of tbe twenty-second general assembly by tbe majority opinion. In tbe case of Coggeshall v. City of Des Moines, cited in that opinion, tbis court held that, because of a failure on tbe part of tbe city council to conform to tbe law in tbe particular of specifying tbe kind and quantity of the material to be used in making tbe pavement, the-contract was void, and, hence, not enforceable. In this-case tbe contract is held valid, and, hence, enforceable, because of tbe act in question. It is not as to the-authority of the legislature to pass an act to legalize-what was adjudged illegal on tbe part of tbe council that I make tbis contention, but it is as to what the-legislature actually did; insisting, as I must, that the-act was never designed to have tbe effect given it by the bolding in tbis. case. To a clear understanding, let-us first look to what tbe council did, in pursuance of tbe-act, to make legal that which was adjudged illegal, and. then test tbe value of validity of such doings by the-act itself. It will be. conceded that, before a valid reassessment or relevy could be made, tbe omission.