Hackworth v. City of Ottumwa

• Decision Date: 04 October 1901
• Citation: 114 Iowa 467,87 N.W. 424
• Parties: HACKWORTH ET AL. v. CITY OF OTTUMWA ET AL. HAMILTON ET AL. v. CITY OF OTTUMWA ET AL.
• Court: Iowa Supreme Court

114 Iowa 467

87 N.W. 424

HACKWORTH ET AL.

v.CITY OF OTTUMWA ET AL.

HAMILTON ET AL.

v.CITY OF OTTUMWA ET AL.

Supreme Court of Iowa.

Oct. 4, 1901.

Appeal from district court, Wapello county; Frank W. Eichelberger, Judge.

Suits in equity to set aside and enjoin the collection of certain special assessments levied against the property of plaintiffs for the construction of a pavement on a street in the defendant city. The trial court sustained a demurrer to the defendants' answer, and defendants appeal. Reversed.W. H. C. Jaques, City Sol., for appellants.

W. W. Epps, for appellant Assyrian Asphalt Co. Work & Work, for appellees.

DEEMER, J.

This case squarely presents the question of the constitutionality of the different sections of the Code of 1897 relating to special assessments for paving streets and alleys. The material parts of those sections read as follows: Section 818. “The cost of making or reconstructing any street improvementauthorized in this chapter, except that embraced in the preceding section, and that hereinafter provided to be assessed to street railways, shall be assessed as a special tax against the property abutting thereon in proportion to the number of lineal front feet of each parcel so abutting.” Section 820 requires that the city council, as a board of public works, shall “ascertain what portion of such costs thereof, including the costs of estimates, notices, inspection and preparing the assessment and plat, and shall ascertain what proportion of such costs shall be by law and the ordinance or resolution of the city council, under which said improvement was made or sewer constructed, assessable upon abutting property,” with the right always of an appeal therefrom to the chancery branch of the district court, where all equities between the city and the citizen can be litigated. Section 823 is as follows: “After filing the plat and schedule, the council shall give at least ten days' notice by two publications in each of the two newspapers published in the city, if there be that number, otherwise in one, and by handbills posted in conspicuous places along the line of such street improvement or sewer, that said plat and schedule are on file in the office of the clerk, and that within twenty days after the first publication all objections thereto, or to the prior proceeding, on account of errors, irregularities or inequalities, must be made in writing and filed with the clerk; and the council, having heard such objections and made the necessary corrections, shall then make the special assessment as shown in said plat and schedule, as corrected and approved.” Section 839: “Any person affected by the levy of any special assessment provided for in this chapter, may appeal therefrom to the district court within ten days from the date of such levy, by serving written notice thereof upon the mayor or clerk, and filing a bond for costs, to be fixed and approved by either of said officers. Upon such appeal all questions touching the validity of such assessment, or the amount thereof, and not waived under the provisions of this chapter, shall be heard and determined. The appeal shall be tried as an equitable action, and the court may make such assessment as should have been made or direct the making of such assessment by the council. The costs of the appeal shall be taxed as in other actions.” In the Hackworth Case all the plaintiffs united in a petition to the city council of defendant city asking the council to cause East Second street in said city to be paved with asphalt, and pursuant to the petition the council passed a resolution and proceeded to pave said street as requested. None of the plaintiffs in the Hamilton Case petitioned for the pavement, as we understand it, but on the date of the hearing on the special assessment they joined in a remonstrance objecting to the legality of the assessments. Pursuant to the statutes quoted and the...