Bennett v. City of Emmetsburg

• Decision Date: 19 March 1908
• Citation: 138 Iowa 67,115 N.W. 582
• Parties: BENNETT ET AL. v. CITY OF EMMETSBURG ET AL.
• Court: Iowa Supreme Court

138 Iowa 67

115 N.W. 582

BENNETT ET AL.

v.CITY OF EMMETSBURG ET AL.

Supreme Court of Iowa.

March 19, 1908.

Appeal from District Court, Palo Alto County; W. B. Quarton, Judge.

Action in equity to restrain the enforcement of a special assessment, levied to pay the cost of construction of a sewer system in the defendant city. The decree entered was adverse to plaintiffs, and they appeal. Reversed.Baily & Stipp and Davidson & Burt, for appellants.

E. A. Morling, W. H. Morling, and J. K. Macomber, for appellees.

BISHOP, J.

In April, 1903, the council of the defendant city approved plans and specifications, drawn by M. Tschirgi, an engineer for a sewer system for the city; and, as we understand, such plan contemplated a main sewer in two divisions, and with lateral sewers connecting therewith and extending into the various sections of the city--the main sewer to be provided at its general terminus with a disposal plant. Thereafter proceedings under the statute were had, looking to the construction of the system, contracts were let, etc. At the close of the work it was accepted by the city council, and payment therefor was about to be made when this action by plaintiffs--taxpayers of the city--was commenced. Many errors and irregularities in the proceedings and contracts, and negligence and fraud in the performance of the work, are charged, and these we shall consider in the order which seems to us best adapted to a disposition of the case. The facts, as far as necessary to be considered, will be stated in the order of their connection.

1. With the case has come to us a motion to dismiss the appeal, and this we may dispose of before going to a discussion of the appeal on merits. The motion is based upon the fact that 2 of the 30 appellants, since the appeal was taken, have waived their right to further prosecute by securing permission from the city for, and by connecting up their properties with, the sewer, and by presently using the same; and the further fact that another of the appellants has, since the appeal, paid the assessment levied against his property. The motion proceeds upon the assumption that the interests of the plaintiffs and appellants are joint, and hence that a settlement or adjustment with one must be given operation to conclude the others. There is nothing upon which to rest such an assumption. The interest of each lot owner is separate and distinct from that of every other. The plaintiffs are in court together only because the statute authorizes such a course to avoid a multiplicity of suits. And, because in such a case one of the plaintiffs may be dismissed, or shall withdraw from the case, it does not follow that the right of the others to be heard is thereby destroyed. Russell v. Stansell, 105 U. S. 303, 26 L. Ed. 989;Ogden v. Armstrong, 168 U. S. 234, 18 Sup. Ct. 98, 42 L. Ed. 444;Todd v. Daniel, 16 Pet. (U. S.) 541, 10 L. Ed. 1054. We are asked to dismiss the appeal as a whole. The right to a dismissal as to the particular persons is not argued or insisted upon, and we do not therefore express any opinion on that subject. The motion to dismiss is overruled. We have also a motion to strike the reply argument of appellants because not filed in time. The delay seems to have been excusable, and, as no prejudice appears, the motion is overruled.

2. On June 15, 1903, the city council adopted a resolution of necessity, reciting, among other things, that “it is found necessary by the council in order to preserve the health and meet the demands of the property owners in the Emmetsburg sewer district” that said district be improved by constructing “a main sewer of the best quality of vitrified round sewer pipe with sealed joints, carrying in size from 12 to 22 inches in diameter, together with disposal plant,” etc. The course of the sewer is then marked out in the several divisions, and the location of the disposal plant stated. It is then recited that the work shall be done under contract, and in accordance with the plans and specifications adopted, and that “the cost shall be assessed in accordance with the law governing the same against the real property situated and included within the following described boundary lines, and from the general fund of the city.” Then follows a designation of several additions and parts of additions to the city, comprising, as we understand, the major portion of the corporate territory, which, it is declared, shall constitute the “Emmetsburg sewer district.” The minutes of the same meeting show the following: “Resolved * * * that a sewer system as set forth in the proposed resolution of necessity be and the same is hereby ordered established, and the clerk is hereby instructed and authorized to advertise for bids for the construction of said system. Carried, 8 votes for.” And here we have the twofold contention for invalidity: First, that the resolution did not state whether the improvement was petitioned for, or was ordered by the council on its own motion; second, the record does not show that the yeas and nays were called on the resolution ordering the improvement, and recorded. Code, § 793, provides that the construction of a sewer shall not be ordered until three-fourths of all the members of the council shall by vote assent thereto, unless the same be petitioned for by the abutting owners. And by section 811 it is provided that the vote “shall be by yeas and nays, and entered of record, and the record shall show whether the improvement was petitioned for or made on the motion of the council.” We think it sufficiently appears in the resolution of necessity--that being part of the record of the proceedings--that the action was on motion of the council. At least we should be inclined to accept it as sufficient in the absence of proof that the work was ordered by less than a three-fourths vote of the council. And, the fact once stated in the record, it is enough.

