Benshoof v. City of Iowa Falls

Evans, C. J.

(Dissenting in part.) — I am unable to concur in the majority view as expressed in the first division of the opinion. The general contention of the appellee plaintiff is that the power of assessment conferred upon the municipal corporation is legislative wholly; that the power thus confer*44red by the legislature may by the same authority be changed or withdrawn at any time; that the municipal corporation itself has no vested rights in the revenue method provided for it; that the taxpayer has no vested right in such methods, provided only that his property shall not be taken or assessed without due process of law, including due notice at some stage of the proceedings before the assessment is laid against his property. This was the holding of the trial court.

Conceding, that the question at this point is close and difficult of solution, I think that the holding of the trial court should be sustained.

As to the cases cited in support of the majority view, none of the holdings contravened express provisions of the statute. In the Ohio case cited, a constitutional provision was involved which forbade retroactive legislation. The new statute under consideration herein provides in express terms that it shall apply to “any special assessment for street improvement” to be levied “after January 1, 1914.” The majority holding, therefore, necessarily contravenes this express provision of the statute.

We have no constitutional provision forbidding retroactive legislation. True, we will not construe a statute as being retroactive unless its express terms require it. If its express terms do require it, it is beyond our power to ignore it. If such a construction, however, would render the statute unconstitutional, we might then give it construction which would save its validity.

If it be correct, then, that no jurisdiction could be acquired .over non-abutting property at this stage of the 'proceedings, such fact might be a sufficient reason for denying the application of the new statute to the pending proceedings. The notice provided for by Section 810, Code Supp., 1913, is jurisdictional in the sense that, as a statutory .requirement, it was a limitation upon the power of the municipality. A notice at .that particular stage of the proceedings was not required by .reason of any constitutional provision. It was *45necessary, in obedience to the Constitution, to provide for notice to the property owners, at some stage of the proceedings, before the assessment should be levied. Section 823, Code Supp., 1907, makes provision for such a notice which answers every requirement of the Constitution. It was within the power of the legislature, therefore, to dispense with the preliminary notice required by Section 810; and such is the effect of the new statute, if it be deemed applicable to the pending proceedings.

Section 823 is as follows:

“After filing the plat and schedule, the council shall give notice by two publications in each of two newspapers published in the city, if there be that number, otherwise in one, and by handbills posted in conspicuous places along the line of such street improvement or sewer, that said plat and schedule are on file in the office of the clerk, and that within twenty days after the first publication all objections thereto, or to the prior proceedings, on account of errors, irregularities or inequalities, must be made in writing and filed with the clerk; and the council, having heard such objections and made the necessary corrections, shall then make the special assessments as shown in said plat and schedule, as corrected and approved. ’ ’

The case of Ross v. Board of Supervisors, 128 Iowa 427, is quite in point here. That case involved a drainage proceeding. All the preliminary proceedings, including the construction of the drain, had been had under a statute later.held to be unconstitutional. The legislature passed a new statute providing for special assessments; and special assessments were levied thereunder for this improvement against persons who had no notice of the preliminary proceedings but did.have notice of the proposed special assessment. We quote from the opinion as follows:

“The appellant takes the position that the landowner is entitled to notice and hearing as to the extent of this district, and whether his land shall be included therein and that the *46failure to provide for such notice and hearing renders the statute . unconstitutional. In our opinion the objection is unsound. The division of a state or lesser municipal territory into districts for the purposes of taxation or public improvement is a legislative matter, and the citizens affected thereby cannot complain because the power is exercised without notice to him. . . . ‘It is settled that if provision is made for notice to and hearing of each proprietor at some stage of the proceedings upon the question of what proportion of the tax shall be assessed upon his land, there is no taking of property without' due process of law.’ In the case before us, there is, under the statute, as amended, ample provision for a notice to every landowner, and opportunity given for the hearing of all objections he may have to assert against the validity and justice of the proposed charge upon his property. This, under the law, is all he can rightfully ask.”

A similar question was involved in Arnold v. City of Fort Dodge, 111 Iowa 152. The plaintiff in that case had no preliminary notice that the cost of guttering and curbing would be assessed against her property. She did, however, receive the notice provided for by Section 823. We said in that case:

“She then had notice and opportunity to be heard before the assessment attached and became a lien upon her property, and this is all the law requires.”

The following from the Supreme Court of the United States bears upon the same, question:

“The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laying out, grading or repairing of a street, to be assessed upon the owners of lands benefited thereby; and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion. ... If the legislature provides for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question what propor*47tion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.” Spencer v. Merchant, 125 U. S. 345.

Section 2 of the new statute purports to repeal all acts or parts of acts that are inconsistent therewith. It would seem, therefore, that by the express terms of this enactment the requirement of preliminary notice, as provided in Section 810, was dispensed with, so far as new parties were affected by the new legislation. Inasmuch as the notice provided for by Section 823 meets all constitutional requirements, the legislature had constitutional power to dispense with the preliminary notice provided for by Section 810. If it did dispense with such notice as to new parties, the jurisdiction of the municipality is as broad as the legislative permission.

I concur in Division II of the majority opinion.

Salinger, J., joins in the foregoing dissent.