Citizens' Bank of Des Moines v. City of Spencer

• Decision Date: 14 December 1904
• Citation: 101 N.W. 643,126 Iowa 101
• Parties: CITIZENS' BANK OF DES MOINES v. CITY OF SPENCER.
• Court: Iowa Supreme Court

126 Iowa 101

101 N.W. 643

CITIZENS' BANK OF DES MOINES

v.CITY OF SPENCER.

Supreme Court of Iowa.

Dec. 14, 1904.

Appeal from District Court, Clay County; A. D. Bailee, Judge.

Action at law to recover the amount of certain assessment certificates for a sewer constructed in the defendant city on the theory that these assessment certificates were declared invalid, and the city is liable to the contractor doing the work, or to his assignee, for the amount thereof. Several defenses were interposed by the city, to some of which we shall refer during the course of the opinion. The trial court rendered judgment for the plaintiff, and the defendant appeals. Reversed.Buck & Kirkpatrick, for appellant.

G. H. Martin, for appellee.

DEEMER, C. J.

On October 22, 1892, the city council of the defendant city undertook to pass an ordinance for the construction of sewers and to assess the cost thereof against abutting property. Pursuant thereto a contract was entered into with one Likes for the construction of the sewer. January 20, 1893, the city council accepted the work, and assessed the cost thereof against abutting and adjoining property, and caused assessment certificates to be delivered to the contractor pursuant to its contract with him to the effect that he should receive the same in full payment for his work in front of the various properties. The owners did not indorse any waivers on the back of these certificates, nor were any payments made by them. These assessments were certified to the county treasurer for collection in December of the year 1893, but payment was refused, and the lots against which the assessments were levied were advertised for sale. An action was then brought by the then owner of certain lots against the county treasurer to restrain these sales. That case finally reached this court, and the assessments were held illegal. See Griffin v. Messenger, 114 Iowa, 99, 86 N. W. 219. Plaintiff herein, as assignee of the contractor, intervened in that action, and was a party thereto. The parties to that action, and all concerned in the result thereof, acted in entire good faith, and believed that the ordinance passed by the city council was valid and binding, until the adverse decision of this court. In December, 1901, plaintiff, as assignee of the contractor, presented a claim to the city council for the amount of the certificates and for the costs in the case above referred to. This claim was refused, and plaintiff thereupon commenced this action. The defendant was not made a party to the Griffin suit, nor was it at any time notified of the default of the owner of the property in paying his assessments until plaintiff's claim was filed with it. Neither has there been any demand for a reassessment of the property, or for any further action on the part of the city, except to pay the plaintiff's claim. At the time the sewer was constructed, defendant was indebted up to the constitutional limit. The Griffin Case was decided in this court in May of the year 1901. In that case it was held that the entire proceedings were void, for the reason that the ordinance for the sewering of the city had not been legally adopted. After the decision of that case the General Assembly passed a curative act known as chapter 224, p. 179, Acts 29th Gen. Assem., which undertook to cure retroactively all ordinances, resolutions, etc., at any time passed as this one was.

Plaintiff contends that the city is absolutely liable in this case under the rule announced in Ft. Dodge v. Ft. Dodge, 115 Iowa, 568, 89 N. W. 7, and other like cases; while defendant claims that that case has no application; that under the curative act all proceedings were validated, and plaintiff should now enforce its assessment certificates; that the plaintiff and his assignor were charged with notice of the powers of the city council, and are conclusively bound to know that all the proceedings were irregular and void; that in such cases as this the city is not liable, because the assessment certificates were invalid, as the invalidity goes to the power of the city to act at all; that the city was indebted up to its constitutional limit, and cannot be held on an express contract to pay, and that, if sought to be held on an implied contract, the cause of action is barred. It also insists that plaintiff is barred by laches; that it is not entitled to recover, because it made no demand for a reassessment, and gave no notice to the city so that the city might have made a reassessment as by statute provided. These are the principal points argued, and, as they are each and all presented by the pleadings, we shall consider such of them as are deemed important and controlling.

As the case may be disposed of without more than incidental reference to the curative act, we shall not consider the exact effect of that act upon the Griffin-Messenger Case, save to say that it is extremely doubtful if the Legislature had power to in any manner affect Griffin's rights in and to the property after a decision of this court establishing the same. The record here presents quite a different state of facts than appears in the Ft. Dodge and other like cases. There a valid contract was made with the contractor, wherein the city undertook and impliedly guarantied to levy valid assessments against abutting property to pay for the work. Here the defect lies deeper. The city did not pass a valid ordinance or resolution for the doing of the work, because a sufficient number of the councilmen did not vote in favor thereof, or did not vote for a suspension of the rules, which we shall treat for the purposes of the case as the same thing. Without a valid ordinance or resolution the city council had no power to order any sewering. If it undertook to do so, its act was not binding upon the municipality or any one else. There was an express statutory limitation on the power of these officials, and of this all persons dealing with them must take notice. Harrison v. Palo Alto County, 104 Iowa, 389, 73 N. W. 872;Estep v. County of Keokuk, 18 Iowa, 199;Clark v. City of Des Moines, 19 Iowa, 199, 87 Am. Dec. 423; Mechem on Public Officers, §§ 506, 511, 512, and cases cited; McPherson v. Foster, 43 Iowa, 58, 22 Am. Rep. 215. This is fundamental...