Martin v. City of Oskaloosa

102 N.W. 529, 126 Iowa 680

• Court: Supreme Court of Iowa
• Decided: February 15, 1905
• Status: Published

Opinion

McClaiN, J.—

As these cases are now presented to us — an opinion written on a former hearing having been withdrawn on petition for rehearing — the issue involved is simple, although the arguments have taken a great range, and properly so, as we are asked to pass upon a question substantially new with us, and on which the decisions of other States throw light only by way of illustration. We shall confine ourselves, however, to the announcement of the conclusions reached with reference to the very case presented, and avoid elaboration as to many matters which'have properly been urged in argument and fully considered, but which need not be passed upon, in view of the grounds on which this opinion is based.

The essential facts are that in May, 1901, the city council of Oskaloosa, by a “ resolution of necessity,” ordered the paving of a street in front of the premises of these three plaintiffs; making provision as to the material to be used, and manner of construction, and that the cost be “ assessed against the abutting properties, as provided by law, except the intersections of said street, which shall be paid out of the improvement fund.” At this time the ordinance regulating street improvements was No. 166 of the ordinances of the city which had been passed in 1896. Section 4 thereof provided for the levying of such assessments by the front-foot rule. This method of levying assessments had, however, been in the meantime abrogated by statute, and another substituted. Acts Twenty-eighth General Assembly, page 14, chapter 29. It is conceded that at that time the assessment could not be made in accordance with section 4 of Ordinance No. 168. An assessment was, however, made on these property owners December 3, 1901, which subsequently, on appeal to the district court, was set aside as invalid, because made under the front-foot rule, and a reassessment was made January 21, 1902, in accordance with the statutory method of apportioning the costs of street improvements, and after the passage of a new ordinance {No. 223) on December 23, 1901, which repealed section 4 of Ordinance No. 166, and specifically authorized assessments to be made in accordance with the statutory method. The district court held the reassessment to bo invalid, and it is with reference to this action only that the city is now asking relief in this court.

The substantial contention for the property owners is that Ordinance No. 166 had become void by reason of the enactment of the statute in effect annulling section 4 thereof; that, without a valid ordinance, no steps could be taken looking to an assessment; and that, as the assessment was entirely without authority of law, no reassessment could be made. For the city it is contended, first, that no ordinance was necessary to authorize the city to act in accordance with the provisions of the statute; second, that, although section 4 of Ordinance No. 166 had been invalidated, the remainder of the ordinance was in force, and effectual to authorize the city to proceed in ordering an improvement to be made, the cost of which could be assessed to the property owners; and. third, that whatever invalidity or irregularity may have existed in the proceedings prior to the reassessment, they were not'such as to prevent the city^from making a valid reassessment of the improvement to the property owners.

1. Special assessments: ordinances. It may be conceded, as a preliminary proposition, that if an ordinance was necessary to authorize the city to order the improvement to be made, and if Ordinance No. 166 was entirely invalid in all its parts and for every purpose, then the whole proceeding was illegal and without authority and no valid reassessment for the improvement thus ordered could be made, and that the subsequent passage of Ordinance No. 223, providing a valid method of assessment, would not sustain the prior proceedings. Conn. Mut. L. Ins. Co. v. Chicago, 185 Ill. 148 (56 N. E. Rep. 1071) ; East St. Louis v. Albrecht, 150 Ill. 506 (37 N. E. Rep. 934) ; Newman v. Emporia, 32 Kan. 461 (4 Pac. Rep. 815) ; Wace v. Prather, 90 Tex. Civ. App. 80 (35 S. W. Rep. 958) ; Buckley v. Tacoma, 9 Wash. 269 (37 Pac. Rep. 441) ; Crawford v. Mason, 123 Iowa, 301; Allen v. Davenport, 107 Iowa, 90.

when required. If the statute provides that the city shall exercise by general ordinance the power conferred upon it, such an ordinance is essential before the city can act, and without it the proceedings of the city in attempting to exercise the power conferred will be invalid. Zelie v. Webster City, 94 Iowa, 393; Kepple v. Keokuk, 61 Iowa, 653; McManus v. Hornaday, 99 Iowa, 507. And where the. city exercises its power under and by virtue of an ordinance, the method prescribed by the ordinance must be pursued. Burget v. Greenfield, 120 Iowa, 432.

3. Same. Even though the statute conferring power upon a city does not specifically direct that such power shall be exercised by means of and in accordance with, a ordinance, an ordinance may be necessary, if the statute is not specific as to the methods to be adopted in carrying out the power granted. Muscatine v. Keokuk N. L. P. Co., 45 Iowa, 185; Eckert v. Town of Walnut, 117 Iowa, 629; People v. Village of Crotty, 93 Ill. 180; Cascaden v. Waterloo, 106 Iowa, 673.

