Ellyson v. City of Des Moines

• Decision Date: 05 April 1917
• Docket Number: 31100
• Parties: G. D. ELLYSON et al., Appellees, v. CITY OF DES MOINES et al. Appellants
• Court: Iowa Supreme Court

162 N.W. 212

179 Iowa 882

G. D. ELLYSON et al., Appellees, v. CITY OF DES MOINES et al. Appellants

No. 31100

Supreme Court of Iowa, Des Moines

April 5, 1917

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

ACTION in equity, by which plaintiffs seek to enjoin the officers of defendant city from levying a paving assessment. Appellees are property owners along Grand Avenue in the city of Des Moines, owning property abutting on or lying within 300 feet of either side of Grand Avenue, between the west line of Nineteenth Street and the east line of Twenty-eighth Street. The defendants are officers of the city, and the contractor is also made a defendant. The petition was filed on September 2, 1915. The substance of the complaint by plaintiffs in their petition is in regard to alleged illegal acts of the city council, in that the resolution of necessity, under which it was sought to levy a tax against the properties, was for repairing a street by patching, and that the work undertaken and done was reconstruction, and not repairs; that the resolution of necessity did not describe the work undertaken, and that there was collusion between the city officials and the contractor; that the work was of a different kind than contemplated in the resolution of necessity, and worked a fraud on the property owners; that the city was without jurisdiction, because the proper steps were not taken by the council to subject plaintiffs' property to special assessment. The claim is that the contract was void. The answer of defendants was a denial of the allegations of the petition, except as to certain formal parts which were admitted, and an affirmative plea of an estoppel, based upon the alleged fact that plaintiffs had full knowledge of the work as it progressed, and all facts in regard thereto, and failed to make any objection to the work until after it had been done and the improvement completed. There was a trial on the merits, and a decree for plaintiffs. The defendants appeal.--Reversed.

Reversed and Remanded.

H. W Byers, Eskil C. Carlson, Earl M. Steer, M. H. Cohen and E. J Kelly, for appellants.

Parson & Mills, for appellees.

PRESTON J. GAYNOR, C. J., LADD and EVANS, JJ., concur.

OPINION

PRESTON, J.

1. The basis of the trial court's finding was that it is not within the power of the city to levy a special assessment for work that is not of the character denominated in the resolution of necessity; that this was a jurisdictional defect; and that, therefore, a court of equity has power to enjoin the levying of a tax to pay for such improvement.

This is not a case where it is claimed that the contractor has failed to comply substantially with his contract by doing less work than called for, or that the work and materials are of an inferior quality. There is no claim that the pavement as completed is not a good pavement. It is asserted by one side, and not denied by the other, that it is probably now the best pavement in the city. The complaint is substantially that the city council, or the contractor, did more work under the pretended authority of the contract and proceeding upon which the same is based than said proceedings and contract warranted; that, in ordering the improvement, the council contemplated the removal of only a part of the asphalt surface, whereas the work, as actually done, came so near to a removal of the entire asphalt surface as to amount to a resurfacing or reconstruction; and that this was not within the contemplated action of the council, of which appellees had notice; and that, therefore, the entire contract is thereby vitiated and void, and no assessment can be levied thereunder.

Grand Avenue is one of the principal business and residence streets in the city. It extends entirely through the city, from east to west. That part of said street involved in this appeal is used entirely as a boulevard, or residence street, and is 44 feet wide between the curbs. The distance from the west line of Nineteenth Street to the east line of Twenty-eight Street is 3,157 feet. Prior to the improvement in question, that portion of the street involved herein was paved and curbed. The curbing consisted of an ordinary cement curb, and the pavement, of an asphalt wearing surface about 2 1/2 inches in thickness, laid on a concrete base. It is agreed by all parties that, some time prior to the improvement in question, the asphalt wearing surface had become, at least to some extent, worn, and contained holes, waves and other defects.

