Jackson v. City of Creston

• Decision Date: 26 June 1928
• Docket Number: 38791
• Citation: 220 N.W. 92,206 Iowa 244
• Parties: SHELTON JACKSON, Appellee, v. CITY OF CRESTON, Appellant (and 15 other cases)
• Court: Iowa Supreme Court

220 N.W. 92

206 Iowa 244

SHELTON JACKSON, Appellee, v. CITY OF CRESTON, Appellant (and 15 other cases)

No. 38791

Supreme Court of Iowa, Des Moines

June 26, 1928

Appeal from Union District Court.--HOMER A. FULLER, Judge.

Appeal from the decree in each of several cases canceling certain special assessments for an alleged street improvement in the city of Creston. The cases were consolidated for trial in the court below, with an independent action in equity to enjoin the issuance of bonds, and other action by the city council and have been submitted together in this court.

Affirmed.

Richard Brown and Miller, Kelly, Shuttleworth & McManus, for appellants.

Kenneth H. Davenport, George A. Johnston, E. L. Carroll, and J. C Pryor, for appellees.

OPINION

STEVENS, C. J.

I.

Fifteen property owners in the city of Creston appealed to the district court from the action of the city council in levying special assessments against their property for benefits resulting from certain alleged street improvements. Eight other property owners instituted an independent action jointly in equity to enjoin the collection of the assessments levied, and to prevent the execution and sale of improvement bonds or the delivery thereof to the contractor, and to quiet title to other property against the levy. The several actions were consolidated for submission to this court.

A somewhat extended recital of the proceedings of the city council is indispensable to a clear understanding and decision of the vital questions presented by the appeal. On July 27, 1925, the Horrabin Paving Company submitted a proposal in writing to the city council of the city of Creston, to furnish and apply all oils necessary for oiling certain streets in said city, according to specifications on file in the clerk's office, for the sum of 50 cents per square yard, to furnish and lay an asphaltic mixture to repair all holes and depressions in the surface of the street for $ 1.40 per hundred pounds, including the preparation of the street to receive the oil. The proposal also included the spreading of hot dry sand over the "flushcoated" surface of the street, and to roll the same into the pavement without additional charge, if deemed desirable by the city engineer. On the same day, the city council, by resolution which declared that it was necessary, in order to preserve the paving of certain streets, that the improvements described in said resolution by oiling be made, provided as follows:

"Whereas, the most satisfactory method of oiling said streets is by method of flushcoating same with liquid reflushcoating bituminous oils according to specifications now under consideration before this council and said specifications are hereby approved and made part of this resolution by reference."

The resolution further described the streets to be improved, accepted the proposal of the Horrabin Paving Company, and provided that a portion of the cost of the improvement be assessed to abutting and adjacent property, as allowed by law. On the following day, the mayor and city clerk entered into four separate contracts in writing on behalf of the city with the Horrabin Paving Company, to oil the streets as provided in the specifications on file in the clerk's office and in the resolution of the council heretofore referred to. The contracts were identical in form and substance, except that each referred to a different street or portion thereof to be improved.

After the completion of the improvement, the city council, by resolution, approved and accepted the same, and directed the city clerk to prepare and file in his office, for public inspection, a plat and schedule showing the separate lots and parcels of ground, or specified portions thereof, subject to such improvement, and otherwise complying with the law.

In due time, the city engineer prepared and filed the required plat and schedule, together with a certificate showing the total cost of the improvement and the portion thereof to be taxed to property owners and the city, respectively. The plat and schedule was later approved by the city council, and notice of the proposed assessment given to property owners, as required by law.

Objections, based upon various informalities and irregularities on the part of the council, which it was claimed rendered its proceedings wholly void, were filed by appellees. The objections were overruled, and the entire improvement approved by the city council, and the assessments for benefits levied against the abutting and adjacent property.

Pertinent provisions of the statute (Code of 1924) authorizing the improvement of streets by oiling are as follows:

"Sec. 5975. Cities shall have power: 1. To improve any street by grading, parking, curbing, paving, oiling [chloriding], graveling, macadamizing, or guttering the same or any part thereof, or by constructing electric light fixtures along same, and to repair such improvements. * * *"

"Sec. 5978. The cost of preparing a street to receive oil [or chloride] shall be paid by the city, except that portion between the rails of any railway or street railway, and one foot outside thereof."

"Sec. 6002. The city may oil [or chloride] the streets without letting a contract therefor."

"Sec. 6003. All contracts for the construction or repair of street improvements (except graveling, oiling [chloriding], or repairs other than reconstruction or resurfacing) or sewers, shall contain a provision obligating the contractor and his bondsmen from the time of acceptance by the city to keep in good repair such street improvement for not less than four years or such sewer for not less than two years."

"Sec. 6024. Upon the completion of the oiling [or chloriding] of a street, the officer designated by the council to have charge thereof shall, within thirty days, file with the clerk a statement of the amount due, if the work was done by contract; or if done by the municipality, an itemized, verified statement of expenditures for materials and labor used in making such improvement."

"Sec. 6026. After filing the plat and schedule for street improvements or sewers, or the report of cost of oiling streets, the council shall give notice by two publications in each of 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; but if no such newspaper is published within the limits of such city, then such notice shall be given by posting copies thereof in three public places within its limits. Said notice shall state that said plat and schedule or report 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 proceedings, on account of errors, irregularities, or inequalities, must be made in writing and filed with the clerk."

"Sec. 6032. * * * The cost of oiling [or chloriding] the streets may not be paid in installments."

The interpolation of the words "or chloride" and "chloriding" in brackets in the foregoing statutes is to indicate the changes made therein by Chapter 152, Laws of the Forty-second General Assembly. It will be observed that the letting of a contract for oiling streets is, by Section 6002, made unnecessary.

Although Section 5975 of the Code, which confers power upon cities to improve streets by curbing, paving, etc., includes oiling, and, as amended by the forty-second general assembly, chloriding, Section 5991 provides that:

"When the council shall deem it necessary to construct, reconstruct, or resurface any street improvement * * * it shall, in a proposed resolution, declare such necessity, stating the kinds of material proposed to be used and...