Grimmell v. City of Des Moines

• Court: Iowa Supreme Court
• Writing for the Court: BECK, J.
• Citation: Grimmell v. City of Des Moines, 57 Iowa 144, 10 N.W. 330 (Iowa 1881)
• Decision Date: 25 October 1881
• Parties: GRIMMELL v. THE CITY OF DES MOINES

10 N.W. 330

57 Iowa 144

GRIMMELL v. THE CITY OF DES MOINES

Supreme Court of Iowa, Des Moines

October 25, 1881

Appeal from Polk Circuit Court.

ACTION in chancery to cancel and set aside an assessment made upon plaintiff's property for a sewer constructed in a street adjacent thereto. Upon a trial on the merits plaintiff's petition was dismissed. She now appeals to this court.

AFFIRMED.

Barcroft Gatch & McCaughn, for appellant.

Miller & Godfrey, for appellee.

OPINION

BECK, J.

I.

The City of Des Moines caused a sewer to be constructed beginning at Water street, and running thence along Locust and Sixth streets to the intersection of Chestnut street. The cost of its construction was assessed upon the lots adjacent to the streets along which it was built. Plaintiff owns a block of lots abutting upon the part of Sixth street where the sewer is constructed. An assessment was made upon this block to pay for the construction of the sewer. Plaintiff claims that for various reasons the assessment is irregular and void, and brings this action, praying that it may be canceled and set aside.

The case may be more briefly and satisfactorily disposed of by considering the objections made by plaintiff to the tax in the order we find them discussed in the argument of her counsel. The facts involved will be stated in connection with our discussion of the several points.

II. It is first insisted that the defendant by failing to comply with the statute of the State did not acquire authority to assess the cost of constructing the sewer upon adjacent lots. The statute conferring such authority upon cities of the first class is chapter 162, Acts Seventeenth General Assembly, the first section of which is in the following language:

"All cities of the first class in the State which have not commenced a general system of sewerage by the levy and expenditure of any tax therefor under the provisions of chapter 107, Acts of the Sixteenth General Assembly, may provide by ordinance for the construction of sewers, or may divide the city into sewerage districts, in such manner as the council may determine, and pay the cost of constructing same out of the general revenue of the city, or assess the cost upon the adjacent property, or may levy a certain sewerage tax within the sewerage district, out of which to pay for the construction of the same, which sewerage tax shall not exceed, in any one year, two mills on the dollar of the assessed value of the property within such district; or, may pay a part of the cost of such construction out of the general revenue, a part by the assessment of adjacent property, and a part by levying a tax upon all the property within the sewerage district, or may pay for the same by pursuing any two of the methods herein named"

The ordinance of the city passed pursuant to the statute provided that the city shall constitute but one sewerage district.

Counsel for plaintiff insist that, as the city has not been divided into two or more sewerage divisions, it cannot provide for the payment of the cost of constructing sewers under the provisions of the statutes above quoted, but must do so under the statutes by appropriations out of the general revenue of the city or out of a special two per cent sewer tax. See Code § 465; section 1, chapter 107, Acts Sixteenth General Assembly.

We will first inquire whether under the act just quoted the city has authority to create one sewerage district comprising all of its territory.

The statute provides that by ordinance the municipal government "may divide the city into sewerage districts in such manner as the council may determine." This language authorizes the creation of more than one district, but if it be consistent with other words of the statute and in accord with its reason and spirit it may be so construed as to authorize the creation of one district, for "words importing the plural number may be applied to one person or thing." Code, § 45, P 3. The intention of the statute is to authorize the cities to create taxing districts for the purpose of a just distribution of the burdens imposed in the construction of sewers. Their number, size, boundaries, etc., are left to the discretion of the legislative department of the municipal government. This discretion is to be exercised to attain the objects of the provision, namely, the equal distribution of the burdens of taxation among the tax payers in view of the benefits of the improvement to be constructed and the true interests of the city. The right attainment of this end, resting, as we have said, in the discretion of the city council, is not a matter of inquiry by the courts, unless, of course, the rights of citizens are encroached upon.

Now if the city determines that only one taxing district is demanded by the circumstances of the case, it has exercised the power imposed upon it; it has done what the statute authorizes, namely, has provided for taxation by the plan contemplated through the taxing district. We conclude that the city is authorized to constitute but one sewerage district for the whole city.

III. The ordinance of the city provides for the manner of constructing sewers, for letting the work, for the levy of assessments to pay therefor, etc., and that the city council may by resolution order the construction of a sewer upon any street by a majority vote when such improvement is asked for in a petition by a majority of the resident property holders or by a two-thirds vote of the council if there be no such petition. The resolution contemplated by this ordinance was passed. But counsel for plaintiff insist that the work could be ordered only by ordinance. But the statute above cited expressly declares that the city "may provide by ordinance" for the construction of sewers. This defendant has done in compliance with this provision of the statute. The authority conferred by the statute and assumed by the ordinance was brought into exercise and applied to the sewer in question by the...