4. Same There is, perhaps, some discrepancy in the authorities as to whether, in this class of cases, an ordinance is essential, or whether, on tbe other hand, the power may be exercised resolution, although this matter will be found depend, no doubt, on the language of the statutes in the different States. Under our statutory provisions, it may perhaps very properly be said that the general authority to provide how a power conferred by the Legislature shall be exercised should be by ordinance, rather than by resolution. See Code, sections 680-684. Shelby v. Burlington, 125 Iowa, 343. But where it is simply required that the council shall act by vote or otherwise, in the ' specific case, in accordance with a method pointed out by statute or by general ordinance, a resolution is, no doubt, sufficient. Santa Cruz Rock Pavement Co. v. Heaton, 105 Cal. 162 (38 Pac. Rep. 693); Atchison Board of Education v. De Kay, 148 U. S. 591 (13 Sup. Ct. 706, 37 L. Ed. 573); National Tubeworks Co. v. Chamberlain, 5 Dak. 54 (37 N. W. Rep. 761); Ashton v. Ellsworth, 48 Ill. 299. on the other, as to malee the cases relied upon controlling.

But we do not regard the distinction between ordinance and resolution as material in this case. If a general ordinance was necessary, and Ordinance No. 166 was invalid, then the attempt by the city to proceed by means of a resolution in the particular case was without authority, and the proceedings were void.

e. Cities: power spedlf assess-meins. We are of the opinion, however, that no general ordinance was essential to enable the city to order the improvement, and take the steps necessary to a valid assessment. ^ certainly cannot be true that where the entire Procedure is regulated by statute, and nothing jg £0 j-,e determined by general ordinance, the city can derive any greater authority from an ordinance which simply re-enacts the provisions of the statute. All that can be essential in such a case is that the city take the steps provided by the statute, and, if these steps are taken as required, the assessment will certainly be valid. Counsel bave cited authorities to the proposition which they claim to be analogous, that a constitutional provision is not self-executing, and is of no force as conferring authority until it is put into effect by suitable statutory enactments. We need not discuss these cases, for the analogy, if any, is with the class of cases where'the statute confers upon the city general authority, but leaves the method of procedure to be determined by ordinance. It cari hardly be said that a constitutional provision — even one conferring power — cannot possibly take effect, no matter how specific it may be, until statutes have been enacted for the exercise of the power thus granted. But there is no such analogy between a constitutional provision and the powers to be exercised thereunder, on the one hand, and a statute conferring power upon a city, on the other, as to make the cases relied upon controlling. The full and plenary power of the Legislature to confer authority upon a municipal corporation, and to direct the method of its exercise, cannot be questioned; and if we find that the Legislature has conferred upon cities such as the defendant the power to order street improvements to be made, and to proceed in a prescribed method in making the improvements, assessing the cost upon abutting property owners, then there can be no question, in our judgment, that if the defendant pursued the method prescribed, and took the steps required, the assessments are valid. We turn, then, to the statutory provisions relating to street improvements and special assessments therefor, to ascertain whether there are such specific provisions taking effect without further action in the way of general regulation by the city, and whether the city has taken the essential steps to support an assessment under such provisions.

It may be conceded that,. under the general statutory authority conferred upon cities in the Code of 1878, no proceeding for the making of street improvements' and levying assessments upon abutting property could be instituted, except in pursuance of some general ordinance prescribing the method of procedure to be followed. But, between the enact* ment of the Code of 1873 and the general revision of the statutes of the State, made in the enactment of the Code of 1897, many statutes were passed, prescribing specifically the method to be pursued in exercising these powers. And when the Legislature recodified the law relating to municipal corporations in the Code of 1897, it retained many of the general provisions of the Codé of 1873, but embodied in separate chapters of title 5, relating to City and Town Government,” much of the specific legislation which had already been adopted. Chapter 7 of that title contains these specific provisions, the heading of the chapter indicating that it relates to “ Street Improvements, Sewers, and Special Assessments.”

6. CODIFICATION: statutory construction. And here it may be said, in order to answer an argument elaborated by counsel, that while a general codification and re-enactment of the law does not indicate any legislative purpose to change the law, and the decisions , . . . . _ relating to statutory provisions previously m „ _ , torce are still to be considered as controlling m the interpretation of the same provisions found in.the codification thereof, nevertheless, if the plain intention of the Legislature is to radically change or materially add to the previous statutory provisions, the decisions of the courts as to prior statutes ought not to be regarded as binding in the interpretation of such provisions as are new or fundamentally changed. To illustrate this view, we may compare the provisions of Code, section 751, which gives cities the. general power to establish, lay off, open, widen, straighten, narrow, vacate, extend, improve and repair streets,” etc., which is substantially retained from the Code of 1873, with the specific provisions of chapter 7, based on legislation adopted subsequently to the Code of 1873, amplifying the general power to improve streets, and providing how the improvement shall be made, for the purpose of assessing the cost on abutting property. Undoubtedly, any power attempted to be exercised with reference to street improvements under Code, section 751, must be exercised by means of a general ordinance, for neither that section, nor the sections following it in the same chapter, make any ’provision as to the method of exercising the power. But so far as the power 'is conferred by chapter 7, the method is specifically prescribed.

