Stockholders' Inv. Co. v. Town of Brooklyn
| Decision Date | 14 February 1933 |
| Docket Number | No. 41382.,41382. |
| Citation | 246 N.W. 826,216 Iowa 693 |
| Parties | STOCKHOLDERS' INV. CO. v. TOWN OF BROOKLYN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Poweshiek County; Frank Bechly, Judge.
This action was brought at law by the Stockholders' Investment Company, plaintiff-appellant, to recover from the Town of Brooklyn, Iowa, defendant-appellee, the amount of unpaid special assessment certificates issued by the said defendant. A demurrer to the plaintiff's petition was sustained by the court, and there was judgment dismissing the plaintiff's petition, and for costs, from which ruling and judgment this appeal is prosecuted.
Affirmed.Kelly, Shuttleworth & McManus, of Des Moines, and Reed & Reed, of Brooklyn, Iowa, for appellant.
Talbott & Talbott, of Brooklyn, Iowa, for appellee.
On the 7th day of February, 1931, the action was commenced by the service of an original notice, and on the 13th day of February, 1931, the plaintiff filed the following petition, which we set out extenso:
“The plaintiff, for cause of action against the defendant, states:
The plaintiff is a private corporation organized and existing under and by virtue of the laws of the State of Iowa, and the defendant is a municipal corporation organized and existing under and by virtue of the laws of the State of Iowa as an incorporated town and it is situated in Poweshiek County, Iowa.
That on or about September 25, 1920, the defendant Town of Brooklyn, Iowa, pursuant to proper proceedings by the town council which were theretofore had, made, executed, issued and delivered certain special assessment certificates to the Wright Construction Company to defray a portion of the cost of paying and improving certain streets in the town of Brooklyn, Iowa, in accordance with a contract providing for said construction work which had been made between the Wright Construction Company and the Town of Brooklyn, Iowa, and which, on the last mentioned date, had been fully performed by the Wright Construction Company and the work accepted by the defendant Town of Brooklyn, Iowa.
That of the special assessment certificates so issued for the purpose aforesaid on or about September 25, 1920, this plaintiff is the owner and holder of certain unpaid certificates. That attached hereto and marked Exhibit ‘A’ is a copy of special assessment certificate #244 of the certificates issued, as aforesaid, and the rest of said certificates, except as to number, denomination, maturities and number of interest coupons attached, are identical in form with the certificate which is attached hereto, marked Exhibit ‘A’ and by reference made a part hereof.
That attached hereto and marked Exhibit ‘B’ and made a part hereof is a schedule showing the number of the certificates so held and owned by this plaintiff, the description of the real estate upon which the certificate is a lien, the name of the property owner, the installments past due and delinquent upon each of said certificates and the respective amount of each of said delinquent installments, exclusive of interest from the maturity of the respective installments. The plaintiff offers to permit the defendant to inspect all of the original certificates, if it desires to do so, and asks leave to refer to Exhibit ‘A’ which is attached hereto without being required to set out copies of each of said certificates.
That each and all of the certificates so issued contain, among other things, the following provision:
‘It is hereby certified and recited that all the acts, conditions and things required to be done precedent to and in the issuing of this certificate, have been done, happened and been performed in regular and due form and as required by law.’
That after said special assessment certificates were issued and delivered, the assessment schedules and the said special assessments were duly and regularly certified by the officers of the defendant Town of Brooklyn, Iowa, to the County Auditor and County Treasurer of Poweshiek County, Iowa, and placed upon the tax records of said county. That some of the assessments so levied were not paid as and when due and on account thereof some of the described properties against which the special assessments were levied were placed upon the delinquent tax sale list of Poweshiek County, Iowa, and advertised, published and offered for sale, and the properties described in the certificates held by the plaintiff were so advertised and offered for sale but said properties were not sold and no money was received to be applied upon said certificates from the sale of the respective properties.
