Gill v. Patton

• Decision Date: 17 October 1902
• Citation: 91 N.W. 904,118 Iowa 88
• Parties: THOMAS H. GILL, Appellant, v. DANIEL T. PATTON et al, Appellees
• Court: Iowa Supreme Court

91 N.W. 904

118 Iowa 88

THOMAS H. GILL, Appellant, v. DANIEL T. PATTON et al, Appellees

Supreme Court of Iowa, Des Moines

October 17, 1902

Appeal from Polk District Court.--HON. CHAS. A. BISHOP, Judge.

ACTION in equity asking that a special tax reassessed against lots in the city of Des Moines for the construction of a sewer, be declared void, and that the plaintiff be permitted to redeem from the tax sale for said special tax. Judgment for the defendants, from which the plaintiff appeals.

Reversed.

Wm. H Baily for appellant.

Nelson Royal and J. E. Mershon for appellees.

OPINION

SHERWIN, J.

The original assessment against the lots involved in this action was held illegal and void by the district court because the proposal for bids did not state as nearly as practicable when the work should be done, or when the proposals would be acted upon. After this decision the city council passed an ordinance which referred thereto, and which, in terms, ratified and confirmed all prior proceedings relating to the construction of the sewer, and provided for a reassessment of its cost upon abutting property. A reassessment was accordingly made under the terms of said ordinance, and the appellant now contends that it is invalid because of the holding of the district court in the original case, and that chapter 44, Acts 22d General Assembly should be limited in its operation to void or irregular assessments made prior to its passage.

Neither of these views can be sustained. Section 1 of said chapter provides that "whenever, by reason of an alleged nonconformity to any law or ordinance or by reason of any omission or irregularity, any special tax or assessment is either invalid or its validity is questioned, the city council may make all necessary orders and ordinances and may take all necessary steps to correct the same and to reassess and to relevy the same, including the ordering of work, with the same force and effect as if made at the time provided by law or ordinance relating thereto, and may reassess and relevy the same with the same force and effect as an original levy." The purpose of this act was to give cities the power to correct alleged irregularities or omissions, so that no property which was properly subject to a special tax should be permitted to escape its just proportion of the public burdens. Its language in no sense limits its operation to prior assessments. On the contrary, it expressly says that "whenever" such assessments are questioned the city council has power to act under its provisions. It was clearly intended to avoid the necessity of repeated acts curing illegal or defective special assessments. As said in Tuttle v. Polk, 84 Iowa 12, 50 N.W. 38, it applies to acts previously done, as well as proceedings in the future. By its very terms it applies to any tax which is either "invalid or its validity is questioned." The fact that the original assessment was declared void by the district court did not estop the council from ordering a reassessment, for the very reason that the act under consideration provides for a reassessment when the original assessment is invalid, and there is no surer method of determining its validity than by the judgment of a court having jurisdiction of the matter. Furthermore, section 7 chapter 6, Acts 22d General Assembly, provides for such reassessment "when any assessment shall be adjudged to be illegal by a court of competent jurisdiction." That it was competent for the legislature to thus enact cannot, we think, be questioned. Richman v. Supervisors, 77 Iowa 513. And the prior adjudication in no way affected the reassessment. Richman v. Supervisors, supra; Tuttle v. Polk, supra. This conclusion...