Chi., R. I. & P. Ry. Co. v. City of Ottumwa

• Decision Date: 23 October 1900
• Citation: 83 N.W. 1074,112 Iowa 300
• Court: Iowa Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. ET AL. v. CITY OF OTTUMWA ET AL.

112 Iowa 300

83 N.W. 1074

CHICAGO, R. I. & P. RY. CO. ET AL.

v.CITY OF OTTUMWA ET AL.

Supreme Court of Iowa.

Oct. 23, 1900.

Waterman and Ladd, JJ., dissenting.

Appeal from district court, Wapello county; M. A. Roberts, Judge.

Suit in equity to restrain the collection of a special assessment made by the city against the right of way of the Keokuk & Des Moines Railway for paving and curbing a street on which the right of way abuts. Plaintiff is using the right of way under lease from the Keokuk & Des Moines Railway Company, and the latter company was made a party defendant after a demurrer was sustained to the petition grounded on the proposition that it was a necessary party. The trial court dismissed the petition, and gave judgment against both railway companies for the amount of the assessment, and these companies appeal. Reversed.Geo. W. Seevers, Carroll Wright, and Robert Mather, for appellant Chicago, R. I. & P. Ry. Co.

Carroll Wright, for appellant Keokuk & D. M. Ry. Co.

McNett & Tisdale and W. W. Epps, for appellees city of Ottumwa and its officers.

E. M. Sharon, for appellees Edward Walsh Co.

DEEMER, J.

The case was tried on an agreed statement of facts, from which we gather the following: The Keokuk & Des Moines Railway Company acquired by condemnation proceedings a right of way across certain lots in the city of Ottumwa abutting on Main street. This right of way was used by the Chicago, Rock Island & Pacific Railway Company at the time the assessment in question was levied under a lease from the Keokuk & Des Moines Company, terminating December 19, 1923, by the terms of which the Rock Island Company agreed to pay “all lawful taxes and assessments of value made of the property after the commencement of the lease.” In the year 1894 the city council of the city of Ottumwa, by resolution, ordered the paving and curbing of East Main street, and in 1895 a contract therefor was entered into by the city with the defendant the Edward Walsh Company. The paving and curbing was to extend along Main street, and adjacent to the right of way, 716 1/2 feet, and was to be 33 feet in width between the curbs. The right of way was 3 or 4 feet from the south curb, and extended for the entire distance named. The property on the north side of the street was divided into lots and blocks, and was owned by various persons. By the terms of the contract the construction company undertook to keep the improvement in repair for the term of seven years. Pursuant to contract, the Walsh Company made the improvement, and after the completion of the work the city engineer made a plat thereof, in which he assessed the cost of 7 feet in width to a street-railway company that occupied the south side of the street, not far from the curb, with its track, and of 13 feet in width for the entire distance to the Rock Island Railway Company and the right of way. The balance of 13 feet was assessed against the property lying on the north side of the street under the front-foot rule. Nothing was allowed the railway company for street intersections. No notice was given the Rock Island Company of the intent to assess any portion of the cost of the improvement against it, save that its name was included on the plat made by the city engineer, and no notice of any kind was given the Keokuk Company. On June 25, 1895, the Rock Island Company served the city and the contractor with notice to the effect that it would contest the right of either to charge any portion of the cost against the right of way occupied by it. July 15th the city council accepted the work, and approved the assessment made by the city engineer. Thereafter notice was given directed generally to property holders, and referring to the engineer's plat, as follows: “Take notice that there is now on file in the office of the city clerk at the city hall in the city of Ottumwa, Iowa, a plat of paving districts Nos. 12 and 49. Paving district No. twelve (12) consists of East Main street from the east side of Birch street to the west side of Ash street. Paving district No. forty-nine (49) consists of that portion of Fifth street from the east line of Court street to the west line of Jefferson street, in Ottumwa, Iowa. Said plat, among other things, shows the separate lots and parcels of ground abutting thereon subject to assessment of said improvement, the number of front feet abutting thereon, the owners thereof, the amount of assessment proposed to be made against each of the said lots and parcels of ground, and the owner thereof.” On August 5th, and before final ratification and approval of the assessment, the Rock Island Company filed a protest against the same, stating its reasons therefor. Thereafter the council approved the assessment, ordered it certified to the county auditor, and later issued certificates of assessment to the construction company. Plaintiff then brought this suit to restrain the collection of the assessment. The Keokuk & Des Moines Company was made a party defendant, as heretofore stated. The trial court dismissed the petition, and rendered judgment against both companies for the amount of the assessment, with 10 per cent. interest, and costs of collection, and made the same a lien on the right of way of the Keokuk Company. There was but a single railway track located on the right of way, and this is in a cut of from three to seven feet below the street level. The strip of ground between the south curb and the north line of the right of way, of three or four feet in width, is so occupied with telegraph, electric railway poles, etc., that a sidewalk cannot be built thereon, and it is not used by foot passengers. Main street does not lead to the freight depot of either railway company, but travelers may take it in going to the passenger depot. The main passenger depot in the city is within half a block of Main street, and there is no other street between it and the depot. Main street is, however, one of the principal streets in the defendant city. These facts are recited at this time in view of the contention made by the railway companies to the effect that the paving was of no benefit to them, or to their right of way or property, and that the assessment was without authority of law. The main points contended for are: First, that the right of way is not subject to special assessment; second, that no lien can be established against a right of way secured by condemnation proceedings, and that no sale thereof can be made on judicial process; third, that the statute and ordinances charging the cost of the improvement under the front-foot rule, and without regard to benefits, are unconstitutional; fourth, that no benefits were conferred by the improvement; fifth, that plaintiff company is not liable for the cost of the improvement, because it is a mere lessee of the right of way; sixth, that because no notice was ever given the Keokuk Company of the assessment against its property, or of the proceedings connected therewith, no judgment can be rendered against it; seventh, that the court cannot cure any errors in the assessment, and had no power to enter judgment against any one not a party to the original proceedings; and, eighth, that the allowance of interest and collection charges was erroneous. Such of these points as fairly arise on the record we will consider in the order stated.

