Smith, Lichty Co. v. City of Mason City , 210 Iowa 700 ( 1930 )

Plaintiff is the owner of Lot 4 in Block 4 in Wildwood Addition to Mason City, Iowa. The public improvement, consisting of curbing, guttering, and paving, was done on the street in front of this lot, and also on one side thereof.

In the early part of 1928, a resolution was introduced before the city council of Mason City, proposing this improvement, a part of which affected the lot owned by the plaintiff. This resolution of necessity proposed the construction of this public improvement on a number of streets in said city. It also provided that any property owner who had not on file with the city clerk at the time of the final consideration of this resolution objections to the amount of the proposed assessment against said owner's property, "shall be deemed to have waived all objections thereto;" also, that the assessment against any lot should be in proportion to the benefits conferred, not in excess thereof, and in any case, limited to 25 per cent of the actual value of the lot at the time of the levy. Notice of this resolution was given, in which the time for hearing thereon was fixed at 1 o'clock on the afternoon of the 1st day of May, 1928. Before the resolution of necessity was introduced, the plat and schedule provided for in Section 5993, Code, 1927, was on file. The plaintiff made no appearance or objection thereto.

On May 2, 1926, this resolution was finally and duly adopted, contracts were let for the improvement, and the improvement constructed. Thereafter, the plat and schedule provided in Section 6023, Code, 1927, were duly prepared, and filed in the office of the city clerk, and the notice provided by Section 6026 of the Code was duly given. In pursuance of this notice, the plaintiffs appeared and filed objections to the amount of the assessment then proposed to be levied against this lot, the material parts entitled to consideration being: (1) That said proposed assessment is in excess of 25 per cent of the actual value of the lot; and (2) that said assessment is excessive, and if made as proposed, will be confiscatory.

These objections were overruled by the city council, and the proposed assessment confirmed. In due time, appeal was taken to the district court, with the result noted above.

To a fair understanding of the questions involved herein, a slight review of this character of legislation will be helpful.

In the early history of this legislation, the resolution of necessity was passed after due notice, contracts were let, the schedule of proposed assessments was filed with the clerk, and notice given to all owners of property upon which it was proposed to levy assessments. This method proved quite unsatisfactory, because of the fact that the court held some assessments invalid, others were reduced, and in addition, there were expenses incident to the improvements that were not contemplated in the first instance, which resulted, in some cases, in large shortages, and the total receipts from the assessments were insufficient to pay the cost of the improvements. Through a series of amendments and a rewriting of these sections of the Code, these difficulties were sought to be overcome. Prior to the adoption of the Code of 1924, it was required to have, before the resolution of necessity was introduced, a plat and schedule of the district, setting out the proposed district to be established and each tract of land therein contained, together with the proportion of the total cost which would be assessed against each of said lots or tracts and an estimate of the total cost of the improvement. In the Code of 1924, these requirements were recodified as Section 5993, which provides that the following matters shall be contained in the plat and schedule:

"1. The boundaries of the district, if any.

"2. The streets to be improved.

"3. The width of such improvement.

"4. Each lot proposed to be assessed.

"5. An estimate of the cost of the proposed improvement, stating the same for each different type of construction and kind of material to be used.

"6. In each case the amount thereof which is estimated to be assessed against each lot."

By Chapter 153, Acts of the Forty-second General Assembly, Subdivision 4, just set out, was, by amendment, made to read:

"Each lot proposed to be assessed, together with a valuation fixed by the council."

In the recodification of the Code of 1924, what is now known as Section 5992 was first enacted, reading as follows:

"The council may, in addition to the requirements of the preceding section, incorporate in the resolution of necessity * * * and may also provide that unless property owners at the time of the final consideration of said resolution have on file with the clerk objections to the amount of the proposed assessment, they shall be deemed to have waived all objections thereto."

Generally speaking, then, the plat and schedule above referred to must be on file before the resolution of necessity. The above-quoted section, 5992, is permissive, and if the city seeks to avail itself of the benefits of this provision (which it did in the instant case), the property owner must file his objections to the valuation of the property as fixed, in the time and in the manner provided by law, and if he fails so to do, he waives all objections thereto.

