Tuttle v. Polk

• Decision Date: 27 October 1891
• Citation: 50 N.W. 38,84 Iowa 12
• Parties: TUTTLE v. POLK ET AL.
• Court: Iowa Supreme Court

84 Iowa 12

50 N.W. 38

TUTTLE

v.POLK ET AL.

Supreme Court of Iowa.

Oct. 27, 1891.

Appeal from district court, Polk county; MARCUS KAVANAGH, Jr., Judge.

Action upon a written instrument known as a “paving certificate,” issued by authority of the council of the city of Des Moines on account of paving a street in front of certain lots owned by the defendants. There was a hearing by the court, and a judgment for the plaintiff, and a decree making said judgment a lien upon the said lots. Defendants appeal.

GRANGER, J., dissenting.

Kauffman & Guernsey, for appellants.

Gatch, Connor & Weaver, for appellee.

ROTHROCK, J.

1. The paving, the payment for which is in controversy in this action, is the same as that which was involved in the case of Coggeshall v. City of Des Moines, 78 Iowa, 235, 41 N. W. Rep. 617, and 42 N. W. Rep. 650. It is unnecessary to refer to that case further than to say that it was held therein that, because the city council did not determine the kind and quantity of material to be used in the work in advance of advertising for bids of contractors, the contract was void. While the above-cited case was pending, the suit at bar and other actions were commenced by the contractors or their assignees upon the paving certificates which had been issued in pursuance of the contract which was held to be void. These cases, including the one now before the court, had not been tried at the time that the Coggeshall Case was finally disposed of in this court. In the mean time the city council, by ordinance and other proceedings, made a reassessment of the cost of paving, and issued new certificates, in the belief that such a remedy against abutting owners was authorized under chapter 44 of the Acts of the 22d General Assembly, which was approved April 16, 1888. It appears to us that a proper construction of this act is conclusive of the whole controversy. We therefore set it out in full. It is as follows: “Section 1. That in cities of the first class, and cities organized under special charter, whenever, by reason of an alleged non-conformity to any law or ordinance, or by reason of any omission or irregularity, any special tax or assessment is either invalid, or its validity is questioned, the city council may make all necessary orders and ordinances, and may take all necessary steps to correct the same, and to reassess and to relevy the same, including the ordering of work, with the same force and effect as if made at the time provided by law or ordinance relating thereto, and may reassess and relevy the same with the same force and effect as an original levy. Whenever any apportionment or assessment is made, and any property is assessed too little or too much, the same may be corrected and reassessed for such additional amount as may be proper, or the assessment may be reduced even to the extent of refunding the tax collected. Sec. 2. Any special tax upon reassessment or relevy shall, so far as is practicable, be levied and collected as the same would have been if the first levy had been enforced. Sec. 3. Any provision of any law or ordinance specifying the time when, or the order in which, acts shall be done in a proceeding which may result in a special tax, shall be taken to be subject to the qualifications of this act. Sec. 4. Any and every ordinance or part thereof of any such city, heretofore passed, in substantial conformity with this act, is hereby legalized.” After this act was passed, the city council passed an ordinance in which all of the proceedings previously had in the matter of the paving in question were ratified, adopted, and confirmed, and a reassessment of the amount claimed to be due from the owners of abutting lots was made on the 24th day of July, 1889, upon which the paving certificate in this case was issued. While these proceedings were pending, the defendants and other property owners presented to the city council a protest, which was as follows: “The undersigned, who are plaintiffs in the paving suit of J. M. Coggeshall et al. vs. The City of Des Moines et al., [41 N. W. Rep. 617,] recently decided by the supreme court of the state, understanding that the city council propose to reassess against the property of the plaintiffs in that suit the alleged cost of paving the streets in front thereof, under contracts already held illegal and void by the said decision, hereby respectfully protest against any further action upon such illegal and void contracts, and deny that they can be made the basis of any assessment whatever, of any kind or nature, against the property of the plaintiffs in that suit.”

It will thus be seen that the question before us involves the validity of this second assessment. The defendants made no resistance thereto on any other ground than that above set out. There is nothing in all this record from which any inference can be drawn to the effect that the paving was not properly done, or that the city council or any of its officers were guilty of any dishonest practices in the letting of the contracts or the prosecution of the work. In the Coggeshall Case, above cited, the contracts were void because the council did not first specify and determine the kind of paving to be laid down. In a petition for rehearing in that case the effect of the act of the 22d General Assembly above set out was elaborately discussed, and in view of that fact, and to the end that the opinion of the court might be fairly understood, a short supplementary opinion was filed, (42 N. W. Rep. 650,) in which the following language was used: “It is proper, however, to say that the decree in this case should limit the operation of the injunction to the assessment and levy which are held to be void in the foregoing opinion, and to them only. It is not intended by the opinion to affect any other rights which the contractor or the city may have to enforce payment for the paving, if they have any such rights, a question which we do not now determine.” It is conceded that it is within the power of the legislature to legalize any defect in proceedings of this kind if the defect or omission or want of compliance with the law is such that it might have been dispensed with by a prior statute. We understand this to be the rule in all courts in this country. Boardman v. Beckwith, 18 Iowa, 292;State v. Squirs, 26 Iowa, 340;Richman v. Supervisors, 77 Iowa, 517, 42 N. W. Rep. 422; and other cases cited in 1 McClain, Dig. p. 261. Some of the cited cases hold that the defective proceedings may be made valid by subsequent legislation, where by reason of the defect or omission the proceeding was absolutely void. It was therefore competent for the legislature to have passed an act legalizing the proceedings by declaring that the contracts for the paving should be valid, notwithstanding the omission to comply with the statute in the matter of determining the kind of material before advertising for bids. It was competent for the legislature to have provided that the work might be let to bidders without first determining the material to be used, and to take bids for any kind of material, and let the contracts for that kind which it was thought would best subserve the public interests. And the authorities cited hold that this curative legislation may be enacted while suits are pending in the courts involving the validity of the defective proceedings.

Having determined these preliminary questions, we come to the pivotal question in the case, which is, does the act above set out, and the proceedings under it, cure the defect which was held under the paving contracts to be void in the Coggeshall Case? The act in question is not a local act, applying directly and specially to the letting of these contracts. But that is no valid objection. If it applies to any and all cases of special tax or assessment, it includes the tax in question, and it applies to any special tax or assessment which is invalid or its validity questioned. It is immaterial when the tax was assessed, or when the city council failed to conform to the law. It applies to acts previously done, as well as proceedings in the future. By its very terms it applies to any tax which is either “invalid or its validity is questioned.” That was the very condition of the matter in issue at the time this act was passed. The validity of the tax was then questioned by the action pending. The act attached to the existing laws and proceedings somewhat upon the same principle by which it was held in Wilkerson v. Rahrer, (Sup. Ct. U. S.) 11 Sup. Ct. Rep. 865, that the recent legislation of congress applied to the laws...