Inc. Town of Casey v. Hogue, 38483.

• Decision Date: 01 July 1927
• Docket Number: No. 38483.,38483.
• Citation: 204 Iowa 3,214 N.W. 729
• Parties: INCORPORATED TOWN OF CASEY ET AL. v. HOGUE, STATE DIRECTOR OF BUDGET.
• Court: Iowa Supreme Court

204 Iowa 3

214 N.W. 729

INCORPORATED TOWN OF CASEY ET AL.

v.HOGUE, STATE DIRECTOR OF BUDGET.

No. 38483.

Supreme Court of Iowa.

July 1, 1927.

Appeal from District Court, Guthrie County; W. G. Vander Ploeg, Judge.

Appeal from an order of the district court in certiorari proceedings, brought to review the action of the Director of the Budget in overruling the action of the Town Council of the Incorporated Town of Casey in respect to paving certain streets in said town. The trial court affirmed the decision of the Director of the Budget in overruling the action of the Town Council in ordering the construction of said improvement. The town appeals. Reversed.A. M. Fagan, of Casey, and Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellant.

Ben J. Gibson, of Des Moines, C. E. Berry, of Casey, and Harry D. Byers, of Adair, for appellees.

FAVILLE, J.

The town council of the incorporated town of Casey, by proper legal proceedings, proposed to pave certain streets in said town. Certain property owners in said town duly filed objections before the town council to the establishment of the proposed improvement. Said objections were overruled by said town council and the resolution adopted ordering the improvement. Thereafter certain of said objectors endeavored to prosecute an appeal from the action of the city council to the director of the budget of the state. The town moved to dismiss said purported appeal before the director of the budget. The motion to dismiss was overruled, and a hearing had and an order entered by the director of the budget overruling the action of the town council in ordering said improvement to be constructed. From said order of the director of the budget, a writ of certiorari was prosecuted to the district court, and the order of the director of the budget was affirmed by said court.

I. It is the contention of the appellant herein that no legal and valid appeal was taken from the action of the town council to the director of the budget, and that the motion to dismiss the appeal filed before the director of the budget should have been sustained.

Chapter 23, Code 1924, deals with the subject of public contracts and bonds, and provides for notice and hearing before the proper officers of the municipality with regard to the construction of public improvements. It is provided that interested parties may file objections to the proposed plans before the governing body of the municipality. It is also provided that--

“Interested objectors may appeal from such decision to the director by serving notice thereof on the clerk or secretary of such municipality within ten days after such decision is entered of record.” Code, § 354.

The statute provides, as applied to the instant case, that the number of objectors required to perfect an appeal shall be 25. The record discloses that within the time limit the attorney for the objectors prepared a notice of appeal, which was properly addressed and was in proper form. The evidence also tends to show that the original of said notice of appeal was signed in person or by authorized agent for 27 of said objectors. It also appears that a carbon copy of said notice was prepared, except as to the signatures attached thereto, and that copies of the signatures were affixed on said copy by one person. The undisputed evidence shows that the said copy contained the names of only 24 objectors. The record tends to show that the original of said notice containing the 27 names, and the copy containing 24 names, were delivered to a private party for service upon the town clerk. The evidence of the party making the purported service is that he went to the office where the town clerk was employed and there produced the carbon copy of said notice above referred to. He testified that at that time he and the clerk--

“turned it over leaf after leaf there, and we didn't just exactly read that word for word, understand, but we went over it together and got down to where these names are, and I said, ‘John, you understand this?’ ‘Yes.’ ‘These names are all here, and you are satisfied with the service?’ He says, ‘I am.’ ”

The witness delivered the carbon copy to the town clerk. The witness further testified:

“Q. How may papers did you have, or that you and Mr. Smith looked at that night? A. I had one paper that I served and the other was in the envelope.

