Gilchrest & Co. v. City of Des Moines

• Decision Date: 10 June 1911
• Citation: 131 N.W. 776
• Court: Iowa Supreme Court
• Parties: GILCHREST & CO. v. CITY OF DES MOINES (BARBER ASPHALT PAVING CO., INTERVENER).

131 N.W. 776

GILCHREST & CO.

v.CITY OF DES MOINES (BARBER ASPHALT PAVING CO., INTERVENER).

Supreme Court of Iowa.

June 10, 1911.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

The Barber Asphalt Paving Company and the City of Des Moines appeal from a decree setting aside assessments for paving and denial of other relief. Affirmed in part and reversed in part.R. O. Brennan, City Sol., for appellant City of Des Moines.

Read & Read, for appellant Barber Asphalt Paving Co.

Hager & Powell, Henry & Henry, Craig T. Wright, and Thos. F. Stevenson, for appellees.

LADD, J.

[1] The city council of Des Moines received a proposed resolution of necessity for the improvement of Forest Drive from the east line of Twenty-Eighth street to the west line of Twenty-Ninth street, TwentyNinth street from the north line of Forest Drive to the south line of Grand avenue and Ridge Road from the west line of Twenty-Eighth street to the east line of Twenty-Ninth street “by paving with asphalt having a one and one half-inch wearing surface and a one-inch binder course on six inches of cement concrete foundation,” the paving to be constructed in accordance with specifications furnished by the city engineer and approved by the board of public works, and October 1st following was designated at the time for hearing objections thereto. Notwithstanding the objections of four abutting lot owners, the council ordered the improvement “without the petition of the owners of the majority of the linear front feet of property abutting thereon,” and directed the board of public works to advertise for proposals and enter into contract for the improvement. The plans and specifications were presented by the board of public works and approved by the council November 5, 1906. Notice of receiving bids for construction described the improvement as it appeared in the resolution, but referred to the plans and specifications for particulars and the Barber Asphalt Paving Co., being the successful bidder, a contract was entered into under which it undertook to construct the improvement “designated in a thorough, substantial and workmanlike manner and in strict compliance with the requirements of this contract and of the plans and specifications.” The latter stipulated that the “work done under these specifications shall be first class, and the entire work shall be done in a thorough and workmanlike manner and to the satisfaction of the board of public works and city engineer.” The paving having been completed, the city engineer prepared the assessment schedule, and presented the same with his approval indorsed thereon to the board of public works August 21, 1907. One of the members of the board before consulting the other indorsed his approval on the assessment schedule, but the other member declined to do so and attached a memorandum to that effect. Nothing was done thereafter until the city had organized under chapter 48 of the Acts of the 32d General Assembly. Under this change, the city council elected March 31, 1908, succeeded to all the powers of the board of public works, and it ordered that notice be given the several owners of property assessed of the time and place of hearing objections thereto, which was done. Gilchrest & Co. and 26 others filed objections. A hearing was had, and upon advice of the attorneys of the city, the council resolved that it had “no power to review or set aside the action of the former city officers and therefor has no power to pass upon the objections so far as they relate to the character and quality of the improvement, and as to such matters the council is bound by the action of former city officers and therefore declines to consider or determine the objections in respect thereto,” and proceeded to approve the schedule of assessments and levied the several amounts as reported by the city engineer against the respective lots. From this order, Gilchrest & Co., and 26 other objectors appealed to the district court where the several appeals were consolidated. The Barber Asphalt Paving Company filed a petition of intervention alleging compliance with its contract and praying that the assessments be confirmed and in event that this should not be done that it have judgment against the city for any assessments declared illegal with interest. Answers thereto were filed by the city and the objectors and the latter filed a pleading suggesting the want of jurisdiction because of a defect in publishing notice of the resolution of necessity. The district court by decree set the assessment aside and dismissed the intervener's petition. As this is an appeal from the levy of the assessment by the city council, only the objections urged before that body may be considered, and only those argued by the parties will be reviewed.

[2][3] 1. The first objection was that neither in the resolution of necessity nor in the published notice thereof was the kind of material to be used in making the “cement concrete foundation” or the asphalt wearing surface designated. Section 810 of the Code requires that “the kind of material proposed to be used” shall be stated in such resolution and notice be given as therein required. This resolution is but a proposition and preliminary to ordering the improvement. Ordinarily, it is presented long before the plans and specifications are prepared and by those not having expert knowledge of the details of construction and all required, as we think, is that the kind of material be stated in a general way without going into detail or specifying the elements entering into the construction of the material mentioned. The particular objection urged is that the resolution did not specify the kind of cement to be used in the concrete foundation and the asphalt wearing surface. There are several kinds of cement which might be employed in mixing concrete, different kinds of rubble which could be used therein and sand of varying quality and fineness. It would be impractical for those unskilled in engineering to say in advance precisely which would be the more desirable from an engineering and economic point of view. But those interested and the council can choose between vitrified brick, asphalt, bitulithic pavement, creosote blocks and the like, and as readily can fix upon the general character of the foundation and this is what seems to have been contemplated by the statute. The notice, of course, need not be more specific than the resolution. The objection was rightly held to have been groundless. Nixon v. Burlington, 141 Iowa, 316, 115 N. W. 239.

[4][5] 2. The third objection asserts “that notice as required by section 810 of the Code as to time when said resolution of necessity would be considered for passage was never given as provided by law.” Though not as specific as it might have been this significantly directs attention to the publication of the notice fixing the time of hearing objections to the proposed improvement and could not have been understood otherwise than as challenging the sufficiency of such publication. The same nicety in making objections of this kind as in court proceedings is not exacted, and the contention that this did not raise the point that the notice was not published a sufficient number of times cannot be sustained. The evidence shows conclusively that the notice of the resolution of necessity was published in a newspaper but three times, the 8th, 10th, and 15th of September, 1906. An affidavit of the foreman of the publisher filed with the city clerk indicated that the notice had been published on the 14th of the month also but this was conclusively proven to have been erroneous. Because of this defect in the service of the notice the objectors insist that the city council were without jurisdiction to order the improvement or make the assessment. The general power of improving the streets is conferred on cities by section 792 of the Code, but this is to be exercised only upon petition of owners of a majority of the lineal feet abutting on the street to be improved or in the absence of petition when directed by three-fourths of all the members of the council. Sections 793, 794, Code. The procedure is that prescribed by sections 810 and 811 of the Code. Section 810 provides that: “When the council of any such city shall deem it advisable or necessary to make or reconstruct any street improvement or sewer authorized in this chapter, it shall, in a proposed resolution, declare such necessity or advisability, stating the kind of material proposed to be used and method of construction, whether abutting property will be assessed, and, in case of sewers, the kind and size, and what adjacent property is proposed to be assessed therefor, and in both cases designate the location and terminal points thereof, and cause twenty days' notice of the time when said resolution will be considered by it for passage to be given by four publications in some newspaper of general circulation published in the city, the last of which shall be not less than two nor four weeks prior to the time fixed for its consideration, at which time the owners of the property subject to assessment for the same may appear and make objection to the contemplated improvement or sewer and the passage of said proposed resolution, at which hearing the same may be amended and passed or passed as proposed.” Section 811. “Upon compliance with the preceding section, the council may, by ordinance or resolution, order the making or reconstruction of such street improvement or sewer, but the vote shall be by yeas or nays, and entered of record, and the record shall show whether the improvement was petitioned for or made on the motion of the council.” The manifest design of these statutes is to afford abutting property owners an opportunity to be heard on the propriety of making the proposed improvement, the character of that to be made and in a way to bring them in as parties to the enterprise. They are to...