Bucroft v. City of Council Bluffs

• Decision Date: 06 June 1884
• Citation: 19 N.W. 807,63 Iowa 646
• Parties: BUCROFT v. THE CITY OF COUNCIL BLUFFS
• Court: Iowa Supreme Court

19 N.W. 807

63 Iowa 646

BUCROFT v. THE CITY OF COUNCIL BLUFFS

Supreme Court of Iowa, Des Moines

June 6, 1884

Appeal from Pottawattamie District Court.

The petition states that the defendant passed an ordinance providing that all charges for the improvement of streets and alleys should be assessed against the respective owners and lots fronting on the street or alley improved, and should be collected as provided in sections 478 and 479 of the Code and thereafter passed a resolution providing for a change of the former grade, of about four feet, by filling certain described streets preparatory to paving; that the respective owners of the lots failed to do the required work, and that the defendant let the same to plaintiff, who did the grading to the satisfaction of the defendant, and that the same was accepted by it, and the amount due under the contract was ascertained by the city; that under the contract the city agreed to issue certificates of assessment against the owners of abutting property for the amount due the plaintiff, and did so; that the plaintiff demanded payment of said owners but that they wholly failed and refused to pay the same; that the defendant had no power or authority to assess the cost of grading streets against the lots, or the owners thereof; and therefore judgment was asked against the city. To the petition there was a demurrer, on grounds which are sufficiently indicated in the opinion. The demurrer was sustained, and the plaintiff appeals.

REVERSED.

Scott & Stewart, for appellant.

W. S Mayne, for appellee.

OPINION

SEEVERS, J.

I.

The allegation that the city had no power to make the assessment is a legal conclusion, which cannot be regarded as admitted, unless the facts pleaded warrant such conclusion; and this must be determined by ascertaining whether the requisite power has been conferred on the city by statute, as it is not claimed that the charter confers such power.

There is some ambiguity in the ordinance, but, for the purposes of this case, it will be conceded that the ordinance provides that the charges were such as are "contemplated by sections 466, 467 and 468 of the Code, and chapter 51 of the Acts of the Fifteenth General Assembly." (McClain's Statutes, page 110.) The ordinance further provides that such charges "shall be determined and assessed against the respective owners of lots and lands fronting on the street, highway or alley, and collected as provided in sections 478 and 479 of the Code."

Chapter 51 of the Acts of the Fifteenth General Assembly has reference alone to the improvement of alleys, and therefore a consideration of its provisions is not required; and this is true as to sections 478 and 479 of the Code, because the assessment in question was not made under either. The ordinance provides that the assessment shall be made under the other sections referred to therein, and the same collected as provided in the sections last named. Section 467 refers alone to the repair of permanent sidewalks, and 465 provides that the expense of grading streets shall be paid out of the general fund of the city. Therefore, the requisite power must be conferred by section 466 of the Code. It provides that cities "shall have the power to construct sidewalks, to curb, pave, gravel macadamize and gutter any highway or alley, and to levy a special tax on the lots and parcels of land fronting on such highway or alley to pay the expense of such improvement." It will be observed that this section does not include or provide for grading streets or alleys, and therefore does not conflict with section 465. But section 466 does provide for paving, and the resolution contemplates that the streets were to be graded "preparatory to paving." Now, the question is whether work preparatory thereto is the paving contemplated by the statute. We think not. It will be assumed that the council in good faith passed the resolution, and at that time intended to pave the streets; but when or how was left to the uncertain future. Because the preparatory work was done, the council was not conclusively bound to pave, and circumstances thereafter occurring might cause the same council to make a change in this respect. Besides this, changes in the personnel of city councils frequently occur, and thus changes in the policy to be pursued are brought about. The power conferred is to pave, and not merely to make preparation therefor. The work of preparation must, of course, be done first, and, in the discretion of the council, the street may be graded, and the latter may, no doubt, be done under one contract, and the paving under another. But the only power conferred is to assess abutting owners for paving, and this may include the preparatory grading. The whole must be assessed together, or, if this be not true, no power is conferred to assess the cost of the grading on the abutting owner, and then...