Q. That is the one you returned to Mr. Berry, the one that was in the envelope, being Exhibit 5 of Exhibit A--that was in the envelope all the time you were down in the office of Mr. Knox? A. I took out one of them, just as I told you, and I went over it together with John Smith, and when we got through with it, we looked it over, and, as I told you, we were satisfied with it.

Q. You were satisfied with it? A. Yes, sir.

Q. And the one that you looked over--referring to Exhibit Five of Exhibit A--calling your attention to the name of Casey Mercantile Company, in stencil, was it on this paper? Was that on the paper that you and Mr. Smith looked over? A. I couldn't say.

Q. But you know that this is the only paper, pages 32, 33, 34, and 35, that you read to Mr. Smith? A. Yes, sir.

Q. Was that the only one you left with Mr. Smith? A. Yes, sir.

Q. That is the paper that you gave to John Smith? A. Yes, sir.

Q. Now the paper upon which you made the return and signed your name was not the one that you and Mr. Smith looked over, was it? A. No.”

The town clerk testified as follows:

“A man met me on the street and asked me to go down to the office of Miller & Co., Casey, Iowa, and he brought it down and handed it to me. Didn't read it, and didn't ask me to read it. He handed me this one, or one just exactly like it. There were 24 names written in in pencil. * * * This notice that has been handed me is the notice that I certified to the budget director, and the proceedings from which this appeal is taken, which proceedings are certified to the budget director, were for an improvement amounting to something over $28,000. There was no other notice given to me, as town clerk, of this appeal to the budget director other than I have stated and as I stated in my return to the budget director.”

The party to whom the papers were given for service made return on the original instrument bearing the 27 signatures; the return stating that he personally served the same on the town clerk by reading the same to him and delivering him a true copy thereof. The town clerk certified the proceedings in the matter to the director of the budget, including the copy of the notice containing the 24 names which had been left with him. The party to whom the papers were given for service returned the original instrument containing 27 names to the director of the budget with his return thereto attached.

[1][2][3] The motion of the town to dismiss the appeal raises squarely the question as to whether or not, under this state of facts, a notice of appeal was served as contemplated by the statute in order to confer jurisdiction upon the director of the budget. The director of the budget had no original jurisdiction in the matter, and could only acquire jurisdiction by proper appeal. The statute provides that the appeal is to be taken “by serving notice thereof” on the clerk of the municipality. It is to be observed that the direction of the statute is that the notice shall be “served.” When the statutory requirement is that a notice shall be served, and there is no further specific direction in the statute, two things are clearly implied: (1) That the notice shall be in writing; and (2) that it shall be served personally upon the party upon whom service is to be made. It is the general rule that, where a notice is required or authorized by statute in any legal proceedings, it must be in writing. In Moore v. Marshalltown, etc., Co., 81 Iowa, 48, 46 N. W. 751, we said:

“And while in common parlance the word ‘notify’ or ‘notifying’ may sometimes mean a mere verbal communication, yet, when applied to an official act, we think it can have no other meaning than that it should be in writing.”

See, also, Pearson v. Lovejoy, 53 Barb. (N. Y.) 407;McEwen v. Montgomery County Mutual Insurance Co., 5 Hill (N. Y.) 101;In re Cooper, 15 Johns. (N. Y.) 533;Foley v. City of New York, 1 App. Div. 586, 37 N. Y. S. 465; 29 Cyc. 1117.

[4] Also, “when service is required, it means personal service.” Ellis v. Carpenter, 89 Iowa, 521, 56 N. W. 678. The question then arises as to what requirements are necessary to constitute legal service of a notice of appeal, which must be in writing and which must be personally served. A notice of appeal is not a writ or summons and is not process. Gooler v. Eidsness, 18 N. D. 338, 121 N. W. 83. The statutes in respect to appeals from inferior tribunals vary somewhat in their provisions. Three methods at least are designated by statute as to the giving or service of a notice of appeal: (1) By pursuing the same manner as the service of original notices; (2) by filing the notice with a...