Benshoof v. City of Iowa Falls

• Decision Date: 17 March 1916
• Docket Number: No. 30620.,30620.
• Citation: 175 Iowa 30,156 N.W. 898
• Parties: BENSHOOF v. CITY OF IOWA FALLS.
• Court: Iowa Supreme Court

175 Iowa 30

156 N.W. 898

BENSHOOF

v.CITY OF IOWA FALLS.

No. 30620.

Supreme Court of Iowa.

March 17, 1916.

Appeal from District Court, Hardin County; R. M. Wright, Judge.

In the district court this was an appeal by the plaintiff from certain special assessments made against his property by the city council of Iowa Falls. The issue was made in the form of objections by plaintiff filed before the city council as provided by statute. These objections were overruled by the city council and the proposed assessments were levied. On the trial of the appeal in the district court the objections were sustained, and a decree was entered setting aside the assessments and ordering a reassessment. From such decree the city of Iowa Falls has appealed. Affirmed in part, and reversed in part and remanded.

Evans, C. J., and Salinger, J., dissenting in part.Boyd Bryson, of Iowa Falls, and Maurice O'Connor, of Ft. Dodge, for appellant.

E. P. Andrews, of Hampton, for appellee.

DEEMER, J.

The primary question in this case is whether the purposed special assessments involved herein should be made under the provisions of chapter 76 of the Laws of the Thirty-Fifth General Assembly, or whether the assessments should be made under the previous law in force when the street improvement proceedings were begun. The city council made the assessments under the previous provisions of the law. The plaintiff contended for the application of the new statute. This view was adopted by the district court. The new statute in question is as follows:

“Sec. 1. Assessing Cost of Improvements. Whenever after January 1, 1914, any city or town council, including the councils of cities acting under special charter, levies any special assessment for street improvement as provided by section seven hundred ninety-two (792) of the Code and amendments thereto and supplementary thereof, the same shall be made in accordance with the provisions of section seven ninety-two a (792-a) of the Supplement to the Code, 1907, and shall be limited to the amount to be assessed against private property, against all lots and parcels of land according to area so as to include one-half of the privately owned property between the street improved and the next street whether such privately owned property abut upon said street or not but in no case shall privately owned property situated more than three hundred (300) feet from the street so improved be so assessed. In case of improvement upon any alley, such assessment shall be confined according to area to privately owned property within the block or blocks improved and if not platted into blocks for not more than one hundred and fifty (150) feet from such improved alley.”

“Sec. 2. All acts and parts of acts in conflict herewith are hereby repealed.”

The assessment in this case was for street paving, the proceedings having been begun by the passage of a resolution of necessity by the city council of defendant city on February 14, 1913. Notice was ordered and the city engineer directed to prepare plans and specifications on the same date, and on March 26, 1913, the street improvement was ordered. On April 11, 1913, the plans and specifications prepared and prescribed by the city engineer were approved, and on the same day the city clerk was directed to advertise for bids. On May 12, 1913, the bid of the Kaw Paving Company was accepted and the contract awarded to it, and on the 15th of the same month a formal contract was entered into between the city and the paving company. This contract was also secured by a bond signed by proper sureties. By the terms of the contract time was made the essence thereof and the work was to be completed to the satisfaction of the city on or before November 1, 1913, the paving company agreeing to pay as liquidated damages the sum of $50 per day for each and every day the work remained uncompleted and unfinished after that date. Delays incident to strikes or other causes beyond the control of the paving company were excepted. A modification of the contract was made on September 16, 1913, and on November 3, 1913, the paving company asked an extension of time for completing the paving, the reason therefor not appearing in the record. On December 2d the council granted the paving company an extension from November 1, 1913, to July 1, 1914, provided the bondsmen consented thereto. The sureties consented to this extension on January 19, 1914. The contract covered something like 18 1/2 blocks of paving and substantially all of it was completed in the year 1913; but two blocks were paved in the year 1914, and this was due to an extension of time asked for by the contractors. On June 4, 1914, the work was finally accepted by the city council and the engineer was directed to prepare and file a plat and schedule for assessment purposes.

