Nixon v. City of Burlington

115 N.W. 239, 141 Iowa 316

• Court: Supreme Court of Iowa
• Decided: March 11, 1908
• Status: Published

Opinion

Weaver, J. —

Concerning the essential facts of this case there is little, if any, dispute. The city of Burlington is divided into seven wards, and its council is made up of one member from each ward and two members at large, presided over by the mayor. A vacancy in the said body created by the resignation of one of the members at large remained unfilled from January 2, 1906, until April 1, 1906. At a regular meeting of the council of March 19, 1906, a resolution of necessity was presented for the paving and curbing of Maple Street', from Eighth Street to Sumner Street, the pavement to be laid with briclc, and to be forty-eight feet wide between the curbs from Eighth Street to Central Avenue and thirty feet wide from Central to Sumner. It also proposed the assessment of the cost of the improvement upon the abutting property, and named April 16, 1906, as the date for final consideration of the resolution. On this action the city record shows a roll call and a vote of six yeas and one nay. Notice of this resolution was published in a daily paper of the city from Thursday, March 22 to Sunday, March 25, inclusive. On April 16, 1906, a written protest signed by most of the owners of the abutting property was presented to the city council, setting forth the reasons why said improvements should not be ordered. The resolution of necessity, in the terms above stated, was then passed by a vote of seven yeas to two nays. A further resolution directing the city engineer to advertise for bids for the paving according to plans and specifications was then adopted by a vote of six’ yeas and three nays. Acting upon this instruction, the city engineer prepared a notice to contractors which he caused to be published in a daily newspaper of said city on Saturday, April 28, and Sunday, April 29, soliciting proposals for grading and curbing the street, and paving the same with brick on a six-inch concrete foundation according to plans on file in the engineer’s office, such bids to be received until 4 o’clock p. m. of Monday, May Y, 1906. On May 14, 1906, the city by its officers entered into a contract with the Burlington Construction Company to construct the contemplated improvement. After the work had been for some time in progress, the city council appear to have thought it advisable to increase the width of the pavement between Eighth Street and Central Avenue from forty-eight feet to fifty-six feet by extending the same a distance of four feet' on either side. To that end a resolution of necessity was presented to the council on July 16, 1906, naming August 6, 1906, as the date for final action thereon. Notice of this action was published on July 17th, 18th, 19th and 20th, and on August 6, 1906, the resolution was adopted and notice to contractors published on August 8 and August 9, 1906, for bids to be presented on or before August 20, 1906. The contract was let to the Burlington Construction Company at the price per yayd named in the first contract. On October 15, 1906, the work having been completed, separate resolutions were introduced in the city council to levy the cost of the improvement under the contracts aforesaid upon the abutting property, setting forth a list of the property and. the proposed amount chargeable to each lot or parcel of land. It was thereupon ordered that November 19, 1906, be set for the hearing of objections, if any, which might be made to such assessments by the owners of the abutting property, and notice of said action and of the amount of his assessment was given to and received by each of the plaintiffs herein, all of whom owned property abutting upon said improvement. On the date named the plaintiffs appeared before the council and each filed written objections to the assessments, alleging that they were in excess of the benéfits, in excess of 25 percent of the value of the property, that the proceedings in ordering the improvement and letting the contract had not been conducted according to law, and that the street railway company had not been assessed with its proportion of the burden. These objections were overruled by the council, and the assessments leyied as proposed. No appeal from this action or from any order made by the council with reference to said improvement was ever taken to the district court. The foregoing history of the case, set forth with more than ordinary detail, will enable us to review the controlling questions presented in argument without further reference to the pleadings.

1. Municipal corporations: special assessments: estoppel. I. The statute under which the pavement was ordered constructed having provided for a hearing by the council of all objections to the proposed levy of special assessments therefor (Code, section 823), . ' and having iurther provided that all ob- ° x jections to errors, irregularities, - and m-equalities not so presented for hearing shall be considered waived (Code, section 824), and it being still further provided that persons aggrieved by the orders and decisions of the council have a right of appeal "therefrom to the district court, where all questions touching the validity of such assessment which have not been waived may be heard and determined (Code, section 839), it follows of necessity that having appeared before the designated tribunal and made known their grievances, and having failed to appeal from tlie order made thereon, the property owners are thereafter estopped to question the assessments or maintain action to enjoin their enforcement, unless it be found that- the council was wholly without jurisdiction'in the premises. Crawford v. Polk County, 112 Iowa, 118; Nugent v. Bates, 51 Iowa, 77; Macklot v. City, 17 Iowa, 387; Harris v. Freemont, 63 Iowa, 639; Collins v. Keokuk, 118 Iowa, 30; Stevens v. Carroll, 130 Iowa, 465; Owens v. Marion, 127 Iowa, 469; Comstock v. Eagle Grove, 133 Iowa, 589. Indeed, the appellants do not deny the general correctness of this proposition, but claim that in the present instance the proceedings of the council were so defective as to be void for want of jurisdiction.

