Eagle Manuf'g Co. v. City of Davenport
| Decision Date | 09 April 1897 |
| Parties | EAGLE MANUF'G CO. v. CITY OF DAVENPORT. FRENCH v. CITY OF DAVENPORT. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeals from district court, Scott county; P. B. Wolfe, Judge.
Actions in equity to enjoin the collection of a special tax levied on account of the paving of a street. There was a hearing on the merits, and a decree in favor of the plaintiff in each case. The defendant appeals from each decree. Decree in favor of Eagle Manufacturing Company reversed. Decree in favor of Frances W. French affirmed.E. M. Sharon, for appellant.
Bills & Hass, for appellees.
In the year 1886, George H. French became the owner of block numbered 123 in Le Claire's Ninth Addition to the city of Davenport. He died testate in the year 1888, and Frances W. French became the executrix of his will. That gave to her a life estate in the property described, and by subsequent conveyances she became its owner in fee simple. On the 7th day of January of the year 1891, the paving committee of the defendant presented to its city council a report which recommended that designated portions of certain streets which were specified be paved during that year. The report was adopted, and resolutions which provided for paving according to the recommendations of the committee were also adopted on the same day. On the 26th day of the same month, after due notice, contracts for the paving contemplated by the resolutions were awarded. On the 2d day of May, 1891, a resolution was adopted which provided for the issuing of paving bonds on each of the contracts, and bonds to the amount of $71,500 were issued in accordance with that resolution. A part of the paving provided for by the resolutions and contracts to which we have referred was of that portion of Front street which is adjacent to the block specified. That has the general outline of a truncated triangle. The west side is 216.6 feet in length; the north side, bounded by Fourth street, is 305.5 feet in length; and the southeast side is 365.4 feet in length. In addition, there is a side at the east end 14.1 feet in length. The block was divided into two parts by a railway side track, which entered the block on the north boundary line 53 feet west of the east end, and thence extended in a southwesterly direction on a line slightly curved, crossing the west boundary line 62.5 feet north of the southwest corner. On the 7th day of April, 1891, Mrs. French conveyed to E. C. Westwood a part of the block next to Front street, two feet in width, and extending the entire length of the block on that street. On the 22d day of the same month she conveyed to the Eagle Manufacturing Company all of the remainder of the block, which was between the part conveyed to Westwood and a line parallel with, and six feet south of, the railway track. The outline of the block, the adjacent streets, the location of the side track, and the parts conveyed, are shown by the following plat:
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The paving was completed in accordance with the contracts in the latter part of the year 1891. On the 4th day of November of that year the city engineer presented to the city council a report and plat which showed the amount of paving tax to be assessed on the lots and land abutting on the streets where paving had been done. Notice to all persons having objections to the plat was published, and in due time the Eagle Manufacturing Company and Mrs. French filed objections to the assessment of the paving tax on the portions of the block in question which they then owned. The substance of the objections was that the objectors did not own, and had not since the paving was ordered, or since work thereon had been commenced, owned, any part of the block which fronted or abutted on the part of Front street, which had been paved. The objections were overruled, and the tax for paving the part of that street upon which the block abutted was assessed upon the entire block at the rate of $3.53756 for each front foot. No attention was paid to the depth of the block. These actions were brought to enjoin the enforcement of the tax against the portions of the block now owned by the plaintiffs. The district court rendered a decree in each case granting the relief asked.
1. It will be observed that no part of the block abuts on Front street, excepting the strip which was conveyed to Westwood; and we are required to determine whether the conveyance to him, and the subsequent one to the Eagle Manufacturing Company, were effective to cut off the right which the defendant would have had, if they had not been made, to assess the tax against that portion of the entire block within 150 feet of Front street. The paving was done under an ordinance of the defendant, not set out, but which was similar to chapter 14 of the Acts of the 23d General Assembly; hence the provisions of that act will be treated as applicable and controlling. The act provides for the paving and curbing of streets, and for the assessment of the cost thereof “upon the property fronting or abutting on said improvement.” Section 12 contains the following: “Said assessment with interest accruing thereon, shall be a lien upon the property abutting upon the street or streets upon which any said improvement is made, or upon such improvement from the commencement of the work, and shall remain a lien until fully paid, and shall have precedence over all other liens except ordinary taxes, and shall not be divested by any judicial sale, provided that such lien shall be limited to the lots or lands bounding or abutting on such street or streets, or on such improvement and not exceeding in depth therefrom 150 feet.” It is important to determine the time when the lien of the assessment in question must be regarded as having attached to the property subject to it. It is contended on the part of the appellant that it attached when the resolution ordering the paving to be done was adopted, or at the latest when the contract for it was entered into. It is the general rule that taxes are not liens upon property, unless made so by statute, or by virtue of authority conferred by statute. Jaffray v. Anderson, 66 Iowa, 718, 24 N. W. 527; Cooley, Tax'n, 445 et seq. And that is true of special assessments made on account of the improvement of streets. 2 Dill. Mun. Corp. § 659; 24 Am. & Eng. Enc. Law, 76. Where a tax or special assessment is made a lien, the time at which the lien attaches must be ascertained from the statute or other authority which provides for it, and in this case it attached at “the commencement of the work.” Is the adoption of a resolution directing that certain paving be done, or the letting of the contract therefor, or both, with the various preliminary steps which lead to them, the commencement of work, within the meaning of the statute? It is undoubtedly true that there are many good reasons, independent of the statute, for making the lien of the assessment commence with the letting of the contract for making an improvement, if not from the adoption of the resolution ordering it; and it is also true that legislative intent, if properly expressed, is controlling. We must gather that intent in this case from the statute itself. Section 2 of the statute refers to paving and curbing of streets and the construction of sewers, and authorizes contracts “either for the entire work in one contract or parts thereof in separate and specified sections.” Section 3 provides for a notice to bidders, which shall state as nearly as...
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