Allen v. City of Davenport

• Decision Date: 17 December 1898
• Citation: 77 N.W. 532,107 Iowa 90
• Parties: WILLIAM RUSSELL ALLEN et al., Appellants, v. THE CITY OF DAVENPORT, et al
• Court: Iowa Supreme Court

77 N.W. 532

107 Iowa 90

WILLIAM RUSSELL ALLEN et al., Appellants, v. THE CITY OF DAVENPORT, et al

Supreme Court of Iowa, Des Moines

December 17, 1898

Appeal from Scott District Court.--HON. C. M. WATERMAN, Judge.

SUIT in equity to enjoin the defendant city from executing or carrying out a contract for paving and grading a street which runs through plaintiff's land, from borrowing the money to pay the expenses of such work, from selling or negotiating any bonds based upon special assessments for the work, and from assessing, levying or collecting any special tax upon or against plaintiff's land. Plaintiffs claim that the land is used and occupied in good faith for agricultural purposes and is exempt from liability for city taxes; that the contract with Flick & Johnson, the contractor who did the paving, is void, for the reason that the preliminary requirements of the law were not complied with; that no permanent grade of the street through plaintiff's land had been established at the time the contract was made; that the contract for paving bound the city to pay the price agreed upon; and that, as it was at the time indebted beyond its constitutional limit, such contract is void. Plaintiffs further say that the city has issued and is about to negotiate its bonds to pay for the improvement, and that said bonds are invalid, because of the constitutional inhibition that the city has levied a special assessment against their property; and that part of the sum so levied is for grading the street, and is therefore illegal; and that the tax was levied for the purpose of paying the debt created by the city by the issue of the bonds and the making of the contract with Flick & Johnson; and that such indebtedness, being in excess of the constitutional limit, is void. Some other claims are made, which will be referred to in the body of the opinion. The city denied most of the allegations of the petition, and asserted that all its proceedings in relation to the improvement of the streets, and in providing for the payment of the expenses thereof, were regular and valid, and claimed that the special assessment against plaintiffs' property was legal and valid. The trial court dismissed plaintiff's petition, and they appeal.

Reversed.

W. T Dittoe, Wm. Chamberlin and Hiram Grover for appellants.

E. N. Sharon for appellees.

DEEMER C. J. WATERMAN, J., taking no part.

OPINION

DEEMER, C. J.

This action was originally commenced by Ann R. Allen. After it had been pending some time, Mrs. Allen died, and plaintiffs succeeded to her interests. Mrs. Allen and her husband, Thomas Allen, some time deceased, held title to a tract of about two hundred acres of land, lying within the limits of the city of Davenport, and abutting upon a part of the platted portion thereof, under a trust deed which gave them a life estate therein, remainder over to the children of Mrs. Allen, who are also plaintiffs in this case. A highway, known as the "Davenport and Le Claire Road," runs through this land, almost parallel with the Mississippi river, which river forms one of the boundary lines of the land. This road is a continuation of what is known as "Eddy street." Prior to the year 1890, this land was outside the city limits. In May of that year, however, the city extended its limits so as to take in the whole of the property. In June of 1896, the city council of defendant city passed a resolution for extending, curbing and paving said road, and sometime in September of that year, entered into a contract with Flick & Johnson for furnishing the material and doing the work contemplated by the resolution. The work was to be completed on or before November 1, 1896, to be paid for in installments, and the contractors agreed to keep the improvement in repair for the term of two years after the work was completed. An ordinance establishing the permanent grade of the road and street was passed September 2, 1896, published September 8th, and took effect September 19th. On September 2, 1896, the city council, by resolution, directed the issuance and sale of paving bonds, the proceeds to be applied in payment of the improvement. This resolution provided that the bonds should not be sold for less than par, and that the proceeds should be applied as provided in section 9, chapter 7, Acts Twenty-fifth General Assembly. None of these bonds could be sold until after the November, 1896, election, although the work progressed and payments therefor were made out of the general or special paving funds of the city, as directed by the city council. The work was completed the last of November, 1896. On the third day of February, 1897, the city council made an assessment of the proportionate cost of the improvement, amounting to the sum of fourteen thousand six hundred and seventy-five dollars and twenty-six cents, against the plaintiff's property. This sum included a charge for interest, and a further sum for excavating the road, preparatory to the laying of the pavement. At the time the assessment was levied, all but three thousand and sixty-three dollars and eighty-seven cents of Flick & Johnson's account for doing the work and furnishing the material had been paid. But ten thousand dollars worth of bonds were sold during the year 1896, and but thirty thousand dollars when this case was tried, in January of the following year. The facts above recited are practically undisputed, and we now turn our attention to the different contentions urged upon us by appellants, taking them up in the order in which they are presented in the briefs.