Looking now to the second phase of the contention, the record before us makes it appear that the city council consisted of the mayor and eight aldermen; and the minutes of the meeting in question show that the mayor and each alderman, naming him, were present. The question then resolves itself down to this: Can it be said that compliance with the requirements of section 811 sufficiently appears from the entry as made in the minute book of the council? We think not. We have said over and over again that the purpose of the statute is to compel a record showing how each individual member of the council, on his name being called, voted. And we have as often declared that it is not for us to say that the requirement is unnecessary or unreasonable. The following are among the later cases: Water Co. v. Marion, 121 Iowa, 306, 96 N. W. 883;Cook v. Independence, 133 Iowa, 582, 110 N. W. 1029;Markham v. Anamosa, 122 Iowa, 689, 98 N. W. 493. True, we have on occasion said that, where the recorded minutes show what members of the council were present, and that a roll call was had, a failure on the part of the clerk to rewrite the names, in recording the vote, where all vote one way, would not be fatal. And this because in such a record the prime requirements of the statute are complied with. On reading, one would be advised how the vote was taken, and how each member present voted. But we are not warranted in further extending the holding. Now, on reading the minutes of the meeting here in question, no one could say how the vote was taken. It may have been by show of hands, or viva voce. Whatever the fact as known to those present, it is certain that the minutes of the meeting--and by these we are bound--do not show that the roll was called, and the ayes and noes entered of record.

3. At the council meeting of June 15th, and following the adoption of the resolution ordering the main sewer, a resolution was made of record as follows: “Whereas petitions for the establishment of lateral sewers (describing the course of three sewers to connect at different points with the main sewer) have been presented to the council, said petitions having been signed by propertyowners owning a majority of the linear front feet of property abutting on each of said lateral sewers respectively. It is therefore resolved that said lateral sewers be and the same are hereby ordered established and constructed as petitioned for, the same to be constructed in accordance with the plans and specifications heretofore adopted by said council; and the clerk is hereby ordered to advertise for bids for the construction thereof which shall be included in the notice heretofore ordered given.” It is said that the action so taken was void for want of jurisdiction. And in this contention we agree. Code, § 810, provides in substance that, before any sewer can be constructed, a proposed resolution of necessity shall be brought forward, which resolution shall set forth the necessity for the improvement; and it shall contain a statement of the material to be used, the method of construction, etc. Notice shall be given of a time fixed for hearing, at which property owners may appear and make objections. Here, as we have seen, the council simply ordered the construction of the sewers, and ordered the clerk to include such in the notice inviting bids for the construction of the main sewer. There is no way in which such action can be justified. The statute is the sole authority to proceed, and its provisions are mandatory. Accordingly steps taken in open disregard thereof must be condemned as without jurisdiction and void. Osburn v. Lyons, 104 Iowa, 160, 73 N. W. 650;Polk v. McCartney, 104 Iowa, 567, 73 N. W. 1067;Gallaher v. Garland, 126 Iowa, 206, 101 N. W. 867;Comstock v. Eagle Grove, 133 Iowa, 589, 111 N. W. 51.

4. Next in order, counsel for appellant point out that the notice to contractors, inviting bids for the construction of the main and three lateral sewers, did not comply with the requirements of the statute, and for this further...