City of Clinton v. Walliker

• Decision Date: 06 October 1896
• Citation: 68 N.W. 431,98 Iowa 655
• Parties: CITY OF CLINTON v. WALLIKER ET AL.
• Court: Iowa Supreme Court

98 Iowa 655

68 N.W. 431

CITY OF CLINTON

v.WALLIKER ET AL.

Supreme Court of Iowa.

Oct. 6, 1896.

Appeal from district court, Clinton county; P. B. Wolfe, Judge.

The defendant Walliker is the owner of a lot in the city of Clinton. This is an action to recover of said defendant the first installment, being one-fifth of an assessment made against the said defendant and his lot for grading, guttering, and paving the street upon which his lot abuts, and to establish the said assessment as a lien upon the lot. There was a trial to the court, and a decree for the plaintiff. Defendants appeal. Affirmed.Walliker Bros., for appellants.

A. P. Barker, for appellee.

ROTHROCK, C. J.

There is no dispute that the street in front of appellant's lot was improved as set out in the petition. No objection to the improvement appears to have been made by the defendant, nor by other property owners along the street, until this action was brought to enforce the payment of the assessment. On the contrary, the making of the improvement is admitted. The defenses against the assessment, as set up in the answer and an amendment thereto, are, in substance, as follows: (1) A denial “that due notice of said assessment was given to all persons interested, or that said pretended assessment became a lien or charge upon the property of the defendant Arnold Walliker.” (2) “A denial that one-fifth of the amount became due and payable at the time claimed by plaintiff, and that, if said assessment was legal, there is but one-seventh thereof due and payable.” (3) “That a large part of the assessment was for filling in front of said property, and that the same was erroneously attempted to be made a charge and lien thereon.” (4) That, upon the completion of said improvement, the plaintiff issued to the contractor or contractors its bonds in payment therefor, instead of selling the same, as provided by law, “which disposition of the bonds was illegal and void.” (5) That the city council failed to cause a plat of the improvements to be made and filed with the city auditor, showing the separate lots or parcels of ground subject to assessment for the improvement, and failed to give the defendant notice that such a plat was on file with the city auditor, that objections might be made to the amount. (6) That at the time of ordering and making said improvement the city was indebted to an amount exceeding 5 per cent. on the assessed valuation of the property subject to taxation in the city, and that said improvement or paving included some 10 or 15 street intersections, the cost of improving which it was the duty of the city to pay, and that the plaintiff issued its bonds to the contractors in payment of the whole cost of the improvement, including the cost of paving, guttering, grading, and curbing the said intersections. The plaintiff, in a reply, claimed that, if any irregularity occurred in any of the proceedings in reference to said improvement, the defects or omissions were cured by a legalizing act passed by the general assembly of this state, which was approved March 23, 1894. These are the issues upon which the case was tried. The whole amount of the assessment against the defendant and his lot was $144.90. By the assessment it was ordered that one-fifth of that amount should be payable at once, and that, if not paid in 90 davs, it would become delinquent.

The amount involved in this suit is about $28. It is presented to this court upon questions certified by the district court, which were thought to be of sufficient importance to authorize an appeal. We will not set out these questions. They were, doubtless, prepared by counsel for the defeated party, and they are 12 in number, and appear to cover about every conceivable objection which can be made to the proceedings of the city council in ordering and making said improvement, and providing means for paying the expense attending the undertaking. Some of them are mere repetitions of questions of law embraced in others, and other questions are of so little consequence that they demand no consideration. We will endeavor to dispose of such questions as are involved in the case, as appears from the issues which we have stated, and the questions certified; and we will do this in a general way, without setting out in extenso any part of the certificate.

The case involves the question whether the city council, in ordering the improvement and issuing warrants and bonds to the contractors in payment for the labor and materials for the work, violated the statutes and constitution of the state, so that the lot owners are not liable to pay for the paving and improvement of the street in front of their lots. This is the ultimate question, and, to properly determine it, we are required to examine and construe, first, the statutes in force when the improvement was made. Chapter 20 of the Laws of 1884 is an elaborate act providing for paving, grading, curbing, and otherwise improving streets in cities of the first class. The city of Clinton, being one of that class, passed an ordinance which contains many sections, and said ordinance was intended to carry out and enforce the provisions of the statutes. This ordinance was adopted by the city on the 10th day of February, 1891. There is no question that the letting of the contract was properly done under that act. It is claimed in behalf of appellants that the assessment was void, because a plat showing the property subject to assessment for the improvement was not filed with the city clerk for public inspection, and that proper notice was not given of the making of the assessment. This is an immaterial question if the improvement was properly made under the act of the general assembly of 1884, above cited. That question is material only in case the authority to...