SanBorn v. City of Mason City

• Decision Date: 23 May 1901
• Citation: 86 N.W. 286,114 Iowa 189
• Parties: SANBORN ET AL. v. CITY OF MASON CITY ET AL.
• Court: Iowa Supreme Court

114 Iowa 189

86 N.W. 286

SANBORN ET AL.

v.CITY OF MASON CITY ET AL.

Supreme Court of Iowa.

May 23, 1901.

Appeal from district court, Cerro Gordo county; John C. Sherwin, Judge.

Mason City had been divided into sewer districts, through one of which (Willow Creek), by ordinance and resolution, the city council ordered the main artery of the sewer system to be constructed, in length 9,605 feet, of which 1,250 was to be open, and the remainder closed. The contract was let to Ford & De La Hunt, September 28, 1896, at the lump sum of $21,370, and on October 26th following $960 was added for covering the 1,250 feet which was to be open. The work was to be completed June 1, 1897, but, after about 2,600 feet of the sewer had been put in, the council, on December 8, 1896, extended the time to November 7, 1897, and paid the contractors $3,000. Work under the contract not having been resumed, on July 15, 1897, the council, by motion or resolution, estimated the cost of completing the sewer over and above the contract price at $6,670 to cover engineering and contingent expenses, and ordered “that levy of 5.7 per cent. be made on all real property included in the Willow Creek district.” Proceedings were then taken resulting in making the levy, and properly certifying the same to the county auditor. The various tracts of land belonging to plaintiffs have been advertised for sale, to enjoin which this action was brought. To the petition alleging the foregoing facts in detail a general demurrer was sustained, and, as plaintiffs elected to stand on the ruling, their petition was dismissed, and they appeal. Reversed.Cliggitt & Rule, for appellants.

R. Wilber, Blythe, Markley & Smith, and T. G. McDermott, for appellees.

LADD, J.

The controlling question raised by the record is whether, under chapter 7 of the Acts of the 25th general assembly and the ordinance of the defendant city, a tax for the construction of the main artery of a sewer system of a particular district may be levied and collected on the real estate of the district in advance of its completion. That the ordinance contemplated a completion before the levy is put beyond controversy by the language employed. Section 6 thereof provides for a report of the entire cost by the sewer committee “upon the completion and acceptance of the sewer,” and the assessment of “each owner and lot and parcel of land in said Willow Creek sewer district, according to its value, its proportion of the entire cost in constructing said sewer”; that is, the entire cost as found and reported by the committee “upon the completion and acceptance of the sewer” is to be distributed on the real estate of the district according to its assessed value. The following section directs the manner of making the assessment “when the sewer authorized by this act shall have been completed”; that is, by preparing a plat, issuing notices to landowners, hearing objections, etc. These are the only portions of the ordinance relating to the levy and the time of doing so. Without repealing or modifying this ordinance, it is at least doubtful whether the method prescribed for raising the funds for the sewer, if permitted by statute, might be abandoned for another; but that point is not argued, possibly for the reason that the chapter mentioned provides for no other mode. It has long been the policy in this state not to exact the payment of assessments for local or special improvements, such as street paving, gutters, and the like, as distinguished from those of the entire municipality, before their completion. Such has been the tenor of legislation from the organization of the state. Thereby the cost is definitely ascertained, and no more exacted from the property holder than is essential to meet it. Hence no provision is made for the return of any excess, as, under such a system, if computation is accurate, there can be none....