The purpose of this legislation, as we view it, is to avoid the difficulties suggested under prior legislation, to the end that the city may know that the assessments, when finally levied, will be sufficient to meet the cost of the improvement which has already been completed. The city is not bound to proceed in this manner, but if it does, it is entitled to the benefits that arise from the provisions to which reference is above made. It is to be ever kept in mind, however, that, after the improvement is completed, provision is further made for another plat and schedule, by Section 6023 of the Code, which finally determines the amount of the special assessment that is to be borne by the property. Notice is provided by Section 6026 of the filing of said final schedule and assessment herein provided, and provision is made by Section 6029 that all objections to errors, irregularities, or inequalities in the making of said special assessment, or in any of the prior proceedings or notices, not made before the council at the time and in the manner provided in Section 6026, shall be waived, except where fraud is shown.

To clearly understand this situation, it is apparent that Section 5992 was written into the statute without much reference to its effect upon this chapter as a whole, and there is an apparent conflict between the two sections. The question is whether they can be harmonized. We are of the opinion that, when Section 5992 is taken advantage of by a city council, any objections that the property owner may have to the valuation of his property fixed by the council must be made and filed before the final action on the resolution of necessity, and if he does not do this, the statute provides that he waives all objections.

When it comes to the final assessment and levy under the proceedings marked out in Sections 6023, 6026, 6028, and 6029, the objections that he may then raise are only such as arise by reason of errors, irregularities, or inequalities that have arisen since the final adoption of the resolution of necessity.

One other section of the statute is to be called to attention at this point, Section 6021, which, among other things, provides: "Such assessment shall not exceed 25 per cent of the actual value of the lot at the time of levy." It is because of this last-quoted section that the appellant lodged its complaint against this proposed assessment.

When we turn to the fact side of the case, it appears that, in the first plat and schedule filed with the resolution of necessity, this lot was valued at $1,200, and the proposed assessment to be placed against it was $515. The appellee made no appearance and objection to the valuation fixed by the council, and we are of the opinion that, having failed to object thereto, he cannot afterwards raise that question. On the final schedule and assessment, the amount proposed to be placed against the lot was $384.89, and over the objection of the defendant, the city council confirmed this last-named amount as the true amount to be levied against this property.

It is quite evident on the face of the matter that, with a valuation of $1,200 on this property, the highest amount of tax that could be levied against it, under the 25 per cent limitation, would be $300, and therefore there certainly was error in this computation in the final action of the board when they proposed to levy $384.89 against it, and it was excessive in the amount of $84.89. We think this error can be corrected by objection to the final assessment.

One other question is strenuously urged in the case, arising from the following situation: It was stipulated by all parties thereto that the actual value of the lot in question at the time the levy was made was $1,000 (instead of $1,200). The appellee objected to this evidence as incompetent, irrelevant, and immaterial, for the reason that the appellant made no such remonstrance or objection to the resolution of necessity prior to its adoption.

In Section 5993, above set out, one of the things required to be specified in the plat and schedule is the fixing by the council of a valuation on each lot proposed to be assessed. This valuation, of necessity, is the basis upon which the assessment is to be made. In this proceeding it was before the property owner for inspection, if he so desired, and he would discover that the valuation fixed upon the property by the council was $1,200. He failed to make objections thereto, and by so doing, under Section 5992, waived the objection to such valuation, and cannot subsequently raise that question.

We more readily reach this conclusion in the light of the apparent attempt of the legislature to permit a city to settle definitely the amount that it is able to realize from a proposed assessment prior to the time they initiate one of these public improvements.

It follows, therefore, that the court erred in reducing this assessment to "$250 only." The amount of the assessment to be borne by the property of the claimant should be fixed at $300, and the decree of the district court should be modified accordingly.

I am directed to say that Judges Morling, Grimm, and Stevens concur with me in this dissent.