Grunewald v. City of Cedar Rapids

• Decision Date: 27 October 1902
• Citation: 91 N.W. 1059,118 Iowa 222
• Parties: W. J. GRUNEWALD, Plaintiff, v. CITY OF CEDAR RAPIDS, AND FORD & DE LA HUNT AND NANCY REED, Intervenor, Appellants,
• Court: Iowa Supreme Court

91 N.W. 1059

118 Iowa 222

W. J. GRUNEWALD, Plaintiff, AND NANCY REED, Intervenor, Appellants, v. CITY OF CEDAR RAPIDS, AND FORD & DE LA HUNT

Supreme Court of Iowa, Des Moines

October 27, 1902

Appeal from Cedar Rapids Superior Court.--HON. J. H. ROTHROCK Judge.

THE pleadings and evidence show that Cedar Rapids is a city under special charter, indebted to exceed its constitutional limit with no money available for a district sewer fund, and that notwithstanding this situation, its council adopted an ordinance creating of the entire city one sewer district and, by appropriate resolutions, contracted with Ford & De La Hunt for the construction of a sewer system costing $ 102,767. The above ordinance also provided for the establishment of a fund to be known as the "district sewer fund;" that the cost of building or rebuilding be borne by the real estate within the district; that the council levy thereon the entire cost at one time to be apportioned in ten annual payments; that, in an anticipation of said payments, bonds should be issued as the work progressed, and might be paid the contractor, or sold, and the proceeds paid him; that the city should not be liable save for the proper levy and application of the said special taxes. This action was begun by W. J. Grunewald to test the validity of certain sections of the Code and the ordinances of the city, and prayed that the latter be declared void, and the contract invalid. Thereafter Nancy Reed intervened, and asked for substantially the same relief. Upon hearing, both the petition of plaintiff and that of intervener were dismissed, and they appeal.

Affirmed.

T. M. Giberson and W. J. Grunewald for appellant Grunewald. J. A. Reed and Rickel, Crocker & Tourtellott for appellant Reed.

Redmond & Stewart for appellees Ford & De La Hunt. J. N. Hughes for appellee City of Cedar Rapids.

OPINION

LADD, C. J.

The practical object of this action is to enjoin the construction of a sewer system according to the district plan provided in the Code. The ordinance adopted by the council of Cedar Rapids in 1900 contains substantially the same provisions as the statutes. It created of the entire city one sewer district, as was authorized by section 794 of the Code, providing that the council "may by ordinance divide such city into such sewer districts as the council may determine, numbering them consecutively, or the entire city may be included in one district." See section 962. It also authorized the city council to levy at one time the whole of the cost of any such sewer as an assessment on all the taxable real property within said district subject to special taxation. Appellants contend that the statutes do not confer authority "to levy a district sewer fund on all the real estate" of the city included in a single district. The power to levy the tax for a sewer fund is found in subdivision 3 of section 1005 of the Code: "Where the city has been divided into sewer districts, a tax not exceeding five mills on the taxable real property in the district, for the district sewer fund, to be used to pay in whole or in part, the cost of the making, reconstruction or repair of any sewer located or laid in that particular district; provided that, on petition of the owners of two-thirds in value of all the taxable real estate within such sewer district for the construction of a sewer in such district, then the maximum percentage of taxes that can be levied in any one year shall not be limited to five mills but shall be such percentage of the valuation of such property as will produce at least one-tenth of the whole cost of such sewer assessable upon the real property in such district." The point made is that this section contemplated the creation of more than one district. It is plain, however, that the division suggested is that authorized by the statute heretofore quoted. The very object in allowing the creation of one or more districts was to effectuate the just distribution of the burdens, imposed in making the improvement. Save for that purpose, nothing could be attained in dividing the city or by including it in one district. Words importing the plural number may be applied to one person or thing (section 48, Code), and, in order to give full effect to both sections, the last must be construed to have reference to such district or districts as may be formed under the authority of the first. Grimmell v. City of Des Moines, 57 Iowa 144, 10 N.W. 330, is conclusive on this question.

II. Section 978 of the Code reads: "When the whole or any part of the cost of the making or reconstruction of any sewer shall be ordered paid from the district or city sewer fund the council may after the completion, by resolution, levy at one time the whole or any part of the cost of such sewer upon all taxable real property within such sewer district, or within the district, and determine the whole percentage of taxes necessary to pay the same and the percentage to be paid each year, not exceeding the maximum annual limit of such taxes, and the number of years, not exceeding ten, given for the maturity of each installment." In pursuance of this authority the fourth paragraph of the ordinance enacted that: "The city council shall levy at one time the whole of the cost of any such sewer as an assessment upon all the taxable real property within said district, subject to special taxation, which assessment shall be due and payable in ten annual payments. One installment with interest at six per cent. upon the whole amount shall be due and payable at the same time as the general city tax next after making such levy; and one like installment, with interest on the amount remaining unpaid, each year thereafter until the whole amount is paid. The same shall become delinquent at the same time and bear the same penalty as the general city tax." The municipality is only liable, under the ordinance and statute, for the levy and collection of the tax. As the city was indebted in excess of five per cent. of the taxable...