Iowa Pipe & Tile Co. v. Callanan

• Decision Date: 25 October 1904
• Citation: 125 Iowa 358,101 N.W. 141
• Court: Iowa Supreme Court
• Parties: IOWA PIPE & TILE CO. v. CALLANAN ET AL.

125 Iowa 358

101 N.W. 141

IOWA PIPE & TILE CO.

v.CALLANAN ET AL.

Supreme Court of Iowa.

Oct. 25, 1904.

Appeal from District Court, Polk County; C. P. Holmes, Judge.

Suit in equity to foreclose three assessment certificates issued by the city of Des Moines for the construction of a sewer on Tenth street, and asking a personal judgment against the appellant Callanan and a judgment against the city of Des Moines. The undisputed facts in the case are substantially as follows: The appellant Callanan was the owner of lot 9 in blocks 1, 2, and 3 in an addition to the city of Des Moines. The lots were originally each 33 feet wide and 100 feet long. After his purchase thereof, the city condemned 25 feet in width off of the west side of each of the lots for the purpose of opening Tenth street, leaving three strips of ground each 8 feet wide, and each abutting said street their full length, 100 feet. Thereafter a sewer was built on Tenth street, and the lands abutting thereon were assessed to pay for it according to the frontage of the lots. Before the assessment was made, however, Mr. Callanan sold a strip five feet wide off of the east side of one of the lots. Each of these three strips of ground was assessed on the basis of its frontage on the street, each an equal amount, and each the same amount per front foot that was assessed to lots on the same street having a depth east and west of from 120 to 175 feet. The answer of Mr. Callanan alleges that the strips of ground are not and cannot be benefited by the sewer; that they were assessed as though they were full lots, equal in value to other full-sized lots along the street benefited by the sewer; that such assessment is inequitable and unjust, and in violation of the Constitution of the United States, in that his property is taken without due process of law. There was a trial, and a personal judgment against Mr. Callanan for the full amount claimed, with interest, and the suit against the city was dismissed. Mr. Callanan and the plaintiff appeal. Reversed.Dudley & Coffin, for appellant James Callanan.

A. P. Chamberlain, for appellant Iowa Pipe & Tile Co.

W. H. Bremner, for appellee.

SHERWIN, J.

The assessment in this case is so manifestly unequal and unjust, and is so clearly governed by the rule announced by the Supreme Court of the United States in Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, that we are constrained to hold it invalid. This court has uniformly upheld the frontage rule of assessment, regardless of the special benefit to the property, the latest pronouncement on the subject being in Hackworth v. City of Ottumwa, 114 Iowa, 467, 87 N. W. 424; and, were it not for the controlling force of the Norwood-Baker Case, we should perhaps feel bound to follow the rule in this case. It should be said, however, that in no case involving this question upon which we have heretofore passed, have the facts been similar to those before us now, and hence we have never before been called upon to determine the precise question involved here It is true that we have sustained front-foot assessments regardless of benefits, and justified the power on the ground of the right of taxation for the public good. Warren v. Henly, 31 Iowa, 31, and cases following the rule there announced. But in none of the cases was there such a showing of inequality in the assessment as to make it clearly appear that the assessment could not possibly be just. On the contrary, in none of the cases, as we now recall them, was there a showing of any special inequality, or at least no greater inequality than would inevitably exist under any rule of taxation. In Amery v. The City of Keokuk, 72 Iowa, 703, 30 N. W. 780, the only question was whether the lotowner was entitled to notice of the assessment of the tax, but in a general discussion of the case it was said “that all that was required was the lineal measurement of the front of the lots * * * abutting on the street. * * * There was no authority to institute an inquiry as to how far back from the street the rights of the abutting owner extended.” There was, however, no showing of inequality in that case. The lots in question were originally of such size as to be valuable for business or residence purposes, but, after the city had taken therefrom 25 feet for street purposes, the remaining strips of ground manifestly had no value for purposes of improvement, and could only be used in connection with the lots adjoining them on the east; and, if the adjoining owners did not want them, they would be useless, and practically without any market value. It is doubtful whether the Legislature, in conferring upon municipalities the power to assess lots and parcels of land for such improvements, ever intended it to be exercised arbitrarily, and in utter disregard of the principles of equality and justice upon which our laws are supposed to be founded. But, however this may be, and whatever independent conclusion we might reach in this particular case in view of our former holdings, is of little consequence if it be true that this case is controlled by the Norwood-Baker Case. The profession is familiar with the issues and facts in that case, but there may be some question as to the extent to which the opinion of the majority goes. In the second edition of Elliott on Roads and Streets, § 558, it is said, speaking of the Norwood-Baker Case: “But the Supreme Court of the United States has recently held that an assessment in substantial excess of the special benefit is invalid, and that the power of the Legislature in such matters is not unlimited. The actual decision in the case * * * does not go so far as it has sometimes been supposed to go. * * * We think it is clearly an authority to the effect that a particular assessment is invalid where it is in substantial excess of the benefits, and there is no right to a hearing on which it can be changed, especially where it is physically impossible that the particular property can be benefited to such an extent.” And the author adds: “But it does not necessarily follow that the statute itself is unconstitutional merely because it lays down a general rule for determining the special benefits in the first instance, whether by frontage or by any other proper system.” In the Norwood-Baker Case it is said: “The plaintiff's suit proceeded upon the ground, distinctly stated, that the assessment in question was in violation of the fourteenth amendment, providing that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, as well as the Bill of Rights of the Constitution of Ohio.” The land taken for the street in the Norwood-Baker Case as in this case, was taken under the power of eminent domain, but in that case valuable tracts of land were still owned by Mrs. Baker on both sides of the street,...