McNamara v. Estes

Dillon, J. 1. COrporation municipal: Keokuk city: tax deed. I. The appellants claim that the collector’s deed, filed as an exhibit to appellee’s petition,- is invalid, because it was not executed in the name of the “ city of Keokuk.” The deed, after full and formal recitals of the power under which it is made, the assessment of the special tax, notice of sale, the sale, etc., proceeds: “ Now know ye that I, C. C. Stevens, collector of the city of Keokuk, by virtue of the authority vested in me [253] and the sum of, etc., * * do, by these presents, in the name of the city of Keokuk, sell and convey, etc. In testimony whereof, I have hereunto set my name, officially, this 22d day of December, 1858. '(Signed.) «O. O. STEYENS, Collector of the city of Keokuk.” The charter of the city (act December 13, 1848, § 30) simply provides “ that the collector of said city shall make, execute and deliver a deed, etc. Another section of the organic law of the city (§ 8, act of January 22,1853) gives the city power to “ enforce and collect, as may be provided by ordinances of the city council, assessments of taxes.” An ordinance of the city, in force when the deed in question was made, provided that “deeds should run in' the name of. the city of Keokuk, and be signed and acknowledged by the city collector, jn his official name.” The charter does not require the deed to run in the name of the city. It is silent on this point, except to say that “ the collector shall make the deed.” If it be granted that it was competent to provide by ordinance that the deed should run in the name of the city, and' that a failure in this respect would invalidate the deed, still we are of opinion that the deed in question complied with the requirements of the ordinance. It was “ signed by the city collector in his official name,” and it professes to run in “ the name of the city of Keokuk.” To hold the present deed invalid because of the objection above stated, would be to exercise a nicety of refinement in which courts have too much indulged, but which ought to have ended with the days of subtle and hair-splitting schoolmen. [254] 2. — macadamization of streets. [253] II. It is next urged, that the deed is invalid, because the charter of the city gave it no power to levy a special [254] tax and sell property for taxes due for “ trim- . , , . ,, mmg, curbing, and guttering. Ilie same question is made in other portions of the record. This presents a question of construction not a little difficult. It is settled law that the power of a municipal corporation to levy and collect taxes, particularly special assessments, must be plainly given. And the words claimed to confer the power are to be taken strictly, rather than flexibly. The power — a high one — must be clear, plain, and undoubted. It may also be added that it cannot be extended by a latitudinary construction. Ham v. Miller, June Term, 1866 ; Thompson v. Schemerhorn, 2 Selden, 92; Clark, Dodge & Co. v. Davenport, 14 Iowa, 494; 9 Barb., 152; Lake v. Williamsburg, 4 Denio, 520 ; Sharp v. Spier, 4 Hill (N. Y.), 76 ; Howell v. Buffalo, 15 N. Y., 512; Manice v. The Mayor, etc., 8 Id., 120; Kyle v. Malin, 8 Md., 34, 37; Clark v. Des Moines, 19 Iowa, 198; Meech v. Buffalo, 29 N. Y., 198; Scoville v. Cleavland, 1 Ohio, 126, 133; 10 Id., 159. Conceding these to be well settled rules, we inquire what power, as respects the question before us, does its constituent or organic act confer upon the city of Keokuk. Section four, of act of 1853, gives “the city council power to levy and collect a special tax on lots, or the owners, for the purpose of curbing, paving, or grading the sidewalks in front of their respective lots.” This refers alone to sidewallcs as distinguished from streets, and gives the power to levy a special tax (1) to grade, (2) to pave and (3) to curb. Curbing, by this section, is treated as a portion of, at all events in connection with, sidewalks. The next section (5) gives the council “ power to levy and collect a special tax on the lot or lots of the owner or owners thereof, on any street or any part thereof within said city, according to their respective fronts, for the [255] purpose of paving, planking, or macadamizing the streets in front of their respective lots.” This refers to streets, and the power to grade or graduate the same is omitted or not expressly given, as in the preceding section in reference to sidewalks. But the power to macadamize and to levy a special tax to pay for it, is expressly conferred. Now appellants say: “ We admit the right of the city to levy a special tax under the (5di) section to macadamize, but we deny its right, thereunder, to levy such a tax for “ trimming, curbing and guttering;” the plaintiff’s deed is for such a tax, consequently it, and the proceedings upon which it is founded, are illegal. And the controverted point is just this: Does the power to macadamize include the power to trim and gutter, or to trim, gutter and curb ? Plaintiff affirms and appellants deny. No evidence aliunde wras given as to the meaning of those words. As the power to levy a special tax for curbing is expressly given by section four, above quoted, we need not consider whether macadamizing would otherwise be taken to include curbing. But does it, as used in the charter, include “trimming and guttering ? ” The power to levy a special tax to grade is given in the previous section as to sidewalks, and omitted, perhaps by design, as to streets. Now, “ trimming ” we shall take to be the rounding off' of an already graduated street, so as to prepare it for the reception of the macadam material. This being so, it is fairly embraced in the grant of power to macadamize. Such would be the understanding of civil engineers and persons generally, and such,.therefore, the law should be held to be. And we reach a similar conclusion with respect to “ guttering.” [256] Macadamized roads, that they may shed water readily and thereby prevent the road-bed from sinking in the mud or being thrown up by frost, are generally constructed with a raised center, sloping to each side. It is necessary to the construction of a good road of this character, that, the surface water which it sheds should have an easy and appropriate place in which to flow away. This is the purpose of the gutter constructed on the side of the road, and such a gutter is really part of the road. Not only does the gutter provide for the discharge of the water, but it supports the macadam material proper and prevents it from spreading. In cities, the outer side of the gutter is generally supported by the curb. Now, taking sections four and five together, we are of opinion that they justified the levy of the special tax in reference to guttering. That such a tax is authorized with reference “ to curbing ” is plain (see § 4); that it is authorized as to the body of the street is also plain and undisputed. Why should we hold that the legislature did not intend to confer the power to levy the tax on the or owner to pay for a gutter as well as a sidewalk, curbing and macadamizing? 