Chicago, M. & St. P. Ry. Co. v. City of Spencer, Iowa

• Decision Date: 31 July 1922
• Docket Number: 93.
• Parties: CHICAGO, M. & ST. P. RY. CO. v. CITY OF SPENCER, IOWA.
• Court: U.S. District Court — Northern District of Iowa

283 F. 824

CHICAGO, M. & ST. P. RY. CO. v. CITY OF SPENCER, IOWA.

No. 93.

United States District Court, N.D. Iowa, Western Division.

July 31, 1922

Hughes Taylor & O'Brien, of Des Moines, Iowa, for plaintiff.

Heald Cook & Heald, of Spencer, Iowa, for defendant.

SCOTT District Judge.

The proceeding is one by the city of Spencer, Clay county, Iowa to assess portions of the cost of a storm and sanitary sewer against certain abutting and adjacent property of the Chicago, Milwaukee & St. Paul Railway Company. Upon the completion of the sewer, and pursuant to the Iowa statute, the city at the proper stage of the proceeding gave notice of the proposed assessment, and the railway company appeared by counsel at the proper time and filed objections to the assessment, which were overruled. The city authorities thereupon levied the assessment, and the railway company, in conformity with the Iowa statute, perfected its appeal to the district court of Iowa for Clay county. Upon the docketing of the cause in the state court, the railway company gave notice and filed its petition and bond for the removal of the proceeding to the District Court of the United States for the Northern District of Iowa, Western Division. The ground of removal is that of diversity of citizenship of the parties and requisite amount involved. The city of Spencer appears in this court and moves to remand the proceeding to the state court, and the questions presented by that motion are now to be considered and decided.

The statute of Iowa contains the following provisions:

Code Iowa 1897, Sec. 817: 'The cost of any street improvement or sewer at the intersection of streets, highways, avenues and alleys, or any part of it, and one-half of the cost of the same at spaces opposite streets, highways, avenues and alleys intersecting but not crossing and at spaces opposite property owned by the city or the United States, or any part thereof, may be paid, in case of sewers, from the city sewer fund or the district sewer fund of such sewer district, or the general revenue of said city, or as provided in the second following section. * * * '

Code Iowa 1897, Sec. 819: 'The cost, or any part thereof, of making or reconstructing sewers, including that provided for in the second preceding section, may be paid from the district sewer fund of the sewer district in which the same is situated, or from the city sewer fund, or from the general revenue, and the portion thereof not so paid, and not in excess of three dollars per linear foot of sewer, shall be assessed against the property abutting on such sewer in proportion to the number of linear front feet of each parcel thereof, and upon adjacent property in proportion to the benefit thereto; but in estimating the benefits to result therefrom to adjacent property, no account shall be taken of improvements, and each lot or parcel of land shall be considered as wholly unimproved. The city may combine any or all of said methods of assessment.'

Code Supp. Iowa 1913, Sec. 820: 'When the making or reconstruction of any street improvement or sewer shall have been completed, or such part thereof shall have been completed as, under the contract, is to be paid for when done, the council, or board of public works where such board exists, shall within twenty days following the completion of the making or reconstruction of said street improvement or sewer, ascertain the cost thereof, including the cost of the estimates, notices, inspection, and preparing the assessment and plat, and shall also ascertain what portion of such cost shall be, by law and the ordinance or resolution of the council under which such street improvement was made or sewer constructed assessable upon abutting property; and, in case of sewers, also upon adjacent property, and what portion shall be assessed upon such abutting property, and in case of sewers, upon such abutting and adjacent property, for intersections and spaces opposite property owned by the city or the United States; and the council shall then assess such portions upon and against such property as provided by law.'

Code Iowa 1897, Sec. 821: 'In assessing that part of the cost of the making or reconstruction of any street improvement or sewer, or completed part thereof, which is assessable against the lots or parcels of ground abutting thereon, or, in case of sewers, adjacent thereto, the council, or board of public works where such board exists, shall cause to be prepared a plat of the streets, avenues, highways, alleys, or the part thereof on which the same shall have been made or reconstructed, showing the separate lots or parcels of ground, or specified portion thereof, subject to assessment for such improvement, the names of the owners thereof as far as practicable, and the amount to be assessed against each lot or parcel of ground, and against any railway or street railway, and shall file said plat and schedule in the office of the clerk, which shall be subject to public inspection.'

