Polk Co. Sav. Bank v. State

• Decision Date: 10 June 1886
• Citation: 28 N.W. 416,69 Iowa 24
• Parties: POLK CO. SAV. BANK AND OTHERS v. STATE AND ANOTHER.
• Court: Iowa Supreme Court

69 Iowa 24

28 N.W. 416

POLK CO. SAV. BANK AND OTHERS

v.STATE AND ANOTHER.

Supreme Court of Iowa.

June 10, 1886.

Appeal from the Polk circuit court.

The city of Des Moines caused sewers to be constructed on certain streets on which Capitol Square (which belongs to the state) fronts, and issued to the contractors who performed the work certificates of assessment against the adjacent property, including said square, and a lot belonging to the state, in payment therefor. Plaintiffs are the owners of the certificates which evidence the assessments, made for this purpose, on the property of the state. The executive officers of the state having doubts as to the liability of the state thereon, an agreed case was made under the provisions of the statute for the purpose of having that question determined; also for the purpose of determining whether the city is liable thereon in case it should be determined that the state is not liable. The circuit court adjudged that the state was liable, and entered judgment requiring the auditor of state to issue warrants for the amount of the indebtedness, and the treasurer of state to pay the same out of the funds of the state in his hands. It also adjudged that the city is not liable, and dismissed the action as to it. The state appealed from the judgment against it, and plaintiffs appealed from the order dismissing the action against the City.Wright, Cummins & Wright, for plaintiffs.

A. J. Baker, Atty. Gen., for the State.

Marcus Kavanaugh, Jr., for the City.

REED, J.

Capitol Square is the block of ground on which the capitol building of the state is situated. It fronts on the north on Sycamore street, on the south on Walnut street, and on the west on Ninth street. Locust street extends from Ninth, at a point opposite the middle of the west line of the square, westward to the Des Moines river. Walnut and Sycamore are parallel with it, and each extends also to the river. The state also owns a lot on the north side of Sycamore, on which is situated a building containing the steam-works and apparatus for heating the capitol building. Authority to purchase this lot was conferred on the capitol commission by chapter 138, Acts of the Seventeenth General Assembly; and by the same act the commissioners were empowered to construct a sewer from the capitol grounds to the Des Moines river. Before anything had been done, however, by the commissioners towards the construction of such sewer, the legislature, by chapter 112, Acts of the Eighteenth General Assembly empowered them to contract with the city for the use of its sewers for the sewerage and drainage of the capitol building and grounds. The act contains the following limitations: “The commissioners shall not, in any such contract or agreement with said city, incur a liability on behalf of the state to expend more money than would be necessary to construct the necessary sewers for the capitol building independent of said city;” and “said sewer shall not cost the state more than $5,000.” In pursuance of this statute the commissioners and the city entered into a contract, whereby the city agreed, in consideration of the sum of $4,850, to furnish the state the necessary and proper sewers for the sewerage and drainage of the capitol building and grounds, through the sewers of the city, from the east side of Ninth street, through Locust street and an intercepting sewer, to the Des Moines river; and to perpetually keep the same in repair for the drainage of said premises, without any other or further cost or expense to the state. The sewers referred to in the contract were subsequently completed by the city, and the sum of money named therein was paid by the state in pursuance of the contract. In 1878 the city council adopted an ordinance constituting the city a sewerage district, and providing that the council may by resolution order the construction of a sewer in any street. This ordinance also provides that, when a sewer shall be ordered, the work of constructing the same shall be let by contract to the lowest responsible bidder, and that the contractor shall receive in payment certificates of assessment against the adjacent property; also that the city council shall assess the cost of the sewer pro rata according to area upon the adjacent property. After said contract was entered into, and after the payment provided for therein was made by the state, the city council ordered the construction of sewers in Sycamore and Walnut streets, and assessed a portion of the cost thereof against Capitol Square, and the said lot upon which is situated the steam-works for heating the capitol building, and issued certificates of such assessment to the contractors in payment for their work in constructing the same, and these are the certificates which are now held by plaintiffs.

1. The questions arising under the state's appeal are (1) whether the city council has the power to assess any portion of the cost of improvements of the character of those in question upon the property of the state; and, (2) if the council is vested with such power, whether it is precluded, by the agreement of the city to furnish the state drainage and sewerage for the capitol building and ground, through the Locust street sewer, and its receipt of the money paid it in consideration of its undertaking in that agreement, from assessing the cost of the Sycamore and Walnut street sewers against the property.

It is contended by counsel for plaintiffs, however, that the first question was...