On April 14, 1915, a resolution of necessity was introduced in the city council, which was duly passed on May 12th, and notice of the pendency of said resolution given. The material part of such resolution is as follows:

"That it is deemed advisable and necessary to make improvements by repairing by patching with sheet asphalt, consisting of 1 1/2 inches of wearing surface, and 1 inch of binder course, upon the present concrete foundation, the foundation to be prepared and the paving to be constructed in accordance with specifications furnished by the city engineer and approved by the city council of Des Moines, Iowa, the following named streets and parts of streets, to wit:" (Then follows the description of that part of the street before set out.)

Specifications were filed May 19, 1915, and on that date, the council passed a resolution ordering the constructing of said improvement. The essential parts of this resolution are as follows:

"Be it resolved by the city council of the City of Des Moines: That, pursuant to a resolution of necessity, proposed at a meeting of the city council on the 14th day of April, 1915, and duly passed the 12th day of May, 1915, it is hereby ordered and directed upon motion of this council, without petition of property owners, that the following improvement be constructed in the manner specified in the said resolution of necessity, as passed, to wit: Repairing by patching with sheet asphalt, consisting of 1 1/2 inches of wearing surface and 1 inch of binder course, upon the present concrete foundation, Grand Avenue from the west line of Nineteenth Street to the east line of Twenty-eighth Street."

Thereafter, bids were advertised for as provided by law, and the contract awarded to defendants Horrabin & Co., on July 27, 1915. The specifications were referred to in the contract and made a part thereof. The material part of said contract is as follows:

"This contract, made and entered into this 27th day of July, 1915, by and between James Horrabin & Co., party of the first part, and the city of Des Moines, in the county of Polk, and state of Iowa, party of the second part, witnesseth: That the said party of the first part hereby agrees to furnish at his own expense all necessary material and labor, and to construct the improvement hereinafter designated, in a thorough, substantial and workmanlike manner, and in strict compliance with the requirements of this contract and of the specifications and plans hereinafter set out or referred to, or hereto attached, to the satisfaction and approval of the city engineer and the superintendent of department of streets and public improvements of the city of Des Moines, to wit: Repairing by patching with sheet asphalt consisting of 1 1/2 inches of wearing surfact and a 1 inch binder course upon the present concrete foundation, Grand Avenue from the west line of 19th Street to the east line of 28th Street, 9,000 square yards, more or less. The party of the first part shall begin said work at such point as the superintendent of the department of streets and public improvements may direct, and shall conform to the directions of said superintendent as to the order in which the several parts of said work shall be done and the mode of performing the same."

The instructions to bidders, which formed a part of the specifications, provided, among other things:

"The work to be done under this contract will consist of the repairing and patching Grand Avenue from the west line of Nineteenth Street to the east line of Twenty-eighth Street with sheet asphalt, consisting of 1 1/2 inches of wearing surface and 1 inch of binder course upon the present concrete foundation. The amount of work to be done is the repairing and patching of about 9,000 square yards of pavement, to be assessed against the abutting property."

Provision was made for repairing depressions or holes in the concrete base, and some minor repairs of this character were made to the foundation itself, but we do not understand appellants to complain in argument of this.

One paragraph of the general specifications provides:

"The work shall be commenced at such a place and prosecuted in such a direction as the superintendent of the department of streets and public improvements, or the city engineer, may direct. Sidewalks and gutters must be kept open and unobstructed at all times."

Attached to the specifications, which were approved by the city council by resolution adopted May 19, 1915, was a plat of said improvement. This plat contains the following notation:

"Notes. Parts to be repaired to be designated by the city engineer."

And further:

"Plat for paving repair, Grand Avenue, Nineteenth Street to Twenty-eighth Street. Rec. No. 727. 5--19--15. Estimated 9,000 square yards."

Early in August, 1915, the defendant contractor began the work, under the provisions of the contract before referred to. The work was completed about August 28, 1915. All the work done by the contractor was under the direct supervision of one of the city engineers. The extent of the work done by the contractor is shown on a plat which is set out in the record. In a general way, the plat shows that the contractor removed the asphalt surface the full width of the street from...