3. _ construction of power. Perceiving and fully admitting the danger of giving elasticity to words conferring upon municipal corporations such high and great power as the power to levy a special tax and sell for default of pay-j i. , , •' ment, we must, nevertheless, give them a reasonable construction, one which truly reflects the legislative mind. 4. _ burden of proof. III. It is next claimed by appellants, that the collector’s deed and the assessment and levy are invalid, because the power given by section five, of the act of Jan-nary 22,1853, was not pursued. This section will be found quoted above. Appellants’ point of objection is this: The levy, if allowable at all, should have [257] been for macadamizing on the street in front of said lots; instead of this, it ivas made for macadamizing streets in the city, without reference to said lots, hence the levy is void. Now, the plain purpose of section five, above referred to, is to compel owners of lots abutting streets, to pay the costs of making improvements of the designated character. These must be made in front of the lot to be charged; and the lot or its owner can only be charged according to his front. Upon looking into the engineer’s report, and the resolution of October 28, 1858 (see statement), we have been unable to discover in these or in any portion of the record, anything to show, either that the improvements charged for were not made in front of appellants’ respective lots, or that the appellants were assessed more than their proportionate share of the cost thereof. The collector’s deed, both by charter and ordinance, is made presumptive evidence of the regularity of all prior proceedings. If the improvements were not made in front of appellants’ lots, or if they were disproportionately assessed, appellants ought to have pleaded and shown these, facts. The answers stricken from the files presented no such defense. By reference to the statement, it will be seen that each lot is separately assessed, and the amount due from each separately stated in the engineer’s report. 5. practice : error without prejudice. IV. We come now to consider the ruling of the District Court in striking from the files certain plead- , ... / . , . A mgs ot appellants, and its decision holding that the objections to the levy were not well taken. The plaintiff, treating the act of March 22, 1858 (Rev., p. 194, § 1144), as applicable to his deeds, and that it was imenmbent on him to foreclose as provided by the Code of 1-S51, filed his petition for that purpose. See Sweet v. [258] Billings, 14 Iowa, 384; Street v. Hughes, 20 Id., 131; also particularly § 4, ordinance No. 146, copied, in record, as to rights and remedies of holders of tax deeds. In relation to defending such actions, it is provided by the Code of 1851 as follows: “ But the owner shall not be entitled to defend unless he has paid or tendered the amount above directed, or shows that no tax was levied on the land, or that he has paid the taxes.” Code 1851, § 506. The charter of the city (§ 14, act January 22, 1853) also provides that “ all deeds made to purchasers of lots sold for taxes or assessments, shall be conclusive evidence in all controversies in relation to the right of the purchaser to hold or recover the premises, except it be shown that no tax or assessment was levied on the lot or lots, or that the same was paid before the sale, or that the lot or lots were redeemed before the execution of the deed ordered.” Now, the appellants did not plead or claim that they had ever paid the assessment or redeemed the property from the sale. But they did plead that no tax or assessment was levied. The court, it is true, struck their answer from the files. If the action of the court were admitted to be erroneous, it was cured by the subsequent action of the court, allowing appellants the opportunity to prove that no levy or assessment was ever made. On the trial of this issue, it turned out that, in point of fact, the special tax in question was levied; and that, in point of law, as we have before shown, the objections urged against it were not well founded. 6. tax sale : inconclusiveness of deeds. Y. But there is one error in the ruling of the District Court, for which its decree must be reversed, 7 _ n ^ n and tne cause remanded tor a new trial. “ The defendants,” acccording to the bill of exceptions “'then offered! to produce evidence tending to prove that [259] no sale was made of said lots, as is affirmed in tbe collector’s deed,” which evidence the court refused to receive, and the defendants excepted. Ve are clearly of opinion that the recitals in the tax deed, of the fact of sale, are not conclusive. The owner may show against such recitals that, in truth, no sale was made. This, as we understand, the appellants offered to do in the present case. If the appellants could establish that no sale was made, they would likewise establish that the plaintiff had paid nothing, hence no tender or offer to pay the amount named in the tax deed could be required as a condition of making the defense. As we read the bill of exceptions, the offer was to prove “ no sale,” and not alleged irregularities in the sale. For this reason the decree of the District Court against the appellants is reversed, and the cause remanded for further proceedings. If the appellants fail to establish that there was no sale, and shall not show any other defenses except those ruled against them in the foregoing opinion, the plaintiff will be entitled to a decree similar to the one before rendered by the court, unless appellants shall, prior to the entering of any such decree, tender or pay the amount for which the property sold, and interest. Reversed.