Brewster v. City of Davenport

Beck, Ch. J. i. municipal power of*city: councii. — I. Plaintiff insists that, as shown by the petition, the city had no authority to order the construction of sidewalk for which the assessment sought to be enforced was made. The statute and ordinance of the city (Code, § 466; City Ordinance 51, § 2) provide that improvements of this kind, when not asked [428] "by a majority of the resident owners ,of property abutting upon the street, “shall not be made until three-fourths of all the members of the city council shall, by vote, assent to the making of the same. ” Plaintiff insists that the city council' could not assent to the work for the reason that the councilmen did not have sufficient knowledge to act intelligently upon the subject. A committee was appointed to examine and report thereon; one only of the committee reported. ' We know of no reason why we may not presume that the council, individually and collectively, were fully informed of the facts connected with the work, and prepared to determine that it was required by the public wants. Indeed it appears to us. that members of the city council, like all members of legislative bodies, may acquire knowledge of public affairs upon which they act from any and all sources — from observation, from public rumor, and from the opinion and advice of others. The committee was intended to gain information for the council. If the report of one member of the committee gave the council information which they believed demanded action, or if they had, of their own knowledge, such information, it is sufficient. The law bestowed ujmn them the authority to determine whether the improvement should be made. The law will presume they had sufficient intelligence and information to exercise this authority. s_. ordi_ nance-.record, II. It is next urged that as the petition alleges that the journal of the proceedings of the city council fails to show that the resolution directing the construction of ^g was ma¿e by three-fourths of the members of the council, the improvement must be regarded as not having been legally ordered. The record shows that the order for the improvement and the assessment was adopted by the council. The statute and ordinance declare that the • adoption of such order and resolution must be had upon the ‘vote of three-fourths of the members of the council. We will [429] presume that tbe council and its officers understood the requirements of the law, and would not enter as adopted the resolution except upon a lawful vote. Such a vote is three-fourths of the members of the council; we will presume it was had. In ordinary cases a majority vote is necessary to-adopt a resolution; if the record shows that the resolution was adopted it will be presumed to have been upon such a vote. The same presumption will be exercised in this case.. But, in addition to these considerations supporting the pro- ' ceedings, it may be said that defendants established,* by the affidavits of the officers and many of the councilmen of the city, that the required three-fourths vote was had. 3.-: cieiefhority? au' III. The first action of the .city required the plaintiff to construct the sidewalk. Upon his failure to comply with this order the city, under an ordinance, proceeded to do the work. This ordinance provides that the street committee shall have the work done upon the failure of the lot owner to do it. Plaintiff objects to this ordinance, and the proceeding under it, on the ground that the power of the city was delegated to the street committee. We are unable to discover how the power of the city could have been exercised except through some officer or officers: The committee were the officers authorized by the ordinance to exercise the authority conferred upon the city; they, as officers, exercised the power which could have been exercised only by individuals for the city. IY. It is urged that the chairman, without the concurrence- ’ of the other members of the committee, ordered the sidewalk to be made. It is shown that after the construction of the sidewalk the council assessed its cost against plaintiff. It thus approved the construction of the sidewalk. Whether it was done upon the order of the committee or qhairman alone, it was ratified by the city council. The plaintiff could not have been prejudiced thereby. [430] 4. ■■■■ — : power. [429] Y. It is lastly urged in the petition and by counsel that. [430] the sidewalk was not demanded by the public wants, but was erected for the convenience of one individual. But , these Questions are for the determination of the city council. Except for the want of authority or for fraud, the court cannot interfere in the exercise of lawful municipal authority. It is made the duty of the city council to determine whether an improvement of this character is demanded by the public. With their determination, when fairly made in the exercise of competent authority, we cannot interfere. The judgment of the District Court is Affirmed.