Ft. Dodge Electric Light & Power Co. v. City of Ft. Dodge
| Decision Date | 05 February 1902 |
| Citation | 89 N.W. 7,115 Iowa 568 |
| Parties | FT. DODGE ELECTRIC LIGHT & POWER COMPANY v. THE CITY OF FT. DODGE, J. H. ABLE, County Treasurer of Webster County, and IOWA NATIONAL BANK, Intervenor, Appellants |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--HON. J. R. WHITAKER, Judge.
ACTION by plaintiff, as owner of a street car line in defendant city, to enjoin the collection of a special assessment for paving a street on which the line in situated. The Iowa National Bank intervened, claiming to be the owner, by assignment from J. W. Campbell, of certificates issued for the assessment against the street car line, and asking to have such certificates enforced against the plaintiff or the defendant city. The trial court enjoined the collection of the assessment as against plaintiff, and held the defendant city not liable to intervener for the amount of the certificates. Both the intervener and the city appeal, but the intervener will be designated as "appellant." Affirmed in part and reversed in part.
AFFIRMED in part and REVERSED in part.
J. K Macomber for intervener.
M. J Mitchell and Wright & Nugent for City of Ft. Dodge and County Treasurer.
Botsford Healy & Healy from Ft. Dodge Electric Light & Power Co.
The paving contract in pursuance of which the certificates were issued which give rise to the controversy in this case was made in August, 1896, J. W. Campbell being the contractor. A part of the paving provided for was completed in the fall of that year, and another part in the fall of the year following; the latter part of the work being accepted by the city November 4, 1897. The assessment for the first part of the work was made in December, 1896, and for the second part in December, 1897; and in each assessment a portion of the cost was taxed to the plaintiff, and certificates were issued therefore to Campbell, the contractor, which certificates were afterwards assigned to the intervener, the Iowa National Bank.
I. Plaintiff contends that the city had no authority to assess any portion of the cost of the improvement to it as owner of the street car line in the improved street. It appears that, when the franchise was granted by ordinance to plaintiff's assignor in 1894 to construct a street car line, it was provided that the grantee of the franchise should not in any case be required to pave, macadamize, or make any improvements upon the streets, except as necessary in the construction of its line, and that the track of plaintiff's road was laid in the street after the contract for paving was let, and before the work was actually done. At that time there was no statute applicable to the city of Ft. Dodge which required that a portion of the cost of paving streets be assessed to owners of street car lines thereon. The provision of Chapter 7, Acts 25th General Assembly, then in force, and applicable to said city, was that "whenever any railroad or street railway may have been constructed and shall remain upon any street which the council may direct to be paved at the time when such direction shall be given, and when the owner of such railroad or street railway may be bound to pave any portion of said street by law or ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city under which said railway or street railway may have been constructed or may be maintained, and if the owner shall fail or refuse to comply with the order of the council to do such paving, then the portion of the cost of paving such streets assessable upon said railroad or street railway shall be ascertained and shall be assessed against such street railway." But conceding that the city was not bound by the terms of the franchise, and might have directed that a portion of the cost be assessed to the street car company, no such direction had been made. See, as somewhat applicable to this question, Lacey v. City of Marshalltown, 99 Iowa 367, 68 N.W. 726. The city had no authority, therefore, in 1896, when it made the first assessment, to impose a portion of the burden on plaintiff. Nor do we think it had any such authority in December, 1897; for while the Code of 1897 had then taken effect, by section 834 of which it is provided that street railway companies shall be required to pave between the rails of their tracks, and one foot outside thereof, at their own expense, "unless by ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city under which said * * * street railway may have been constructed or maintained, it may be bound to pave * * * other portions of said street, and in that case said * * * street railway shall make, reconstruct and repair the paving * * * of that part of the street specified in such ordinance," yet this provision, we think, was intended to be applicable to street improvements undertaken in pursuance of the authority conferred by the Code itself. The contract for the entire work had been entered into prior to the taking effect of the Code of 1897, and by section 51 of that Code the resulting repeal of existing statutes is not to affect any act done or any right accruing, or which has accrued or been established. Evidently the rights and liabilities of the parties with reference to work done under this contract were settled by the law under which the contract was made, and they were not to be affected by the repeal of that law made by the Code of 1897. See Thoeni v. City of Duquque, 115 Iowa 482, 88 N.W. 967. As the section of the Code above referred to does not apply, therefore, to this case, it is unnecessary to discuss the question of construction argued,--as to whether, under that section, an assessment on a street railway company may be levied, regardless of a prior exemption made by city ordinance of the property of the company from such assessments. We do not wish to be understood as passing upon the question whether the legislature may impose liability for a share of the expense of paving upon a street car company, in contravention of an exemption given in a franchise from the city. No such question is raised. Appellant contends that the plaintiff should have appealed, under section 839 of the Code of 1897, which provides that "any person affected by the levy of any special assessment provided for in this chapter may appeal therefrom to the district court within ten days of the date of such levy," and that "upon such appeal all questions touching the validity of such assessment, or the amount thereof," shall be heard and determined. If the city council had no authority whatever to assess the property of plaintiff for this improvement, then plaintiff may enjoin the enforcement of the assessment without resorting to the appeal thus provided for. Remey v. Board, 80 Iowa 470; Brownlee v. Marion County, 53 Iowa 487, 5 N.W. 610; Macklot v. City of Davenport, 17 Iowa 379; Powers v. Bowman, 53 Iowa 359, 5 N.W. 566; Smith v. Osburn, 53 Iowa 474, 5 N.W. 681; Barber v. Farr, 54 Iowa 57, 6 N.W. 134; Wangler v. Blackhawk County, 56 Iowa 384, 9 N.W. 314; Standard Coal Co. v. Independent Dist. of Angus, 73 Iowa 304, 34 N.W. 870. Moreover, the provision of the Code of 1897 as to appeals seems to be limited to proceedings to make assessments under the provisions of the Code. As we have seen, this assessment was not made under the Code, but under prior statutes, and at a time when there was no provision for such an appeal. We find, therefore, that plaintiff was not liable under these assessments, and that the lower court correctly so held.
II. In the contract for the paving it was stipulated that the contractor should receive the special assessment certificates in full payment, excepting in so far as the city obligated itself to pay the cost of paving in front of the city square and at street and alley intersections. But intervener contends that the city is liable for the amount represented by certificates issued against the assessments of the plaintiff, which, as we have seen, are invalid. If the city had no authority to assess any portion of the cost of this improvement to plaintiff, then the entire amount which was assessed to plaintiff might have been included in the assessment to abutting property owners, and certificates representing such assessments would have been valid. Therefore, by the erroneous action of the city in making the assessments, intervener, as holder of the assessment certificates--not only those representing the assessments against the plaintiff, but also those representing assessments against abutting property owners--has been damaged to the amount of the void certificates. This is not a case where the city undertook to do something which it could not do, and which the party contracting with it was bound, as matter of law, to know it could not do. Here the city could have done what it agreed to do (that is, have made a valid assessment on abutting property for the entire cost of the improvement not directly assumed by the city), and it failed to do so. The party contracting with the city had no control over the method of determining the part of the cost which should be assessed to each property owner, nor over the method of issuing certificates. If, by the wrongful action of the city, he is unable to realize on any of the certificates issued to him, by reason of the wrongful action of the city council in carrying out the contract between him and the city, then we think he has a right to recover from the city. It has been frequently decided that where a city issues obligations payable out of a special fund, which it has authority to raise, but fails to take the steps necessary to bring such fund into existence, the holder of the obligations may recover against the city. In Reilly v....
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