I. It is insisted that the city had not acquired the necessary jurisdiction or power over plaintiff's property to enable it to order or make the improvement at the cost of the abutting property. This contention is based upon the proposition that the ordinance (designated as "No. 125") ordering and directing the improvement is void and of no effect, because the law under which it was enacted (chapter 14, Acts Twenty-third General Assembly) was repealed by chapter 7, Acts Twenty-fifth General Assembly, which took effect May 10, 1894. The ordinance referred to was adopted December 2, 1893. The act of the Twenty-fifth General Assembly expressly repeals the statute under which the ordinance was passed, and enacts a substitute therefor. But it seems to be well settled that when the repealing statute does not in express terms annual a right or power given a corporation by a former act, and only confers the same rights and powers under a new name, and with additional powers, such subsequent act does not annul the rights and powers given under its former name. The change of a city charter does not affect existing ordinances in harmony with new provisions. Dillon Municipal Corporations (4th ed.), section 85; Trustees of Erie Academy v. City of Erie, 31 Pa. 515. Now, the statutes under consideration cover the same subject-matter, and are identical in most of their provisions. In so far as they are material to our inquiry, they are practically the same. This being true, there was no need for the re-enactment of the ordinance after the act of the Twenty-fifth General Assembly went into effect. The city council had the right to order the work, and by passing the ordinance and adopting the resolution directing the work, according to certain specifications, it acquired jurisdiction over the property. The bonds issued by the city council recite that they were issued under and by virtue of chapter 7 of the Acts of the Twenty-fifth General Assembly, and the ordinance passed in accordance therewith. This may be a verbal inaccuracy, but such a statement does not go to the validity of the instruments.

Again, it is argued that the ordinance is void because not signed or recorded as provided by the city charter and the laws of the state. Section 3 of the charter provides that all ordinances shall be recorded in a book kept for that purpose, and "the book, or a copy of any ordinance, * * * with the certificate of publication, * * * certified to by the clerk to be a true copy of [the] * * * ordinances, * * * shall be sufficient authentication to allow the same to be read * * * in evidence * * * in any court in this state, or when * * * the ordinance * * * shall be published in book or pamphlet form, purporting to be printed and published by authority, * * * the same shall be received in evidence in all courts * * * without further proof." Appellants offered in evidence what were known as and agreed to be the "Revised Ordinances of the City," consisting of 151 chapters, which were attested as follows: "Be it enacted by the city council of the city of Davenport: Section 1. That the foregoing shall constitute and be denominated the 'Revised Ordinances of the city of Davenport of 1893,' said Revised Ordinances being chaptered and headed as follows: [Here follows 'Chapter 1' to 'Chapter 150.']" Section 1 concludes as follows: "The foregoing, together with the rules and regulations of the board of health, rules and order of business, and police rules, as herein set out, are hereby adopted and ordered to be published in book form, and that one copy of said ordinances be posted in one public place in each ward of the city; and ten days from and after said publication the same shall be in force and shall be received without further proof, as presumptive evidence of such ordinance." Section 2 provides for the repeal of "all public and general ordinances, or parts thereof, not included in this revision," "so far as they conflict with the provision hereof." Some other exceptions are inserted in above section. "Passed and approved this 2nd day of December, 1893. Henry Vollmer, Mayor. Attest: N. C. Martin, City Clerk."

This also appears in the minutes of the proceedings of the city...