Gatch v. City of Des Moines

• Decision Date: 31 January 1884
• Citation: Gatch v. City of Des Moines, 63 Iowa 718, 18 N.W. 310 (Iowa 1884)
• Parties: GATCH v. THE CITY OF DES MOINES ET AL
• Court: Iowa Supreme Court

18 N.W. 310

63 Iowa 718

GATCH v. THE CITY OF DES MOINES ET AL

Supreme Court of Iowa, Des Moines

January 31, 1884

Appeal from Polk Circuit Court.

THIS is an action in equity to enjoin the collection of a sewer assessment, certified by the city of Des Moines to the auditor of Polk county, and by him placed on the tax lists for collection by the county treasurer. There was a trial in the court below, and a decree was entered for the defendant. The plaintiff appeals.

REVERSED.

C. H Gatch, pro se.

Williamson & Kavanagh, for appellees.

OPINION

ROTHROCK, CH. J.

On the 16th day of December, 1878, the city of Des Moines adopted an ordinance making provision for a general system of sewerage. It was provided in said ordinance that the city council might by resolution order the construction of a sewer on any street, and that the cost of construction of any sewer, not exceeding three dollars per lineal foot, should be assessed upon the adjacent property, and that all property should be considered adjacent which lies within one hundred and fifty feet of "the street or portion of the street on which the sewer is built--provided that, in case of regular city blocks, which are bisected by alleys running parallel to said sewer, then and in that case only such property shall be considered adjacent to a sewer as lies between said alleys and that portion of the street so sewered." By an amendment to the ordinance, it was provided that, whenever the construction of a sewer should be ordered, the cost of which was to be paid by assessment against adjacent property, it should be the duty of the officer superintending the work to keep an accurate account of all the expenses incurred, and to divide the same among the owners of property to be assessed pro rata, and "report the same to the committee on special assessments," which committee shall audit and correct said report "if any correction should be necessary, and report the same to the council, which might" order the said special tax to be levied and collected, as provided in sections 478, 479 and 480 of the Code.

On the 16th day of June, 1879, the city, by resolution of the council, ordered that a sewer be constructed from the intercepting sewer on Water street west, on Locust street, to Sixth street, thence north on Sixth street to Chestnut street. The contract for constructing the sewer was let, and on December 1, 1879, the city council by resolution assessed the entire cost of the sewer, including street crossings upon the adjacent property. In this assessment the east 150 feet of block H. of Grimmell's addition was assessed as the property of Maria Grimmell. The assessment was certified to the county auditor for collection by the county treasurer, and the auditor, knowing that the plaintiff herein was the owner of the north 132 feet of said east 150 feet, on his own motion apportioned the aggregate assessment of $ 759.60 between plaintiff and Maria Grimmell, in the proportion of their ownership of the property.

The foregoing are the facts which we deem necessary to state, to the end that the disposition which we may make of the case may be fairly understood. It is proper to state that the case grows out of the same proceedings as did that of Grimmell v. The City of Des Moines, 57 Iowa 144, 10 N.W. 330, and we do not deem it necessary to discuss any question which was determined in that case. It was there held that the sewer in question, although constructed upon more than one street, was a unit, and that it was, therefore, but one sewer, and that, because, when it reached Sixth street, it was extended up that street to Chestnut street, did not affect its unity, and that a single assessment therefor is valid. Nor do we deem it necessary or proper to discuss the questions as to the assessment of the property of plaintiff to another, which was afterwards corrected by the auditor. This was at most a mere irregularity which in no manner affected any right of the plaintiff.

A question is also made that the sewer was no benefit to the plaintiff's property. It is a sufficient answer to this proposition to say, that the expense of the improvement of streets by grading, paving, macadamizing, and laying sidewalks, has been too long imposed upon the abutting property in this state, without regard to benefits, to be now called in question. Warren v. Henly, 31 Iowa 31. The argument that an assessment for a sewer is not for an object public in its nature, like the improvement of a street, it appears to us is without merit. Sewerage in a populous city is not a mere private improvement for the convenience of a few persons. It is a matter of the most vital public concern, affecting the health and lives of the inhabitants; and enormous sums are expended in cities for this purpose, the cost of which is everywhere imposed upon the property of the city by some method of taxation.

We come now to the consideration of what appears to us to be the controlling question in the case. It is this: Was it necessary to the validity of the tax that the plaintiff should have had notice and an opportunity to be heard upon the question as to the assessment of the tax against him or his property? No such notice is required by chapter 162 of the Acts of the Seventeenth General Assembly, under which the city assumed to act in its ordinances and proceedings pertaining to the sewer in question. And no such notice is provided for in any ordinance or resolution of the city council. The plaintiff did not petition for the sewer, and he in no manner waived the right to appear and be heard in opposition to the assessment, or to procure the correction of errors therein before the final levy, if he had such right.

The tax laws of this state, and of the territory of Iowa, have from the beginning made provision and fixed a time within which the tax payer may appear and object to the assessment of his property, and have designated the officers or board that shall decide and hear objections to the assessments as returned by the assessor. Territorial laws of 1838-9, page 403, Sec. 7; Rev. Stat. of Ter. of Iowa, 1843, p. 548, Sec. 7; Code of 1851, p 83, Sec. 484; Acts of 1858, p. 315, Sec's 31, 32; Rev. of 1860, Sec's 739, 740; Code, Sec's 829-831. In all these statutory provisions, the notice is given by the law itself fixing the time when the objections must be made. It is true that, because the tax laws have always contained these provisions, it does not necessarily follow that the right to have notice and appear and object is an absolute right of the citizen. But it unmistakably shows that the legislative branch of the government regarded the right to notice, and to appear and be heard in such cases, to be of controlling importance to the owners of property, as securing them against oppressive and unjust exactions. We have examined the arguments and authorities cited by counsel upon both sides of this question with care, and in the same connection we have had the aid of the arguments and citation of authorities in the case of The Trustees of Griswold College v. The City of Davenport, submitted at the same term with the case now under consideration, and our conclusion is that, because of the want of any provision for notice in either the statute of the state or ordinances or resolutions of the council, and the want of any opportunity for a hearing, the assessment must be held to be invalid.

In Stuart v. Palmer, 74 N.Y. 183, this question was expressly determined. The court in that case say: "I am of opinion that the constitution sanctions no law imposing such an assessment without a notice to, and a hearing or an opportunity of a hearing by, the owners of the property to be assessed. It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard. It matters not, upon the...