Osborne v. City of Lyons

• Court: Iowa Supreme Court
• Writing for the Court: ROBINSON, J.
• Citation: Osborne v. City of Lyons, 104 Iowa 160, 73 N.W. 650 (Iowa 1897)
• Decision Date: 18 December 1897
• Parties: CHARLES OSBURN, et al., v. THE CITY OF LYONS, et al., Appellants

73 N.W. 650

104 Iowa 160

CHARLES OSBURN, et al., v. THE CITY OF LYONS, et al., Appellants

Supreme Court of Iowa, Des Moines

December 18, 1897

Appeal from Clinton District Court.--HON. P. B. WOLFE, Judge.

ACTION in equity to restrain the collection of a tax levied to pay for the improvement of a street. There was a hearing on the merits, and a decree in favor of the plaintiffs. The defendants appeal.

Affirmed.

S. C Scott and Hayes & Schuyler for appellants.

F. W Ellis and L. A. Ellis for appellees.

OPINION

ROBINSON, J.

On the thirtieth day of May, 1893, the council of the city of Lyons ordered that Sixth street, from the south line of improvement district No. 1 to the city limits of the cities of Lyons and Clinton, be graded, curbed, guttered and paved by the first day of the next November. The portion of the street ordered paved was designated "Improvement District No. 3" in the city of Lyons. A notice to contractors, inviting sealed bids for furnishing the materials for and making the improvements ordered, was published, and on or before the fifth day of July, 1893, the time fixed for filing bids, two were received by the city, that of the Lyons Construction Company being the lowest and best bid. On the thirty-first day of October, 1893, the resolution adopted May 30, 1893, was amended by changing the date on or before which the improvement should be completed from November 1, 1893, to the first day of August, 1894. On the fifteenth day of May, 1894, the city council ordered the issuing of bonds in two series, on account of the improvement, and not to exceed the contract price thereof. One series, to the amount of seven thousand dollars, was for the payment of that portion of the work covered by the intersections of streets and alleys, and the other series, to the amount of thirty-three thousand dollars, was to cover the remainder of the cost of the improvement. All of those bonds were issued and sold. In July, 1894, the improvement was completed and accepted by the city, the amount of the assessment was fixed, and apportioned to the city, to the street railway company, and to the abutting property owners, and a time fixed for making objections to the assessments, notice of which was published in two newspapers of the city. The plaintiffs are the owners of property against which assessments were made, and they allege that the tax levied by the city for the improvements is invalid for various reasons, and ask that the collection thereof be restrained, and that it be declared not to be a lien upon their property. The district court found that the taxes so levied were illegal, and enjoined their collection.

I. The first objection to the validity of the tax urged is that the requirements of the law with respect to letting contracts for such improvements were not fulfilled. Chapter 14, Acts Twenty-third General Assembly, as amended by chapter 12, Acts Twenty-fourth General Assembly, gave to all cities of the state having a population of more than four thousand, and all cities acting under special charters, power to make certain contracts in regard to paving and curbing streets. Section 3 of the chapter 14 specified, provides that "all such contracts shall be made by the council, * * * and shall be made with the lowest bidder or bidders upon sealed proposals after public notice for not less than ten days, in at least two newspapers of the said city, which notice shall state as nearly as practicable the extent of the work, the kind of material to be furnished, when the work shall be done, and at what time the proposal shall be acted upon." It is claimed that the notice to contractors published in this case failed to state at what time the bids would be acted on and when the work should be done. The portion of the notice thus called in question is as follows: "State of Iowa Clinton County:--ss: Sealed bids or proposals are hereby invited by the undersigned, city clerk of Lyons city, in said county, to be filed with him at his office in said city on or before the fifth day of July, A. D. 1893, at 7:30 o'clock P. M., for grading, curbing, guttering, and paving improvement districts numbers 2 and 3, in said city, according to the resolution and ordinance of said city heretofore adopted, ordering the same, and the specifications of the city engineer of said city on file in the office of the said city clerk, which, together with his estimate of approximate quantities are hereby included in this notice and made a part hereof." The statute also required the notice to state when the work should be done, but the notice in question did not refer to that subject. It is true that the paving resolution referred to in the notice fixed November 1, 1893, as the time for completing the work; but about four months after the notice was published and the bids were received, and six months before either of them was accepted, the council changed the time for completing the work to the first day of August, 1894, as already stated. The bid of the Lyons Construction Company was not accepted until the first day of May, 1894. At that time the company was not under any obligation, on account of the original bid, to do the work, for the reason its bid was based on the proposition that the work should be completed on the date first fixed, and the bid of its competitor was founded upon the same proposition. No bid had been asked nor made to do the work during a period of time which would expire on...