Coggeshall v. City of Des Moines

• Citation: 78 Iowa 235,41 N.W. 617
• Parties: COGGESHALL ET AL. v. CITY OF DES MOINES ET AL.
• Decision Date: 08 February 1889
• Court: United States State Supreme Court of Iowa

78 Iowa 235

41 N.W. 617

COGGESHALL ET AL.

v.CITY OF DES MOINES ET AL.

Supreme Court of Iowa.

Feb. 8, 1889.

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

This is an action to restrain the enforcement of certain special assessments made by the city of Des Moines against the real estate of plaintiffs, to pay the cost of paving the streets upon which the property abuts; also to restrain the collection of a two-mill tax levied to pay certain “intersection bonds” issued by the city; and for general equitable relief. The district court on the final hearing dismissed the petition, and plaintiffs appealed.Kauffman & Gurnsey, for appellants.

Gatch, Conner & Weaver, Cummins & Wright, and James H. Detrick, for appellees.

REED, C. J.

1. In May and June, 1886, the city council adopted resolutions ordering that certain streets in the city be paved, and directing the city clerk to advertise for bids for doing the work. On the 21st of June they adopted certain plans and specifications for different kinds of pavements. These specifications covered pavements of cedar blocks on plank and concrete floors, macadam, with cement gutters and cross-walks, and the same material on Tilford foundation and brick. They provided that the contract price per square yard for the work should embrace everything requisite to be done for the completed pavements, and that the contractors should do all filling and grading necessary to bring the streets to the proper grade for receiving the pavement, and remove and dispose of all surplus earth. They also provided the manner in which the different kinds of paving therein referred to should be done, but did not designate the kind of pavement which should be laid upon the different streets; nor did the council at any time before the bids were received determine the material which should be used upon any street. The published notice invited bids for “all the various kinds of modern pavements,” but provided that the bids should be on the basis of the plans and specifications adopted by the council. The defendants Ragan Bros. and J. B. Smith & Co. each filed bids for the work. Ragan Bros., by their bids offered to lay down either cedar blocks or macadam and granite, and designated the prices at which they were willing to do the work. Smith & Co. bid only for cedar blocks, and the prices at which they offered to do the work were different in different localities. The council accepted the bid of each for a cedar block pavement, with plank foundation, on certain designated streets, and contracted with each of the firms for the portion of the work awarded to them, at a specified price per square yard; the contracts each providing that the contractors should do the excavating and filling necessary to bring the streets to the proper grade, but should receive no further consideration therefor. They also provided that the cost of the work should be assessed against the abutting property, and that certificates for the amount due from each property owner, which would be a lien on the property, and enforceable against the owners, should be issued to the contractors, and that the city should in no event be responsible or liable therefor. While the work was in progress plaintiffs gave notice to the contractors and the officers of the city that they would contest the right of the city to assess any portion of the cost of the work against their property. The contractors, however, went on with the work, and when it was completed the council proceeded to assess the cost against the property abutting on the streets, and issued to the contractors the certificates provided for in the contracts; and one object of this suit is to restrain the enforcement of such of them as purport to affect plaintiffs and their property. The grounds upon which plaintiffs demand relief are (1) that the council were by the statute required to determine in advance the kind and quantity of material to be used in doing the proposed work, and that having failed to do that before advertising for and receiving the bids the contract is void; (2) that the council had no power or authority to tax against the abutting property the cost of paving the streets and alley intersections; and (3) that the property was not chargeable with the cost of the grading necessary to be done in preparing the streets for the paving.

The council assumed to act in the transaction under the powers conferred upon the city by chapter 168, Laws 21st Gen. Assem. The second and third sections of the act are as follows: “Sec. 2. When the council of any such city shall direct the paving and curbing or sewering of any street or streets, they shall make and enter into contracts for furnishing materials, and for the curbing and paving or sewering, as the case may be, of such street or streets, either for the entire work in one contract, or parts thereof in separate and specified sections, as to them may seem best: provided, that no work shall be done under any such contract until a certified copy shall have been filed in the office of the city clerk. Sec. 3. All such contracts shall be made by the council in the name of the city, upon such terms of payment as shall be fixed by the council, and shall be made with the lowest bidder or bidders, upon sealed proposals, after public notice for not less than three weeks in at least two newspapers of said city, which notice shall contain a description of the kind and amount of work to be done, and materials to be furnished, as nearly accurate as practicable.”

It appears to us that there is no...