Bush v. City of Dubuque

• Citation: 69 Iowa 233,28 N.W. 542
• Parties: BUSH AND OTHERS v. CITY OF DUBUQUE AND OTHERS.
• Decision Date: 19 June 1886
• Court: Iowa Supreme Court

69 Iowa 233

28 N.W. 542

BUSH AND OTHERS

v.CITY OF DUBUQUE AND OTHERS.

Supreme Court of Iowa.

June 19, 1886.

Appeal from Dubuque circuit court.

The plaintiffs are the owners of some 10 or 11 lots fronting on Main street, in the city of Dubuque. The surface of these lots is much below the level of Main street, and the city council, by a resolution, ordered that the lots be filled by plaintiffs to a level with Main street, and that, on the failure of plaintiffs to fill the lots within a prescribed time, the work should be done by the city, and the expense thereof charged to the plaintiffs, and made a lien upon the lots. The plaintiffs did not comply with the resolution, whereupon the work was let by the city council to a contractor who was proceeding to execute the mandate of the council when this action in certiorari was commenced, and the prosecution of the work was enjoined. Upon a trial in the circuit court a judgment was entered, setting aside and annulling the said resolutions and orders of the city council. Defendants appeal.Powers & Lacey and D. J. Lenehan, for appellants.

Utt Bros. and J. G. Brown, for appellees.

ROTHROCK, J.

1. The city of Dubuque is acting under a special charter. By chapter 90 of the Acts of the Nineteenth General Assembly it was enacted (section 1) that all cities acting under a special charter shall have power to cause any lot or piece of land within their limits on which water, at any time, becomes stagnant, to be filled up or drained in such a manner as may be directed by a resolution of the city council, and the owner, or his agent, of such lot or piece of land shall, after service of a copy of such resolution, or after a publication in some newspaper of general circulation in such city for two consecutive weeks, comply with the directions of such resolutions within the time therein specified; and, in case of a failure or a refusal so to do, it may be done at the expense of such city, and the amount of money so expended shall be a debt due from the owner of such lot or piece of land to said city, and shall also be a lien on said lot or piece of land from the time of the adoption of said resolution. Section 2: “Any such city may, in addition to the means provided by section 1 of this act, if by ordinance it so elects, cause the expense of such filling to be levied as a special tax on such lot or piece of land, and may collect the same by tax sale in such manner as may be provided by such ordinance.” The resolution of the council recited that the lots of the plaintiffs were “covered by stagnant water at all seasons of the year.”

It appears that a resolution ordering the lots to be filled and raised to a level with Main street was first passed by the city council on the fifth day of February, 1883. Notice of this resolution was served upon the plaintiffs, but it seems that further proceedings in the matter were abandoned for the time being. On the third day of December, 1883, the council passed an ordinance upon the subject of filling up and raising the surface of lots covered with stagnant water. This ordinance provides the proceedings necessary to be taken by the city council, the manner of service of the resolution upon the lot-owner ordering the work to be done, and it makes the cost of the work a lien upon the lots, and provides for the sale of the lots to pay the cost of the improvements, and that, if the same shall not sell for sufficient to pay the assessment for the improvement, the balance shall be a debt due from the owner of the lot to the city, which debt shall bear interest at the rate of 10 per cent. per annum. After the passage of this ordinance, and on the sixth day of December, 1883, the city council passed a resolution similar to that passed in the month of February preceding. This resolution ordered the plaintiffs to fill and raise the lots to a level with Main street on or before February 1, 1884. The plaintiffs were afterwards served with notice that the resolution had been passed by the council. They did not comply therewith, and on the tenth day of March, 1884, the council ordered the city recorder to advertise for proposals to do the work, and on the eighteenth day of March, 1884, the council awarded the contract to the defendant Randall, who was proceeding to fill the lots when this action was commenced. The petition in this case was filed on the thirty-first day of March, 1884, and on the same day notice was served upon the defendants of the time and place where plaintiffs would apply for an order for...