Jones v. City of Sheldon

Evans, J. It would be difficult to make a more confusing record than is presented herein. The plaintiff is the owner of six certain lots in the city of Sheldon, against five Of which a paving assessment was levied. “Lots 23 and 24 and the North one half of Alley” in block 6 were assessed $267.30. Lots 17 and 18 in Block 7 were assessed $237.60. Lot 15 in Block 14 was assessed $787.04. Plaintiff appeared before the city council with objections to the' assessments. Her’first objection went to the validity of the assessment in toto. This was based upon an alleged failure to pass a resolution ordering the paving. The second objection went to the validity of the assessment, because it was not apportioned according to benefits but was determined solely in proportion to frontage. The third objection went to the validity of the assess [408] ments on the ground that they were in excess of 25 per cent of the value of plaintiff’s property thus assessed. The fourth objection went to the validity of the assessments on the lots in Blocks 6 and 7, because a lump sum was' laid against the lots in pairs in each block. While the objections actually made were more numerous than the foregoing, they wére all reducible to one or the other of the above. The trial court reduced the assessment on Lot 15 in Block 14 from $787.04 to $450, on the ground that the lot thus assessed was not of greater value than $1,800. The lump assessments against the pairs of lots in Blocks 6 and 7 were split and apportioned to each separate lot, but no reduction was made therein. The validity of the assessments in all other respects was sustained. The only grievance presented by the city of Sheldon on this appeal is the reduction of the assessment on Lot 15. The grievances of the plaintiff on her appeal are coextensive with her objections as above stated. I. Turning first to the first objection named as to the invalidity of the entire proceedings, this objection is based largely upon alleged imperfections in the record of the proceedings. Some confusion arose out of a duplication of identifying numbers which were applied to certain resolutions passed by the city council. With a view to rectification, the city clerk at a later time changed the identifying number of a resolution upon his records, without any formal authority from the city council and because he deemed the existing number as his own evident mistake. The claim of invalidity rests upon the assumption that if this correction had not been made by the clerk, the invalidity of the proceedings would appear upon the face of the records. To be more' explicit, on March 20, 1913, the city council regularly adopted a proposed resolution of necessity, in compliance with the provisions of Code Sec. 810. April 28th was fixed as a time of hearing. On such date, the plaintiff [409] appeared before the city council with her objections. These objections were overruled. The proposed resolution carried the number “166”. It is conceded that, at the meeting of April 28th, all objections to the proposed pavement were overruled and that the proposed resolution was formally passed. There was before the council at the same -time an amplified form of the same resolution. This duplicated the provisions of the proposed resolution of March 20th, and in express terms “ordered” the construction of the pavement. It does not appear from the record that this resolution carried any distinctive number. It appears to have been treated as a part of the proposed resolution. The records of the meeting show the passage of Resolution Number 166. The following sections of the Code were involved: “See. 810. When the council of any such city shall deem it advisable or necessary to make or reconstruct any street improvement or sewer authorized in this chapter, it shall, in a proposed resolution, declare such necessity or advisability, stating the kind of material proposed to be used and method of construction, whether abutting property will be assessed, and, in case of sewers,'the kind and size, and what adjacent property is proposed to be assessed therefor, and in both eases designate the location and terminal points thereof, and cause twenty days’ notice of the time when said resolution will be considered by it for passage to be given by four publications in some newspaper of general circulation published in the city, the last of which shall be not less than two nor more than four weeks prior to the time fixed for its consideration, at which time the owners of the property subject to assessment for the same may appear and make objections to the contemplated improvement or sewer and the passage of said proposed resolution, at which hearing the same may be amended and passed, or passed as proposed. ’ ’ “Sec. 811. Upon compliance with the preceding section, the council may, by ordinance or resolution, order the making [410] or reconstruction of such street improvement or sewer, but the vote shall be by yeas and nays, and entered of record, and the record shall show whether the improvement was petitioned for or made on the motion of the council. ’ ’ 1. Municipal CORPORATIONS : street improvements : resolution ordering: non-necessity to copy into record book. It will be noted that Sec. 810 permits the adoption of the original resolution in an amended form after hearing had thereon. It is not necessary to pass this resolution by yea and nay vote. Under See. 811, it is required that a vote ordering the construction of a pavement shall be by “yeas and nays”. The record of the city council made on April 28th shows the adoption of number 166 and by a yea and nay vote. The record of the' meeting of March 20th shows the adoption of the proposed resolution on such date also. It appears from the evidence of the city clerk that both papers were actually before the city council for their consideration on April 28th and that, in making up the record in the form in which he did, reference was had to the final resolution ordering the improvement. Each paper was identified by an informal certification made at the time and signed by the mayor and the clerk, to the effect that they were adopted April 28, 1913. Neither of these Resolutions had ever been copied or spread upon any book. The city clerk testified on the trial that he had an ordinance book into which he expected to copy all resolutions of the city council, but had not yet copied the resolutions in question. The only record of their