Trustees of Griswold College v. City of Davenport

• Court: Iowa Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Trustees of Griswold College v. City of Davenport, 22 N. W. 904, 65 Iowa 633 (Iowa 1885)
• Decision Date: 08 April 1885
• Parties: THE TRUSTEES OF GRISWOLD COLLEGE v. THE CITY OF DAVENPORT. PARKER v. THE SAME

22 N.W. 904

65 Iowa 633

THE TRUSTEES OF GRISWOLD COLLEGE v. THE CITY OF DAVENPORT.

PARKER v. THE SAME

Supreme Court of Iowa, Davenport

April 8, 1885

Appeal from Scott District Court.

ON REHEARING.

THESE actions were brought to enjoin the collection of a sewer tax levied without notice upon adjacent property as a special assessment. There was a decree for the plaintiffs, and the city appeals.

AFFIRMED.

Bills & Block, for appellant.

Putnam & Rogers, for appellees.

OPINION

ADAMS J.

In an opinion filed at the January term, 1884, ^[*] the court held that these cases should be affirmed; following Gatch v. City of Des Moines, 63 Iowa 718, 18 N.W. 310. The cases, however, differed in some respects from that, and because they differed, and also because some of the members of the court came to entertain a doubt in regard to the correctness of the ruling in Gatch v. City of Des Moines, it was deemed advisable to grant a rehearing. Upon a re-examination, we have to say that we reach the same result, but the ground upon which we reach it is such that it is unnecessary either to overrule or approve Gatch v. Des Moines. In that case it was held in general to be essential to the validity of an assessment for public improvements that the property owner should have notice of the intended assessment, and an opportunity to be heard in respect to it, and that a statute allowing such assessments, without notice and without opportunity to be heard, is unconstitutional. The theory of the opinion is that, where property is taken for the non-payment of a special tax levied without notice, and without opportunity in any form to be heard upon it, the property is taken without due process of law. For the purposes of the opinion in the cases before us, it is not necessary to state the rule so broadly.

The parties are agreed that property cannot be taken without due process of law, but they differ upon the question as to what constitutes due process of law in respect to the levy and collection of taxes. It is not contended, of course, by any one that property cannot be taken for the non-payment of a tax without giving the property owner an opportunity to be heard in court. In some cases, where the right to life, liberty or property is drawn in question, such opportunity is necessary, and if life, liberty or property were taken otherwise, it would not be taken by due process of law. But the courts are not necessary for taxation. Their methods are too cumbersome and expensive. It seems to be agreed, therefore, that property taken for the non-payment of taxes is not taken without due process of law, if the tax-payer is afforded an opportunity to be heard in relation to the tax, though it be only before the officers clothed with power to assess. The rule in respect to due process of law, stated in a general way, is said to be this: that every one is entitled to the protection of "those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions." But the plaintiffs, having been afforded no opportunity to be heard, contend that they would be deprived of the guaranteed protection if the assessment in question should be upheld, and their property should be taken under it. While not admitting that property can properly be taken under a special assessment in any case, without notice to the property owner of the intended assessment, they contend that it clearly cannot in some cases, and especially where the assessment is made under a law or ordinance which provides for an assessment according to benefits, or where substantially the same principle is involved.

In a case where, in making the assessment, no opinion is to be formed nor discretion exercised, it is manifest that there would be...