Code Iowa 1897, Sec. 822, provides for certain estimates to be made by the city engineer. Code Iowa 1897, Sec. 823; Supplement of 1913, Sec. 823; Acts 38th Gen. Assem. c. 386, Sec. 1-- provides for notice of the assessment by publication.

Code Iowa 1897, Sec. 824: 'All objections to errors, irregularities or inequalities in the making of said special assessments, or in any of the prior proceedings or notices, not made before the council at the time and in the manner herein provided for, shall be waived except where fraud is shown.'

Code Iowa 1897, Sec. 839: 'Any person affected by the levy of any special assessment provided for in this chapter may appeal therefrom to the district court within ten days from the date of such levy, by serving written notice thereof upon the mayor or clerk, and filing a bond for costs, to be fixed and approved by either of said officers. Upon such appeal, all questions touching the validity of such assessment, or the amount thereof, and not waived under the provisions of this chapter, shall be heard and determined. The appeal shall be tried as an equitable action, and the court may make such assessment as should have been made, or direct the making of such assessment by the council. The costs of the appeal shall be taxed as in other actions.'

The motion to remand includes four separate grounds, in substance as follows: (1) That the proceeding is not a suit within the meaning of the statutes of the United States authorizing removal. (2) That the proceeding is not within the original jurisdiction of courts of the United States. (3) That the petition for removal does not show that the proceeding is a controversy between citizens of different states. (4) That the petition for removal is filed by a plaintiff, and the statutes of the United States relating to the removal of causes limits the right of removal to defendants. It is deemed most logical to consider the third and fourth grounds of the motion first, as they relate to the conformities effecting the removal.

There is no provision in the Iowa statutes particularly relating to the method of docketing such proceeding in the state court. The appeal is taken and perfected by serving written notice thereof upon the mayor or clerk of the municipality, and filing a bond for costs, to be fixed and approved by either of said officers. It is quite customary to perfect the docketing of the cause in the state court by filing a transcript of the notice of appeal and serving a bond and proceedings upon the city council. This method, however, is not universal. The practice observed is generally similar to that observed on appeal in condemnation proceedings and other tax equalization matters. The Supreme Court of Iowa in Simons v. Railway Co., 128 Iowa, 139, 103 N.W. 129, which was a condemnation proceeding, used the following language:

'It will be observed that the appeal is taken and perfected by the service of notice on the adverse party and the sheriff. From that time down until the final disposition of the case it is in the court to which the appeal is taken. Bank v. City, 118 Iowa, 84; City v. Loan Co., 122 Iowa, 629. There is no statute which expressly requires the filing of a transcript in order to give the district court jurisdiction; and such a document is necessary only for the purpose of furnishing the data for the docketing of the case, or to show the trial court what was in issue, in order that it may intelligently submit the issues and render judgment for the proper party. If the case properly gets upon the docket, even in the absence of transcript, and without the payment of the docket fee, appellee cannot have the appeal dismissed or the judgment or award affirmed under the statutes relied upon. Assuming that the court acquired jurisdiction by the serving of notice of appeal, the only object in docketing the case is to prevent delay and to secure a trial in regular order. A transcript is not really required until the case is reached for trial. This has been the uniform holding of this court. Robertson v. Railroad, 27 Iowa, 245; Bank v. City, 118 Iowa, 84; City v. Loan Co., 122 Iowa, 629; City v. Railroad Co., 120 Iowa, 259; Vasey v. Parker, 118 Iowa, 615.'

On occasion appellants in these matters, in docketing the appeal, have adopted the method of filing a petition in the state court, and that method was adopted in the instant case. Respecting this method the Supreme Court of Iowa, in Frost v. Board of Review, 114 Iowa, 103, 86 N.W. 213, used the following language:

'Appellant might have at least filed a certified copy of the proceedings of the board of review showing appellant's complaint and the board's action or want of action, or perhaps he might have stated the facts to the district court in a petition, as

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