Zalesky v. City of Cedar Rapids , 118 Iowa 714 ( 1902 )

Bishop, J.

By section 958 (being part of the chapter ■of the Code relating to cities tinder special charter), Code, section 779, relating to cities existing under the general law, is made applicable to special-charter cities. Section 779, as amended by chapter 27, Acts 28th General Assembly, as far as pertinent to- this case, is as follows: ‘.‘They shall have power to provide for the construction, reconstruction and repair of permanent sidewalks upon any ■street, highway, avenue, * * * within the limits of such city or town; * * * and to assess the cost thereof on the lots or parcels of land in front of which the same shall be constructed; and the city clerk shall certify the amount of such assessment to' the county auditor, and it shall be collected the same as other taxes. But in cities having a city collector or treasurer who collects city taxes, the city clerk shall certify the amount of such assessment to such collector or treasurer, and the same shall be collected as other city taxes. ”

r. sidewat.ks: power of “tyIt will be observed that said .section grants power, in general terms, to deal with the- subject of permanent sidewalks. “They shall have power to provide,” etc. This cannot be construed otherwise than to mean that the city council is thereby invested with all necessary authority to make provision for carrying into ■effect the power granted. Now,, municipal corporations make provision for carrying into effect or discharging the powers and duties conferred by la'w, through the medium ■ of an ordinance. Code, section 680. “Power to provide” cannot be exercised in any other way than by formal legislative action on the part of the city council. A general power to provide being expressly conferred, it is well-settled doctrine that there is included therein all such implied powers as may be necessary to carry into effect or make available the general power thus granted. City of Keokuk v. Scroggs, 39 Iowa, 447; Becker v. Waterworks 79 Iowa, 419; Aldrich v. Paine, 106 Iowa, 461.

Under section 779, considered by itself, it is clear that, a city council is fully authorized and empowered not only to provide for the construction of permanent sidewalks,, but, as a necessary incident thereto, to;provide for the-time, place, and manner of such construction, and, when the work shall be done by the city, whether the cost thereof shall be paid from general funds, or be assessed upon, abutting lots or parcels of land. That it is competent to. incorporate in such an ordinance a provison that the work may be done by the abutting property owner according to prescribed specifications, and within a reasonable limit of time specified, we entertain no doubt. So, too, where it is proposed to assess the cost on the abutting property, a provision in the ordinance fixing the character of notice to be given the owner of such abutting property, and prescribing the manner of, service thereof, is fairly within the implied powers granted by said section of the Code.

a. same: orfilution notice, It will be seen from the statement of facts above that the city council of Cedar Rapids did enact an ordinance providing for the construction of permanent sidewalks; the terms thereof being general, and having relation only to the subject matter of the construction of such walks in the city generally. The ordinance itself negatives the idea that thereby the city intended to provide for or order, as a finality, the construction of: permanent walks throughout the limits of the city. Further action on the part'of the city council in the way of a resolution was necessary from time to time, in order to. carry the ordinance into effect, as applied-to-particular pieces of walk, construction of which might, be desired. We think the authority to act in any given instance is con,ditioned upon such being done; that jurisdiction to proceed at all depends upon the formal adoption of such a resolution. No one would presume to say that the city council might proceed to build walks when and where it would, and assess the cost thereof to abutting property ownérs, in the absence of a formal resolution therefor, as provided in said ordinance. Now it is not contended in the case before us that the resolution of August 31, 1900, was sufficient to authorize the building of a walk adjacent to the property of appellee. At best, it was a declaration that the cost of constructing the walks in front of other lots named would be assessed against the lot of appellee. Perhaps one might well reach the speculative conclusion that it was intended to provide for the laying of walks adjacent to the lot of appellee. But when it is sought to-charge a property owner for the cost of works of public improvement, the power must be exercised strictly in the manner prescribed by law. Bucroft v. City of Council Bluffs, 63 Iowa, 646; Coggeshall v. City of Des Moines, 78 Iowa, 235. No proper and necessary resolution having-been adopted as a basis therefor, it follows that the notice-of date, September 5, 1900, given plaintiff by the sidewalk inspector, was of no force or validity.

