Zelie v. City of Webster City

94 Iowa 393 | Iowa | 1895

Kinne, J.

I. Plaintiff, as the guardian of Clarence W. Zelie, a minor, brings this action, and avers in substance that the defendant city, in the year 1891, curbed, graveled, and guttered the highway or street adjoining certain lots of which said minor was in part owner, and charged up against said property therefor the sum of one hundred and fifty-four dollars and nineteen cents; that plaintiff had no notice, actual or constructive, of the pretended assessment levied upon said property, and that the sum thus assessed is unreasonable, exorbitant, and oppressive; that without authority of law said city certified said pretended assessment to the county auditor of Hamilton county, and the same has been entered upon the tax lists of said county as a pretended lien upon said property, and the treasurer is proceeding to sell the property for the aforesaid sum with exorbitant, illegal, and unauthorized penalties. It is averred that said assessment is illegal, in that no legal mode has been provided by ordinance for the special assessment as attempted, that no notice was given plaintiff, nor was she afforded an opportunity to contest the amount claimed to be due, and that all acts of the city had touching said assessment were without jurisdiction. The prayer is that the assessment be decreed void and canceled, and the defendants enjoined from attempting to enforce the collection of the assessment. Defendants, in an answer and cross bill, deny the material allegations of the petition, and aver: That due notice was given plaintiff. That the work was done under the authority of the city council; and set out certain resolutions adopted by the council condemning the sidewalk adjoining plaintiff’s premises, and ordering its removal; also ordering the curbing and guttering of the ¡street adjoining said premises; also ordering a sidewalk to be constructed adjoining plaintiff’s premises. That said resolutions were published. as required by law, and plaintiff duly notified, and requested to comply therewith. That the work was done in compliance with said resolutions, and, after plaintiff’s failure to pay for the same, the sum due was returned, and placed upon the tax books in conformity with law. The cross bill sets out the character of defendant city, the ownership of plaintiff of the lots, the action of the council, the publication of notice, the doing of the work and payment therefor by the city, and demands a judgment against plaintiff for said sum, and asks that it be decreed a lien upon said lots, and that a special execution issue for their sale. In a reply, plaintiff denies that any assessment was made, and avers that no legal mode for the special assessment had been provided, and that the assessment was void, and denied the notice. On a trial the court entered a decree for plaintiff as prayed.

1 II. Our statute provides: “Each municipal corporation may, by a general ordinance, prescribe the mode in which the charge on the respective owners of lots or lands, and on the lots or lands, shall be assessed and determined for the purposes authorized by this chapter; such charge when assessed shall be payable by the owner or owners at the time of the assessment personally, and shall also be a lien upon the respective lots or parcels of land from the time of the assessment.” Code, section 178. As no charge was made by the city for removing the sidewalk, we need pay no attention to the resolution relating thereto. The two other resolutions upon which this right to collect the tax is based provided for no notice, and no tribunal to make the assessment; nor did they provide any mode for determining the.amount to be paid by the lot owner; neither did they provide for a hearing by the lot owner. The resolution relating to the building of the sidewalk provided for its publication; the other did not. It will be observed that neither in the answer nor cross bill is there any reference to any ordinance of the city prescribing the mode in which the charge on the respective owners of lots or on the lots themselves should be assessed and determined. We have seen that the statute above set forth only confers jurisdiction to act as therein contemplated after the passage of a general ordinance prescribing the mode- in which such charges shall be assessed and determined. While such an ordinance was in fact introduced in evidence on the trial, it is not claimed that the city, in the proceedings taken by it, conformed to its provisions. It is clear to .us that the resolutions conferred no power upon the city to do what it did. The statute (Code, section 478) authorizes the cost of such improvements to be made a charge upon the lots affected if the improvements are made in pursuance of a general ordinance. They were not so made. No notice was given the lot owner, and the resolutions did not provide for such notice, nor was the lot owner allowed the alternative of making the improvement as the ordinance required should be done. The statute having fixed the mode of procedure, that mode must be followed. 2 Dillon Mun. Corp. 769. The trouble in this case is that the city undertook to make the improvements, not under the ordinance, but independent of it. By section 6 of the ordinance it is contemplated that the owner shall have a certain time, to be fixed in tbe resolution, in wbicb to make tbe improvement provided for. By section 8 of the ordinance tbe one doing tbe work for tbe city must return to tbe council an itemized statement, sworn to, of the cost thereof; and tbe next section requires that notice be given to tbe person liable therefor, wbicb must contain a general statement of tbe character of construction or improvements for wbicb an assessment is to be made, a description of tbe property affected thereby, and tbe amount expended or returned against such lot, etc., and that at a time to be fixed, not less than twenty days after tbe posting and publication of such notices as are therein-after provided, tbe council will be present at a place therein designated to bear objections thereto. A copy of said notice is also required to be posted in a conspicuous place in tbe postoffice in said city at' least twenty days prior to said meeting, and also published in a newspaper. By section 10 of tbe ordinance it is provided that at tbe time and place designated in such notice tbe council shall meet, bear, and consider all lawful objections to tbe assessment, and correct errors therein; whereupon tbe council must adopt tbe corrected and revised lists as their rolls of asséssment upon the property therein described. Said section also provides for an appeal from tbe action of tbe council. By section 11, after tbe passage and adoption of the rolls of assessment, it is tbe duty of tbe council to-declare an assessment, and, in case said sum is not paid, tbe amount is to be certified to- tbe county auditor. Not one of these provisions of tbe ordinance was complied with. Whatever may be tbe rule as to notice, in tbe absence of a provision in an ordinance requiring it, in such cases there can be no doubt that when tbe city has, as in this case, undertaken to- avail itself of tbe provisions of tbe section of tbe Code before stated, and fixed in its general ordinance tbe mode of procedure, it is limited to the mode prescribed in the ■ordinance. Lyman v. Plummer, 75 Iowa, 354; Mills v. City of Detroit (Mich.), 54 N. W. Rep. 897. And it has been held that when neither the ¡statute nor ordinance provided for notice to the property owner affected by the improvement the proceedings are void. Bush v. City of Dubuque, 69 Iowa, 233; Gatch v. City of Des Moines, 63 Iowa, 722. The facts of this case do not bring it within the rule announced in Amery v. City of Keokuk, 72 Iowa, 701, and cases therein cited. There was no contract pertaining to the doing of the work in the case at bar, nor any stipulated price agreed upon. No assessment was ever made, as contemplated by the statute and required by the ordinance, and hence the ¡sum expended for the improvements never became a lien upon the property. Kendig v. Knight, 60 Iowa, 33. Defendants do not claim that any assessment was ever made against this property. No such allegation is made in the cross bill, nor is any reference there made to an ordinance upon which an assessment could be based. Having utterly failed to comply with its own «ordinance as to the mode of procedure to collect pay for this improvement, the decree of the district court must be affirmed.