McManus v. Hornaday
| Decision Date | 23 October 1896 |
| Parties | E. P. MCMANUS v. CALVIN HORNADAY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Keokuk Superior Court.--HON. JOSEPH C. BURK, Judge.
ACTION in equity for judgment on a paving assessment certificate issued by the city of Keokuk to the plaintiff, and for decree establishing the same as a lien upon certain real estate belonging to the defendant, and foreclosing said lien. The issues will sufficiently appear in the opinion. Decree was entered in favor of the plaintiff. Defendant appeals.
Reversed.
John E Craig for appellant.
A Hollingsworth for appellee.
I.
The case was submitted upon an agreed statement of facts, the material parts of which are as follows: The defendant is, and has been for five years past, the owner of the property referred to in the petition, which property abuts upon Orleans street, in said city, from and at the intersection of said street with Fourth street. By the revised ordinances of 1887, of said city, the grade of Orleans street, at the intersection of Fourth and Third streets, was established. On July 3, 1893, and before the improvement referred to in the petition was made, the city council of said city passed a resolution, as follows: "Resolved, That the grade on Orleans street, from Fourth street to the top of the piling between Fourth street and Third street, be, and is hereby, changed in accordance with the attached plan and petition, which said plat shows Orleans at intersection with Fourth street, at 133 feet above the plane of reference, and at the southeastern point, near the piles, at 125.5 feet above the plane of reference, which said resolution, plat, and petition, are to be considered as part hereof." No ordinance changing the grade of Orleans street was ever passed. On July 3, 1893, said city council ordered Orleans street from Fourth to the top of the piling between Fourth and Third streets, curbed, guttered, and macadamized, at the grade fixed in the said resolution; the work to be paid for in accordance with General Ordinance 252, by the abutting owners. A contract was entered into by the city and plaintiff, and the plaintiff furnished the materials and did the work, at the grade fixed in said resolution. To defray the expenses of said work, an assessment was made and levied by the city council against the abutting property, including that of the defendant; the assessment against the defendant being one hundred and seventeen dollars and three cents, for which the certificate sued upon was issued. No proceedings were had to ascertain damages to defendant's property from said change of grade, and no damages were paid therefor. Prior to said change of grade, defendant had improved his property by placing a house thereon, with reference to the grade established in said ordinance. It is admitted that the assessment is the actual cost and reasonable value of the improvement of the street, and that the assessment has never been paid.
II. There is no question but that the city had power to establish and change the grade of its streets, and to curb, gutter, and macadamize them to the established grade, and assess the costs thereof to the abutting property owners. The contention is whether the grade established by ordinance could be changed by resolution, the street improved to the new grade and owners of abutting property, and their property, charged with the costs thereof. The city of Keokuk exists under a special charter, and its powers are derived from that charter and the statutes. It is a familiar rule that, when a mode of exercising a power granted is prescribed, the power can only be legally exercised in that mode. In determining whether a power is conferred, charters and statutes are strictly construed; but, when the power is ascertained to be conferred, the exercise of authority within the recognized limits is favored by the courts. These principles are familiar and undisputed, and citations are unnecessary. Guided by these rules, we now turn to the special charter and statutes, to see whether a mode of establishing and changing grade is prescribed. The city of Keokuk was incorporated by chapter 3, Acts Second General Assembly, approved December 13, 1848. Section 13 of said chapter authorizes the city council to make and publish ordinances upon certain subjects, among which are "such laws and ordinances as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of said city and inhabitants thereof." If nothing further appeared, we think it might be said that this section confers power to establish and to change the grade of streets, and to improve them, for the ...
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