Fuller v. Incorporated Town of Rolfe, 49289

• Decision Date: 12 November 1957
• Docket Number: No. 49289,49289
• Citation: 249 Iowa 80,86 N.W.2d 249
• Parties: Omer B. FULLER, Jr., Plaintiff-Appellant, v. INCORPORATED TOWN OF ROLFE, Iowa, Defendant-Appellee. Florence Fuller WHITE and E. C. White, Verna F. Maxwell, Mary F. Munger, Mary Sherman Fuller, Carl Hansen, A. V. Graeber and Elnora F. Graeber, Plaintiffs-Appellants, INCORPORATED TOWN OF ROLFE, Iowa, Defendant-Appellee.
• Court: Iowa Supreme Court

Page 249

86 N.W.2d 249

249 Iowa 80

Omer B. FULLER, Jr., Plaintiff-Appellant, v. INCORPORATED TOWN OF ROLFE, Iowa, Defendant-Appellee Florence Fuller WHITE and E. C. White, Verna F. Maxwell, Mary F. Munger, Mary Sherman Fuller, Carl Hansen, A. V. Graeber and Elnora F. Graeber, Plaintiffs-Appellants INCORPORATED TOWN OF ROLFE, Iowa, Defendant-Appellee.

No. 49289.

Supreme Court of Iowa.

Nov. 12, 1957.

Omer B. Fuller, Rolfe, for appellants.

F. C. Gilchrist, Jr., Laurens, for appellee.

LARSON, Justice.

The only question presented by this appeal is whether the notice of appeal was served at such time as would give the court jurisdiction to hear an appeal from a special assessment levy by the town of Rolfe, Iowa. The trial court held it was not, and we agree.

Identical motions in each of the seven listed cases were filed and sustained, and they were consolidated for trial.

The facts were not in dispute. Pursuant to proper proceedings the town council of Rolfe met on November 7, 1956, and passed unanimously a resolution rejecting objections and approving a special assessment levy upon certain benefited property in the town, including plaintiff's property. The mayor of Rolfe, though present, did not sign the resolution, although he did declare it duly adopted by the council. Later when he was asked to sign the resolution he said to the clerk he 'didn't believe he was ready to sign it yet.' No further references were made to the matter and, when fourteen days had expired, the clerk made an indorsement on the resolution on November 23, 1956, to the effect that the mayor had refused to sign it and that it became effective under the provisions of section 366.5, Code of Iowa 1954, I.C.A.

On November 20, 1956, the plaintiff's notice of appeal was served and service was duly acknowledged by the town clerk. The notice stated plaintiff appealed 'from the assessment levied on November 7th, 1956, by the Town Council * * * against his properties * * * for a public improvement' and stated the matter would come before the district court in Pocahontas, Iowa, on February 4, 1957.

The town of Rolfe filed its motion to dismiss, which was sustained by the court for the reason that the action commenced was premature due to the fact that the resolution or levy did not become effective until the expiration of the statutory fourteen day period.

I. The right to appeal in matters of this kind is purely statutory. There is no inherent or constitutional right of appeal. The legislature has the power to grant or deny it. Thus, if an appeal is taken, notices thereof must be given in substantial compliance with the statutory provisions. State ex rel. McPherson v. Rakey, 236 Iowa 876, 878, 20 N.W.2d 43, 44, and citations; Bales v. Iowa State Highway Commission, Iowa, 86 N.W.2d 244 and citations; Woodward v. City of Iowa City, 212 Iowa 326, 329, 232 N.W. 806.

The statute prescribing the right of appeal to the district court from the town council's assessment or levy, section 391.88, Code 1954, I.C.A., provides:

'Any person affected by the levy of any special assessment for street improvements or sewers may appeal therefrom to the district court. * * *' (Emphasis supplied.)

Section 391.89, Code 1954, I.C.A. provides:

'Said appeal must be perfected: 1. By serving upon the mayor or clerk, in the manner in which original notices in ordinary actions are served, within fifteen days from the date of said levy, a written notice of appeal * * *.' (Emphasis supplied.)

It is defendant's contention the levy did not become effective until after November 22nd or from the date of said levy as indicated by the indorsement of the clerk heretofore referred to on November 23, 1956. Plaintiff, on the other hand, claims the levy was complete on November 7, 1956, and that the service of the notice on the 20th was a mere irregularity which would not avoid the jurisdiction of the district court to hear and decide the case.

II. Jurisdiction in the district court to hear a case obviously could not be obtained prior to the establishment of a cause of action. Therefore, until the levy was effective no cause of action accrued. The effective date must be determined under the facts related.

Section 366.5, Code of 1954, I.C.A. provides:

'The mayor shall sign every ordinance or resolution passed by the council before the same shall be in force, and, if he refuses to sign any such ordinance or resolution, he shall call a meeting of the council within fourteen days thereafter and return the same, with his reasons therefor. If he fails to call the meeting within the time fixed above, or fails to return the ordinance or resolution with his reasons as herein required, such ordinance or resolution shall become operative without such signature, and the clerk shall record it in the ordinance book, with a minute of the facts making it operative. * * *'

It is difficult to see how the language used could be construed in any other way than to require the signature of the mayor to make the resolution operative or effective, and to give him fourteen days to decide whether or not he has objections. Should he object, the resolution may be changed by further council action...