2. Public improvement: resolution of necessity: vote of counsel. II. The first alleged defect has reference to the sufficiency of the vote in the council by which the first resolution of necessity was adopted. The objection made is that the proceeding having been initiated upon ,, ... ,. . the councils own motion, and not upon . . . • the petition of the maiorit-y of the prop-x J •' ■ x *■ erty owners, it required a vote of three-fourths of the council in support of the order, and that the vote taken did not, in fact, fulfill said requirement. The objection indicates a misapprehension of the record, and of the force and effect of the statute. The provision of the statute referred to (Code, section 793) is that “the construction of the improvement shall not be ordered made until three-fourths of all of the members of the council shall assent thereto, unless the same shall be petitioned for by the owners of a majority of the lineal front feet of the property abutting thereon.” Now, when was this improvement “ordered made ?” Certainly not at the meeting of March 19, 1906, when the resolution of necessity was presented. Under the statute (Code, section 810) all the council was authorized to do at that meeting was to receive the resolution, and fix the date at which after due notice it would be put upon its passage. This order was made as we have seen by a vote of six yeas to two nays. The vote was a clear majority of the entire council (making no deduction for the single vacancy then existing), and this in our judgment was all that was required. By its express terms the statute requiring the three-fourths vote has reference only to making the order for the improvement, and this was not attempted in the present instance until the meeting of April 16, 1906, when the resolution was passed, and the order made by a vote of seven yeas and two nays; the vacancy in the' council having been filled. This was clearly a compliance with the statute, and the objection to the sufficiency of the vote can not be sustained.

3. Same: letting of contract: record of vote. Objection is also raised to the'sufficiency of the record of the vote by the council for the letting of the second contract: It would seem that the clerk did not set out a detailed statement of the vote in the general record book, but did record the same upon, , sheets of roll calls specially prepared for that purpose, and this, we think, was sufficient compliance with the statute. Moreover, it does appear that all members of the council were present, that a roll call was taken on the passage of tbe resolution, and that all voted in tbe affirmative.

4. Notice of resolution of necessity: publication on Sunday. III. The statute provides that twenty days’ notice of tbe date when tbe proposed resolution of necessity will be considered by the council shall be given by four publications in some newspaper of general circulation published in tbe city. Tbe notice in tBis instance was, .in fact, published on '■ ' % x each of four successive days in one of tbe papers of tbe city more than twenty days prior to tbe hearing, but tbe last of these publications occurred on Sunday; and tbe point is made that such publication can not be taken into consideration, and that in tbe eye of tbe law there were but three publications, and any action based upon such incomplete notice is void. It is not to be denied that there is authority tending to support this contention. Scammon v. Chicago, 40 Ill. 146; Shaw v. Williams, 87 Ind. 158 (44 Am. Rep. 756). But this court is committed to tbe doctrine that, while tbe transaction of judicial business on Sunday where not clearly authorized is without authority,, yet mere ministerial acts may be lawfully performed on that date. In State v. Ryan, 113 Iowa, 538. In 20 Encyc. PI. & Prac. 1197, this is said to be tbe prewailing rule in tbe absence of any prohibitive statute. See, also, S. & L. Society v. Thompson, 32, Cal. 347. We are satisfied with tbe rule as stated, and see no reason to abandon tbe position taken by us in tbe Ryan case. Tbe publication of tbe notice was sufficient.

5. Resolution of necessity: details of proposed improvement. IY. Tbe resolution of necessity described tbe proposed pavement as one to be constructed of brick and forty-eight feet wide between tbe curbs; no mention being made as to tbe foundation or substructure. The council’s order to tbe engineer was to advertise for proposals “for paving Maple . 0 , Street according to tbe plans and specifications on file in bis office.” Tbe advertisements, as made, called for proposals for the grading, curbing, “paving with brick on a six-inch concrete foundation,” and the contract was let on the basis of such specification. Counsel make the point that, as the first resolution of necessity did not mention the requirement of a concrete foundation, ...the council had no authority to let the contract containing such provision. It is true the statute (Code, section 810) requires the resolution to state, among other things, the kind of pavement proposed and the method of construction; but this, we think, does not make it mandatory that all details of the materials to be used and the method and manner of their use shall be set forth in the preliminary resolution. I]he -office of the published notice is not, we think, to describe the proposed improvement with minute specifications but rather to apprise the public, and persons interested of its general character, and give opportunity for investigation and for protest by those desiring to make it. The engineer is presumed to be prepared with the details and with the plans and specifications according to which the work must be performed. Notice that the pavement is proposed to be built of brick, granite; asphalt or wood blocks implies the purpose to construct it upon a sufficient foundation, and in the usual and approved manner. Common observation teaches us that the work of paving ordinarily calls for the use of a large amount of materials other than the principal item from which the pavement under consideration takes its name, and it would be impracticable to burden a resolution of necessity with their recitation. It is sufficient that they may be ascertained by reference to the proper office where interested property owners and contractors may obtain the necessary information. There was no fatal defect in the resolution in this respect.

6. Special assessments: waiver of objection. Y. The action of the city council in providing for an increase of the width of a part of the pavement of Maple Street is made another ground for objecting to tbe validity of the assessment It is possible, as argued on behalf of the appellant, that the manner x x £n which this was done was unwise or unbusinesslike; but we discover no reason therein for holding the assessment void. If, after entering upon the performance of the work under the first contract, the city council became convinced that 'public necessity or public convenience required the pavement to be wider than was first contemplated, it would seem to be reasonably within the scope of power vested in that body to legislate upon the subject, and to take the necessary measures to accomplish that purpose. The proceedings had with reference thereto seem to be in substantial conformity with the statute, and, if there was any error or irregularity therein by which the burden of any taxpayer was unduly increased, the remedy therefor was provided in the right to appeal from such assessment to the district’ court. No appeal having been taken, the objection must be held to have been waived.

7. Same VI. Finally, it is said that the notice given for proposals by contractors was not sufficiently definite and specific; that the clerk in recording the order for the improveiment failed to state whether such order had been made upon the petition of the property owners or upon the motion of the council; that a fair and impartial hearing of the plaintiffs’ objection to the assessment was not accorded by the council; that a committee of the council appointed to confer upon the matter of their complaint refused to accord them a hearing, but none of these matters go to the jurisdiction of the council, and, as already suggested, the remedy for such grievance is by appeal.

We find no ground for disturbing the decree entered by the district court, and the same is affirmed.