Dittoe v. City of Davenport
| Decision Date | 08 March 1888 |
| Citation | 36 N.W. 895,74 Iowa 66 |
| Parties | DITTOE v. CITY OF DAVENPORT. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Scott county; A. J. LEFFINGWELL, Judge.
The plaintiff, W. T. Dittoe, seeks to recover a tax alleged to have been paid by his assignor, L. C. Dessaint, under protest. The defendant filed an answer in six divisions, the last of which contained a counter-claim for the amount of the tax in controversy made under sections 478 and 479 of the Code. Plaintiff demurred to the answer. The demurrer was sustained as to the first five divisions, and overruled as to the sixth. Both parties electing to stand on their pleadings, judgment was rendered in favor of defendant for costs. Both parties appeal; the appeal of plaintiff being first perfected.Wm. T. Dittoe, pro se.
L. M. Fisher, for appellee.
ROBINSON, J., ( after stating the facts as above.)
It appears from the facts admitted of record, that the tax in controversy was levied under the provisions of an ordinance of defendant, passed by virtue of chapter 54 of the Acts of the Sixteenth General Assembly, for the construction of a sewer. The sewer was ordered and constructed during 1878, and the tax in question assessed by resolution adopted November 6th of that year. The plaintiff's assignor, one Dessaint, owned the tract of land on which this tax was assessed, and paid the same, under protest, on the 28th day of February, 1879. Before payment, the city collector had demanded payment of him, and the land had been advertised for sale, but not sold.
1. It is claimed by plaintiff that the tax was illegal for the reason that the resolution of the city council assessing it did not definitely describe the sewer, nor fix the gross amount of the cost of the same, nor the amount per square foot to be assessed against the adjacent property, or against Dessaint or his property. It is true that neither the resolutions ordering the sewer, nor the one which assessed the tax, in terms fixed the dimensions of the sewer, nor named the gross amount to be paid therefor, nor the amount of tax to be assessed against each tract of land and the owner thereof. But the street through which the sewer was to be constructed and the terminal points were named. The resolution, assessing the tax, ordered that it be assessed and levied on each lot, part of lot, or tract of ground in the sum and to the amount shown by the plat of the city engineer. It is admitted that this plat showed the amount to be assessed to each square foot, the number of square feet in each tract of ground, and the total assessment to each tract of ground subject to be assessed for the sewer. The resolution of the council in effect adopted so much of the plat of the engineer as it referred to, and thereby furnished means of obtaining precise knowledge of the tax assessed to each tract and individual, and the total cost of the sewer. We think this was sufficient for all practical purposes. It is admitted that the amounts so assessed were the proper ones, and that they were duly carried out on the tax-book of the city. We do not think the tax was rendered invalid by the alleged omissions.
2. The most serious objection urged against the tax is that no notice of its assessment and levy were given to Dessaint, and that he had no opportunity to be heard in regard to it. The provisions of the ordinance, in regard to assessing the tax, seem to have been the same as those considered in College v. City of Davenport, 65 Iowa, 635, 22 N. W. Rep. 904. But our views of this case are such that it is not necessary to determine as to this objection. It cannot be questioned that defendant had the right to construct the sewer at the cost of the owners of the real property fronting on the street through which it was made. To enforce the payment of such cost, it was given a...
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