3. same: Pub-notice: jurisdiction: personai service, II. One of the provisions of the ordinance of the city is that, “when any such sidewalk is ordered-to be laid,, notice thereof shall be published for ten days in a paper of the city by two publications,” etc. The city having thus attempted to avail itself of' the “power to provide,’’and having prescribed that publication of notice shall be a condition precedent-to the exerc'se of power in making an assessment, it is bound thereby, and such publication of notice cannot be dispensed with. As was said in Starr v. City of Burlington, 45 Iowa, 89: “The ordinance, in terms, requires the work to be ordered by resolution to be published in the manner prescribed. The city, by its ordinance, having prescribed these proceedings, must pursue them, in order to bind the property holder and render him liable for the cost of the work. The city cannot be exempted from the duty of obeying its own law. It has prescribed the steps to be taken which will give it jurisdiction to levy assessments. * * * The citizen cannot be bound unless the authority be exercised in the manner prescribed.” See, also, City of Dubuque v. Wooton, 28 Iowa, 571; Roche v. City of Dubuque, 42 Iowa, 254; Kendig v. Knight, 60 Iowa, 32; Tallant v. City of Burlington, 39 Iowa, 546.

It is said that the personal service of notice upon appellee superseded the necessity for publication. To this we cannot yield our assent. Notice is required to be published. In terms, there is no requirement of personal service. The notice need not be addressed to any particular person. Undoubtedly many cases arise where other persons are shown to have interests in addition to those possessed by the holder.of the legal title, and the intention of the council adopting the ordinance to give notice to all such, and to the general public, as well as to the lot owner, may well be inferred. Passing the question as to whether personal notice is necessary, in addition to the published notice, we hold that the latter, as applied to the case before us, is jurisdictional, and cannot be dispensed with.

4. same: section: win not validate assessment, III. The appellants contend that, even conceding the•defects to which attention has been called, the same were cured, and a valid levy of assessment accomplished, by virtue of the resolution of February 15, 1901, and the notice served pursuant thereto, and . 7 the further resolution of March 8, 1901. Section 836 of the Code is relied upon as a basis for such contention. Granting even that the chapter of the Code of which said section is a part has application to the mat ter of construction of sidewalks, — a point we do not de. cide, — still there is no merit in this contention of appellants. The defects which may be cured by a relevy of assessment are such only as inhere in the time or manner of the proceeding, the machinery of the law having once been properly put in motion. . It was not intended thal jurisdictional defects can be cured by proceeding as therein directed.

Under the ordinance in question, the adoption of a resolution is a prerequisite to any further step being taken. Without that step there is no authority whatever to further proceed. The case is altogether different from one where, having authority to proceed, irregularities and defects in the subsequent proceedings thereafter occur, which do not have the effect to take away or impair any substantial right of a party interested. While having reference to a different section of the statute, yet the principle announced in City of Chariton v. Holliday, 60 Iowa, 391, is applicable. That was a case in which recovery was sought under the provisions of section 479, Code 1873, which provides, in effect, that under certain specified conditions a recovery may be permitted for public improvements, notwithstanding informality, irregularity, or defects in the proceedings under which such improvements were made. In the course of the opinion it is said: “The irregularity or defect under which this section can be disregarded must, we think, be a mere error or omission to do something which in no manner affects the jurisdiction of the city. It is fundamental that, unless jurisdiction has been acquired, the proceedings of all the courts are void, and this must be so as to municipal corporations.” In that case, as infláis, the lot owner had the right, under the ordinance, to construct the walk, if he saw proper. But this, if is said, he could not do until one was ordered. “Under the ordinance, it was essential that a resolution should be passed by the council, ordering the construction of the sidewalk; and, as this was not done, the defendant cannot be held to pay for the walk in question.” ■

It requires no argument to reach-the conclusion that if no jurisdiction was acquired by the city to proceed in the matter of the sidewalk in question, there could be no-authority to make an assessment, and consequently no authority to reassess, especially as this was attempted to-be done long after the walk had been actually constructed by the city.

There is no error in the decree, and it is affirmed.