That the defendant Town of Brooklyn, Iowa, levied assessments against the private property abutting upon and adjacent to the streets paved and improved by the Wright Construction Company under the contract hereinbefore referred to, in excess of twenty-five per cent of the value of said respective properties contrary to the statutes of the State of Iowa, and by reason of said excessive levies which were in excess of twenty-five per cent of the value of the respective properties, the properties were not sold at tax sale and there was not sufficient revenue realized to pay the assessment certificates held by this plaintiff.
That the plaintiff has demanded payment of said special assessment certificates and the interest coupons and the interest thereon but such payment has been refused because of lack of funds. That the city, in levying an assessment in excess of twenty-five per cent of the value of the properties against which the special assessment certificates held by the this plaintiff were a lien, committed a breach of its statutory duty and violated the pledge contained upon the face of said certificate, which is hereinbefore referred to, and failed to perform its legal duty in connection with the levy of said assessment and the payment of said certificates.
That the defendant Town of Brooklyn, Iowa, has never taken the necessary steps by the levy of a proper assessment, or any other legal means or statutory method, provided for, raised or created the fund to redeem, retire or to pay the special assessment certificates held by this plaintiff and no fund has been raised or created by the defendant Town of Brooklyn, Iowa, which is now available for the retirement of the certificates sued on.
That by reason of the neglect and failure of the defendant Town of Brooklyn, Iowa, to levy a legal and valid assessment against the properties described in the certificates held by the plaintiff and its failure and neglect to collect and apply all of the proceeds of the special assessments so levied and assessed against the property benefited by the street improvements, this plaintiff has been damaged in the amount represented by each of said special assessment certificates and the separate installments thereof and the interest thereon. That the total amount of said certificates, without interest, is Six Thousand Six Hundred Thirty and 79/100 Dollars, ($6,630.79) and the various installments shown in the schedule ‘B’ should bear interest at six per cent from the date of the respective maturities thereof.
Wherefore, the plaintiff demands judgment against the defendant for the total amount delinquent upon said special assessment certificates with interest on each installmentthereof from the date the same became due at the rate of six per cent per annum, and the costs of this action.”
A copy of one of the assessment certificates involved in this case, is attached as Exhibit A to plaintiff's petition, and is in the following language:
“United States of America
+---------------+
¦No. 244¦$317.03¦
+---------------+
It is hereby certified, that the Town Council of the Incorporated Town of Brooklyn, Iowa, in accordance with the law providing for the improvement of streets and alleys by paving the same, did on the 12th day of May, 1919, by Resolution ordered that paving be constructed on the following described streets or parts of said streets, towit, South Jackson Street, Front Street, High Street, Jackson Street, Clay Street, Broadway, Mill Street, Des Moines Street, West Street, South Street, Main Street, Pleasant Street, Green Street, Third Street, Second Street and Monroe Street: that thereafter on the 5th day of June 1919, a contract was duly entered into by and between said Incorporated Town of Brooklyn, Iowa, and the Wright Construction Company of Des Moines, Iowa, in which the said Wright Construction Company, being the lowest bidder agreed to construct said improvement: that said improvement having been fully completed by the said Wright Construction Company was duly accepted by the Town Council of the Incorporated Town of Brooklyn, Iowa, on the 24th day of May, 1920, and the said Town Council having ascertained what portion of cost and expenses of said improvement is assessable upon private property, did on the 25th day of September, 1920, duly assess against the following described real estate: towit, Lot six (6) Block nineteen (19) Manatts 2nd Add., Brooklyn, Iowa, and Jessie Cunningham, the owner thereof liable to assessment for the cost of the same, the sum of Three Hundred Seventeen and 03/100 Dollars the same being the proportion of the cost and expenses of the said improvement assessable by law against said described property.
That this certificate is issued by the Incorporated Town of Brooklyn, Iowa, under and by virtue of chapter 8, title V of the Code of Iowa, and amendments thereto, and the Resolution of said Town Council duly adopted on the 25th day of September, 1920, and the amount thereof is now payable with interest at the rate of 6% per annum from the date of the acceptance of said improvements: towit, the 24th day of May, 1920, at the office of the Treasurer of Poweshiek County, Iowa, unless said Jesse Cunningham, the owner of said property, signs the agreement endorsed hereon, in which event it is payable as...
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