The first and most important--aside from the constitutional--question relates to the right of a city to assess the cost of paving and curbing against the right of way of a railway company acquired by condemnation proceedings. No citation of authorities is needed in support of the fundamental principle that the right of a municipality to levy special assessments depends on statutory enactment, and that it has no existence unless there be a valid statute conferring it. But see Polk Co. Sav. Bank v. State, 69 Iowa, 24, 28 N. W. 416;In re Second Ave. Church, 66 N. Y. 395;Niklaus v. Conkling, 118 Ind. 289, 20 N. E. 797. General authority to levy taxes for municipal purposes is insufficient to confer the power, and a statute conferring such power is strictly construed in favor of the person against whom the assessment is levied. See cases last above cited and Hager v. City of Burlington, 42 Iowa, 661;Reed v. City of Toledo, 18 Ohio, 161;Starr v. City of Burlington, 45 Iowa, 87;City Council v. Murphey (Ga.) 3 S. E. 326;Becroft v. City of Council Bluffs, 63 Iowa, 646, 19 N. W. 807. Nevertheless, when express power is given, substantial compliance with the statute is all that is required. McNamara v. Estes, 22 Iowa, 246. In the further discussion of the proposition regard must be had of the essential difference between a tax levied for governmental purposes and a special assessment founded on the theory of benefits conferred. Illinois Cent. R. Co. v. City of Decatur, 13 Sup. Ct. 293;Town of Macon v. Patty, 57 Miss. 378;City of Fairfield v. Ratcliff, 20 Iowa, 396. The foundation of the power to levy special assessments is, no doubt, the general taxing power of the state, and not the police power, or the right of eminent domain. Warren v. Henly, 31 Iowa, 31;Motz v. City of Detroit, 18 Mich. 494;Allen v. Drew, 44 Vt. 174;Keith v. Bingham, 100 Mo. 300, 13 S. W. 683;In re Centre St. (Pa. Sup.) 8 Atl. 56. But the whole theory of a special assessment is based on the doctrine that the property against which it is levied derives some special benefit from the improvement. Rich v. City of Chicago (Ill. Sup.) 38 N. E. 255, and cases cited in Judge Elliott's work on Railroads (volume 2, p. 1100).

With these elementary propositions settled, we now turn to our statute, and find that at the time the assessment was levied it authorized cities to pave and curb any highway or alley therein, and to levy a special tax on the “lots and parcels of land fronting on the highway” to pay the expense of such improvement. Code 1873, § 466. See, also, Acts 23d Gen. Assem. c. 14, §§ 10, 11, and Acts 25th Gen....