Considering in greater detail the provisions of chapter 7, we find that in section 792 cities are given power to improve any street, and to assess the cost on abutting property, “ as provided in this chapter.” By section 793 it is required that the construction of such an improvement shall not be ordered made, except by a three-fourths vote of all the members of the council, unless petitioned for by the owners of the majority of the linear front feet of the abutting property. By section 810 a proposed resolution declaring the necessity or advisability of the improvement, the kind of material proposed to be used, and the method of construction, is required, with notice, etc. And by section 811 the council is authorized by ordinance or resolution to order the making of the improvement proposed in the preliminary resolution. Subsequent sections provide specifically as to the contract for the improvement, bids, contractors’ bonds, and the lien of the proposed assessment In section 818 it is provided that the cost of making any street improvement “ authorized in this chapter,” except so far as the same involves the expense of improvement at street intersections, and the cost which may be assessed to street’ railways, “ shall be assessed as a special tax against the property abutting ” on the streets improved. And by sections 820 — 825 specific provision is made as to how the cost is to be ascertained, and the assessments to abutting property owners made. We cannot discover that anything is left to be provided for by. general ordinance, nor that Ordinance No. 166 of defendant city contains any essential provisions not found in the Code. Wo therefore reach the conclusion that it is immaterial whether that entire ordinance was rendered invalid by the statutory abrogation of section 4 thereof, or whether it re-liiained in full force, save so far as it was inconsistent with the provisions of the Code; nor do we find that the new ordinance (No. 223) enacted after the improvement was ordered and constructed, but prior to the reassessment of the cost of the improvement to the property owners, contains' any essential provisions not already in force in the defendant city as a part of the general law. Had the city proceeded in accordance with the general law to make the assessment for the costs of the improvement ordered in the resolution of necessity already referred to, such assessment would, in our judgment, have been valid.

7. Reassess-íients. But as it is conceded that the assessment first made was invalid, because made under section 4 of Ordinance No. 166, we reach the question whether the city had authority to reassess the costs to property owners under Code, section 836, which provides that, “ when by reason of nonconformity to any law or ordinance, or by reason of any omission, informality or irregularity, any special tax or assessment hereafter levied is- invalid or is adjudged illegal * * * the council shall have the power to correct the same by resolution or ordinance, and may reassess or levy the same * * * with the same force and effect as if done at the proper time, in the proper amount, and in the manner provided by law or by the resolution or ordinance relating thereto.” This section has been held valid and applicable where the kind of material to be used was not determined in advance. Tuttle v. Polk, 84 Iowa, 12, and 92 Iowa, 433. And in several cases it has been said that irregularities and defects in the proceedings might be thus cured. Clinton v. Walliker, 98 Iowa, 655; Windsor v. Des Moines, 101 Iowa, 343; Ottumwa Brick & Const. Co. v. Ainley, 109 Iowa, 386; Gill v. Patton, 118 Iowa, 88. And see Freeport Street R. Co. v. Freeport, 151 Ill. 451 (38 N. E. Rep. 137); Baltimore v. Ulman, 79 Md. 469 (30 Atl. Rep. 43).

. The conclusion already indicated as to the validity of the steps taken by the defendant city, without regard to whether the existing general ordinance was in force, leaves no difficulty in the way of sustaining the reassessment. So far as is pointed out, the only obstacle to the enforcement of the first assessment was that it had been “ adjudged illegal,” within the language of section 836, because made by the front-foot rule; and, without inquiring into the correctness of the decision as to its illegality, we find that a legal assessment might have been made, and therefore the reassessment was authorized.

The cases relied on by counsel for appellee are those in which some essential authority or step in the proceedings was wanting, as in Zalesky v. Cedar Rapids, 118 Iowa, 714, and Allen v. Davenport (C. C. A.) 132 Fed. 208. The view which we have taken with reference to the existence of the authority on the part of the city to order the improvement, and the taking of .the essential steps to authorize an assessment, renders it unnecessary to discuss these and other cases which are relied upon by.counsel. They do not call attention to any omission of the essential steps which the statute provides for, and the record shows, directly or by implication, all that is required for a valid assessment. Wé can presume that there was ample notice of the reassessment, .for it appears from the records of the council that a resolution for a reassessment was passed January 6, 1902; that objection to the reassessment on the part of the plaintiffs in these cases was made to the council on the 31st of the same month; and that thereupon the council passed a resolution making the reassessment.

We reach the conclusion that the reassessments were valid, and that the decrees of the lower court in favor of. plaintiffs were erroneous. They are therefore reversed.