Edwards & Walsh Construction Co. v. Jasper County
| Decision Date | 31 May 1902 |
| Citation | 90 N.W. 1006,117 Iowa 365 |
| Parties | EDWARDS & WALSH CONSTRUCTION COMPANY, Appellant, v. JASPER COUNTY AND CITY OF NEWTON, JASPER COUNTY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Jasper District Court.--HON. A. R. DEWEY, Judge.
ACTION based on special assessments for the cost of paving laid in the streets of the city of Newton around the court house square in said city. The defendant county answered asserting, among other things, that the square was exempt from assessment. The city contended that, as plaintiff accepted assessment certificates in full satisfaction of its claim, there was no liability on its part. Other issues were tendered, which, so far as material, will be noticed in the body of the opinion. The trial court dismissed the petition and plaintiff appeals.
Reversed.
E. J Salmon and N. T. Guernsey for appellant.
Henry Silwold, County Attorney, Wm. Conner, W. O. McElroy, A. F. Brown, and J. Edward Mershon for appellees.
In May, 1846, commissioners appointed for that purpose located the seat of justice in Jasper county, and named it Newton. A survey and plat of the town was made by the county surveyor under the directions of the county commissioners. This plat showed what was called "a public square" near the center of the town. It also appears that these commissioners obtained a patent for the land on which the town was situated June 1, 1848. This patent conveyed the land to said commissioners, as such, and to their successors in office forever. In 1849 a small court house and a jail were erected upon the public square, and it has been used for county purposes and as the seat of justice for said county ever since. The evidence shows that the commissioners intended the square to be used by the county as a place for its public buildings; that the county took charge of and improved it, sunk wells, graded and cared for it down to the time this controversy arose. Although the original dedication was somewhat ambiguous, there is no doubt in our minds that the dedicators intended to dedicate the square to the county, and that the county accepted the dedication. The parties in interest placed this construction upon the grant, and there is nothing in the language of the dedication which negatives this idea. The intent of the parties is controlling, and, where such intent is not specifically shown by the language of the grant, it may be established by parol. Agne v. Slitsinger, 96 Iowa 181, 64 N.W. 836, and cases cited; Young v. Mahaska County, 88 Iowa 681. In June of the year 1897 the city of Newton, in which the public square is located, by proper resolution determined to pave certain streets within the city, including these on the four sides of the square. By the terms of the contract let pursuant to this resolution the contractors were to accept special assessment certificates against abutting property in compensation for their labor. The paving was done according to the terms of the contract, and duly inspected and accepted by a foreman employed by the city. This action of the foreman was approved by the city council. Thereafter the city engineer filed a plat and schedule of the taxes to be assessed against the property fronting on the improvement. This plat designated the frontage in feet, and the amount proposed to be assessed on all property benefited thereby, including the square in question. This plat was approved by the city council, and an ordinance was passed making assessments accordingly. Jasper county was not mentioned in terms in the ordinance as recorded, but notice was given to it of the assessment, directing it to make objections, if any it had, to the proposed assessment, at a time fixed in the notice. The county appeared in response to this notice, and filed objections to the proposed assessment, based on some of the grounds urged on this appeal.
While there is no record showing an assessment against the county, it affirmatively appears that the original resolution or ordinance in fact passed by the council included all assessments as recommended by the city engineer, and that the protest filed by the county was disregarded. In recording the resolution or ordinance, the assessment in terms against the county was omitted by mistake or carelessness on the part of the city clerk. An assessment certificate against the public square was thereupon issued to the plaintiff, and this action is upon that certificate, and for judgment against the city in the event the assessment certificate is for any reason found invalid. In addition to the point already considered, there are other minor questions to be disposed of before going to the real merits of the controversy. The defendant county contends that there was never a valid assessment against its property, and that plaintiff cannot recover. It must be conceded that the record, as made up, does not in express terms show an assessment. The plat made by the city engineer referred to in the resolution was specifically adopted, and assessments were levied in accord therewith. There is also a showing that when the resolution was adopted the county was specifically named as one of the parties against whom the assessment was levied, and the amount thereof was stated. This original resolution is lost, but there is no doubt as to its contents. We are constrained to hold that the resolution as recorded of itself furnished sufficient evidence of an assessment under the authority of Dittoe v. City of Davenport, 74 Iowa 66, 36 N.W. 895. But, if this be not true, the evidence clearly shows an assessment in fact, and this is sufficient to support the action. Locker v. Keiler, 110 Iowa 707, 80 N.W. 433; Morgan v. Wilfley, 71 Iowa 212, 32 N.W. 265; Prouty v. Tallman, 65 Iowa 354, 21 N.W. 675; Hutchinson v. Board, 66 Iowa 35, 23 N.W. 249. There was a provision in the paving contract to the effect that all the laborers employed by plaintiff, except overseers and skilled men, should be citizens of the city of Newton. This provision is relied upon to invalidate the contract under the rule announced in Rodgers ex rel, People v. Coler, 166 N.Y. 1 (59 N.E. 716). That case is really an authority against the defendant county. There, as here, the work was completed, and the city as well as the property owners had received the benefit thereof. There is no claim that any damage resulted either to the city or to the property owners by reason of increased cost in the doing of the work or otherwise. Having had the benefits of the work, it does not lie in the mouth of the county or the city to say that it will not pay therefor on account of this provision of the contract. The other cases cited by the county on this proposition are not in point.
Some time after the county commenced to use the square the fences inclosing the same were set back some 12 feet from the street lines as shown by the recorded plat. For more than 20 years the city used these 12-foot strips as a part of the streets, and as a place for hitching and standing teams. In 1897 the city brought action against the county enjoining it from asserting title to these strips, claiming that they had been dedicated to the public as streets, or as parts of the streets around the block, and that the city had accepted the dedication. A decree was passed in that case finding for the city. It is now contended that by reason of the presence of these strips the county was not an abutting property owner. There is no merit in this claim. These strips became parts of the public streets, and were paved as such up to the lines of the block as they existed after these 12-foot strips were taken off. There can be no doubt that these strips became parts of the streets. The city claimed title to them as such, and the decree in the action against the county established the city's claim. Surely the city did not acquire the title either by prescription or otherwise, except for street purposes, and the defendant county's property abuts upon these enlarged streets.
We have now disposed of the minor contentions in the case against the county, and come to the more difficult and controlling questions in the case. To state them in the language found in appellee's brief, they are as follows: The first of these questions has given rise to much contrariety of opinion in the decisions of the courts and is by no means easy of solution. It is also rendered more than ordinarily perplexing by reason of at least two prior decisions of this court, to which we shall hereinafter refer. The statutes of the state, so far as applicable, read as follows: "The following classes of property are not to be taxed, and they may be omitted from the assessment herein required: (1) The property of the United States, and of this state, * * * the property of a county, * * * when devoted entirely the public use and not held for pecuniary profit." Section 1271, McClain's Code. Section 1274, which is the section following the exemption statute, commences, "All other property, real and personal, is subject to taxation in the manner directed." Section 1271 exempts from taxation the property of cities as well as counties. The law, however, charges counties with the obligation to maintain county roads, and imposes a like obligation upon cities. McClain's Code, section 630, is as follows: "They [cities] shall have power to construct sidewalks, to curb, pave, gravel, macadamize and gutter any highway or alley therein, and to levy a special tax on the lots and parcels of land fronting on such highway or alley to pay the expense of such improvement." Section 649 goes on to provide: ...
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