McCain v. City of Des Moines

• Decision Date: 13 June 1905
• Parties: MCCAIN ET AL. v. CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

128 Iowa 331

103 N.W. 979

MCCAIN ET AL.

v.CITY OF DES MOINES ET AL.

Supreme Court of Iowa.

June 13, 1905.

Appeal from District Court, Polk County; A. H. McVey, Judge.

Suit in equity to enjoin defendants from levying and collecting special assessments against plaintiff's property for the paving of a street known as “West Grand Avenue,” in the city of Des Moines. There was a trial to the court, resulting in a decree dismissing plaintiffs' petition, and they appeal. Reversed.Myerly & Myerly and E. H. McVey, for appellants.

Carr, Hewitt, Parker & Wright, for appellee Des Moines Brick Mfg. Co. W. H. Bremner, for appellee City of Des Moines.

DEEMER, J.

In the year 1893 the defendant city entered into a contract with the Des Moines Brick Manufacturing Company for the paving of West Grand avenue, in the city of Des Moines, from Twenty-Eighth street west to a point west of what is known as “Park Lane.” Plaintiffs are the owners of property abutting upon the street above described. No work was performed under the contract until September of the year 1897, when the manufacturing company began the performance of the contract for the improvement, and turned the same over to the city, as a completed job, some time in the spring of the year 1898. The board of public works accepted the work as being in accord with the contract, and had given notice of the proposed assessment therefor against abutting property when this action was commenced to enjoin the levy thereof.

The main contention in the case is that the work was not completed in accord with the terms of the contract, and that the acceptance thereof by the city officials is not binding upon the property owners. Incidentally it is contended that the contract under which the work was done was and is invalid, because the publication of notice for bids was not such as was required by law, for the reason that the contract included grading as well as paving, and that the street upon which the improvement was made is not in the city of Des Moines, for the reason that the annexation act of March 13, 1890 (Acts 23d Gen. Assem. p. 3, c. 1), is unconstitutional and void. Before going to the main contention, we shall dispose of these incidental ones.

The notice in this case was similar to the one given in Windsor v. City of Des Moines, 101 Iowa, 343, 70 N. W. 214, and consequentlywas insufficient; but the Legislature, by an act passed April 10, 1894, expressly legalized this contract. See Acts 25th Gen. Assem. p. 167, c. 179. This act expressly legalized the contract in question, and in the case above cited this legalizing act was sustained. Some of the parties to this suit were parties to that. But even if this were not true, the decision in that case is stare decisis, and we see no reason for changing the rule there announced. Claim is made, however, that as the preamble to that act recites that a portion of the work provided for in the contracts named therein had been done, which was in fact untrue, the act is invalid. True, no work had at that time been done under this particular contract, but that feature is not controlling. The legislation is valid, no matter whether work was done under the contract or not. Where the enacting clause is clear and unambiguous, there is no occasion to resort to the preamble. The manifest object of the act was to validate this particular contract, and the mistake in the preamble is not controlling. State v. Ohio Co. (Ind. Sup.) 49 N. E. 813, 47 L. R. A. 627, and cases cited. In Cedar Rapids, etc., v. City (Iowa) 91 N. W. 1081, a legalizing act was held invalid because it did not have general application. In that case a general law could have been made applicable, and therefore the act under consideration there was held invalid. In the present case it is manifest that a general law could not have been made applicable; hence the Cedar Rapids Case is not in point. Appellants' attack upon the legalizing act is without merit.

2. The contract provided with reference to the grading that the contractor should remove the ground or old pavement to such a depth as was necessary to make room for the pavement to be put down, and should also do such filling as was necessary to form the subgrade for the pavement. This did not contemplate any expenses for grading save such as were necessary to make room for the new pavement. Nothing but subgrading was contemplated, and nothing more than this was done.

3. The pavement in question is in a part of the city of Des Moines which was at one time a small, incorporated town, known as “Greenwood Park.” By act of the Legislature of March 13, 1890, the city of Des Moines was authorized to annex additional territory. This it did by taking in some surrounding municipalities, including Greenwood Park. This enactment is challenged as being unconstitutional. A similar attack was made upon the act several years ago without result. See State v. City, 96 Iowa, 521, 65 N. W. 818, 31 L. R. A. 186, 59 Am. St. Rep. 381. That case practically settles this question. Some of the arguments used in that opinion are perhaps questionable, but the result is undoubtedly correct. The rule has been reaffirmed in Newlon v. Ind. Dist., 109 Iowa, 175, 80 N. W. 316. This action is clearly a collateral attack upon the annexation act, and, as a general rule, such attacks are impotent. McCain v. City, 174 U. S. 169, 19 Sup. Ct. 644, 43 L. Ed. 936; Speer v. Board, 88 Fed. 749, 32 C. C. A. 101; Schriber v. Langlade, 66 Wis. 616, 29 N. W. 547, 554;Powell v. Greensburg, 150 Ind. 148, 49 N. E. 955. Moreover the annexation act and the proceedings thereunder were legalized in the year 1894. See chapter 12, p. 28, Acts 25th Gen. Assem. This legalizing act is not challenged, and it settles the question as to the validity of the annexation proceedings.

4. Coming now to the main contention, that the improvement was not made in accord with the terms of the contract, we find that there was noncompliance therewith in many particulars, to some of which we shall presently refer. But defendants insist that, as the work was accepted by the board of public works, this acceptance is conclusive, in the absence of fraud or bad faith. Section 870 of the Code, in force when the acceptance was made, provides, in substance, that the board of public works “shall accept any work done or improvement made when completed according to contract.” On the one hand it is insisted that acceptance by this board is prima facie only of the completion of the work according to the terms of the contract, and that, if there have been any substantial departures from the terms thereof, the acceptance is not binding upon the property owners, while on the other it is contended that acceptance is binding and conclusive in the absence of fraud or mistake. There is a very decided conflict in the authorities on this proposition. See Elliott on Roads & Streets (2d Ed.) § 586, and cases cited. Without deciding this question, we have held that there may be a legal as well as actual fraud. See Mason v. City, 108 Iowa, 658, 79 N. W. 389, following Carthan v. Lang, 69 Iowa, 384, 28 N. W. 650. As said in the Carthan Case, while there may not be evidence of actual fraud, yet, through inattention, neglect of duty, or otherwise, the person or body authorized to accept may be guilty of such conduct as to amount to legal fraud. Of course, a mere error of judgment, unless very gross, will not amount to a fraud. But acceptance where there have been substantial departures from the terms and requirements of the contract may well be regarded as fraudulent. The rule which seems to be acceptable to appellees, which they quote from Judge Cooley's work on Taxation, is as follows: “In general, no defense to an assessment, that the contract for work has not been performed...