On July 6th the council passed a resolutionmaking a levy for the improvement, and also passed a resolution authorizing the issuance of city improvement bonds. It also at the same meeting directed the city clerk to give notice of the assessments. Notice was given of a hearing on July 31st, and on July 28th plaintiff herein filed his objections to the proposed assessment against his property. These objections were overruled and the assessment confirmed. Plaintiff appealed to the district court and upon that appeal the assessment was set aside because not made under the provisions of chapter 76, Acts 35th Gen. Assem. and ordered the council to make a new assessment after giving the proper notice to all parties in interest under the provisions of the last-mentioned act. The appeal is from this last order and decree. In all the resolutions, notices, and proceedings it was stated that the expense of the improvement was to be assessed against the property abutting on the streets improved. The contract with the paving company also provided that it was to accept assessment certificates against abutting property levied according to benefits, and the assessments were made by the council against abutting property. The trial court was of opinion that the assessment should have been made under chapter 76, Acts 35th Gen. Assem. and this raises the principal issue in the case. This latter act was approved April 19, 1913, but did not go into effect until July 4th of that year, for it had no publication clause; and it will be noticed that the contract for the paving was let and the rights of the parties became fixed not later than May 15, 1913. The work was to have been completed by November 1, 1913, and it was not done at that time because of some fault on the part of the contractor, and time was extended by the council at the request of the contractor. Substantially all the pavement was laid prior to January 1, 1914; practically all the grading and all the curbing was done in the year 1913. It will be observed that the new act provides that assessments shall be levied upon adjacent as well as abutting property, and appellee contends that the trial court was correct in holding that the city council should have made its levy under the new law instead of under the old, which limited assessments to abutting property.

[1] As statutes of this state require notice of the resolution of necessity in order that the property owners may object to the improvement or to the character thereof or of the material of which it is to be constructed, and are entitled to a hearing thereon, this notice is said to be jurisdictional, and if not given the whole proceedings are invalid and void. Roche v. City of Dubuque, 42 Iowa, 250;Bush v. City of Dubuque, 69 Iowa, 233, 28 N. W. 542;Bennett v. City of Emmetsburg, 138 Iowa, 67, 115 N. W. 582;Dunker v. City of Des Moines, 156 Iowa, 292, 136 N. W. 536;Gilcrest v. Des Moines, 157 Iowa, 525, 137 N. W. 1072;Gallagher v. Garland, 126 Iowa, 206, 101 N. W. 867;Reed v. Cedar Rapids, 137 Iowa, 107, 111 N. W. 1013;Shaver v. Turner Improvement Company, 155 Iowa, 492, 136 N. W. 711;Comstock v. Eagle Grove, 133 Iowa, 589, 111 N. W. 51;Hubbell v. Des Moines, 168 Iowa, 418, 150 N. W. 701. This much is said to indicate that this court has always held that notice of the resolution to pave is necessary to obtain jurisdiction. It is true that it has not been held necessary in a constitutional sense, provided at some stage of the proceedings and before the assessment is in fact made the property owner has notice and is given an opportunity to object; but it is true that under our previous holdings such notice of the proposed resolution has been held necessary to the validity of the proceedings, and if not given they are entirely void. Under this rule there was no authority whatever prior to the passage of the act of the Thirty-Fifth General Assembly to levy assessments for paving, curbing, or guttering against adjacent property. Certainly no authority in any case to do so arises unless all the notices and proceedings so state. The reason for this is that every property owner whose property it is proposed to assess is entitled to a notice and an opportunity to be heard upon the question as to whether the improvement shall be made at all, and if made, the nature and character of the material to be used, and perhaps other matters not necessary to be enumerated.

[2] It may be that the Legislature might, if it saw fit, by specific legislation, legalize assessments levied against property, provided that at some state of the proceedings notice and an opportunity to be heard is given, although no notice of the resolution was given; but it is clear that the Legislature could not in any way by curative or healing acts destroy vested rights or change the obligation of contracts. In this case the contract was let and the improvement entered upon before chapter 76 of the Acts of the Thirty-Fifth General Assembly went into effect, and by the terms of that contract the city undertook to levy the assessments against abutting property only, and to deliver certificates of these...