Brush v. Incorporated Town of Liscomb

• Decision Date: 11 January 1927
• Docket Number: 37557
• Citation: 211 N.W. 856,202 Iowa 1155
• Parties: WILLIAM BRUSH et al., Appellees, v. INCORPORATED TOWN OF LISCOMB, Appellant
• Court: Iowa Supreme Court

211 N.W. 856

202 Iowa 1155

WILLIAM BRUSH et al., Appellees, v. INCORPORATED TOWN OF LISCOMB, Appellant

No. 37557

Supreme Court of Iowa, Des Moines

January 11, 1927

Appeal from Marshall District Court.--B. F. CUMMINGS, Judge.

On appeal to the district court by the property owner, special assessments levied by the town council to pay the cost of constructing permanent sidewalks in front of certain lots were canceled. The town appeals.--Reversed and remanded.

Reversed and remanded.

E. N Farber, for appellant.

C. H Van Law, for appellees.

VERMILION J. EVANS, C. J., and STEVENS, FAVILLE, and DE GRAFF, JJ., concur.

OPINION

VERMILION, J.

Four contiguous lots belonging to appellee Nancy E. Brush were separately assessed by the council of the appellant incorporated town with the cost of constructing a permanent sidewalk in the street in front of the lots. The appellees here appealed, by the service of one notice of appeal referring to all of the lots and all of the assessments, to the district court. The matter was there tried and submitted as one case, and a decree entered setting aside all of the assessments. The assessment against each lot was less than $ 100, and the aggregate of all the assessments exceeded that amount.

I. It is contended that, since the assessment on each lot was less than $ 100, there is no right of appeal to this court, under Section 4110, Code of 1897 (Section 12833, Code of 1924).

The proceeding in which the appeal to this court was taken was a single proceeding in the district court, made so by the single appeal of the appellees from the action of the town council in making the several assessments. The amount involved in that proceeding was the aggregate of the assessments; it exceeded $ 100; and the appeal will lie. Brock v. Barr, 70 Iowa 399, 30 N.W. 652; Edwards v. Cosgro, 71 Iowa 296, 32 N.W. 350; Tuthill Spring Co. v. Smith, 90 Iowa 331, 57 N.W. 853; Comstock v. City of Eagle Grove, 133 Iowa 589, 111 N.W. 51.

II. The court below found that there was no necessity for the construction of the sidewalk, and that no special benefits accrued to the several lots from its construction, and on these grounds canceled the assessments.

By Section 779, Code Supplement, 1913, the power is expressly conferred upon cities and towns to provide for the construction of permanent sidewalks upon any street, and to assess the cost thereof on the lots in front of which the walk shall be constructed. Where a city or town is vested with the power to make improvements such as this, the necessity for making a given improvement is a matter for the exclusive determination of the council; and when it acts within the authority given it, and its determination is made without fraud or oppression, it cannot be interfered with by the courts. Dewey v. City of Des Moines, 101 Iowa 416, 70 N.W. 605; Denny v. Des Moines County, 143 Iowa 466, 121 N.W. 1066; Central L. A. Soc. v. City of Des Moines, 185 Iowa 573, 171 N.W. 31; Bennett v. City of Marion, 106 Iowa 628, 76 N.W. 844; Kemp v. City of Des Moines, 125 Iowa 640, 101 N.W. 474. There is no claim of fraud or oppression, unless the latter may be implied from the alleged lack of a public necessity for the improvement. In any event, such a charge is not sustained by the evidence.

III. All of the witnesses who testified on the subject said that some benefit accrued to the property from the construction of the sidewalk. If we pass the question whether appellees could be heard to say in this proceeding that the property received no special benefit from the improvement, the evidence does not support such a claim.

IV. It is urged by appellees that the ordinance of the town, under which the sidewalk was ordered and constructed, and the cost assessed against the property, did not provide that the assessment must be in proportion to the special benefits conferred upon the property by the improvement, and not in excess thereof or of 25 per cent of the value of the lot, as was provided by Section 792-a, Code Supplement, 1913, the statute in force at the time (Section 6021, Code of 1924), and that, therefore, both the ordinance and the assessments made under it are void.

As we have seen, Section 779 expressly conferred on the town the power to provide for the construction of permanent sidewalks and for the assessment of the cost upon the property in front of which they were constructed. It might be conceded, as contended by appellees, that an ordinance was essential to the exercise by the town of the power so conferred. Gallaher v. City of Jefferson, 125 Iowa 324. (Compare Martin v. City of Oskaloosa, 126 Iowa 680 102 N.W. 529, and Hardwick v. City of Independence, 136 Iowa 481, 114 N.W. 14). And it is doubtless true that,...