passage, therefore, in existence was the record or minutes of the meeting and the original papers themselves. We do not think that failure to spread the resolutions upon the pages of a book was necessarily fatal to their validity. If this had been done, such record would doubtless be the best evidence of the action of the council. Hintrager v. Kiene et al., 62 Iowa 605. [411] 2' b¿tDevide¿ce: street improvements. [410] The evidence before the trial court was the record in the [411] form in which it actually was. The objection that it was not the best evidence was not available because there was no better evidence and never had been. The' requireinent of Sec. 811, that the yea and nay vote should be entered upon the record, was fully complied with. There is no express requirement of the. statute that the resolution itself should be copied into or spread upon any record book. The original papers comprising’ the proposed resolution of March 20th as published,» and the amplification thereof, including the provision ordering the construction of the pavement, were identified by the public officials as witnesses beyond cavil. There is no uncertainty as to what was done on April 28th by the city council within the contemplation and intent of its members. It was not essential that either resolution carry a number. The only function served by such number was that of identification. Under the evidence in this ease the identification is complete without resort to the number; nor does it present any contradiction to the number if it was used. 3. Municipal corporations : street improvements ; passage of resolutions: unauthorized change by clerk: effect. We have already referred to the fact that at a subsequent time the clerk changed the number “166” to “169”. His authority to do so is challenged. Conceding that the clerk acted without authority in making such change, it will be seen from our foregoing discussion that such unauthorized act is decisive of nothing material to the controversy. We have confined our foregoing discussion to the actual state of the records as they were before the new number was substituted. Under the evidence, the proceedings were valid before the change of number was made. It was not in the power of the clerk to render them invalid by any unauthorized act. The validity of the proceedings must, therefore, be sustained. [412] 4. Municipal cohpoeations : street improvement! ofSbenefits: frontage, [411] II. Plaintiff complains that the assessment was hot made in proportion to benefit, but was determined solely in propor [412] tion to frontage. The resolution making the assessment purported to do so in accordance with the statu- . .... . tory provision requiring it to be made m pro-J r i o x Porti°n t° special benefits. The result was -¿he same as though it had been done according to frontage. There is nothing in the -statute which necessarily forbids the consideration of frontage as a basis for equitable apportionment. There may be circumstances which would render an apportionment according to frontage inequitable. In such a case, the consideration of the frontage must give way to an equitable distribution in proportion to benefits. It is safe to say that in many, if not in a majority, of eases, a distribution in proportion to frontage is equitable. We must indulge in a presumption in the first instance in favor of the action of the city council. The burden was on the plaintiff to show that the result was inequitable in her case. We do not think that the evidence in the record justifies such a contention. 5. Evidence : street improveSleSess ?9pj4*' sumption. III. The trial court found that the actual value of Lot 15 was $1,800. Its assessed value was $1,600. The plaintiff contends that the assessed value should prevail, whereas the defendant contends that the testimony showed a higher valuation than $1,800. An examination of the evidence satisfies us that the conclusion of the trial court is well sustained by it and that the reduced assessment of $450 against this lot should be sustained. 6. Municipal cohpoeations : street improve-meats ¡ assesstion asetomp’ value' IV. An assessment of $237.60 was made' against Lots 17 and 18 in Block 7. The last assessed valuation of this property is shown to be $600 and no more. Plaintiff urges that the assessment should be reduced because there . is no evidence to overcome the statutory pre- - sumption in favor of such assessed valuation, No evidence is pointed out to us by the defendant which shows, a greater valuation. We must, therefore, adopt the valuation fixed in the last assess [413] rnent. This would necessitate a reduction of the assessment on this property to $150. This amount should be distributed between the lots in the proportion fixed by the district court. As to the lots in Block 6, the testimony is sufficient to show a valuation of $1,200. The assessment on this property of $267.30 must be sustained, subject to the distribution made by the decree of the district court. 7. Municipal CORPORATIONS t street improvements : assessing different lots in lump sum: apportionment. V. Referring to the assessment of lump sums against the pairs of lots in Blocks 6 and 7, the trial court distributed such assessment in proportion to the frontage of each lot, and assessed against each lot its own proportionate share. The plaintiff complains of this action of the district court, in that it had no evidence to justify such a distribution. The argument is that there was no evidence to show which lot, if either, received the greater benefit, nor what the comparative benefits were to the respective lots. There is a sense in which it is true that the evidence is silent on this question. It does appear, however, in a general way throughout the testimony that the character and location of each of the two lots in a given block were substantially the same. An equitable apportionment, therefore, would presumptively result in a distribution between them according to frontage. The action of the trial court in this respect was, therefore, justified. The decree entered below will be modified by a reduction and distribution of the tax assessed against the lots in Block 6, including the alley. A decree may be entered here distributing the tax, $150, between such lots and the alley in proportion to frontage. In all other respects the decree entered below will be affirmed. — Modified and Affirmed. Deemer, C. J., Weaver and Preston, JJ., concur.